NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0226n.06
Filed: May 2, 2008
No. 07-3100
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LADAWNYA K. CARPENTER et al., )
)
Plaintiffs-Appellees, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
LESLIE WAYNE BOWLING et al., ) SOUTHERN DISTRICT OF OHIO
)
Defendants-Appellants. )
Before: BATCHELDER and SUTTON, Circuit Judges; and BARZILAY, Judge.*
SUTTON, Circuit Judge. Three City of Franklin (Ohio) police officers argue that the district
court erred in denying their motion for summary judgment with respect to Charles Combs’ unlawful-
arrest and unlawful-entry claims and Ladawnya Carpenter’s excessive-force claim. We affirm.
I.
In July 2002, an Ohio court entered a consent agreement between Sarah Kirby and Charles
Combs concerning the custody of their ten-month-old son, Tyler. The agreement gave Combs
custody of Tyler from Sunday at 6:00 p.m. to Friday at 6:00 p.m., and it gave Kirby custody from
*
The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade,
sitting by designation.
No. 07-3100
Carpenter v. Bowling
Friday at 6:00 p.m. to Sunday at 6:00 p.m. All exchanges of Tyler, the agreement said, would “take
place at [the] Franklin police department.” JA 58.
On at least two occasions, Combs failed to bring Tyler to the police department on Friday
evening, prompting Kirby to file a motion to hold Combs in contempt of court for violating the
consent agreement. On August 16, when Combs again failed to bring Tyler to the station, Kirby told
the police that she “had filed for contempt of court” against Combs, that Combs “was supposed to
bring Tyler to the station” and “that there was a warrant for [Combs].” JA 201. The officers
responded by going to Combs’ apartment.
Combs answered the officers’ knock on his door, and, after a brief discussion, the officers
arrested him for violating the consent agreement. The arrest, according to all parties, occurred
outside Combs’ apartment. LaDawnya Carpenter, Combs’ sister, who (along with Combs’ mother
and girlfriend) was visiting Combs at the time, told the officers that she had temporary custody
papers at her house that would exonerate her brother. The officers told Carpenter to get the papers.
When Carpenter returned without the custody papers, she called Combs’ attorney to
determine whether the officers could arrest him without a warrant. After Carpenter handed him the
phone, Officer Russell Whitman spoke to Combs’ attorney, who informed him that the consent
agreement had not been modified. Whitman also spoke with a representative of the Warren County
Children’s Services, who told him that Kirby “had the right to take the child.” JA 79. Whitman then
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took Tyler from Carpenter, carried him out of the apartment and gave him to Kirby, who was waiting
in the parking lot.
According to at least one of the officers, Carpenter “was screaming profanities” and
“throwing objects about in the apartment” as “the officers were leaving the apartment with the
child.” JA 62. Carpenter denies these allegations. JA 125. Carpenter followed the officers into the
parking lot and ultimately was arrested for disorderly conduct, a charge later dismissed, as was the
charge against Combs.
In August 2003, Combs, Tyler and Carpenter filed a § 1983 action against the City of
Franklin, Kirby and Officers Bowling, Whitman and Diekman in Ohio state court. The defendants
removed the action to federal court, and the officers moved for summary judgment on qualified-
immunity grounds. The district court granted the motion with respect to the unlawful-arrest claim,
holding that the officers had probable cause to arrest Combs. It denied the motion with respect to
the unlawful-entry claim, reasoning in part that exigent circumstances did not justify the entry. And
it denied the motion with respect to the excessive-force claim, reasoning that disputes of material
fact remained over Carpenter’s conduct and the officers’ explanations for using force. Officers
Bowling, Whitman and Diekman filed this interlocutory appeal. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985).
II.
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To overcome a defendant’s claim of qualified immunity, a plaintiff must establish (1) that
the defendant violated a “constitutional right” and (2) that the right “was clearly established.”
Saucier v. Katz, 533 U.S. 194, 201 (2001). We must decide the first question, the Supreme Court
has instructed, before we reach the second one. Id. at 200–01.
A.
The officers start, oddly enough, by arguing that “[t]he trial court erred by not granting the
officers qualified immunity for the warrantless arrest claim of Charles Combs.” Br. at 1. That is odd
because, as we have just explained, the district court granted summary judgment for the officers on
this claim. Since the officers cannot appeal a victory and since Combs has not appealed this loss,
that is the end of the matter.
B.
