Srisavath v. City of Brentwood

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0432n.06
Filed: June 20, 2007

No. 06-6067

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SRIRASACK SRISAVATH, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
CITY OF BRENTWOOD; JOHN MAXWELL, ) OPINION
BPD Officer; T. CAMPSEY, Det. BPD, )
)
Defendants, )
)
SGT. WILLIAM RICHARDSON, BPD, )
)
Defendant-Appellant. )

BEFORE: SILER, MOORE, and COLE, Circuit Judges.

R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellee Srirasack Srisavath brought suit

against Defendant-Appellant Sergeant William Richardson under 42 U.S.C. § 1983, alleging that

Richardson violated Srisavath’s Fourth Amendment rights upon stopping Srisavath’s vehicle and

arresting him in response to an anonymous tip. The district court denied Richardson’s motion to

dismiss the complaint based on qualified immunity, and we affirmed. After discovery, Richardson

moved for summary judgment based on qualified immunity, and the district court denied the motion.

The district court also denied Richardson’s motion to reconsider the denial of summary judgment,

and Richardson again appealed. For the reasons discussed below, the district court correctly
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determined that Richardson violated Srisavath’s Fourth Amendment rights, that the rights involved

were clearly established, and that Richardson’s conduct was objectively unreasonable. Accordingly,

Richardson is not entitled to qualified immunity. We therefore AFFIRM the district court’s denial

of summary judgment.

I. BACKGROUND

A. Facts

Around midnight on October 30, 1997, Sergeant William Richardson was dispatched to the

Extended Stay Hotel, located at the corner of Church Street and Summit View Place in Brentwood,

Tennessee. State v. Srisavath, No. M2000-02159-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 175

at *1–2 (March 8, 2001). The dispatch was in response to a tip from an anonymous telephone caller

who advised that “there were six to eight teenagers in baggy pants running around [the hotel parking

lot] looking into parked cars.” Id. at *2. While driving his patrol car on Church Street, Richardson

observed a car, driven by Srisavath and carrying three male passengers, turn from Summit View

Place onto Church Street. Id. After seeing no other cars in the section of the hotel parking lot that

was visible to him, Sergeant Richardson turned around his patrol car and pulled over the vehicle

Srisavath was driving on Church Street. Id. Another police officer joined Richardson at the scene

of the traffic stop. Id. After this other officer saw the front-seat passenger lean forward, he searched

the interior of the vehicle and found a bag of marijuana under the seat. Id.

Srisavath was convicted in Tennessee court for possession of marijuana with intent to sell

and was sentenced to one and a half years in prison and assessed a $2,000 fine. Id. at *1. The

Tennessee Court of Criminal Appeals reversed Srisavath’s conviction, holding that “the totality of

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the circumstances did not warrant an investigatory stop” and that the trial court therefore erred in not

suppressing the evidence against Srisavath. Id. at *8.

B. Procedural History

On March 7, 2002, Srisavath brought suit in district court under § 1983, alleging that

Richardson violated his rights under the Fourth Amendment to the United States Constitution and

Article 7 of the Tennessee Constitution by making an illegal traffic stop and conducting an illegal

search of the vehicle Srisavath was driving. Srisavath sought compensatory and punitive damages

totaling $750,000. Richardson moved to dismiss Srisavath’s complaint based on the defense of

qualified immunity. The district court denied the motion to dismiss, concluding that Srisavath

pleaded sufficient facts to overcome the qualified-immunity defense. Richardson then appealed to

this Court, which affirmed, holding that the investigatory stop was unconstitutional, the

constitutional right involved was clearly established, and Richardson’s actions were objectively

unreasonable. Srisavath v. Richardson, 115 F. App’x 820, 822–824 (6th Cir. 2006). We noted that

Richardson could still, of course, move for summary judgment in the district court and “raise an

affirmative defense of qualified immunity and support his motion with additional materials outside

of Srisavath’s Complaint.” Id. at 824 n.1.

