Geraldine Burley v. Jeffery Gagacki

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0263p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiffs-Appellants, -
GERALDINE BURLEY; CAROLINE BURLEY,
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Nos. 12-1820/13-1098
v.
,
>
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JEFFERY GAGACKI; WAYNE COUNTY; EARL
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DOE; PATRICK BROWNE; SHAWN REED;
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BRIAN WOLOSKI; SCOTT HARDING, WILLIAM
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HANGER, aka “K. Hanger”; JEFFREY PIEROG;

Defendants-Appellees. -
and CHRISTOPHER LAND,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cv-10555—Bernard A. Friedman, District Judge.
Argued: July 31, 2013
Decided and Filed: September 6, 2013
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.

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COUNSEL
ARGUED: Stanley I. Okoli, ROMANO LAW, P.L.L.C., Southfield, Michigan, for
Appellants in 12-1820 and 13-1098. Theresa M. Urbanic, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellees Gagacki, Browne, Reed,
Woloski, and Harding in 12-1820 and 13-1098. Aaron C. Thomas, WAYNE COUNTY
CORPORATION COUNSEL, Detroit, Michigan, for Appellee Wayne County. Joseph
T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee Hanger. Raechel M. Badalamenti, KIRK HUTH, LANGE &
BADALAMENTI, PLC, Clinton Township, Michigan, for Appellee Pierog. John A.
Schapka, MACOMB COUNTY CORPORATION COUNSEL, Mount Clemens,
Michigan, for Appellee Land. ON BRIEF: Stanley I. Okoli, ROMANO LAW,
P.L.L.C., Southfield, Michigan, for Appellants in 12-1820 and 13-1098. Theresa M.
Urbanic, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellees
Gagacki, Browne, Reed, Woloski, and Harding in 12-1820 and 13-1098. Aaron C.
Thomas, WAYNE COUNTY CORPORATION COUNSEL, Detroit, Michigan, for
Appellee Wayne County. Joseph T. Froehlich, OFFICE OF THE MICHIGAN

1
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 2

ATTORNEY GENERAL, Lansing, Michigan, for Appellee Hanger. Raechel M.
Badalamenti, KIRK HUTH, LANGE & BADALAMENTI, PLC, Clinton Township,
Michigan, for Appellee Pierog. John A. Schapka, MACOMB COUNTY
CORPORATION COUNSEL, Mount Clemens, Michigan, for Appellee Land.
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OPINION
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GRIFFIN, Circuit Judge. On June 13, 2007, masked law enforcement agents,
dressed in black, with guns drawn, broke into a home at 20400 Greeley Street in the City
of Detroit. Within the confines of plaintiffs’ home, the masked agents allegedly
assaulted and terrorized plaintiffs Geraldine and Caroline Burley. When Geraldine
Burley asked the intruders to identify themselves, the agents refused, responding instead
that they were “Team 11.”

In this action asserting claims of excessive force and violation of the Fourth
Amendment, the identities of the masked agents who raided the home and allegedly
assaulted plaintiffs became the central focus of the litigation. This task was difficult for
plaintiffs because the agents intentionally concealed their identities and the raid was part
of a vast multi-law enforcement operation involving Wayne County, and federal, state,
and municipal law enforcement agents.

Before trial, the district court granted summary judgment in favor of defendants
Wayne County and the state and municipal officers. Thereafter, trial began against the
federal agents, only. However, at the close of plaintiffs’ proofs on liability, the district
court granted judgment as a matter of law in favor of the federal defendants. Later, the
district court awarded the federal defendants costs and required plaintiffs to post a
supersedeas bond. Plaintiffs now appeal.

