Mary Cherrington v. ANDRE SKEETER, JOHN KINNEY, and CITY OF CIRCLEVILLE, OHIO

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0342P (6th Cir.)
File Name: 03a0342p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARY CHERRINGTON and
DAIJA KING, a minor, by and
through her mother and next
friend, Mary Cherrington,
Plaintiffs-Appellants,
v.
ANDRE SKEETER, JOHN
KINNEY, and CITY OF
CIRCLEVILLE, OHIO,
Defendants-Appellees.
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No. 01-3637
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 99-00462—George C. Smith, District Judge.
Argued: August 7, 2002
Decided and Filed: September 24, 2003
Before: MOORE and GILM AN, Circuit Judges;
ROSEN, District Judge.*
2 Cherrington, et al. v. Skeeter, et al. No. 01-3637
_________________
COUNSEL
ARGUED: Jeffery M. Blosser, KEVIN O’BRIEN &
ASSOCIATES, Columbus, Ohio, for Appellants. Brian M.
Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio,
for Appellees. ON BRIEF: Jeffery M. Blosser, KEVIN
O’BRIEN & ASSOCIATES, Columbus, Ohio, for
Appellants. Brian M. Zets, Philip K. Hartmann, Stephen
Jesse Smith, SCHOTTENSTEIN, ZOX & DUNN, Columbus,
Ohio, for Appellees.
ROSEN, D. J., delivered the opinion of the court, in which
GILMAN, J., joined. MOORE, J., concurred in the result
only.
_________________
OPINION
_________________
ROSEN, District Judge. Plaintiffs/Appellants Mary
Cherrington and her daughter, Daija King, appeal the District
Court’s decision to grant summary judgment in favor of
Defendants/Appellees Andre Skeeter, Jon Kinney, and the
City of Circleville, Ohio in this action brought under 42
U.S.C. § 1983. For the reasons stated below, we affirm in
part and reverse in part the rulings of the District Court, and
remand this case for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 1996, the Defendant/Appellee City of
Circleville, Ohio commenced an undercover law enforcement
investigation in response to concerns of increased illegal drug
trafficking activities within the City. Because of insufficient
resources and a concern that the City’s traditional police force
could not conduct an anonymous undercover operation amidst
Circleville’s small population, the City sought outside

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 3
1Skeeter testified at his deposition that he did not actually ingest
these drugs, but merely pretended to do so.
assistance in its investigation. Specifically,
Defendant/Appellee Police Chief Jon Kinney contacted a
private security firm, which in turn referred Chief Kinney to
Defendant/Appellee Andre Skeeter, a private investigator.
Based on this referral, Chief Kinney met with Skeeter,
reviewed his credentials, conducted a background check, and
then decided to hire him.
Skeeter was sworn in as a police officer on September 3,
1996, and began his undercover investigation under the direct
supervision of Investigator Kevin Clark. Skeeter spoke with
Clark on a regular basis, and submitted periodic reports on the
progress of his investigation. Skeeter also met from time to
time with Chief Kinney. Throughout his investigation,
Skeeter was not told to target any particular individuals, but
rather was directed to go out into the Circleville community,
befriend people, and determine who to target for further
investigation. Through these efforts, Skeeter came into
contact with Plaintiff/Appellant Mary Cherrington. The two
became friends, periodically smoking marijuana or snorting
cocaine together.1
After nearly a year of this investigation, Chief Kinney,
Investigator Clark, Skeeter, and the county prosecutor decided
to conclude the matter by arresting selected individuals and
seeking their cooperation in additional drug purchases. Chief
Kinney further determined, in consultation with the county
prosecutor, that these individuals should be taken to a motel
rather than the Circleville police department or the county
jail, in order to avoid tipping off potential targets of this “buy-
bust” operation. Skeeter chose Cherrington as one of the
individuals to arrest, believing that she might be willing to
cooperate with the authorities.
4 Cherrington, et al. v. Skeeter, et al. No. 01-3637
2The local courts were closed on Monday, September 1, 1997 for the
Labor D ay holid ay.
Accordingly, on the evening of Friday, August 29, 1997,
Skeeter arranged for a mutual acquaintance, Leslie Jones, to
go to Cherrington’s residence and ask her to purchase $100
worth of cocaine. Cherrington agreed, left her home to make
the purchase, and returned about a half an hour later. A short
time later, Cherrington’s friend, Scott Smallwood, arrived at
her house and began smoking crack in the kitchen. Skeeter
then arrived at Cherrington’s home, accompanied by another
law enforcement agent. Upon witnessing Smallwood
smoking crack and learning that Cherrington had made the
requested cocaine purchase, Skeeter placed both Cherrington
and Smallwood under arrest. This arrest apparently occurred
at around 2:30 a.m. on Saturday, August 30, 1997.
Cherrington was told to pack a bag, and Skeeter then drove
her and her two-year-old daughter, Plaintiff/Appellant Daija
King, to a Travel Lodge motel at the outskirts of Circleville.
At around 3:15 a.m., Cherrington signed a form indicating
that she had been advised of her Miranda rights by Inspector
Clark, and that she had agreed to waive these rights and
voluntarily speak to the police. Cherrington remained at the
motel with her daughter for the next 24 hours, during which
time she cooperated with the authorities by arranging a drug
purchase. Cherrington testified at her deposition that she
requested permission to contact someone to pick up Daija, but
that this request was refused, leading her to surreptitiously
call a friend to come and get her daughter. Before this friend
could arrive, however, Cherrington and Daija were taken from
the motel and placed in a police car.
On Sunday, August 31, 1997 at 3:37 a.m., about 24 hours
after her arrest, Cherrington was taken to the Circleville
police department for processing and placed in a cell. Her
daughter Daija was released to a friend. Over 48 hours later,
at around 8:30 a.m. on Tuesday, September 2, 1997,2