Following discovery, Richardson filed this summary judgment motion, which the district

court denied, again concluding that Richardson was not entitled to qualified immunity. Richardson

contended that he did not know the dispatcher had received an anonymous tip until after he had

arrested Srisavath. The district court explained, however, that “the evidence . . . is inconsistent

concerning whether or not Sgt. Richardson was aware that the tip was anonymous.” At his

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deposition, Richardson first testified that “the dispatcher said she had received an anonymous phone

call . . . .” (Joint Appendix (“JA”) 366.) However, Richardson then responded affirmatively to

Srisavath’s counsel’s statement that “you said just a while ago that there was an anonymous phone

call, which you learned later, didn’t you?” (JA 377.) In light of Richardson’s conflicting testimony,

the district court, required on summary judgment to view conflicting facts in the light most favorable

to the plaintiff, relied on Richardson’s first statement in which he said that he was aware the

information relayed by the dispatcher came from an anonymous tip.

Richardson moved for reconsideration and filed an affidavit in support stating that he did not

remember if the dispatcher told him that the call was from an anonymous tipster. He further averred,

“with some degree of certainty,” that the dispatcher would not have identified the caller as

anonymous but would have provided the identity of the person making the call. (JA 292.) The

district court denied the motion to reconsider.

Richardson now brings this interlocutory appeal. We have jurisdiction because a district

court’s denial of qualified immunity that depends on an issue of law is “an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

II. DISCUSSION

A. Standard of Review

We review a district court’s denial of summary judgment de novo. Williams v. Mehra, 186

F.3d 685, 689 (6th Cir. 1999) (en banc). Summary judgment is proper when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party moving for summary judgment has

the burden of proof and must demonstrate that there is no genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). Denial of qualified immunity is an issue of law reviewed

de novo. Pray v. City of Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995). Where there is disagreement

about the facts, we must review the evidence in the light most favorable to the plaintiff, taking all

inferences in his favor. Swiecicki v. Delgado, 463 F.3d 489, 497 (6th Cir. 2006) (citing Champion

v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004)).

B. Qualified Immunity

It has long been recognized that government officials need protection “to shield them from

undue interference with their duties and from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982). One form of protection that a public official has is qualified

immunity, an affirmative defense that the official must plead. Id. at 815. Qualified immunity shields

officials performing discretionary functions from civil liability where their conduct “does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Id. at 818.

When a defendant raises the qualified-immunity defense, it is the plaintiff’s burden to show

that the official is not entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306,

311 (6th Cir. 2006). To determine if an official is entitled to qualified immunity, the Supreme Court

applies a two-prong test. First, the plaintiff must show that the facts, taken in the light most

favorable to the plaintiff, demonstrate that the officer’s conduct violated a constitutional right.

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Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, the plaintiff must show that right at issue was

clearly established. Id. On occasion, this Court adds a third prong to the Saucier test, examining

“whether the plaintiff offered sufficient evidence to indicate that what the official allegedly did was

objectively unreasonable in light of the clearly established constitutional rights.” Estate of Carter

v. City of Detroit, 408 F.3d 305, 311 n.2 (6th Cir. 2005). Where the right involved is clearly

established, however, it can often be inferred that the conduct involved is objectively unreasonable,

and some panels have thus “‘collapse[d] the second and third prongs’ in an effort to ‘avoid

duplicative analysis.’” Miller v. Admin. Office of the Courts, 448 F.3d 887, 894 (6th Cir. 2006)

(quoting Caudill v. Hollan, 431 F.3d 900, 911 n.10 (6th Cir. 2005)).

As discussed below, we conclude that (1) by conducting a Terry stop without the necessary

reasonable suspicion, Richardson violated Srisavath’s constitutional rights; (2) these rights were

clearly established; and (3) Richardson’s conduct was objectively unreasonable because his basis for

the Terry stop was an uncorroborated anonymous tip, and other circumstances he relied upon are

insufficient to provide the reasonable suspicion required by the Fourth Amendment.

1. Constitutional Violation

We must first determine whether Richardson violated Srisavath’s constitutional rights.

Estate of Carter, 408 F.3d at 311. Fourth Amendment protections apply when police officers make

brief investigatory stops of a vehicle. United States v. Cortez, 449 U.S. 411, 417 (1981). Police

officers are permitted to make these investigatory stops when they have “reasonable, articulable

suspicion that the person has been, is, or is about to be engaged in criminal activity.” United States

v. Hensley, 469 U.S. 221, 227 (1985). When police officers make stops of individuals based on

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reasonable suspicion of criminal activity, they are said to have made a Terry stop. See Terry v. Ohio,

392 U.S. 1, 30 (1968). The Supreme Court has explained that “the level of suspicion required for

a Terry stop is obviously less demanding than that for probable cause.” United States v. Sokolow,

490 U.S. 1, 7 (1989); see also Alabama v. White, 496 U.S. 325, 330 (1990) (noting that reasonable

suspicion “can be established with information that is different in quantity or content than that

required to establish probable cause” and that “reasonable suspicion can arise from information that

is less reliable than that required to show probable cause”). Yet reasonable suspicion requires more

than a police officer’s hunch that criminal activity is afoot. Instead, the officer must be able to point

to “specific and articulable facts [that], taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Terry, 392 U.S. at 21. Whether an officer had reasonable

suspicion for a Terry stop is examined in light of the totality of the circumstances surrounding the

stop. United States v. Arvizu, 534 U.S. 266, 273 (2002).