Regarding the federal defendants, we hold that judgment as a matter of law was
error requiring reversal because genuine issues of material fact exist with respect to their
personal involvement in the raid and alleged conduct in violating plaintiffs’
constitutional rights. Further, on remand, the district court may consider whether the
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circumstances of this case, which include an intentional concealment of identity, coupled
with an “I wasn’t there” defense, warrants shifting the burden of production onto the
federal agents to establish their lack of involvement. See generally Dubner v. City &
Cnty. of San Francisco, 266 F.3d 959 (9th Cir. 2001). We find no error requiring
reversal in the district court’s other rulings. Accordingly, we AFFIRM in part,
REVERSE in part, VACATE the judgment of costs and supersedeas bond order, and
REMAND for further proceedings consistent with this opinion.

I.

The search of plaintiffs’ home was part of “Operation 8 Mile,” a large-scale,
multi-agency effort targeting drug trafficking and other crimes in the area known as the
“8 Mile Corridor.” Hundreds of officers from numerous agencies assisted in securing
and executing warrants at locations of suspected illegal drug activity. The federal
defendants named in plaintiffs’ complaint were part of a special task force of the Drug
Enforcement Agency (“DEA”) known as DEA Group 6.1 The state and local defendants
named in plaintiffs’ complaint were part of a narcotics task force called the County of
Macomb Enforcement Team (“COMET”).

According to plaintiffs, they were inside their home located at 20400 Greeley
Street in the City of Detroit on June 13, 2007, when they heard a loud boom. When
Geraldine Burley came upstairs from the basement, an officer put a gun to her face and
said “[g]et on the floor.” She explained that she needed to ease herself to the floor
because she had undergone two knee replacements. At that point, another officer
appeared, ordered Geraldine to the floor, and shoved her into the table. She hit her head,
shoulder, neck, and back against the table as she fell to the ground. Another officer
walked on top of her body. When Geraldine’s adult daughter, Caroline, heard the loud
boom and entered the living room, an officer allegedly put a gun to her face and told her,
“[s]top, put your hands up.” The officer threw her against the wall and onto the floor.
When he placed his foot on her back, Caroline hollered, “[g]et your feet out [of] my

1
Gagacki, although employed by the Wayne County Sheriff’s Office, was assigned to DEA Group
6 at all times relevant to this case.
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 4

back. I’ve had back surgeries.” Sometime thereafter, another officer placed his foot on
her back, and Caroline again explained that she had undergone back surgeries. Later,
all occupants of plaintiffs’ home were secured in the living room. According to
plaintiffs, the officers were dressed in black clothing with their faces covered except for
their eyes, concealing their identities. When Geraldine asked for the officers’ names,
one of the officers was about to write them down when another officer stopped him and
said, “No, just put Team 11.”

In this action, the identities of the raiding and assaulting officers was critical
because individual liability requires a showing of personal involvement in the
deprivation of a constitutional right. To this end, plaintiffs’ attorneys requested,
pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, disclosure of the
identities of the officers involved. Two years later, Wayne County furnished an
investigation report prepared by DEA Officer Daniel Krause regarding the raid of
plaintiffs’ residence at 20400 Greeley. The report indicates that Jeffery Gagacki, Patrick
Browne, Shawn Reed, Brian Woloski, Scott Harding, and William Hanger (“federal
defendants”), and Christopher Land and Jeffrey Pierog (“state and local defendants”)
executed the search warrant at 5:35 p.m. on June 13, 2007. Relying on this information,
plaintiffs promptly amended their complaint to add the aforementioned individual
defendants.

A second DEA report indicates that Gagacki, Browne, Reed, Woloski, Harding,
Perry Dar, and Calvin Higgins executed a search warrant at 20400 Hull, a nearby
address, at 5:30 p.m. on the same day. The district court record also includes two Wayne
County incident reports signed by Gagacki, one for 20400 Greeley and the other for
20400 Hull, indicating that the searches were executed simultaneously, both beginning
at 6:00 p.m. The Wayne County incident reports do not list the officers involved.

