William E. "Buster" Fisher v. Tom E. Harden, in His Official Capacity as Sheriff of Morrow County, Ohio

JULIA SMITH GIBBONS, Circuit Judge,

dissenting.

In my view, deputies Stephen and Molly Alexander did not violate Fisher’s constitutional rights, and they were thus entitled to qualified immunity. I therefore dissent.

*850Initially, I note significant facts in the record that are not emphasized in the majority’s opinion. First, while it eventually came to light that Fisher was perched on the railroad tracks in order to shoot groundhogs, the defendants testified that they were not familiar with Fisher prior to the incident and were not aware of his penchant for hunting groundhogs. Stephen Alexander was, however, aware that individuals sometimes committed suicide by sitting on the railroad tracks. This fact was known to Stephen both because his father had been a long-time railroad employee who told Stephen of people that had committed suicide by sitting on the tracks and because .he was aware that, approximately one year prior, another individual committed suicide in Morrow County in such a manner. While the area in which Fisher was located was a rural area that hunters sometimes used, it is at a minimum questionable whether, as the majority asserts, Fisher “presented the appearance of an elderly man hunting.” See maj. op. at 845. At the time of the incident, the deputies thought Fisher was a suicidal threat to himself and others, not a hunter.1

Second, Fisher did not comply with the deputies’ initial requests that he place the firearm and other items he was carrying on the ground. Although it is unclear at what point Fisher was able to hear the deputies’ requests, it is also unclear whether, as the majority asserts, Fisher “readily” complied with the requests once he heard them. See id. at 840. Stephen Alexander stated in his deposition that Fisher eventually obeyed the officers’ requests, but he certainly did not portray Fisher’s compliance as “ready and willing.” For example, after it appeared that Fisher heard the officers, it still took two or three more requests for Fisher to comply with the request to put his chair down on the ground, according to both the incident report and Alexander’s deposition testimony.

Third, as Fisher reached the road, at the point when Stephen told Fisher to walk backwards toward him and Molly, Stephen noticed several firearm ammunition shells in Fisher’s overalls. Stephen could not tell at that time for what type of gun the shells were intended. Because he believed that the firearm Fisher placed on the ground was a shotgun and was unsure what type of shells Fisher had on his person, he feared that Fisher possessed another firearm. While it may not have been “out of the ordinary” for Fisher to have numerous ammunition shells on his person, it is certainly an important fact to note in assessing whether his constitutional rights were violated. See id. at 840. Also, in her supplemental statement in the police record and in her deposition, Molly Alexander noted that it appeared to her that Fisher had knelt down and picked something up after dropping his firearm, chair, and tripod.

The majority accurately lays out the test for whether qualified immunity applies to an official’s actions. The first step in any qualified immunity inquiry is to determine whether the conduct of the officer in question violated the plaintiffs constitutional rights. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no constitutional violation occurred, then the officer is entitled to qualified immunity. See Vakilian v. Shaw, 335 F.3d 509, 516-18 (6th Cir.2003); Mattox v. City of *851Forest Park, 183 F.3d 515, 520-24 (6th Cir.1999). An examination of the facts of this case reveals that no constitutional violation occurred and that the majority thus errs in reaching the second step of the analysis- — whether the right was clearly established. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151.

The Fourth Amendment grants citizens the right to be free from unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Gardenhire v. Schubert, 205 F.3d 303, 312-13 (6th Cir.2000). Fisher claims that the deputies violated this right when they detained him. The first issue to resolve is the precise point at which the deputies seized Fisher for Fourth Amendment purposes.

Not every encounter between a law enforcement officer and a citizen constitutes a seizure under the Fourth Amendment. For instance, a consensual encounter between an officer and a citizen during which the officer seeks voluntary cooperation from the citizen is not a seizure, and the officer need not possess any suspicion that the citizen is engaging in criminal activity to initiate such an encounter. United States v. Chapman, 305 F.3d 530, 533 (6th Cir.2002). A seizure occurs for the purpose of the Fourth Amendment only when, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). An example of a seizure is when an officer draws his weapon on a citizen. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In this case, no seizure of Fisher occurred until the Alexanders drew their guns • on him, which occurred when the deputies noticed he was carrying a gun across his shoulder. Until that point, the deputies did not signal to Fisher that his liberty was limited in any way. Fisher began approaching the deputies without being asked to do so and of his own accord. Only when the deputies drew their firearms did the encounter transform from a purely consensual one into a seizure for the purposes of the Fourth Amendment.