An anonymous tip can form the basis for the reasonable suspicion needed for an officer to

perform a traffic stop. Alabama v. White, 496 U.S. 325 (1990). But the Supreme Court has also

recognized that, “[u]nlike a tip from a known informant whose reputation can be assessed and who

can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity.’” Florida v. J.L., 529 U.S. 266, 270

(2002) (quoting White, 496 U.S. at 329); see also United States v. Payne, 181 F.3d 781, 790 (6th Cir.

1999) (noting that courts generally have been willing to find reasonable suspicion on the basis of an

informant having a proven record of providing police officers with reliable information).

Consequently, “[s]ome tips, completely lacking in indicia of reliability, would either warrant no

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police response or require further investigation before a forcible stop of a suspect would be

authorized.” White, 496 U.S. at 329 (internal citation omitted).

White provides an example of when the Supreme Court has found that police officers

sufficiently corroborated an anonymous tip to provide reasonable suspicion for a Terry stop. In that

case, a police officer received an anonymous telephone call stating that the defendant would be

leaving a specific apartment building at a particular time in a brown Plymouth station wagon with

the right tail light broken, driving to an identified motel, and have an ounce of cocaine inside a

brown attaché case. Id. at 327. The police proceeded to this apartment building and saw a brown

Plymouth station wagon with a broken right tail light in the parking lot in front of the building. Id.

The officers observed the defendant leave the building, carrying nothing in her hands, and enter the

station wagon. Id. They followed the vehicle as it drove the most direct route to the motel that the

caller had described. Id. The officers stopped the station wagon just before it reached the motel, and

the defendant consented to a search of the car, which uncovered a brown attaché case containing

marijuana. Id. Additionally, during processing at the police station, a small amount of cocaine was

found in the defendant’s purse. Id.

The Court held that although the anonymous tip offered no way to determine whether the

caller was honest or reliable, the officers sufficiently corroborated the tip to have reasonable

suspicion that the defendant was engaged in criminal activity. Id. at 331. The Court also deemed

it important that “the anonymous tip contained a range of details relating not just to easily obtained

facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not

easily predicted.” Id. at 332 (citation omitted). Ultimately, “[a]lthough it [was] a close case,” the

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Court concluded that “under the totality of the circumstances[,] the anonymous tip, as corroborated,

exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.” Id.

In a more recent case, the Supreme Court reaffirmed these principles and held that an

anonymous tip was insufficient to justify the conduct of a police officer who stopped and frisked the

defendant to search for a weapon. Florida v. J.L., 529 U.S. 266, 268 (2000). There, all the

anonymous caller told the police was that a young, black male, wearing a plaid shirt and sitting at

a particular bus stop, was carrying a gun. Id. The police arrived about six minutes later and saw

three black males “just hanging out.” Id. One of three, the defendant, was wearing a plaid shirt. Id.

With no basis besides the tip to suspect the three of illegal conduct, an officer frisked the defendant

and seized a gun from his pocket. Id. The defendant was convicted of carrying a concealed weapon

without a license. Id. The Florida Supreme Court ultimately held that the search violated the Fourth

Amendment.

The Supreme Court affirmed, noting that the basis for reasonable suspicion was more tenuous

than in the “borderline case” presented in White. Id. at 271. The Court explained that the

anonymous tipster in J.L. “provided no predictive information and therefore left the police without

means to test the informant’s knowledge or credibility.” Id. at 271. Moreover, it was insufficient

that the tipster’s description of the defendant proved accurate. As the Court explained, reasonable

suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to

identify a determinate person.” Id. at 272.

This Court recently explained that the “close case” in White serves as a line between proper

and improper Terry stops in this context: “[A]ny tip that did not rise to the level of [the] tip in White

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would be insufficient to justify a Terry stop.” United States v. Atchely, 474 F.3d 840, 848 (6th Cir.