Plaintiffs’ amended complaint alleged three counts. In Count I, plaintiffs claimed
that the state and local defendants used excessive force in executing the search warrant
at their home, thereby violating their constitutional rights and entitling them to damages
under 42 U.S.C. § 1983. In Count II, also brought under § 1983, plaintiffs alleged that
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 5

Wayne County had a policy of allowing officers to use excessive force and a policy of
withholding officer identities and denying the existence of records to prevent victims
from redressing police misconduct, and that these policies either caused or contributed
to the violation of their constitutional rights. See generally Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). In Count III, plaintiffs alleged that the federal defendants
violated their rights secured by the Fourth Amendment, resulting in civil liability under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).

In the initial stages of discovery, the federal defendants did not affirmatively
assert their lack of involvement in the raid. It was only in their depositions, after the
limitations period had run, that the federal defendants alleged that they did not
participate in the raid of plaintiffs’ home but were instead executing a search warrant at
20400 Hull at the time. Gagacki and Reed testified that it would be physically
impossible for an officer to have engaged in the execution of both search warrants
simultaneously or, at most, five minutes apart. Gagacki admitted that he entered
plaintiffs’ residence, but he claims to have done so only after the premises were secured
in order to prepare the search warrant return; at that point, plaintiffs were already seated
in the living room. Responding to the federal defendants’ belated “I wasn’t there”
defense, plaintiffs filed a motion seeking the sanction of default. Plaintiffs complained
that the federal defendants waited until their depositions to deny participation in the
execution of the search warrant at their residence and to identify other members of DEA
Group 6 who may have been present. The district court denied the motion because it
found insufficient proof of any discovery violation—rather, “[t]he only thing we have
is the plaintiffs’ general dissatisfaction with the lack of information that they received.”

Thereafter, all defendants moved for summary judgment. The district court
granted Wayne County’s motion, concluding that (1) plaintiffs failed to provide any
support for the assertion that Wayne County had a duty to train non-Wayne County
police officers; (2) Wayne County presented evidence that it trained its deputies on the
subjects of use of force and citizens’ arrests; and (3) Wayne County presented evidence
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that it had a policy of complying with FOIA and did produce records pertaining to the
search of plaintiffs’ home.

The district court also granted summary judgment in favor of the state and local
defendants. First, with regard to plaintiffs’ claim that the warrant was defective because
it contained “discrepancies,” the district court found that plaintiffs failed to provide
“allegations of deliberate falsehood or of reckless disregard for the truth” and therefore
did not “defeat the strong presumption of validity of a warrant affidavit.” Moreover,
even assuming a discrepancy, the district court found that plaintiffs failed to demonstrate
that the misstatement was material to a finding of probable cause. Thus, plaintiffs failed
to create a genuine issue of material fact whether the search of 20400 Greeley was made
pursuant to a valid search warrant.

Second, the district court concluded that the state and local defendants’ role in
Operation 8 Mile was limited to assisting the DEA by providing “perimeter security.”
Unrebutted testimony revealed that “the DEA had their own entry team,” and COMET
entered the house only after the premises was secured. Because the state and local
defendants were indisputedly assigned to perimeter security, the district court found that
they “did not observe or have reason to know that excessive force would be or was being
used.”

However, the district court denied the federal defendants’ motion for summary
judgment. The federal defendants argued that they were entitled to qualified immunity
and plaintiffs failed to create a genuine issue of material fact that they used any force,
much less excessive force, against them. But the district court found that plaintiffs’
account of their treatment during the raid of their home “could” constitute excessive
force and there was “a question of fact regarding whether [the federal defendants] were
present in the home during the alleged exercise of excessive force” and may have
“witnessed such force.” According to the district court, the possibility of the federal
defendants’ presence inside plaintiffs’ home was established by the warrant reports.

Proceeding to trial against the federal defendants only, plaintiffs filed motions
in limine to exclude evidence of Geraldine Burley’s prior slip-and-fall lawsuit against
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 7

a hotel and evidence that plaintiffs receive Social Security disability benefits. The
district court denied plaintiffs’ motions, finding that the evidence was admissible on the
question of damages. According to the district court, when plaintiffs allegedly suffered
injuries during the raid of their home, they were already receiving Social Security
disability benefits for the same or similar injuries, and Geraldine’s injuries alleged in the
present lawsuit were also alleged in her prior slip-and-fall claim.