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 5
3It is not clear whether Plaintiffs also meant to assert state-law claims
in their complaint. In any event, upon determining that Plaintiffs’ federal
claims were subject to dismissal, the District Court declined to exercise
its supplemental jurisd iction over any remaining state-law claims, and
Plaintiffs do no t challenge this asp ect of the lower court’s ruling.
Cherrington was arraigned on drug trafficking charges. She
subsequently pled guilty to two counts of trafficking in
cocaine.
Based on these incidents, Plaintiffs/Appellants Mary
Cherrington and Daija King brought this § 1983 suit on
May 13, 1999, alleging that Defendants/Appellees Skeeter,
Kinney, and the City of Circleville violated their rights under
the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments
to the U.S. Constitution.3 By Opinion and Order dated
May 11, 2001, the District Court granted Defendants’ motion
for summary judgment, denied Plaintiffs’ motion for
summary judgment, and ordered that Plaintiffs’ claims be
dismissed. Through their present appeal, Plaintiffs challenge
only certain aspects of the lower court’s decision: (i) the
dismissal of Daija King’s claims; (ii) the grant of qualified
immunity to the individual Defendants on Mary
Cherrington’s Fourth Amendment claim of an unlawfully
prolonged detention without arraignment; and (iii) the
determination that Plaintiffs failed to identify a basis for
municipal liability against the Defendant City of Circleville.
We affirm the first of these rulings, but reverse and remand
on the remaining two points.
II. ANALYSIS
A. The Standards Governing This Appeal
This case is on appeal from the District Court’s grant of
summary judgment to Defendants. Accordingly, we review
this District Court ruling de novo. See Holloway v. Brush,
220 F.3d 767, 772 (6th Cir. 2000). Likewise, to the extent
that this appeal challenges the District Court’s decision to
6 Cherrington, et al. v. Skeeter, et al. No. 01-3637
confer qualified immunity upon the individual Defendants,
we review this question of law de novo. See Gardenhire v.
Schubert, 205 F.3d 303, 310 (6th Cir. 2000).
B. The Individual Defendants Are Protected by
Qualified Immunity Against the § 1983 Claims
Asserted by Daija King.
Among the grounds advanced in Defendants’ summary
judgment motion in the court below, the individual
Defendants, Andre Skeeter and Chief Kinney, argued that
they were shielded from liability under 42 U.S.C. § 1983 by
the doctrine of qualified immunity. In addressing the § 1983
claims asserted by Plaintiff Daija King, the District Court did
not explicitly conduct a qualified immunity analysis, but
instead found more generally that the individual Defendants
did not act “objectively unreasonabl[y] under the
circumstances” in electing to keep mother and daughter
together during the arrest and initial detention of Plaintiff
Mary Cherrington. (District Court Op. at 6, J.A. at 715.)
Upon assessing Defendants’ conduct under the standards of
qualified immunity, we reach the same conclusion.
The Supreme Court has instructed that a qualified
immunity inquiry generally entails two discrete analytical
steps. As a threshold matter, we must ask whether the record,
viewed most favorably to the plaintiff, establishes that “the
officer’s conduct violated a constitutional right.” Saucier v.
Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); see
also Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “If
no constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity.” Saucier, 533 U.S.
at 201, 121 S. Ct. at 2156. “On the other hand, if a violation
could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the
right was clearly established.” 533 U.S. at 201, 121 S. Ct. at
2156; see also Burchett, 310 F.3d at 942.

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 7
To this point, the parties have made little effort to identify
the constitutional rights of Daija King that might have been
implicated by Defendants’ conduct. Indeed, the record on
appeal fails to indicate that the parties even addressed Daija
King’s claims in their submissions to the District Court.
Plaintiffs’ appellate brief offers only slightly more guidance,
summarily asserting that Daija was “falsely arrested and
illegally detained.” (Plaintiffs/Appellants Br. at 12.) This
suggests that Daija’s § 1983 claims rest upon the Fourth
Amendment prohibition against unreasonable seizures. And,
to be sure, the Supreme Court has recognized that “whenever
a police officer accosts an individual and restrains his
freedom to walk away, he has ‘seized’ that person.” Terry v.
Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877 (1968); see also
Burchett, 310 F.3d at 942. Under this definition, Daija King
was “seized” when Defendants insisted that she remain with
her mother as the latter was arrested and detained in a motel
room. Daija was not free to remain at home or to walk away
from the motel — to the contrary, the record suggests that
Defendants actively opposed any effort to release Daija from
their custody into the care of a third party.
Yet, other cases tend to place a different constitutional
gloss upon Daija King’s claims in this case. In Davis v.
Brady, 143 F.3d 1021, 1024-26 (6th Cir. 1998), for example,
we held that a Fourteenth Amendment substantive due
process violation can occur when the State takes an individual
into its custody and then fails to adequately ensure her safety
and well-being. In so ruling, we relied in part on the decision
in DeShaney v. Winnebago County Dep’t of Social Services,
489 U.S. 189, 109 S. Ct. 998 (1989), in which the Supreme
Court explained:
[W]hen the State takes a person into custody and holds
him there against his will, the Constitution imposes upon
it a corresponding duty to assume some responsibility for
his safety and well-being. The rationale for this principle
is simple enough: when the State by the affirmative
exercise of its power so restrains an individual’s liberty
8 Cherrington, et al. v. Skeeter, et al. No. 01-3637
that it renders him unable to care for himself, and at the
same time fails to provide for his basic human needs —
e.g., food, clothing, shelter, medical care, and reasonable
safety — it transgresses the substantive limits on state
action set by the Eighth Amendment and the Due Process
Clause. The affirmative duty to protect arises not from
the State’s knowledge of the individual’s predicament or
from its expression of intent to help him, but from the
limitation which it has imposed on his freedom to act on
his own behalf. In the substantive due process analysis,
it is the State’s affirmative act of restraining the
individual’s freedom to act on his own behalf — through
incarceration, institutionalization, or other similar
restraint of personal liberty — which is the “deprivation
of liberty” triggering the protections of the Due Process
Clause . . . .
DeShaney, 489 U.S. at 199-200, 109 S. Ct. at 1005-06
(citations and footnote omitted). These principles seemingly
are implicated here, where Defendants restrained Daija’s
freedom to act on her own behalf or to secure the assistance
of a substitute caregiver in providing for her basic needs.
In the end, however, the outcome is the same whether we
analyze Daija King’s allegations under Fourth Amendment or
substantive due process standards. Under the Fourth
Amendment, Daija’s seizure must not have been
“unreasonable,” with the proper measure of unreasonableness
depending upon the type of seizure. Thus, if Daija was
arrested, as Plaintiffs argue, Defendants’ action must have
been supported by probable cause. See Dunaway v. New
York, 442 U.S. 200, 207-08, 99 S. Ct. 2248, 2253-54 (1979).
No one seriously contends that Defendants had probable
cause to arrest Daija.
Yet, not all seizures are tantamount to arrests sustainable
only upon probable cause. See Michigan v. Summers, 452
U.S. 692, 696-97, 101 S. Ct. 2587, 2590-91 (1981);
Dunaway, 442 U.S. at 208-10, 99 S. Ct. at 2254-55. In cases