2007). Thus, anonymous tips that can be independently verified and that demonstrate knowledge

of future activity can be sufficient to establish the reasonable suspicion necessary for investigative

detention. See, e.g., United States v. Braggs, 23 F.3d 1047 (6th Cir. 1994) (holding that officers had

reasonable suspicion where they corroborated caller’s details regarding specific address from which

defendants would depart, gave their approximate description, stated that they would be traveling in

a white car with temporary license plates, and that the purpose of the trip was to consummate a drug

transaction). On the other hand, when anonymous tips provide the police with vague information

that is not predictive of future illegal activity, this Court refuses to hold that officers have reasonable

suspicion to conduct a Terry stop. See, e.g., United States v. Patterson, 340 F.3d 368 (6th Cir. 2003)

(holding that police lacked reasonable suspicion to detain group of men on a street corner known for

drug activity five hours after anonymous caller stated that a group of men was at that corner selling

drugs); cf. United States v. Graham, 483 F.3d 431, 439 (6th Cir. 2007) (declining to hold that

anonymous tip, which correctly identified the defendant at a particular location, alone created

reasonable suspicion for Terry stop; but upholding stop because of additional factors, including

defendant’s “furtive movement” that was consistent with placing something under his seat).

An anonymous-tip case that reached this Court in nearly the identical procedural posture as

the present one is Feathers v. City of Akron, 319 F.3d 843 (6th Cir. 2003). Feathers provides useful

guidance here for each of the three steps in the qualified-immunity analysis. At 1:25 a.m., city

officials received a 911 call reporting that moments earlier, a white, bearded male on a porch on

North Howard Street had pointed something at the caller and told the caller to shut up. Id. at 846.

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The caller said the individual “looks like he is pretty drunk” and said that, although he did not know

the address from which the individual had spoken, the house was two houses from the corner. Id.

The caller, who claimed that he was just walking along the street when the individual spoke to him,

refused to identify himself by name but suggested that the officials could “have somebody come by

here.” Id. The dispatcher then instructed a patrol car near the area to approach 708 North Howard

Street and “check for a signal 9 [suspicious person], supposed to be carrying a weapon . . . . Signal

9 is on the porch near the corner, it’s a white male with a beard, no shirt, possible 4 [intoxicated

person], he pointed something at a caller, so he possibly has a weapon.” Id. at 846 & n.1

In response, two officers went to 708 North Howard, and, after determining that it was the

wrong address, saw on a nearby porch an individual who one officer believed matched the

dispatcher’s description, and they pulled their car over to 728 North Howard. Id. at 846. When the

officers arrived, the plaintiff and his wife were standing on one side of the porch, hugging. Id. The

plaintiff was not wearing a shirt. Id. The officers approached the porch and shouted at the plaintiff

to move from one end of the porch to the other, and he complied. Id. They ordered the plaintiff to

take his hands out of his pockets, but the plaintiff failed to do so. Id. They repeated the instruction,

and the plaintiff took his hands out and then put them back into his pockets. Id. The officers

repeated the instruction for a third time. Id. The plaintiff then turned away and, removing his hands

from his pockets, went back toward the door that led into his house. Id. Opening the door with his

right hand, the plaintiff leaned into his house and told his father, who was inside, to come out quickly

and to bring their video camera. Id. At this point, the officers ran up the porch stairs and seized him

from behind while he was leaning into the house. Id. A scuffle ensued, and other officers eventually

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helped wrestle the plaintiff to the ground. Id. at 847. The officers cuffed him, and, when searching

his pockets, found a Leatherman utility knife in his pocket. Id. The plaintiff was charged with

assault against a peace officer, carrying a concealed weapon, and resisting arrest. Id. At trial the

concealed-weapon and resisting-arrest charges were dismissed, and a jury acquitted the plaintiff of

the assault charge.

The plaintiff filed a § 1983 action against the city and the officers. His allegations included

that the officers violated his Fourth Amendment rights when seizing him with a Terry stop in

response to the anonymous call. Id. The district court denied the officers’ motion for summary

judgment, rejecting their claim that they were entitled to qualified immunity. On appeal, this Court

engaged in the three-step, qualified-immunity inquiry.