Nearing the close of plaintiffs’ proofs on liability, and after all other witnesses
had testified, the following sidebar conference occurred:

MR. OKOLI [plaintiffs’ counsel]: We propose putting on the plaintiffs
at this time because they recognize some of the voices of the officers.
MR. WOODARD [federal defendants’ counsel]: The voices of the
officers?
MR. OKOLI: Yes.
THE COURT: In your opening statement—what’s your argument?
MR. WOODARD: That’s contrary to the opening statements. It’s the
first I’ve ever heard of this.
MR. OKOLI: Sure, they never saw—they testified they didn’t recognize
them visually, but they recognized them from the sounds of their voices.
THE COURT: You can put them on.
MR. OKOLI: Thank you.
THE COURT: I would remind you of the penalty of perjury.
MR. OKOLI: Sure.

At trial, Geraldine Burley testified that she recognized Gagacki’s voice as one
she had heard during the execution of the search warrant at her home. Allegedly, she
recognized Gagacki’s voice for the first time when he testified. She insisted that she
remembered hearing Gagacki’s voice while she was sitting on the kitchen floor (i.e.,
when the alleged use of excessive force occurred), although she could not recall what
Gagacki had said. Additionally, Caroline Burley testified that she recognized Woloski’s
voice for the first time after hearing him testify and seeing him on the stand. She said
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 8

that Woloski handed her paperwork in the living room, after the execution of the search
warrant.

Following this testimony, the federal defendants moved for judgment as a matter
of law. Addressing the motion, the district court judge who admitted into evidence the
voice-recognition evidence, expressed a sense that plaintiffs’ belated claims that they
recognized the voices of Gagacki and Woloski was unfair. “The first time that [the
district court] heard of the allegations that there was some identification either by voice
or otherwise was . . . moments before” plaintiffs took the stand. The district court
described plaintiffs’ actions as “trial by ambush.” After ostensibly considering all of the
admissible evidence, the district court ruled that no reasonable jury could find that the
federal defendants “observed or had reason to know that excessive force was being used”
or “had both the opportunity and means to prevent” it from occurring. Thus, the district
court awarded the federal defendants judgment as a matter of law. Plaintiffs timely
appealed.

Following the district court’s judgment, the federal defendants filed a bill of
costs, which the district court granted in the amount of $5,761.47. Plaintiffs moved to
stay the judgment of costs pending the outcome of their appeal. The district court
granted plaintiffs’ motion to stay, but required plaintiffs to post a supersedeas bond in
the amount of $5,761.47. Plaintiffs filed a motion for reconsideration of the supersedeas
bond order, which the district court denied. When plaintiffs failed to timely comply with
the supersedeas bond order, the federal defendants filed a motion to lift the stay, which
the district court granted. Meanwhile, plaintiffs had filed a motion for an extension of
time to appeal the supersedeas bond order, which the district court granted. Having
received leave from the district court, plaintiffs appealed.

Plaintiffs raise six issues on appeal. They argue that the district court committed
error requiring reversal by (1) denying plaintiffs’ motion for the sanction of default;
(2) granting Wayne County’s motion for summary judgment; (3) granting the state and
local defendants’ motion for summary judgment; (4) denying plaintiffs’ motions in
limine; (5) granting the federal defendants’ motion for judgment as a matter of law; and
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 9

(6) awarding costs in favor of the federal defendants and ordering plaintiffs to post a
supersedeas bond.

II.

We review a district court’s decision whether to impose discovery sanctions for
an abuse of discretion. Louzon v. Ford Motor Co., 718 F.3d 556, 560 (6th Cir. 2013).
“A district court abuses its discretion when it relies on clearly erroneous findings of fact,
or when it improperly applies the law or uses an erroneous legal standard.” Graham-
Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)
(internal quotations marks and brackets omitted). We will reverse under this standard
only when we are “firmly convinced that a mistake has been made.” Morales v. Am.
Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998).