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 9
of suspected child abuse or neglect, for example, the courts
have held that a caseworker may remove a child from her
home upon a reasonable belief that the child is in imminent
danger of harm. See, e.g., Doe v. Texas Dep’t of Protective &
Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002);
Brokaw v. Mercer County, 235 F.3d 1000, 1010-11 (7th Cir.
2000). As another example, the police have the limited
authority to briefly detain those on the scene, even wholly
innocent bystanders, as they execute a search or arrest
warrant. See Summers, 452 U.S. at 705, 101 S. Ct. at 2595;
Burchett, 310 F.3d at 942-43; see also United States v. Enslin,
327 F.3d 788, 797 n.32 (9th Cir. 2003) (finding that Summers
applies in the context of arrest as well as search warrants).
Unfortunately, the present case does not fit neatly within
any of these recognized analytical frameworks. Plainly, Daija
King was not held on suspicion of any criminal activity. Nor,
in contrast to the child abuse and neglect cases, did
Defendants seize Daija out of a belief that she faced an
imminent danger of harm in her home. Neither can it be said
that Daija was detained in order to “facilitate[] the orderly
completion of” Mary Cherrington’s arrest and “minimize[]
the risk of harm to officers and others” as they carried out this
arrest. Burchett, 310 F.3d at 943. Rather, Daija King was
taken along with her mother because the arresting officers
deemed it inappropriate to leave the two-year-old child alone
at home, and because they either failed to identify or declined
to pursue other options for ensuring Daija’s safety and well-
being following her mother’s arrest.
Lacking any direct guidance on the legal inquiry that might
govern such a situation, the District Court assessed
Defendants’ conduct under a general standard of
reasonableness. (See District Court Op. at 5-6, J.A. at 715-
16.) This approach comports with the Supreme Court’s
general instruction that, in cases involving seizures short of a
traditional arrest, the courts should be guided by “the ultimate
standard of reasonableness embodied in the Fourth
Amendment.” Summers, 452 U.S. at 699-700, 101 S. Ct. at
10 Cherrington, et al. v. Skeeter, et al. No. 01-3637
2593 (footnote omitted); see also Terry, 392 U.S. at 19, 88
S. Ct. at 1878-79 (describing the “central inquiry under the
Fourth Amendment” as “the reasonableness in all the
circumstances of the particular governmental invasion of a
citizen’s personal security”).
At least one other court has employed this same
“reasonableness” inquiry under facts similar to those
presented here. In Matheny v. Boatright, 970 F. Supp. 1039,
1041 (S.D. Ga. 1997), the defendant police officers brought
the plaintiff children along as their mother, Angela Matheny,
was arrested on drug charges, taken to a detention facility,
interrogated, and booked. Matheny alleged that she had
sought permission to contact her children’s aunt and
grandmother to come and take care of the children, but that
she was not allowed to make such arrangements until nearly
an hour after she arrived at the detention facility. The Court
analyzed these circumstances under Fourth Amendment
standards, as well as on other grounds, and found that the
defendant officers had acted reasonably:
Matheny does not contend that Defendants had any
physical contact with the children. Nor does she claim
that the children suffered any physical injury inflicted by
Defendants. Matheny also does not claim that
Defendants directed any harsh or abusive language at the
children. In light of the circumstances surrounding
Matheny’s arrest, namely that her three minor children
were present without any other adult present to care for
them, Defendants’ actions were reasonable. The facts
suggest that rather than putting the children at risk,
Defendants undertook to care for the children until
suitable arrangements could be made for their care.