With regard to the first step, we concluded that the arresting officers violated the plaintiff’s

constitutional rights. The officers did not know that the dispatcher’s information was from an

anonymous tipster who offered no evidence of reliability. Id. at 849. But for purposes of

determining whether the Terry stop was reasonable, we imputed to the officers the dispatcher’s

knowledge that the tip was anonymous. Id. (discussing United States v. Hensley, 469 U.S. 221

(1985) (noting that reasonable suspicion based on a bulletin from other officials is reasonable to the

extent that the bulletin itself was based on articulable facts that would support reasonable

suspicion)). Thus, if the dispatcher had sufficient information to find reasonable suspicion for a

Terry stop, the stop was permissible; if not, the stop violated the plaintiff’s Fourth Amendment

rights. Id.

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Relying on the Supreme Court decisions in White and J.L., we explained that the officers did

not have sufficient information when relying on the anonymous tip to support a finding of reasonable

suspicion. Id. In particular, “the informant offered no future predictions or inside information that

would suggest a special knowledge of [the plaintiff’s] allegedly criminal activity.” Id. at 850.

“Indeed,” the Court explained, “the anonymous tipster did not even allege any criminal activity; it

was the dispatcher, not the tipster, who suggested that [the plaintiff] might be carrying a weapon.”

Id. The Court also rejected the officers’ argument that by corroborating the information from the

tip (finding a shirtless white male on North Howard Street), they had reasonable suspicion: “[T]he

only information they corroborated”—regarding the plaintiff’s identity, but not predictions of future

behavior—“is precisely the information that the Supreme Court ruled fails to support reasonable

suspicion in an anonymous tip.” Id. Thus, we concluded, the officers violated the plaintiff’s Fourth

Amendment rights.

Likewise, in the present case, Sergeant Richardson did not have the reasonable suspicion

necessary to effect a Terry stop. Before addressing this issue further, however, one crucial factual

issue must be reiterated: Richardson testified at his deposition that the dispatcher told him the tip

was anonymous:

Q. Now, in this call, the only thing you got was what?

A. The dispatcher said she had received an anonymous phone
call that there were several teen-agers standing out by the
cars, standing around the cars as if looking at—looking in
them or something like that.

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(JA 366 (emphasis added).) To be sure, just a few questions later, Richardson appeared to contradict

this statement:

Q. And the dispatcher on the night—you said just a while ago
that there was an anonymous phone call, which you learned
later, didn’t you?

A. Yes, sir.

(Id. 367 (emphasis added).) Additionally, Richardson now suggests that his first statement was

inaccurate, stating in his affidavit that he does not recall ever receiving a dispatch communication

about an anonymous tip and that he does not recall exactly what happened in this case.

But where there is disagreement about the facts, this Court must review the evidence in the

light most favorable to Srisavath, taking all inferences in his favor. Swiecicki, 463 F.3d at 497

(citing Champion, 380 F.3d at 900). Thus, this Court should assume Richardson’s first deposition

statement on this point to be true—that he knew the tip was anonymous. With this understanding,

it is evident that Richardson lacked reasonable suspicion to make the Terry stop.

First, the tip was so vague as to be unreliable. The dispatcher told Richardson that there were

six to eight teenagers wearing baggy pants who were looking into cars parked in the hotel’s parking

lot. This description is even less detailed than those held insufficient in J.L. (“young black male at

a bus stop wearing a plaid shirt”) and Feathers (“white male with a beard on a porch” wearing no

shirt and at a certain address). It describes nothing more than nondescript, “easily obtained facts and

conditions existing at the time of the tip.” White, 496 U.S. at 332. Additionally, it did not predict

any future behavior. Neither did it communicate any illegal activity, as Richardson admitted in his

deposition when discussing the dispatcher’s call:

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Q. All right. Now, of course, there was not any report of any
crime being committed, was there?

A Not at that time; no sir.

Q. And there was no report that a crime was about to be
committed, was there?

A. No sir; there was not.

(JA 366.)

Worse, as bare as this tip was, Richardson failed to corroborate what little information it did

provide. He testified at deposition that he scanned the hotel’s front parking lot, observed nobody

around, and so turned around to stop the car he saw leaving the parking lot. However, Richardson

neglected to examine the hotel’s rear parking lot to determine if there were teenagers on that part of

the property looking into cars. In addition, Richardson testified that he did not make any

independent observations of criminal activity that would have provided the reasonable suspicion

necessary for a Terry stop. Indeed, Srisavath had left the hotel’s parking lot by the time Richardson

arrived, and Richardson first observed the vehicle driven by Srisavath as it turned from Summit

View Place onto Church Street. Srisavath had not committed any traffic violation that would have

entitled Richardson to stop Srisavath’s vehicle, and Richardson had not received any report that a

vehicle matching the description of that driven by Srisavath had been involved in a crime. He

conceded in his deposition that when he observed Srisavath’s vehicle, he could not be sure that the

individuals inside matched the description of the people observed by the anonymous caller.