In their motion for a default, plaintiffs complained that the federal defendants
violated a discovery request. In particular, the federal defendants were asked in
interrogatories whether they denied the allegation that they had violated plaintiffs’
Fourth Amendment rights. If so, they were instructed to provide all reasons for denying
the allegation. Although the federal defendants responded by denying that they had
violated plaintiffs’ rights, they did not affirmatively assert their absence from the scene
as a reason—thus, their responses were, at a minimum, incomplete. It was only in their
depositions, after the limitations period had run, that the federal defendants alleged that
they were not present during the execution of the search warrant. Obviously, this
information would have been helpful to plaintiffs earlier in the litigation. However,
while it was apparent that the federal defendants did not fully respond to the
interrogatories, plaintiffs failed to file a motion to compel discovery.

In addition, plaintiffs filed their motion for the sanction of default pursuant to
Federal Rule of Civil Procedure 37(b), which provides that a district court may render
a default judgment against a party who fails to comply with a court order compelling
disclosure or discovery. By its terms, Rule 37(b) requires a party seeking a sanction of
default against a party to secure a court order compelling disclosure or discovery.
DeJesus v. Adkins, 46 F. App’x 244, 247 (6th Cir. 2002) (order); see also Malautea v.
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 10

Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (“[T]he severe sanction
of . . . default judgment is appropriate only as a last resort, when less drastic sanctions
would not ensure compliance with the court’s orders.”). Here, because plaintiffs never
moved to compel disclosure or discovery, the federal defendants did not violate any
court order that would justify any sanction under Rule 37, let alone the sanction of last
resort.

Plaintiffs also contend that the federal defendants’ belated denial of being present
should have been included as an affirmative defense in their response to plaintiffs’
complaint. But plaintiffs failed to raise this argument below. Moreover, plaintiffs’
understanding of the law is incorrect. It is firmly established that a plaintiff asserting a
Bivens claim, as part of her prima facie case, must offer evidence to support an
individual defendant’s personal involvement in the deprivation of a constitutional right.
Mueller v. Gallina, 137 F. App’x 847, 850 (6th Cir. 2005); Gossmeyer v. McDonald, 128
F.3d 481, 495 (7th Cir. 1997). Thus, under normal circumstances, a defendant’s absence
from the scene is not an affirmative defense for which the defendant bears the burden of
proof. For these reasons, the district court did not abuse its discretion in denying
plaintiffs’ motion for the sanction of default.

III.

Next, plaintiffs challenge the grant of summary judgment in favor of Wayne
County, which we review de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.
2009). Summary judgment is proper when, viewing the evidence in the light most
favorable to the nonmoving party, there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
CareToLive v. FDA, 631 F.3d 336, 340 (6th Cir. 2011).

“A municipality can be liable under 42 U.S.C. § 1983 only if the plaintiff can
demonstrate that his civil rights have been violated as a direct result of that
municipality’s policy or custom” or if a “failure to train amounts to deliberate
indifference” to such rights. Blackmore v. Kalamazoo County, 390 F.3d 890, 900
(6th Cir. 2004) (citing Monell, 436 U.S. at 694). Needless to say, for a municipality’s
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 11

policy or custom to directly result in a violation of civil rights, the policy or custom must
be in operation. In this case, plaintiffs conceded in their complaint that Gagacki, the
only Wayne County employee alleged to have participated in the execution of the search
warrant at their home, was “deputized as a federal drug enforcement agent working
under the auspices of the federal government.” As such, with regard to the raid itself,
the district court properly concluded that the federal government’s policies and customs
were at issue, and not those of Wayne County.