The officers next challenge the district court’s conclusion that a triable issue of fact exists
over Combs’ unlawful-entry claim. We reject that challenge. While the officers say that Combs
consented to their waiting in his apartment after his arrest and while consent is an acceptable basis
for entering a person’s home without a warrant, see Illinois v. Rodriguez, 497 U.S. 177, 181 (1990),
the summary-judgment record establishes a dispute over whether the officers indeed had consent to
enter the home. Carpenter’s and Combs’ affidavits, for example, both say that the officers “forced
their way into the apartment.” JA 165, 184. Even though it remains unclear what cognizable harm
Combs suffered as a result of the officers’ entry—as he did not appeal the district court’s conclusions
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that his arrest and the seizure of Tyler were lawful and as the entry seemingly benefitted him by
allowing his sister time to contest his arrest—we affirm the district court’s denial of the officers’
claim for summary judgment on Combs’ unlawful-entry claim.
C.
The officers next contest the district court’s excessive-force ruling, arguing that the court
should have rejected Carpenter’s claim as a matter of law. Under the Fourth (and Fourteenth)
Amendment, individuals have a right to be free of excessive force when police arrest or seize them.
See Lyons v. City of Xenia, 417 F.3d 565, 575 (6th Cir. 2005). Whether excessive force exists turns
on the objective reasonableness of the officer’s conduct in view of the circumstances facing the
officer, an inquiry that accounts for “[1] the severity of the crime at issue, [2] whether the suspect
poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is
actively resisting arrest or attempting to evade arrest by flight.” Id. (internal quotation marks omitted
and alterations in original); see also Graham v. Connor, 490 U.S. 386, 394–96 (1989).
When we construe the facts in Carpenter’s favor, as we must, here is what happened: After
the officers removed Tyler from the apartment and gave him to Kirby, Carpenter waited a moment,
then went outside. Upon emerging from the building, Carpenter saw Kirby 30 to 40 feet away and
shouted, “remember, Sunday at 6:00,” reminding Kirby of her obligation to return Tyler to Combs
on Sunday evening. JA 126. Carpenter insists she never cursed at Kirby and “wasn’t threatening
[her].” JA 128.
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“Before [Carpenter] could even get [her] breath back [from shouting at Kirby], Officer
Bowling had ahold of [her], screaming that he had had it with [her and] was sick of [her].” Id. After
grabbing Carpenter from behind by both arms, Bowling “proceeded to shove [her] down the
sidewalk,” JA 129, and “body slammed [her] into a van parked in front of the apartments,” JA 181.
All the while, Carpenter was telling Bowling that he did not “have to do this” because she would
voluntarily “turn around and let [him] arrest [her].” JA 129. After pinning Carpenter against the
van, Bowling “jerk[ed] hard on [her] arms,” JA 132, and Officer Diekman “stuck his knee in
[Carpenter’s] back” and “grabbed [Carpenter’s] other shoulder,” JA 131. The officers then
“repeatedly crushed [Carpenter] against the van while pulling back on both [of her] arms,” making
“a dent in the van.” JA 186. “[N]ot sure what [the officers were] doing”—trying to handcuff her
or injure her—Carpenter told them that “they were hurting [her]” and “continuously sa[id] please
don’t do this. I will stand up. I will let you handcuff me. I will let you arrest me. You don’t have
to do this to me.” JA 131–32. Carpenter thus “wasn’t fighting [the officers]” and “wasn’t resisting
arrest,” though she admits that she lifted her head several times to plead for mercy. JA 132.
Carpenter felt her “shoulder pop[]” while the officers jerked her arms, JA 131, and suffered injuries
to her arms and shoulders during the arrest, requiring an emergency-room visit on the day after the
arrest and periodic medical treatment and physical therapy since then.
As measured by the three factors identified in Lyons and Graham, these record-supported
allegations create a triable issue of fact over whether the officers used excessive force. First, the
charge at issue was disorderly conduct, and “[t]he crime of disorderly conduct” generally “is not a
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violent or serious crime, and this fact weighs in favor of using less force in arresting [someone for
such conduct].” Thacker v. Lawrence County, 182 F. App’x 464, 472 (6th Cir. May 17, 2006).
Second, nothing suggests that Carpenter posed a threat to the officers, and although Carpenter raised
her voice at Kirby (who was 30 or 40 feet away) she “wasn’t threatening her,” never cursed at her,
was “not angry” with her and never made a move toward Kirby. JA 126, 128. Third, nothing
suggests that Carpenter posed a risk of flight. “At all times,” Carpenter “told Bowling that [she] was
not going to resist him,” and yet he still “was hurting [her].” JA 186. In view of the non-threatening
nature of Carpenter’s offense, the absence of any resistance by Carpenter and the absence of any
threat to anyone, a jury crediting these fact-supported allegations could find that the officers used
constitutionally excessive force.