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 11
4To similar effect, the District Court cited the decision in Caplan v.
Roseman, 667 F. Supp. 549 (N.D. Ohio 1987), in which a divorced father
complained that his and his son’s constitutional rights were violated when
the defendant police officers prevented him from taking his child on an
out-of-state vacation. T he officers had been told that this out-of-state trip
would violate a court-ordered visitation schedule, and the legal d ocuments
produced by the father failed to persuade them otherwise. In holding that
the defendant officers were entitled to qualified im munity, the Court
reasoned that “police officers in domestic relations situations must make
spontaneous decisions based on incomplete, and sometimes inaccurate,
information,” and found that “[a]ll § 198 3 req uires in these matters is for
police officers to act reasonably and to do the best job possible under
difficult circumstances.” Caplan, 667 F. Supp. at 554. Caplan’s analysis,
however, does not rest upon grounds of Fourth Amendme nt
reasonab leness, but rather upon the “objective reasonableness” standard
incorporated within the qualified immunity doctrine.
Matheny, 970 F. Supp. at 1046.4
We agree with the District Courts here and in Matheny that
Fourth Amendment claims of the sort asserted by Daija King
in this case are most appropriately measured against a general
standard of reasonableness. Upon performing this inquiry,
moreover, we are inclined to agree with the District Court that
the conduct of the individual Defendants was reasonable,
although we are somewhat hesitant to reach this conclusion as
a matter of law. On one hand, Daija was just two years old at
the time, and the officers obviously had to make some sort of
arrangement for her care as they placed her mother under
arrest; the child plainly could not have been left alone and
unsupervised at home. The options, then, were either to keep
Daija with her mother or to arrange for Daija to be placed
with a relative, family friend, or a state social service agency
— and, given the late hour of Mary Cherrington’s arrest, the
latter might well have proved difficult. So long as Mary
Cherrington remained in a hotel room rather than a detention
facility, and generally remained available to care for Daija’s
needs, we cannot say that one course of action was manifestly
preferable to the other. In addition, Defendants note that their
chosen course served the law enforcement objective of
12 Cherrington, et al. v. Skeeter, et al. No. 01-3637
5Although P laintiffs contend in their brief on appeal that Defendant
Skeeter confirmed this questionable m otive at his deposition, this is not
an accurate characterization of the record. Skeeter testified that
Cherrington was “allowed . . . to keep Daija” immediately following her
arrest while she decided whether to cooperate with the authorities, and
that “[a]ll I was doing” at that point was “transporting [Cherrington and
Daija] to the people who were making the decisions” regarding
Cherrington’s possible cooperation. (Skeeter Dep. at 90, J.A. at 154.) He
further testified that, prior to the night of Cherrington’s arrest, he had
spoken to Chief Kinney regarding what to do with Daija, and that he had
expressed a concern during that conversation that it might “jeopardize[]
the whole investigation, not just getting the cover blown b ut officer sa fety
as well,” if Daija were taken to a social services agency or placed in the
care of a friend or relative. (Id. at 90-91, J.A. at 154-55.) Skeeter
reasoned that such an outside party “would have to know or want to know
what was going on,” and that “Circleville is a close community” in which
news of the underco ver investigation would quickly spread. (Id. at 91,
J.A. at 1 55.)
Indeed, even C herrington’s own testimony on this point is less than
definitive. She testified that while she was still in her apartment
immediately following her arrest, Skeeter threatened that she would “lose
my child . . . [and] lose my home” if she did not cooperate with the
authorities. (Cherrington Dep. at 73, J.A. at 269.) Cherrington further
stated that Skeeter repeated this threat after they arrived at the hotel. (Id.
at 94, J.A. at 29 0.) She then testified that she agreed to coop erate because
“[t]hey had my child, and I didn’t want to lose her.” (Id. at 106, J.A. at
302 .) Thus, while Cherrington might well have drawn a connection in her
own mind betwe en D aija’s presence at the hotel and her decision to
coo perate with the authorities, nothing she was told expressly forged this
link, and the individual Defendants did not acknowledge this motive at
their depositions. Rather, from all that appears in the record , and fro m all
that Cherrington states she was to ld at the time, Skeeter might have
employed the very same threats even if Daija had not been kept with her
mother, but instead had b een p laced with an agency or taken to the home
of a friend or relative.
preserving the secrecy of their ongoing undercover operation.
On the other hand, Mary Cherrington testified that the
Defendant officers used Daija as a tool to secure her
cooperation. This testimony, if believed and found to rest
upon more than Cherrington’s own speculation,5 would tend
to cast doubt on the reasonableness of Daija’s detention.

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 13
Yet, it ultimately is unnecessary for us to decide whether
the individual Defendants did or did not heed the Fourth
Amendment command of reasonableness in their conduct
toward Daija King, because they are entitled to qualified
immunity in any event. As noted, the second prong of the
qualified immunity inquiry turns upon whether the defendant
has violated “clearly established constitutional rights of which
a reasonable person would have known.” Burchett, 310 F. 3d
at 942 (internal quotations and citations omitted). We have
explained:
For a right to be clearly established, [t]he contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that
right. Although it need not be the case that the very
action in question has been previously held unlawful, . . .
in the light of pre-existing law, the unlawfulness must be
apparent.
Burchett, 310 F.3d at 942 (internal quotations and citations
omitted).
As is evident from our foregoing discussion, the pre-
existing law is silent on the lawfulness of keeping a young
child with her mother while the latter is placed under arrest
and held in custody at a location other than a traditional
detention facility. If the Defendant officers had scoured the
case law at the time (or even to this day), they could not have
located a decision indicating that Daija King’s Fourth
Amendment rights might be violated if she were taken with
her mother to a hotel for about a 24-hour period while Mary
Cherrington cooperated with the authorities by attempting to
arrange drug purchases. Rather, the most closely analogous
case, Matheny, leads to the opposite conclusion. Under these
circumstances, the individual Defendants are entitled to
qualified immunity, because the law did not (and still does
not) “clearly proscribe[]” the actions they took. Mitchell v.
Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985).
14 Cherrington, et al. v. Skeeter, et al. No. 01-3637
We reach precisely the same conclusion upon evaluating
Daija King’s claims under substantive due process standards.
Here, we have somewhat more case law to guide us; several
cases, including at least one in this Circuit, have considered
the substantive due process implications of a police officer’s
decision about what to do with children whose parent or
custodian has been placed under arrest. See, e.g., Walton v.
City of Southfield, 995 F.2d 1331, 1336-39 (6th Cir. 1993);
Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1354-
55 (7th Cir. 1985); White v. Rochford, 592 F.2d 381, 383-86
(7th Cir. 1979); Matheny, 970 F. Supp. at 1043-45. Upon
reviewing these cases, we conclude that the allegations and
evidence in this case are insufficient to establish either a
substantive due process violation or a violation of a clearly
established constitutional right.
In Walton, for example, plaintiff Barbara Walton was
driving a car in which her fifteen-year-old daughter and two-
year-old granddaughter were passengers. The defendant
police officers stopped and approached the car to investigate
why the two-year-old was not riding in a proper child-
restraint seat. Upon determining that Walton was driving
with a suspended license, the officers placed her under arrest.
When she asked that the children be placed in protective
custody, the officers responded that they could not do so, but
suggested that the children could call someone to pick them
up. The officers then waited while the children entered a
nearby office building to make a phone call, but did not
remain on the scene to confirm that they had secured a ride
home. In fact, nearly six hours passed before someone finally
arrived to pick up the children.
We held that the defendant officers were entitled to
qualified immunity on the children’s substantive due process
claims. We began by noting that the Sixth Circuit had not yet
addressed the issue of passenger abandonment by state or
local law enforcement officials, but that other Circuits had
done so, reaching somewhat different conclusions. In
addition, while cases such as White, supra, had recognized a