Moreover, the totality of the circumstances in addition to the tip do not serve as a basis for

reasonable suspicion. Richardson testified that another basis for his reasonable suspicion was that

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“[t]here had been so many burglaries in . . . this area and that[, seeing the vehicle] leaving at the

same time that [he] was given a call, [he] had come to the conclusion that it possibly was a vehicle

involved in something.” (JA 393.) In addition, Richardson testified that his suspicions were aroused

because Srisavath’s vehicle was the only one that he saw exiting the hotel parking lot when he

arrived. The relatively late hour at which he received the dispatch was also a factor that Richardson

points to as a cause for his reasonable suspicion.

These factors are insufficient to provide the necessary reasonable suspicion. Srisavath’s

presence in an area where there had recently been automobile burglaries does not alone provide

reasonable suspicion to conduct a Terry stop. See Patterson, 340 F.3d at 371 (“The problem arises

when officers use vague information about an intersection already known as a ‘hot spot’ as the sole

basis for reasonable suspicion to stop and frisk a person.”); cf. United States v. Cohen, 481 F.3d 896,

900 (6th Cir. 2007) (analogizing 911 hang-up call to anonymous tip and explaining that, although

the officers’ “quick response” made it possible to limit those people potentially related to the 911

call “to those people and vehicles within four minutes of the area surrounding” the location of the

call at that “early hour,” “those limitations still fall short of identifying a determinate person”).

These facts also fall short of those deemed insufficient in Feathers. At least in Feathers the officers

observed the suspect in the location the tipster suggested. Here, Srisavath was in his car (not

walking around looking in car windows); Richardson did not even know if Srisavath and his

passengers matched the tipster’s description.

In sum, Richardson stopped Srisavath’s car on the basis of an anonymous tip that provided

only a vague description of possible suspects, described no ongoing criminal activity, and offered

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no prediction of future activity that could be used to determine the tipster’s veracity and reliability.

Once on the scene, Richardson did not corroborate the tip and observed no criminal activity to justify

stopping Srisavath’s car. Accordingly, Richardson lacked the reasonable suspicion necessary for a

Terry stop, and the stop violated Srisavath’s constitutional rights.

2. Clearly Established Right

If a court finds that an official’s conduct violated a plaintiff’s rights under the Constitution,

it must then determine whether the right at issue was clearly established. The Supreme Court has

held that for a right to be clearly established, its contours “must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right. This is not to say that an official

action is protected by qualified immunity unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002).

In Feathers, after the Court determined that the officers violated the plaintiff’s rights, it then

concluded that those rights were clearly established. The Court explained that “Terry, which

requires reasonable suspicion for investigative detentions, had been clearly established since 1968.”

Feathers, 319 F.3d at 850. Moreover, the Supreme Court issued the White decision in 1990 in which

it held that officers had to corroborate the reliability of anonymous tips to have the reasonable

suspicion necessary for investigative detention. See id. With the J.L. decision in 2000, the Court

reiterated that officers could not rely on anonymous tips identifying a particular person and his or

her location as the only justification for a Terry stop. See id. For these reasons, Srisavath’s same

rights were clearly established.

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3. Objective Reasonableness of the Action

The final prong of the qualified-immunity test requires this Court to consider whether

Srisavath offered sufficient evidence to demonstrate that Richardson’s conduct was objectively

unreasonable in light of clearly established constitutional rights. See Feathers, 319 F.3d at 348. The

objective-reasonableness standard requires that courts analyze claims of qualified immunity “on a

fact-specific, case-by-case basis to determine whether a reasonable official in the defendants’

position could have believed that his conduct was lawful, in light of clearly established law and the

information he possessed.” Pray, 49 F.3d at 1158. Officers are entitled to qualified immunity if they

made a reasonable decision, even if it was mistaken. Id. Moreover, this Court has stated that “‘if

officers of reasonable competence could disagree on [the] issue, immunity should be recognized.’”