The district court also correctly determined that case law clearly established this
constitutional claim. See St. John v. Hickey, 411 F.3d 762, 772, 774 (6th Cir. 2005) (“[W]e conclude
the right of a nonviolent [and non-resistant] arrestee to be free from unnecessary pain knowingly
inflicted during an arrest [for disorderly conduct] was clearly established as of November 9, 2000.”);
see also Minchella v. Bauman, 72 F. App’x 405, 408–09 (6th Cir. Aug. 13, 2003) (denying summary
judgment to officers on an excessive-force claim—relating to an arrest in 1999—because the
plaintiff’s “crime was not severe,” the plaintiff “posed no threat to the Officers or the community”
and the evidence was “inconclusive as to whether [the plaintiff] was ‘slammed’ into the car,
and . . . as to whether [the plaintiff] physically resisted the arrest”); Davis v. Yovella, No. 95-5415,
1997 WL 159363, at *5–6 (6th Cir. Apr. 2, 1997) (denying qualified immunity to an officer on an
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excessive-force claim because “the charges against [the plaintiff] . . . were not serious,” “there [was]
no evidence that [the plaintiff] posed a risk to the officers or anyone present,” “the record show[ed]
that he did not resist arrest” and the plaintiff “sought medical attention for pain in his neck and
back”).
The officers complain that this conclusion fails to appreciate the risk of escalation they
faced—as Carpenter was visibly upset about the situation with her brother, had voiced her
frustrations to the officers and had previously been accused of harassing Kirby (several months
earlier). Yet virtually any arrest of an individual by the police poses a risk of resistance and
escalation. The question is whether that risk was real at the time the officers used force and, more
pertinently, whether a triable issue of fact exists over that risk. Carpenter was 30 or 40 feet from
Kirby and claims not to have done anything more than remind Kirby to return Tyler on Sunday. A
jury could thus reasonably conclude, if it credited these factual allegations, that the police had no
basis for immediately grabbing, shoving, body slamming and repeatedly crushing Carpenter against
a van to prevent the situation from escalating. Even if we were to grant the officers’ premise that
they had a reasonable basis for fearing that the situation might escalate, moreover, that would not
necessarily justify repeatedly crushing Carpenter against a van while jerking back hard on her
arms—all in the context of arresting her for a relatively minor and non-threatening crime, one for
which she “[a]t all times” did not resist the officers (save for raising her head to ask them to stop).
The officers also contend that the district court should have ruled for them as a matter of law
because Carpenter’s injuries were either de minimis (temporary scrapes and red marks) or pre-
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existing (her alleged shoulder injuries). But the record does not unequivocally establish either point.
Carpenter went to the emergency room on the day after her arrest, complaining of shoulder pain and
bruising, and she has “actively receiv[ed] medical treatment for the injuries caused by the Franklin
police officers.” JA 186. While Carpenter previously had surgery on her left shoulder, that shoulder
was “back to normal” by 1995 or 1996, well before her arrest. JA 107.
The officers add that Sergeant Whitman played no role in the arrest and indeed that Carpenter
did not even allege that he participated in Carpenter’s arrest. Both contentions fail to account for
Whitman’s affidavit, in which he admitted that he “assisted Officer Bowling [in] handcuff[ing]
Carpenter” and in which he “den[ied] Plaintiffs’ allegations that [he] pushed or slammed Carpenter
into a van.” JA 80. The second amended complaint, as well as other evidence in the record, shows
that Carpenter did implicate Whitman in her claim. See JA 14 (alleging that “Bowling, Whitman
[and] Diekman” arrested Carpenter “with unreasonable and excessive force”) (emphasis added); JA
186 (Carpenter’s affidavit indicating that “Officer Bowling and the two other Franklin Police officers
forcibly pushed [her] into the side of a van parked in the parking lot and made a dent in the van with
[her] body”) (emphasis added).
The resolution of Carpenter’s excessive-force claim in the end turns on several genuine issues
of material fact, including at a minimum these: Was Carpenter walking toward, cursing at or
otherwise threatening Kirby at the time of her arrest? Did the officers repeatedly body slam or crush
Carpenter against the van and jerk back unreasonably hard on her arms? And did Carpenter resist
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the arrest or the officers’ attempt to handcuff her? “[W]hen the legal question of immunity is
completely dependent upon which view of the facts is accepted by the jury, the jury becomes the
final arbiter of a claim of immunity.” Bouggess v. Mattingly, 482 F.3d 886, 888 (6th Cir. 2007)
(internal quotation marks and alteration omitted).
III.
For these reasons, we affirm.
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