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 15
6In particular, the children in White were abandoned by the side of
the road in cold weather. “Under exposure of the cold, the children
finally realized that they had no alternative but to leave the car, cross eight
lanes of traffic and wander on the freeway at night in searc h of a
telephone.” White, 592 F.2d at 382.
due process protection against police abandonment of
passengers upon arresting the driver of a vehicle, we found
that White was distinguishable as involving abandonment “in
a more dangerous situation.” Walton, 995 F.2d at 1338-39.6
Accordingly, despite “an exercise of very poor judgment on
the part of the defendant police officers,” we held that “the
‘contours of the [due process] right,’ if there is such a right,
were not sufficiently clear so that a reasonable officer would
have known that leaving the children in the parking lot
violated that right.” Walton, 995 F.2d at 1333, 1339.
Because Walton did not decide whether such a substantive
due process right exists, it did not reach the issue of the
standard by which to judge alleged violations of such a right.
We addressed this question in Davis, supra, however, holding
that “where the plaintiff suffered injury as a result of being
placed in the state’s custody, it has consistently and
uncontroversially been the rule that a constitutional claim
arises when the injury occurred as a result of the state’s
deliberate indifference to the risk of such an injury.” Davis,
143 F.3d at 1026; see also Bukowski v. City of Akron, 326
F.3d 702, 710 (6th Cir. 2003) (applying a deliberate
indifference standard to a substantive due process claim).
Similarly, the other above-cited child abandonment cases
consider whether the conduct of the defendant police officers
amounted to “gross negligence” or a “reckless disregard” for
the safety of the children. See Moore, 754 F.2d at 1355;
White, 592 F.2d at 385.
Under this standard, we do not believe that the record in
this case can be viewed as establishing a violation of Daija
King’s substantive due process rights. Admittedly, the
situation into which she was placed — being taken with her
16 Cherrington, et al. v. Skeeter, et al. No. 01-3637
mother as she was placed under arrest, and being held in a
hotel room for a 24-hour period, surrounded by police
officers, as her mother cooperated with the authorities by
attempting a drug purchase — was not ideal. Yet, given the
early-morning hour of Mary Cherrington’s arrest, it is not
clear that there were any available and preferable alternatives
to the course chosen by Defendants. Further, there is no
evidence that Daija suffered any harm during this period of
detention; at worst, Mary Cherrington’s deposition testimony
indicates that she and her daughter were fed only once during
their 24-hour stay at the hotel. The most that can be said,
perhaps, is that the Defendant officers might have been better
advised to attempt to arrange for Daija to be picked up by a
relative or friend, and that they might have sacrificed a degree
of Daija’s comfort and emotional well-being in an effort to
preserve the secrecy of their still-ongoing undercover
operation. This, in our view, is not tantamount to gross
negligence or a reckless disregard for Daija’s safety.
In any event, as with our Fourth Amendment analysis, we
conclude that the individual Defendants are entitled to
qualified immunity on the “clearly established” prong of our
substantive due process inquiry. Again, we note the utter
absence of any case finding a substantive due process
violation based upon a police officer’s decision to retain
custody over a child while her parent or custodian is placed
under arrest. To the contrary, the case law suggests that the
Defendant officers would more likely have run afoul of
substantive due process concerns if they had left Daija King
at home or otherwise placed her in a situation which failed to
adequately ensure her safety and well-being. Because the pre-
existing law would not have alerted the individual Defendants
that their conduct might violate Daija King’s substantive due
process rights, they are entitled to qualified immunity. More
generally, in light of our similar conclusion under a Fourth
Amendment analysis, we affirm the District Court’s dismissal
of Daija King’s § 1983 claims against the individual
Defendants on the ground of qualified immunity.