Of course, considering that a seizure did occur when the deputies displayed their weapons, the next question is whether the seizure and the deputies’ related actions were appropriate. Under traditional Fourth Amendment jurisprudence, a police officer may temporarily detain an individual for investigation when he has a reasonable suspicion that the individual is or is about to be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 20-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Patterson, 340 F.3d 368, 370 (6th Cir.2003). The majority interprets this test to mean that a police officer — in jurisdictions in which suicide is not a crime, as is the case here, State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, 346 (1987)— may not conduct an investigatory stop of an individual when he has a reasonable suspicion only that the individual is about to commit suicide (but not engage in an actual criminal activity). Applying this interpretation of Terry to the present case, the majority holds that the deputies needed probable cause to detain Fisher. I disagree.

The majority relies on cases from this and other circuits indicating that, before detaining an individual suspected of having mental illness for an emergency medical evaluation or for involuntarily hospitalization, a police officer must have probable *852cause to believe that the individual is a threat to himself or others. See, e.g., Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir.1997) (“The Fourth Amendment requires an official seizing and detaining a person for a psychiatric evaluation to have probable cause to believe that the person is dangerous to himself or others”). These cases are inapposite here. First, there is no indication that the deputies seized Fisher to detain him until he received a psychiatric evaluation. Rather, the record shows that the deputies momentarily detained Fisher to ensure that he was not a threat to them and then to question him. As Stephen Alexander explained, he was trying

to lie the suspect down, handcuff the suspect for officer safety, stand Mr. Fisher up, get him off the railroad track and over to the cruiser where I could pat Mr. Fisher down for weapons and ascertain what was going on. If Mr. Fisher was a suicide risk and if I felt he was in a mind set where he could be of risk to himself or others, I had the right under Ohio statute2 to take Mr. Fisher into protective custody.

(Emphasis added.) In other words, the deputies detained Fisher temporarily in order to determine whether probable cause existed to detain him further or hospitalize him pending a psychiatric evaluation. The majority concedes that “[t]he seizure in this case was not specifically for purposes of a professional psychiatric evaluation,” but states that this difference from Monday is of no effect. See maj. op. at 846. I disagree. As Stephen Alexander explained, only if Mr. Fisher was a suicide risk, and if he could be a risk to himself or others, would the Ohio statute giving Alexander the right to hospitalize Fisher involuntarily apply such that probable cause would be necessary. As it happened, the whole episode lasted only five minutes, and by the time of Fisher’s medical emergency, the deputies had not yet decided to detain him for a psychiatric evaluation. They were merely securing the scene and beginning to investigate whether such a detention would have been warranted, but the investigation was never completed because of Fisher’s unfortunate medical incident. Probable cause was not required to conduct this temporary investigation and detention.

In Monday, this court analogized a dangerous mental condition “to the role of criminal activity in traditional Fourth Amendment analysis.” 118 F.3d at 1102. The majority reads Monday as requiring that “officers detaining an individual believed to be suicidal must have ‘probable cause to believe that the person is dangerous to himself or others.’ ” See Op. at 843 (quoting Monday, 118 F.3d at 1102). This is not a precise reading of Monday, where the court set out probable cause as the standard for officials seizing and detaining a person for a psychiatric evaluation, but, contrary to the majority’s intimations, did not hold that officers must have probable cause to detain every individual believed to be suicidal. 118 F.3d at 1102. Crucially, the allegedly suicidal plaintiff in Monday did not have a weapon and posed a threat only to himself, not to others. Id. at 1101. In contrast, many of those individuals who are about to commit suicide certainly have a dangerous mental condition, one that poses a threat to both themselves and anyone else in their vicinity. See, e.g., Bell v. Irwin, 321 F.3d 637, 639-40 (7th Cir.2003) (noting that a person who had made suicidal threats while wielding knives was a danger to both himself and others present). The same logic that forms the basis for the Monday court’s analogy of “dan*853gerous mental eondition[s]” to criminal activity also suggests that if a police officer has a reasonable suspicion that an individual is suicidal in a way that poses, a risk to others, he may conduct a Terry stop of that individual even if suicide is not a crime in that jurisdiction. See Monday, 118 F.3d at 1102; United States v. Wallace, 889 F.2d 580, 582 (5th Cir.1989) (holding that, in order to secure the safety of the individual and all others present, a police officer may conduct a stop and frisk of an individual when he has a reasonable suspicion that the individual is about to commit suicide and that the individual possesses a firearm). In fact, failing to ascertain whether an individual is suicidal would be “poor police work indeed,” since an armed .individual is potentially dangerous not only to himself but to others present. Id. (quoting Terry, 392 U.S. at 23, 88 S.Ct. 1868). Therefore, the deputies in this case needed only a reasonable suspicion that Fisher was potentially about to engage in criminal activity.

