"He Was Violent So I Cuffed Him" + "You Started It And You Were Mean" = "Bring In The Jury, Bailiff"

MCKENNA v. CITY OF ROYAL OAK, USCA-6 No. 05-2650, 2006 U.S.App. LEXIS 29191, appeal from USDC-MIED, before Circuit Judges Moore, Rogers, and Gibson, opinion by Rogers, filed 28 Nov 2006.

LONG STORY SHORT: When officers testify to one version of events, and Plaintiff's witness testified to another, the dispute of fact prevented summary judgment and qualified immunity, and deprived the Court of Appeals of jurisdiction to hear the appeal. Binding in KY, MI, OH, TN.

FACTS: On 18 March 2004, Plaintiff suffered a seizure at his home where he was the single father of three daughters. The 14-year-old called 911 and Royal Oak Police Officers Edgell and Honsowetz responded, finding Plaintiff lying in bed. After that, accounts differ.

Plaintiff's 14-year-old testified that she heard the officers tell Plaintiff to get up and get dressed, which Plaintiff started to do but then laid back down. The officers tried to pull him out of bed, telling him to put his pants on, but Plaintiff kept lying back down and telling the officers to stop, in words that Plaintiff's daughter could understand, until the officers cuffed his wrists and ankles, after which he began resisting.

The officers testified that they questioned Plaintiff with no response, so Officer Edgell placed a hand on Plaintiff's shoulder or upper arm to awaken him. When Plaintiff arose, he pushed the officers away and caused Officer Honsowetz to fall backwards. The officers had to cuff his wrists and ankles because of his violent behavior.

Firefighters arrived as the officers were restraining Plaintiff. Plaintiff himself had no memory of what happened.

PROCEDURE: Plaintiff sued the officers and the City of Royal Oak in U.S. District Court for the Eastern District of Michigan per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable seizure. The City won summary judgment because there was no evidence that it had a policy or custom that caused the complained-of violations. The officers argued that Plaintiff was never arrested or unreasonably restrained. Since he was not aware of what was going on, he had no freedom to be taken away. Also, the officers' actions did not violate any clearly established constitutional right, entitling them to qualified immunity.

The district court ruled that the differing accounts of Plaintiff's daughter and the officers established a genuine issue of material fact that the court could not resolve as a matter of law. SUMMARY JUDGMENT DENIED. The officers immediately appealed the denial of qualified immunity to the U.S. Court of Appeals for the Sixth Circuit, and submitted the Fourth Amendment issue on pendent jurisdiction.

DECISION: Qualified immunity, if none of the facts material to it are still in dispute, is appealable immediately, contrary to the usual wait for final judgment, because qualified immunity is supposed to protect officials from trial as well as liability. However, immediate appeal is only possible if enough facts remain undisputed to make the decision a purely legal one. Here, if it happened as the officers testified, they might escape liability. But if it happened as Plaintiff's daughter testified, then a reasonable jury could find for Plaintiff.

Given this dispute of fact, the Sixth Circuit could not rule that the officers were entitled to qualified immunity. Indeed, since a factual dispute still existed, no appellate court even had subject matter jurisdiction. Without jurisdiction to consider questions of qualified immunity, neither could there be pendent jurisdiction over the Fourth Amendment issues. APPEAL DISMISSED for lack of subject matter jurisdiction.

EDITORIAL: By now, all y'all know that I have no use for gold-diggers playing lawsuit lottery with the police, and even less use for their assclown PI lawyers who should know far better. Then again, I am just as merciless on unethical insurance defense firms who pee on judges' heads and tell them it's raining. This was a clear case of one side swearing to apples, the other side swearing to oranges, and defense counsel trying to hornswoggle the court by ignoring the testimony they don't like and then saying see, our guys are the undisputed champs!

If I had been the defendant officer here, I would have fired Sir Sleazy and taken over. Wrong is wrong. I know personally that no good deed goes unpunished and it totally sucks to be sued, but like I say, you can't shoot misses fast enough to win the gunfight. Instead, you use the true facts and correct law to turn up the suckage on THEM. Sooner or later, you will cost them enough that any victory is Pyrrhic. Works for me, every time.