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Brown v. Lewis

United States Court of Appeals, Sixth Circuit

February 26, 2015

KISHNA BROWN, Plaintiff-Appellee,
v.
BRADLEY LEWIS; NATHANIEL KAMP; JASON RICHNAK, Defendants-Appellants

Argued October 7, 2014

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Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:12-cv-14953--Thomas L. Ludington, District Judge.

ARGUED:

Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellants.

J. Nicholas Bostic, Lansing, Michigan, for Appellee.

ON BRIEF:

Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellants.

J. Nicholas Bostic, Lansing, Michigan, for Appellee.

Before: KEITH, MOORE, and STRANCH, Circuit Judges.

OPINION

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JANE B. STRANCH, Circuit Judge.

Based on confusing statements overheard by a 911 operator, several police officers pulled over Kishna Brown, ordered her out of her car at gunpoint, threw her to the ground, handcuffed her, and detained her in handcuffs for approximately ten minutes. Brown sued three officers who seized her, among other defendants, bringing claims under 42 U.S.C. § 1983 and the Fourth Amendment for unreasonable seizure and excessive force and under Michigan state law for assault and battery. The district court denied qualified and governmental immunity to the defendant officers, concluding that, while the officers had reasonable suspicion to stop Brown, the stop ripened into an unlawful arrest. It further concluded that the officers used excessive force. For the following reasons, we affirm.

I. FACTS & PROCEDURAL HISTORY

A 911 call from 305 Marsac Street triggered the events leading to this litigation. No participant in the events that gave rise to the stop of Brown as she drove away from that house had a full understanding of what was happening. Because our legal analysis requires an understanding of what each participant knew at different times during the events, the various points of view will be set out separately.

We begin with the recorded 911 call and the events from the perspective of the 911 operator who conveyed some information from the call to the officers in the field. On April 28, 2011, the operator answered a call from 305 Marsac Street and heard a male voice slur: " Yea. Bump and grind goin down.[1] Bump and grind goin down. Uh, you gonna, you gonna send 'em or what?" 911 Audio Recording, R. 24, at 0:22-0:28. (The caller's voice indicates intoxication and is distinct throughout the recording. Although the 911 operator did not know that the voice belonged to Robert Surgeson, we will refer to him by his first name for clarity's sake.) When the operator asked for more information, Robert was unhelpful, telling her, " You figure it out." Id. at 0:30-0:31. Apparently, Robert tried to hang up the phone but did not, and the operator heard him saying that the police were about to enter the house. He announced that he was going to hide upstairs and ordered others not to open the door. Id. at 2:03-2:10. Laughing, a young female voice joked that she would open the door for the police, as Robert continued to worry: " The po-po's are coming here. The po-po's are coming here. . . . They are. They're on their way. Straight on their way. Don't open the door." Id. at 2:20-2:34. As Robert said this, the voices in the background continued to laugh and ridicule him.

Later, Robert asked for a ride, to which a young male replied that his mother was

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coming and could drive Robert. At one point, Robert misheard the young voices as telling him that a much-disliked local narcotics officer was outside, which prompted them to laugh at him again. He continued to demand a ride, finally saying " I need a ride. I'm gonna kill that bitch," apparently expressing his frustration that the young man's mother had not yet returned. Id. at 13:21-13:24. A couple of minutes later, a new woman arrived (whom we now know to be Robert's sister, Leslie Surgeson) and chastised the caller for getting drunk and using abusive language toward her children. Leslie told Robert that he was drunk and " I don't like you like that." Id. at 16:17-16:25. At the time that the 911 operator was overhearing this part of the conversation at the Marsac Street home, the officers in the field had decided to stop Brown.

While the officers were preparing to stop Brown, Robert was overheard asking to borrow money and playing with a young child. Soon after hearing this, the 911 operator decided to stop listening to the call and instead listened to the police-radio chatter. She did not tell anyone that the caller was drunk or that he was still in the house. The seizure of Brown occurred soon after.

Next, there is Brown's experience of events. The afternoon before she was seized, Kishna Brown and her friend Leslie Surgeson left Leslie's house at 305 Marsac Street. Their teenage children remained at the house with Robert. Leslie later received calls from the teenagers, saying Robert had gotten drunk and was acting strangely. The teenagers asked Leslie to return and calm him down. As Leslie and Brown made their way home, another of Brown's daughters called to ask for a ride home from the hospital. Brown decided to drop Leslie off at 305 Marsac Street and go on to the hospital to pick up her daughter.

Brown dropped Leslie off and drove several blocks to Garfield Avenue. After she turned onto Garfield, she noticed that a car had turned south onto the same street, with two police trucks behind it. She saw the car make a U-turn on Garfield, with the police trucks making U-turns soon after, with the trucks then turning on their lights. Thinking that the police trucks were chasing the car, she turned left into a BP gas station to get out of the way.

The police trucks suddenly pulled in behind her. The lights continued to flash, and the officers surrounded her car. She saw an officer open the rear passenger-side door and point an AR-15 rifle at her head. She began to scream " at the top of [her] lungs, what's going on, what did I do?" The officers shouted at her to " shut the F up" and to put her hands up. She put her hands up, but continued to ask what was going on, which led the officer with the rifle pointed at her head to curse at her. The other officers surrounded the car with guns pointed at her as well.

One of the officers opened the driver-side door and directed Brown to get out of the car. She began to step down from the car, but before her foot touched the ground, two officers grabbed her by her hooded sweatshirt and threw her to the ground about ten feet away. She fell onto her hands and knees, at which point one or two officers put their knees on her back, pushing her to the ground. The police refused to answer her questions about what was going on while they handcuffed her. Once she was in handcuffs, an officer helped her to her feet, and the police began to question her. She told the police that she had just left 305 Marsac Street and that she had dropped Leslie off there. The police demanded that she call Leslie's cell phone, since the landline was off the

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hook and connected to 911. After an officer spoke to Leslie and learned that Robert did not pose any danger to the police or anyone else, they removed the handcuffs and released Brown. The entire encounter between Brown and the police lasted approximately ten minutes.

The final version of events is the officers' and is evidenced by the recording of the police dispatch radio and dispatch log. Soon after the 911 operator received the call from the Marsac Street house, a police dispatcher described it over police radio. The dispatcher told officers that a " male subject" had " stated there was a bump and grind going on, would not elaborate as to what that was, just said 'send the police.' Has now set the phone down so we have an open line. Can hear him talking to a female, telling her 'go upstairs, don't open the door, the police are on the way.' Still have an open line. Not sure what's going on." Police-Radio Recording, R. 24, at 21:15-21:46. The dispatcher sent a car to the house, and another officer arranged with other units to meet at a nearby city building and coordinate.

While the 911 operator continued to listen to the call, the police dispatcher reported that the caller was " just listening to [the 911 operator]" and breathing into the handset and that a male had asked for a ride and made a comment about " going to kill that ... uh ... bad female word." Id. at 23:56-24:02; 25:11-25:26. The dispatcher described the conversation which included the " kill that bitch" comment as " not much" of an update. Id. at 25:11-25:13. He ...


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