Application of the correct standard of reasonable suspicion (not probable cause) to the present case yields the conclusion that the Alexanders did not violate Fisher’s constitutional rights. Whether reasonable suspicion to support a stop and frisk exists in any given case depends upon the totality of the circumstances, known to the officers at the time of the seizure. See United States v. Ridge, 329 F.3d 535, 540 (6th Cir.2003). Reasonable suspicion must be based on particularized and objective evidence, but the evidence need not be as reliable or extensive as that required to support probable cause. Weaver v. Sha-doan, 340 F.3d 398, 407 (6th Cir.2003); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (noting that reasonable suspicion “is obviously less demanding than ... probable cause”).

In this case, the Alexanders — who conducted the seizure of Fisher — -had a reasonable suspicion that Fisher was about to commit suicide. They received a dispatch indicating that a man was sitting on the railroad tracks with his feet tied to the tracks. The call also indicated that the man was suicidal. When they arrived on the scene, they saw Fisher sitting on the railroad tracks in a folding chair. Stephen knew that individuals committed suicide in this manner. Although Fisher arose from his chair and began approaching the deputies, they had no way of knowing from their distance if his feet had once been tied to the railroad tracks, as reported. Finally, they noticed that Fisher was carrying a firearm. As in Bell and Wallace, the fact that Fisher, an allegedly suicidal person with whom they were unfamiliar,,was carrying a weapon could reasonably have led the deputies to believe that Fisher was a danger not only to himself but also to others, including the deputies themselves.3 Therefore, it was permissible for them to detain him temporarily.

The next issue is whether the force used in conjunction with the Terry stop was warranted. As the Supreme Court has noted, “Fourth Amendment jurisprudence has long recognized that the right to make an ... investigatory stop necessarily carries with it with it the right to use some *854degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether a particular use of force was within the bounds of the Fourth Amendment depends upon whether it was reasonably necessary under the circumstances. See id. at 395-97, 109 S.Ct. 1865. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. The use of some degree of force will be justified if “the suspect poses an immediate threat to the safety of the officers or others.” Id. at 396, 109 S.Ct. 1865. When necessary to ensure the safety of the officers, such force may include both drawing a weapon and handcuffing the suspect. Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814-15 (6th Cir.1999); see also United States v. Heath, 259 F.3d 522, 530 (6th Cir.2001) (“This Circuit permits the use of force, such as handcuffs and guns, to effect a stop when such a show of force is reasonable under the circumstances of the stop.”). In certain circumstances, officers may be justified in fearing for their own safety when confronting a person they reasonably believe to be suicidal, and in these circumstances the use of the force necessary to neutralize this threat is warranted. See Wallace, 889 F.2d at 582 (holding that it was reasonable for police to restrain a suspect in the course of effectuating a Terry stop when they had reason to believe he was imminently suicidal and armed); see also Bell, 321 F.3d at 639-40 (finding that police officers were justified in using “bean-bag rounds” to take down a man who threatened suicide, in part because of the threat he posed to the officers); cf. Monday, 118 F.3d at 1104-05 (finding that police were justified in using pepper spray to seize a suspect they had probable cause to believe was attempting suicide when the suspect was of considerable physical size and refused to hospitalize himself voluntarily).

As with the seizure inquiry, when assessing the reasonableness of the degree of force used by officers in effectuating a Terry stop, this court must consider the totality of the circumstances known to the officers prior to the use of force. See Graham, 490 U.S. at 397, 109 S.Ct. 1865. Importantly, we do not evaluate the reasonableness of the force actually used “with the 20/20 vision of hindsight” by considering facts of which the officers were unaware but which later came to light. Id. at 396, 109 S.Ct. 1865.