Id. (quoting Malley v. Briggs, 475 U.S. 335, 349 (1986)).

Again, Feathers is instructive. Although we concluded that the Terry stop violated the

plaintiff’s rights and that those rights were clearly established, we also concluded that the improper

stop was not objectively unreasonable. Accordingly, we reversed the district court and held that the

officers were entitled to qualified immunity. Feathers, 319 F.3d at 852. Crucial to this holding was

the information the officers themselves had (ultimately providing a sufficient basis for reasonable

suspicion) versus the information the dispatcher had (ultimately insufficient). The dispatcher

informed the officers of a suspicious person who was possibly intoxicated and supposedly carrying

a weapon. Id. at 851. This information, provided by an anonymous tipster, was not sufficient to

create reasonable suspicion under J.L.. Id. But “[t]he officers did not know that the dispatcher’s

information was from an anonymous tipster who offered no evidence of reliability.” Id. at 849

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(emphasis added). On the contrary, they presumed the information was accurate and reliable, and

acted accordingly. Id. Based on that information, the totality of the circumstances would justify the

Terry stop. Id. In sum, “although the stop violated the Fourth Amendment because the authorities’

collective information did not amount to reasonable suspicion, [the plaintiff could not] prevail in a

§ 1983 suit because the individual defendants had a sufficient factual basis for thinking that they

were acting consistently with Terry.” Id. at 851.

This is where Feathers and the present case part ways: Richardson testified that the

dispatcher told him that her information was based on an anonymous call. Cf. Srisavath, 115 F.

App’x at 824 (Siler, J., dissenting) (“The fact that the officers [in Feathers] had not been told by the

police dispatcher that the information came from an anonymous source was very significant in

granting qualified immunity). To rely on the anonymous tip, Richardson had to take steps to check

the tipster’s veracity. As discussed, however, the tip at issue provided only readily observable facts

and no predictions of future activity that Richardson could test. Moreover, the tip did not allege that

criminal activity was ongoing. Richardson could not even identify the passengers in the car he

stopped. Indeed, under these circumstances, one could fairly question whether Richardson could

have stopped the car even if the informant were an identified, trustworthy source, such as another

officer—the “close call” here, if any, would be whether Richardson would have reasonable suspicion

of a crime even in that situation. Here, relying on the anonymous tip alone as the basis for a Terry

stop was objectively unreasonable in light of established constitutional law. Accordingly,

Richardson is not entitled to qualified immunity.

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III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Richardson’s motion

for summary judgment on the basis of qualified immunity.

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SILER, Circuit Judge, dissenting. As the majority opinion states, this matter was previously

remanded to the district court for consideration of qualified immunity after discovery. The evidence

was inconclusive as to what Sgt. William Richardson had learned from the dispatcher before he

responded. In a deposition, Richardson testified that the dispatcher said that she had received an

anonymous phone call. Later, however, he filed an affidavit that he did not remember if he was told

by the dispatcher that the call was from an anonymous source. Therefore, for purposes of summary

judgment, we review the evidence in the light most favorable to the non-movant, Srisavath. See

Swiecicki v. Delgado, 463 F.3d 489, 497 (6th Cir. 2006). Under that scenario, we assume that

Richardson knew that the source was anonymous.

Nevertheless, as I stated in the previous dissent, the actions of Richardson were not

objectively unreasonable. “[T]he question is whether ‘any officer in the defendant’s position

measured objectively, would have clearly understood that he was under an affirmative duty to have

refrained from such conduct.’” Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994). Several factors

weigh in favor of Richardson’s determination that he had a reasonable suspicion to stop the car in

which Srisavath was traveling: the time of night, the high number of auto burglaries in the area, and

the absence of other cars in the parking lot of the hotel. As Srisavath’s car was the only one moving

in the vicinity, Richardson was fully justified in making the investigatory stop. Officers who react

to tips have to move fast, or else the suspects will be out of sight.

Even the courts have disagreed on whether Richardson’s conduct was objectively reasonable.

For instance, the Tennessee trial court found no constitutional fault with the stop in question,

although it was later reversed by the Tennessee Court of Criminal Appeals, which ruled that “The

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issue is close.” Therefore, like this court in Feathers v. Aey, 319 F.3d 843 (6th Cir. 2003), I would

find that Sgt. Richardson acted objectively reasonable in conducting the investigative stop and is

entitled to qualified immunity.

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