Miller v. Sanilac County

COOK, Circuit Judge,

concurring in part and dissenting in part.

I would affirm the district court’s decision and, therefore, respectfully dissent from those portions of the majority opinion reversing the grant of summary judgment to Deputy Wagester.

I.

A. § 1983 Claims

1. Unlawful Seizure: Arrest1

Reckless Driving

Despite Miller’s admission “that he ran a stop sign going approximately 30 miles per hour,” the majority concludes that “icy road conditions — which could certainly have caused Miller to inadvertently drive *256through the stop sign” — created a genuine issue of fact as to whether probable cause existed for the arrest. Adherence to the proper probable cause inquiry leads me to disagree.

“In order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002). “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir.2007) (quotation marks and citation omitted). Michigan law provides that “[a] person who drives a vehicle upon a highway ... in willful or wanton disregard for the safety of persons or property is guilty of reckless driving,” Mich. Comp. Laws § 257.626(1), and classifies reckless driving as an arrestable offense, § 764.15.

Miller’s driving through a stop sign at 30 miles per hour supplied probable cause for his arrest. See, e.g., United States v. Miller, 326 Fed.Appx. 513, 516 (11th Cir.2009) (police had probable cause to stop vehicle for reckless driving after observing plaintiff “drive recklessly and ignore a stop sign”); United States v. Jackson, 167 Fed.Appx. 812, 813 (D.C.Cir.2005) (police had probable cause to stop vehicle for reckless driving after observing plaintiff fail to stop at a stop sign, fail to signal when turning, and swerve to avoid oncoming traffic in an alley). The vehicle’s speed is critical to this finding. If Miller skidded through the stop sign or traveled through the intersection at a greatly reduced speed, for example, the majority might justifiably find a genuine issue of material fact. But driving through an intersection at 30 miles per hour evinces wanton disregard for the safety of others. Indeed, rather than call into question the issue of probable cause, the icy road conditions favor the officer’s judgment that Miller was driving too fast for the conditions.

Driving Under the Influence2

Probable cause to arrest Miller for reckless driving precludes a wrongful arrest claim, even if Wagester lacked probable cause for the additional charges. Lyons v. City of Xenia, 417 F.3d 565, 573 (6th Cir.2005); Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir.2006). But because probable cause is a necessary element of malicious prosecution, I address the issue here.

The probable cause inquiry entails an examination of the totality of the circumstances “from a law enforcement officer’s perspective.” United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (en banc) (citations omitted). The determination hinges not on hindsight, but on the facts as perceived by a reasonable officer in Wag-ester’s position when the stop and arrest occurred. Other circuits recognize that “[a plaintiffs] refusal to take a breathalyzer test, coupled with the smell of alcohol from the vehicle, g[i]ve[s] [officers] probable cause to arrest.” Miller v. Harget, 458 F.3d 1251, 1260 (11th Cir.2006); see also Summers v. Utah, 927 F.2d 1165, 1166 (10th Cir.1991). Here, Miller drove recklessly, gave varying accounts of his whereabouts, failed all but one of the field sobriety tests,3 and refused a breathalyzer. *257Evaluating the facts from Wagester’s perspective, but in the light most favorable to Miller, sufficient facts supported the decision to arrest. See Jolley v. Harvell, 254 Fed.Appx. 483, 488-89 (6th Cir.2007).

2. Malicious Prosecution

While the elements of a federal malicious prosecution claim remain undefined in this circuit, our eases clearly establish a plaintiffs obligation to show, “at a minimum, the absence of probable cause to justify his arrest and prosecution.” Barnes v. Wright, 449 F.3d 709, 716 (6th Cir.2006) (citations, quotation marks, and editorial marks omitted). And, here, the circumstances offered the requisite probable cause to justify Miller’s arrest and prosecution.

3. Excessive Force

I agree with my colleagues’ conclusion that Miller failed to come forward with evidentiary support for his first two excessive force claims — unnecessary detention in freezing weather and failure to loosen handcuffs. I cannot agree, however, with the view they take on the third claim— slamming against the vehicle.

Drawing all inferences in Miller’s favor, Wagester spun him around, “slammed” him against his vehicle, and kicked his feet apart — but caused no injury. Arrests effected by law enforcement officials on a daily basis could be described that same way. Indeed, this is why the Supreme Court counsels that “the right to make an arrest ... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it” and that “not every push or shove ... violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation and quotation marks omitted).

Although a slam might constitute excessive force in some circumstances, it fails to rise to that level here. Miller’s deposition testimony confirms this conclusion. According to Miller, as Wagester informed him that he was under arrest, the officer “turned [him] around and shoved [him] against [the car].” Miller does not claim that Wagester shoved him violently, maliciously, or gratuitously. Cf Burden v. Carroll, 108 Fed.Appx. 291, 293 (6th Cir.2004) (officer violently shoved plaintiff into a brick wall with protrusions, causing significant injury). And when asked if Wag-ester’s actions hurt him, Miller responded: “I mean, not really.” Miller’s “ambiguous description of the ... shov[e] ... he endured constitutes at best a scintilla of evidence, insufficient for a rational trier of fact to conclude that a reasonable officer would consider the force excessive.” Goodrich v. Everett, 193 Fed.Appx. 551, 557 (6th Cir.2006). Because Miller fails to “allege a level of force or brutality that a reasonable officer would consider excessive,” id., the district court correctly granted Wagester qualified immunity.

B. State Claims

As with Miller’s federal claims, the existence of probable cause proves fatal to his state tort claims of false arrest/false imprisonment and malicious prosecution. Similarly, Miller’s assault and battery claim mirrors his federal excessive force *258claim insofar as Miller can only recover if Wagester acted unreasonably — which he did not. The district court properly resolved Miller’s state law claims.

II.

Wagester discharged his duties constitutionally and reasonably. Thus, I would affirm the district court’s grant of summary judgment.

. My differing analysis calls for examining Miller’s wrongful arrest claims before turning to malicious prosecution.

. Michigan’s minor in possession statute criminalizes the underage consumption or possession of alcoholic liquor. Mich. Comp. Laws § 436.1703(1). Thus, the same facts establishing probable cause for driving under the influence (which necessarily encompasses consumption) also suffice to show probable cause for minor in possession.

. The majority questions how "Miller could more specifically challenge ... [his] ... performance on [the] field sobriety tests,” Maj. Op. at 249, and refuses to consider the tests *257for purposes of summary judgment. But, as the district court correctly noted, Miller never argued that he passed the field sobriety tests. Moreover, a variety of factors — including inclement weather — might cause a sober person to fail a sobriety test and prompt an officer to reasonably (but mistakenly) suspect intoxication. Although we must view the facts in the light most favorable to the plaintiff, Miller does not adequately put his failure of the sobriety tests in dispute.