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 17
7Plaintiffs’ claims against the Defendant City of Circleville are
addressed below.
8At the time of Cherrington’s arrest, this Ohio rule p rovid ed in
relevant part:
W here a person is arrested without a warrant the arresting
officer shall . . . bring the arrested p erson without unnecessary
delay before a court having jurisdiction of the offense, and shall
file or cause to be filed a complaint describing the offense for
which the person was arrested.
Ohio Crim. R. 4(E)(2) (199 7).
C. Under the Present Record, the Individual Defendants
Are Not Entitled to Qualified Immunity on Mary
Cherrington’s Claim that She Was Denied a Prompt
Judicial Determination of Probable Cause.
Of the various § 1983 claims asserted by Mary Cherrington
in the court below, the only one she is pursuing on appeal,
against the individual Defendants at least,7 is her claim that
she was not provided with a sufficiently prompt judicial
determination of probable cause following her warrantless
arrest. In the lower court, and again on appeal, Plaintiff
Cherrington has cited Ohio Rule of Criminal Procedure
4(E)(2) as the source of this claimed right to a prompt
probable cause hearing.8 The District Court rejected this
claim, reasoning that a violation of a state rule of criminal
procedure cannot sustain a federal § 1983 claim. Be that as
it may, and fully acknowledging Plaintiffs’ rather inarticulate
presentation on this point, we readily conclude that Mary
Cherrington has stated a viable Fourth Amendment claim as
a result of the delay in affording her a probable cause hearing.
We further find that the present record fails to establish as a
matter of law that the individual Defendants are entitled to
qualified immunity on this claim.
Though Plaintiff Cherrington has mentioned this ruling
only in passing, the Supreme Court’s decision in County of
18 Cherrington, et al. v. Skeeter, et al. No. 01-3637
Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661
(1991), provides the basis for her present Fourth Amendment
claim. The Court previously had recognized in Gerstein v.
Pugh, 420 U.S. 103, 114, 95 S. Ct. 854 (1975), that “the
Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint of
liberty following arrest.” In County of Riverside, the Court
considered just how soon such a determination must be made,
and concluded that “judicial determinations of probable cause
within 48 hours of arrest will, as a general matter, comply
with the promptness requirement of Gerstein.” County of
Riverside, 500 U.S. at 56, 111 S. Ct. at 1670. While a delay
of over 48 hours is not per se unlawful, the Government bears
the burden in such cases to “demonstrate the existence of a
bona fide emergency or other extraordinary circumstance”
that led to the delayed probable cause determination. County
of Riverside, 500 U.S. at 57, 111 S. Ct. at 1670.
In this case, Mary Cherrington was arrested without a
warrant in the early morning hours of Saturday, August 30,
1997, but she was not brought before a magistrate for a
probable cause determination until about 8:30 a.m. on
Tuesday, September 2, 1997. This delay of over 72 hours
significantly exceeded the general 48-hour rule announced in
County of Riverside. Absent some “bona fide emergency or
other extraordinary circumstance,” then, this delay violated
Cherrington’s Fourth Amendment right to a prompt judicial
determination of probable cause.
Neither of Defendants’ two proposed “extraordinary
circumstances” take this case outside the usual 48-hour rule.
First, Defendants note that their undercover investigation
continued after Cherrington’s arrest, and that she agreed to
cooperate in this ongoing operation by attempting to arrange
a drug purchase. Defendants reason that this undercover
effort would have been jeopardized if Cherrington had been
brought before a magistrate. Yet, this undercover operation
surely had concluded by Sunday, August 31, 1997 at 3:37
a.m., when Cherrington was taken from the Travel Lodge

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 19
9W e recognize that an individual’s agreement to cooperate with the
authorities might well be a relevant factor in determining whether a
delayed probable cause determination violates the Fourth Am endment.
Under the facts of this case, however, we need not decide whether the
period of Mary Cherrington’s cooperation should be charged against or
exempted from the 48-hour lim it, or whether her voluntary participation
in an ongoing undercover operation constituted an “extraordinary
circumstance” which would permit a more lengthy delay in securing a
judicial determination of probable cause.
motel and placed in jail. Even so, Cherrington was made to
wait more than 48 hours from this point before a magistrate
found probable cause to arrest her. Cherrington’s
participation in the ongoing investigation, then, did not
prevent Defendants from complying with County of
Riverside’s 48-hour rule.9
Next, Defendants point to the intervening weekend and
Labor Day holiday between Mary Cherrington’s arrest and
the magistrate’s probable cause determination. County of
Riverside itself, however, expressly cautions that intervening
weekends and holidays do not qualify as “extraordinary
circumstances” that permit relief from the 48-hour
requirement. See County of Riverside, 500 U.S. at 57-58, 111
S. Ct. at 1670-71. Accordingly, this Court recently held that
a municipality’s “part-time court” scheme, under which
“court was never held on weekends or holidays,” would “very
likely run afoul of the forty-eight hour time limit established
in Riverside” in cases of warrantless arrests on Friday
evenings or Saturday mornings. Alkire v. Irving, 330 F.3d
802, 815 (6th Cir. 2003).
In sum, the undisputed record establishes a violation of City
of Riverside’s 48-hour rule, and Defendants have failed to
identify any emergency or other extraordinary circumstance
that might take this case outside of the general rule. It
follows that Plaintiff Cherrington can withstand the first
prong of the qualified immunity inquiry by virtue of the
violation of her Fourth Amendment right to a judicial
20 Cherrington, et al. v. Skeeter, et al. No. 01-3637
determination of probable cause within 48 hours of her arrest.
Her claim also survives scrutiny under the second, “clearly
established” prong of the qualified immunity inquiry, because
County of Riverside itself, a decision which predated
Cherrington’s arrest by several years, would have alerted a
reasonable official to (i) the existence of Cherrington’s Fourth
Amendment right to a judicial determination of probable
cause within 48 hours, and (ii) the unavailability of any
“intervening weekend or holiday” exception to this 48-hour
rule. Under the present record, therefore, the individual
Defendants are not entitled to qualified immunity on Plaintiff
Cherrington’s Fourth Amendment claim of an excessive delay
in the magistrate’s determination of probable cause for her
arrest.
Nonetheless, we hasten to add that the liability of the
individual Defendants is not a foregone conclusion upon
remand. Because the District Court determined at the
threshold that there had been no constitutional violation, it
had no occasion to consider whether the two individual
Defendants actually named in the complaint, Andre Skeeter
and Chief Kinney, could be held liable for such a violation.
Likewise, the parties have not addressed this issue in their
briefs on appeal, and the record does not disclose all of the
pertinent details of the specific roles played by Defendants
Skeeter and Kinney in Mary Cherrington’s detention and
eventual appearance before a magistrate. Consequently, we
are limited to offering only a few general observations that
the District Court might wish to consider in any subsequent
proceedings.
It is axiomatic, of course, that § 1983 prohibits actions
“under color of state law” which deprive an individual of a
right secured by the U.S. Constitution or a federal statute.
See, e.g., Cassady v. Tackett, 938 F.2d 693, 695 (6th Cir.
1991). “Thus, before a defendant may be held liable under
section 1983, that defendant must first possess power by
virtue of state law, then misuse that power in a way that
violates federal constitutional rights.” Christian v. Belcher,