Here, the deputies were justified in drawing their weapons and in handcuffing Fisher. Upon arriving at the scene, it was reasonable for the deputies to conclude that a man they believed to be suicidal and who was in possession of a firearm posed an immediate threat to their safety. The deputies could reasonably deduce that such an individual would have little regard for the consequences of his actions and might turn the firearm he possessed on them. Hence, it was reasonably necessary for the deputies to draw their weapons on Fisher initially. Even after Fisher placed the firearm visible to the deputies on the ground, their further conduct was warranted. The fact that Fisher possessed one firearm gave the deputies reason to believe that he possessed another. See United States v. Butcher, Nos. 92-3987/4011, 1993 WL 272450, at *7 (6th Cir. July 19, 1993). Moreover, prior to handcuffing Fisher, Stephen Alexander saw ammunition in Fisher’s overalls that he believed could have been for another weapon on Fisher’s person. That it later became apparent that Fisher did not possess a second firearm is of no moment. Again, as Stephen Alexander stated, the officers were trying to “pat Mr. Fisher down for weapons and *855ascertain what was going on.” At the time the deputies handcuffed Fisher, it was reasonable under the circumstances then known to them to fear that he might suddenly reach for a second firearm and harm them. Consequently, it was also reasonably necessary for them to continue training their weapons on Fisher and to handcuff him in order to guarantee their own safety. The deputies even made sure that the manner in which Fisher was handcuffed did not cause him undue discomfort.

It should also be noted that the temporary detention did not otherwise ripen into an arrest, which would have necessitated probable cause. A Terry stop may ripen into an arrest due to the passage of time or due to the nature of the force used to effectuate the stop. Houston, 174 F.3d at 814. With respect to the duration of a Terry stop, the stop ripens into an arrest if police detain an individual longer than necessary to investigate the suspicious circumstances that led to the original stop. See United States v. Butler, 223 F.3d 368, 374 (6th Cir.2000). The degree of force an officer uses to conduct an investigatory stop must be reasonably necessary to effectuate the stop; otherwise, the stop becomes an arrest. Feathers v. Aey, 319 F.3d 843, 851 (6th Cir.2003).

In this case, the length of the detention does not demonstrate that the Terry stop became an arrest. The detention lasted approximately five minutes, and the deputies were not able to complete their investigation because of Fisher’s unfortunate medical emergency. As for the manner in which the deputies conducted the stop, they used no more force than was reasonably necessary. The deputies trained their guns on Fisher only until he was handcuffed, and the handcuffs were necessary to ensure that Fisher, who they reasonably feared was in possession of another firearm, did not harm them. As soon as Fisher became physically distressed and was no longer a potential threat to the deputies, his handcuffs were removed. In other words, in the circumstances of this case, the deputies did not exceed the scope of the initial stop. Rather, their actions were reasonably related to their investigation into whether Fisher was indeed suicidal and were reasonably necessary to ensure their own safety.

In conclusion, the facts of this case do not support the majority’s conclusion that Fisher presented evidence sufficient to demonstrate that defendants violated his Fourth Amendment rights. The qualified immunity inquiry should thus end at the first step. While I agree with the majority that the district court did not err in granting summary judgment to Leary and Harden, for the foregoing reasons, I would also affirm the district court’s judgment with respect to the Alexanders.

. The majority states that the defendants conceded that "they were not responding to a report of criminal conduct and that they never suspected that Fisher was engaged in or about to be engaged in a crime.” Maj. op. at 842. While it is true that the deputies were not responding to a report of criminal conduct, and there is no indication that the deputies thought Fisher was about to engage in some specific or premeditated criminal activity, the record makes clear that the deputies did in fact suspect (reasonably) that Fisher might pose a general threat to himself and other people.

. Ohio Rev.Code § 5122.10 grants police officers the right to hospitalize involuntarily individuals they have reason to believe are mentally ill.

. It should be noted that in none of the “mental health seizure” cases cited by the majority to support its conclusion that probable cause is the correct standard for evaluating the deputies' conduct did the allegedly suicidal or mentally ill individual carry a firearm. See Sullivan v. County of Hunt, 106 Fed. Appx. 215, 217-18 (5th Cir.2004); Bailey v. Kennedy, 349 F.3d 731, 734-35 (4th Cir.2003); Glass v. Mayas, 984 F.2d 55, 55-56 (2d Cir.1993); Sherman v. Four County Counseling Ctr., 987 F.2d 397, 399 (7th Cir.1993); Gooden v. Howard County, 954 F.2d 960, 962-64 (4th Cir.1992); Harris v. Pirch, 677 F.2d 681, 682-85 (8th Cir.1982); In re Barnard, 455 F.2d 1370, 1372 (D.C.Cir.1971).