Plaintiffs also claim that Wayne County maintained an unconstitutional custom
or policy of withholding the identities of its deputies to thwart victims’ efforts to redress
police misconduct. The evidence, however, belies such a claim. Wayne County
submitted evidence of its policy to comply with FOIA and process such requests in a
timely manner. Further, the evidence reveals that Wayne County identified to plaintiffs
the DEA as the agency to contact for the records pertaining to the raid of their home.
Wayne County provided plaintiffs with a contact name and number at the DEA to
facilitate their efforts. Although the DEA apparently failed to furnish documents related
to the search of plaintiffs’ home, the district court properly reasoned that Wayne County
“is not liable for the DEA’s actions.”

Plaintiffs’ theory based on a failure to train similarly fails. A municipality’s duty
to train extends only to “its employees,” City of Canton v. Harris, 489 U.S. 378, 389
(1989), and it can be liable only if its failure to train was “closely related to” or “actually
caused” the plaintiff’s injuries, Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).
Plaintiffs have failed to provide proof on either essential element. There is no evidence
in the record that anyone in Wayne County’s employ, other than Gagacki, participated
in the execution of the search warrant at 20400 Greeley. To the contrary, the evidence
indicates that the individuals who executed the search warrant were either directly
employed by, or, like Gagacki, working under the supervision of, the DEA. Any duty
to train rested with the DEA, and only the DEA’s inadequate training could form the
basis of a failure-to-train claim. In short, viewing the evidence in the light most
favorable to plaintiffs, no reasonable jury could find municipal liability under § 1983.
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IV.

Plaintiffs also appeal the grant of summary judgment in favor of the state and
local defendants, which we review de novo. Geiger, 579 F.3d at 620. Plaintiffs no
longer contest the validity of the search warrant, but limit their argument on appeal to
their use-of-excessive-force claim brought under 42 U.S.C. § 1983.

“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that,
when construed favorably, establish (1) the deprivation of a right secured by the
Constitution or laws of the United States (2) caused by a person acting under the color
of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006). “The
use of excessive force in the execution of a search warrant constitutes a Fourth
Amendment violation.” Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). To
establish liability against an individual defendant acting under color of state law, a
plaintiff must show that the defendant was “personally involved” in the use of excessive
force. Id. at 650.

As evidence of the state and local defendants’ personal involvement, plaintiffs
point to the investigation report, which lists them as having been present during the
execution of the search warrant. The state and local defendants concede that they were
present at the scene. However, other record evidence, which is not inconsistent with the
investigation report, overwhelmingly indicates that the state and local defendants were
not part of the entry team and their role was limited to perimeter security. According to
unrebutted testimony, “the DEA had their own entry team,” and COMET entered the
house only after the premises was secured. Until then, COMET performed perimeter
security only. Even Krause, who is not a party to this litigation, testified that COMET’s
role was limited to providing perimeter security. As Krause explained, “[p]erimeter
security is just as it says, to secure the perimeter, [so] that when agents are making entry,
that no one comes up to the house and if there’s anybody running from the house, it’s
our job to detain them at that time.” “As a general rule, mere presence at the scene of
a search, without a showing of direct responsibility for the action, will not subject an
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officer to liability.” Ghandi v. Police Dep’t of Detroit, 747 F.2d 338, 352 (6th Cir.
1984).

Plaintiffs point to evidence suggesting that the state and local defendants entered
their home at some point. However, such evidence does not create a question of fact as
to whether they were part of the entry team. According to Krause, “[a]fter the residence
was secured, meaning the entry team secures the basement, the main floor and the
upstairs, they’ll announce to the outside perimeter people that the house is secure, we
can come in.” Simply, the fact that the state and local defendants entered plaintiffs’
home at some point does not establish their personal involvement in the alleged use of
excessive force.