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 21
888 F.2d 410, 414 (6th Cir. 1989). In the present context, this
means that we must look to state law to determine who is
responsible for ensuring that a judicial determination of
probable cause is made within 48 hours after an arrest.
Under Ohio law, where an arrest is made without a warrant,
it generally falls to the “arresting officer” to “bring the
arrested person without unnecessary delay before a court
having jurisdiction of the offense.” Ohio Crim. R. 4(E)(2).
In this case, the record establishes that Defendant Skeeter was
one of the arresting officers, and there is some evidence of
Defendant Kinney’s involvement in the decisions to arrest
Mary Cherrington and initially take her to a motel rather than
the Circleville police station. The record is almost entirely
silent, however, as to the roles played by these Defendants or
other law enforcement officials in the roughly two-and-a-half-
day period that Cherrington remained in jail without being
brought before a magistrate.
Under this record, it is possible that either or both of the
named Defendants had a duty under Ohio law to see that
Cherrington was promptly brought before a magistrate for a
determination of probable cause to arrest her, and that either
or both failed to take the necessary steps to discharge this
obligation. It is equally possible, however, that one or both
of these Defendants took some steps to ensure that there was
a prompt judicial determination of probable cause, but that,
through no fault of their own, this did not occur. In other
words, we lack the information necessary to resolve the issue
of causation — namely, whether the delay in Mary
Cherrington’s probable cause determination was attributable
to the actions (or inaction) of one or both of the named
Defendants. See, e.g., Luck v. Rovenstine, 168 F.3d 323, 327
(7th Cir. 1999) (addressing this question of causation in the
specific context of a claimed violation of County of
Riverside’s 48-hour rule); Hallstrom v. City of Garden City,
991 F.2d 1473, 1478-79, 1481-82 (9th Cir. 1993) (same);
Strepka v. Miller, No. 00-1294, 2001 WL 1475058, at *3
(10th Cir. Nov. 21, 2001) (same). See generally Gazette v.
22 Cherrington, et al. v. Skeeter, et al. No. 01-3637
City of Pontiac, 41 F.3d 1061, 1066 (6th Cir. 1994)
(addressing the proximate cause element of a § 1983 claim).
This matter must be determined upon remand to the District
Court.
D. Under the Present Record, the Defendant City Is Not
Entitled to Summary Judgment on Plaintiff
Cherrington’s County of Riverside Claim.
As their final issue on appeal, Plaintiffs challenge the
District Court’s award of summary judgment to the Defendant
City of Circleville on their § 1983 claims. Although this
sweeping challenge largely fails to withstand scrutiny, we
find that this grant of summary judgment must be reversed in
one limited respect — namely, as it relates to Plaintiff
Cherrington’s claim of undue delay in the judicial
determination of probable cause to arrest her. With this lone
exception, we affirm the District Court’s rulings as to the
Defendant City.
A municipality cannot be held vicariously liable under
§ 1983 for the acts of its employees or agents. See Monell v.
Department of Soc. Servs. of City of New York, 436 U.S. 658,
694, 98 S. Ct. 2018, 2037-38 (1978); Gregory v. Shelby
County, 220 F.3d 433, 441 (6th Cir. 2000). Rather, municipal
liability attaches only where a constitutional violation results
from the “execution of a government’s policy or custom.”
Gregory, 220 F.3d at 441. Beyond having to identify
“conduct properly attributable to the municipality” itself, a
plaintiff
must also demonstrate that, through its deliberate
conduct, the municipality was the “moving force” behind
the injury alleged. That is, a plaintiff must show that the
municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of
federal rights.

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 23
Board of County Comm’rs of Bryan County v. Brown, 520
U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997); see also City of
Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203
(1989) (“[O]ur first inquiry in any case alleging municipal
liability under § 1983 is the question whether there is a direct
causal link between a municipal policy or custom and the
alleged constitutional deprivation.”).
On appeal, Plaintiffs contend that the requisite municipal
policy or custom can be found in the Defendant City’s alleged
failure to properly train its officers, and particularly
Defendant Skeeter. The Supreme Court has held that “the
inadequacy of police training may serve as the basis for
§ 1983 liability,” but “only where the failure to train amounts
to deliberate indifference to the rights of persons with whom
the police come into contact.” City of Canton, 489 U.S. at
388, 109 S. Ct. at 1204 (footnote omitted). “Only where a
municipality’s failure to train its employees in a relevant
respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants can such a shortcoming be properly thought of as
a city ‘policy or custom’ that is actionable under § 1983.”
489 U.S. at 389, 109 S. Ct. at 1205.
In an effort to establish their “failure to train” theory,
Plaintiffs cite evidence tending to indicate that Defendant
Skeeter received little or no instruction or guidance regarding
Circleville police department policies and procedures. Be that
as it may, however, Plaintiffs notably fail to specify exactly
which constitutional injuries might have resulted from this
lack of training, nor have they pointed to evidence in the
record that might tend to establish a direct causal link
between Skeeter’s allegedly deficient training and a particular
constitutional injury suffered by either Daija King or Mary
Cherrington. We decline Plaintiffs’ invitation to engage in a
generalized, open-ended inquiry whether a lack of proper
training could have been the “moving force” behind some
constitutional violation that might be gleaned from the record
before us. Rather, absent any specific guidance from
Plaintiffs on this point, we limit our consideration of the
24 Cherrington, et al. v. Skeeter, et al. No. 01-3637
City’s potential liability to the two alleged violations
expressly raised on appeal — namely, the allegedly unlawful
detention of Daija King incident to her mother’s arrest, and
the violation of Mary Cherrington’s right to a prompt judicial
determination of probable cause.
As to Daija King’s constitutional claims, we readily
conclude that the evidence is insufficient as a matter of law to
forge the requisite causal connection between her allegedly
unlawful detention and any inadequacy in the training of the
Defendant City’s police officers. To be actionable, a
municipality’s training must be inadequate to the tasks that its
officers must perform, this inadequacy must be the product of
deliberate indifference, and this inadequacy must have been
closely related to or have actually caused the plaintiff’s
injury. See Russo v. City of Cincinnati, 953 F.2d 1036, 1046
(6th Cir. 1992). We have read City of Canton as recognizing
at least two situations in which inadequate training could be
found to be the result of deliberate indifference. “One is
failure to provide adequate training in light of foreseeable
consequences that could result from the lack of instruction,”
as would be the case, for example, if a municipality failed to
instruct its officers in the use of deadly force. Brown v.
Shaner, 172 F.3d 927, 931 (6th Cir. 1999). “A second type
of situation justifying a conclusion of deliberate indifference
is where the city fails to act in response to repeated
complaints of constitutional violations by its officers.”
Brown, 172 F.3d at 931.
The detention of Daija King incident to her mother’s arrest
does not remotely fit into either of these established
categories of actionable failures to train. Given the dearth of
case law addressing the issue, it cannot be said that police
officers routinely confront the question of what to do with
children upon arresting their parent or guardian. Thus, the
Defendant City cannot be deemed deliberately indifferent to