Alternatively, plaintiffs argue that the state and local defendants are liable under
a failure-to-intervene theory. “[A] police officer who fails to act to prevent the use of
excessive force may still be held liable where ‘(1) the officer observed or had reason to
know that excessive force would be or was being used, and (2) the officer had both the
opportunity and the means to prevent the harm from occurring.’” Floyd v. City of
Detroit, 518 F.3d 398, 406 (6th Cir. 2008) (quoting Turner v. Scott, 119 F.3d 425, 429
(6th Cir. 1997)). This argument lacks merit for the same reasons stated
above—undisputed testimony overwhelmingly indicates that the state and local
defendants were not part of the entry team but provided perimeter security only.
Because no evidence places the state and local defendants inside plaintiffs’ home at the
appropriate time to witness or respond to any unconstitutional conduct that may have
occurred, the district court properly granted their motion for summary judgment.

V.

Next, plaintiffs argue that the district court erred in denying their motions in
limine. We review for an abuse of discretion a district court’s ruling on a motion in
limine. Branham v. Thomas M. Cooley Law Sch., 689 F.3d 558, 562 (6th Cir. 2012).
In this case, plaintiffs sought to exclude evidence of their receipt of Social Security
disability benefits and Geraldine’s prior slip-and-fall claim against a hotel. The district
court ruled that the evidence was admissible on the question of damages because the
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 14

benefits that plaintiffs receive, and the compensation awarded in the prior lawsuit, are
for injuries similar to those allegedly sustained during the search of their residence.
Although plaintiffs now challenge the district court’s ruling of admissibility, the ruling
had no bearing on the outcome of the proceedings because the evidence was never
introduced at trial. United States v. Morales, 687 F.3d 697, 702 (6th Cir. 2012).
Consequently, the alleged error is moot. See generally United States v. Marrero, 651
F.3d 453, 471 (6th Cir. 2011) (“[R]eversal is appropriate only if the abuse of discretion
was not harmless error, that is, only if the erroneous evidentiary ruling affected the
outcome of the trial.” (internal quotation marks and brackets omitted)).

VI.

Next, plaintiffs challenge the grant of judgment as a matter of law in favor of the
federal defendants, which we review de novo. Jackson v. FedEx Corp. Servs., Inc.,
518 F.3d 388, 391–92 (6th Cir. 2008). Judgment as a matter of law is appropriate “[i]f
a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party
on that issue.” Fed. R. Civ. P. 50(a). “In other words, the decision to grant judgment
as a matter of law or to take the case away from the jury is appropriate whenever there
is a complete absence of pleading or proof on an issue material to the cause of action or
when no disputed issues of fact exist such that reasonable minds would not differ.”
Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir. 1999) (internal quotation marks
omitted).

In this case, the district court determined that the federal defendants were entitled
to judgment as a matter of law on plaintiffs’ Bivens claim. Bivens provides for personal
liability against a federal officer for violating an individual’s constitutional rights.
403 U.S. at 388. In pursing such a claim, a plaintiff must be able to identify with
particularity the federal officer who engaged in the alleged misconduct because a federal
officer “is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009). In this appeal, plaintiffs assert that the record contains evidence from which
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a reasonable jury could find that the federal defendants were the individuals who entered
their home and engaged in the use of excessive force. We agree.

We conclude that judgment as a matter of law was error requiring reversal in
light of the voice-recognition evidence. Although the district court correctly discounted
the testimony placing Woloski at the scene (because Caroline Burley stated that she
heard his voice only after the search warrant had been executed), it improperly
discredited Geraldine Burley’s testimony that she recognized Gagacki’s voice as one she
heard during the execution of the search warrant. The district court reasoned:

[T]here has to be some kind of evidence that the [federal defendants]
observed or had reason to know excessive force was being used, that
[they] had both the opportunity and means to prevent that from
happening and so forth. And, again, even [viewing the voice-
recognition] testimony in the light most favorable to them, there [are] no
facts that a reasonable jury could rely upon especially in light of the fact
that [Geraldine] testified that they all had masks on, and that she had
already been hit on the head [when she allegedly heard Gagacki’s voice].

In general, witness credibility is a jury function. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In deciding whether to grant a motion for judgment as a
matter of law, the district court must consider all admissible evidence and all reasonable
inferences therefrom in the light most favorable to the non-moving party, “without
making credibility determinations or weighing the evidence.” Jackson, 518 F.3d at 392
(emphasis added).