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 25
10Indeed, in the event that a municipality found it appropriate to offer
training on this subject, it would be difficult to glean any general rule
from the existing precedents — it might be better to place the child with
a social service agency in one case, with a relative in another, or to keep
the child with her parent in still another. Even in the specific case now
before us, we have hesitated to conclude that one course of action would
have been co nstitutionally prefera ble to the othe rs. Give n the limited
utility of such nebulous “training,” a municipality could hardly be said to
be deliberately indifferent to the needs of its citizens if it chose to forgo
this instruction.
an obvious need for officer training in this area.10 Likewise,
Plaintiffs have failed to identify any similar incidents or prior
complaints that might have alerted the Defendant City to the
need to cover this topic in its officer training. Absent some
form of notice that its officers might confront such a situation,
the Defendant City cannot be held liable under a “failure to
train” theory for any alleged deprivation of Daija King’s
constitutional rights. See Sargi v. Kent City Bd. of Educ., 70
F.3d 907, 912 (6th Cir. 1995) (citing lack of notice as a basis
for rejecting a claim of inadequate training).
Matters are somewhat different with regard to Mary
Cherrington’s claim of an unduly delayed judicial
determination of probable cause for her arrest. It surely is
foreseeable that the Defendant City’s police officers will
occasionally make warrantless arrests, and thus will require
instruction on the need to ensure that individuals arrested
without a warrant are brought before a magistrate within 48
hours for a probable cause determination. Moreover,
Plaintiffs have pointed to Defendant Skeeter’s testimony that
he generally did not receive any instruction regarding any
Circleville police department policies or procedures. (See
Skeeter Dep. at 49-50, J.A. at 114-15.) Under this record, a
trier of fact could conclude that the Defendant City’s training
of Skeeter was “inadequate to the tasks that officers must
perform,” and that this inadequacy reflected the City’s
“deliberate indifference” to the Fourth Amendment rights of
26 Cherrington, et al. v. Skeeter, et al. No. 01-3637
11Our discussion on this subject is not meant to exhaust all of the
possible factual scenarios that m ight have led to the delayed p robable
cause determinatio n in this case. W e merely mean to emphasize that the
record tells us nothing about what actually occurred.
those who come in contact with the Circleville police. Russo,
953 F.2d at 1046 (internal quotations and citations omitted).
Nonetheless, this still leaves the question whether this
inadequate training was “closely related to” or “actually
caused” a violation of Mary Cherrington’s Fourth
Amendment right to a prompt judicial determination of
probable cause. Russo, 953 F.2d at 1046 (internal quotation
marks and citations omitted). As noted earlier, we are
severely handicapped in our effort to determine the root cause
of this violation or the principal players involved, because the
record is nearly silent as to what occurred or who was present
during Cherrington’s detention at the Circleville police
station. For all we can tell, then, Defendant Skeeter was fully
aware of the need for a prompt probable cause determination,
yet was assured by other officers at the station that they would
discharge this duty. Alternatively, given Defendants’ appeal
to the intervening weekend and Labor Day holiday between
Cherrington’s arrest and her appearance before a magistrate,
it is possible that the Defendant City failed to provide the
necessary resources to ensure that individuals arrested without
a warrant in the early part of a weekend need not wait until
the following Monday (or Tuesday) for a probable cause
hearing. In this event, the City’s liability would rest directly
upon an unconstitutional policy rather than inadequate
training — even the most extensive training program could
not overcome the brute fact that a magistrate was not
available on weekends and holidays.11
In light of this evidentiary gap on a material issue, we
cannot say as a matter of law that the Defendant City is not
liable for the deprivation of Plaintiff Cherrington’s Fourth
Amendment right to a prompt judicial determination of

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No. 01-3637 Cherrington, et al. v. Skeeter, et al. 27
probable cause. Just as we have remanded the matter of the
individual Defendants’ liability under this theory, we invite
the parties to address the City’s liability on remand to the
District Court. Admittedly, to this point, Plaintiffs have done
very little to meet their burden of establishing a factual basis
for holding any of the Defendants liable for this Fourth
Amendment violation. Yet, because the first round of District
Court proceedings focused largely on the wrong issue —
namely, the legal significance of Ohio Rule of Criminal
Procedure 4(E)(2) to Plaintiff Cherrington’s federal
constitutional claim, rather than the Supreme Court’s ruling
in County of Riverside — we believe it appropriate to afford
Plaintiffs a limited opportunity to develop a factual record
supporting the imposition of liability on one or more of the
Defendants, whether individual or municipal, for violating
County of Riverside’s 48-hour rule. At the same time,
Defendants can attempt to identify an “extraordinary
circumstance” that might exempt them from the operation of
this rule.
III. CONCLUSION
For the reasons set forth above, we REVERSE the rulings
of the court below on Plaintiff Mary Cherrington’s Fourth
Amendment claim of undue delay in the judicial
determination of probable cause for her arrest, AFFIRM as to
the remaining issues raised on appeal, and REMAND for
further proceedings consistent with this decision.

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