In the present case, although there may be reasons to discount Geraldine Burley’s
voice-recognition testimony, the decision should have been left to the jury. If a jury
believed Geraldine’s testimony, then it could reasonably find that Gagacki was part of
the entry team that executed the search warrant. From there, it would be reasonable to
infer that Gagacki (1) was personally involved in the alleged use of excessive force or
(2) failed to intervene to prevent it. Further, because Gagacki and the other federal
defendants worked as a team at all times relevant to this case, a jury could reasonably
infer that the other federal defendants also (1) were personally involved in the alleged
use of excessive force or (2) failed to intervene to prevent it. Under these circumstances,
Nos. 12-1820/13-1098 Burley, et al. v. Gagacki, et al. Page 16

the evidence and its reasonable inferences created a disputed issue of material fact such
that reasonable minds could differ.

Additionally, we are not inclined to shield the federal defendants from liability
as a reward for their unethical refusal to identify themselves by name and badge number.
There is no dispute that the raid of plaintiffs’ residence occurred. Moreover, plaintiffs’
inability to identify the officers who entered their home is the consequence of the agents’
conduct—the officers wore black clothing and face masks, with the intent to conceal
their identities, and refused to provide their names when asked. Significantly, the federal
defendants’ names are listed on the report of investigation as the parties who executed
the search warrant at their residence. Although an officer’s mere presence at the scene
of a search is insufficient to establish individual liability under § 1983, Ghandi, 747 F.2d
at 352, here the agents’ intent to conceal contributed to plaintiffs’ impaired ability to
identify them.

In this regard, we note that the Ninth Circuit has addressed this issue. In Dubner
v. City & County of San Francisco, the plaintiff filed an unlawful arrest claim under
§ 1983 but could not prove that the defendants were the officers who arrested her.
Dubner, 266 F.3d at 961. As the court explained:

[The plaintiff] did everything she possibly could to identify the arresting
officers. She obtained a copy of the arrest report and, assuming the
officers listed were in fact the arresting officers, named them in her
suit. . . . [The plaintiff] could reasonably assume she had named the right
officers or the City would come forward with the name[s] of the officers
who actually arrested her.

Id. at 965. Because the plaintiff had met her burden on the issue of unlawful arrest, our
sister circuit held that it was appropriate to shift the burden of production onto the
defendants, who were in a better position to gather information about the arrest and come
forward with evidence of probable cause. Id. The court reasoned that shifting the
burden of production “prevent[s] this exact scenario where police officers can hide
behind a shield of anonymity and force plaintiffs to produce evidence that they cannot
possibly acquire.” Id. See also Wesby v. Dist. of Columbia, 841 F. Supp. 2d 20, 42
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(D.D.C. 2012) (reasoning that “it would not be in the interest of justice to grant summary
judgment to police officers who signed the arrest forms but are now unwilling to take
responsibility for the arrests”); Rauen v. City of Miami, No. 06-21182-CIV, 2007 WL
686609 at *4 (S.D. Fla. Mar. 2, 2007) (finding dismissal improper based on plaintiffs’
failure to identify the officers because “it would reward [the officers] for their uniform
method of dress . . . , which makes it virtually impossible for an observer to identify the
officers or departments behind each face shield”).

In the present case, we express no opinion on whether our circuit should adopt
the Ninth Circuit’s burden-shifting approach. Instead, we leave it to the discretion of the
district court on remand to decide the matter in the first instance.

VII.

Finally, in light of our decision to reverse the judgment in favor of the federal
defendants, we vacate the district court’s award of costs and supersedeas bond order.

VIII.

For these reasons, we AFFIRM the judgment in favor of Wayne County and in
favor of the state and local defendants. We REVERSE the judgment regarding the
federal defendants, VACATE the order of costs and supersedeas bond, and REMAND
for further proceedings consistent with this opinion.