SHARMEL THORNTON, Next Friend of KT, BB, BB v. Jeff Fray

File Name: 11a0426n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 10-1906
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHARMEL THORNTON, Next Friend of KT, BB,
BB and RB, minors; KT, a minor, by Next Friend
Sharmel Thornton; BB, a minor, by Next Friend
Sharmel Thornton; BB, a minor, by Next Friend
Sharmel Thornton; RB, a minor, by Next Friend
Sharmel Thornton,
Plaintiffs-Appellees,
v.
JEFF FRAY; JOE LASH; JEFF COLLINS; WAYNE
SUTTLES; JOHN JOSEPH; FRANK SORENSON;
ROGLIO VILLEREAL; E. RENEE PATRICK;
KEITH URQUHART; CHAD BALDWIN,
Defendants-Appellants.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: MARTIN, SILER, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Police officers who enter a residence with a warrant to arrest a
murder suspect and search the premises generally may forcibly detain anyone they find inside for the
duration of the search. The defendant officers in this case seized the plaintiffs under these
circumstances, and are therefore shielded from liability to the extent the length of the search and the
use of force were not unreasonable in light of clearly established law. The officers do not seriously
challenge the existence of a genuine issue of material fact on claims arising out of two discrete

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actions that occurred incident to the search, and the plaintiffs have raised a genuine factual dispute
on their claim that the officers, when executing the warrant, failed to knock and announce their
presence. Apart from those three aspects of the detention in this case, summary judgment was
warranted on the basis of federal qualified immunity or state-law governmental immunity.
I.
The defendants—Jeff Fray, Joe Lash, Jeff Collins, Wayne Suttles, John Joseph, Frank
Sorenson, Roglio Villereal, E. Renee Patrick, Keith Urquhart, and Chad Baldwin—are Flint,
Michigan police officers who executed a warrant to arrest Terrance Pugh and search his residence
on February 14, 2007. The plaintiffs are Pugh’s girlfriend, Sharmel Thornton, and her minor
children: KT, BB (male), BB (female), and RB. At the time of Pugh’s arrest, Thornton was
thirty-one, KT was fifteen, BB (male) was twelve, BB (female) was eleven, and RB was nine.
We view the facts as the district court assumed them, in the light most favorable to the
plaintiffs. See Johnson v. Jones, 515 U.S. 304, 319 (1995). Relying on information that Pugh had
committed a drug-related murder outside his residence at 3513 Comstock Avenue, Flint police
obtained a warrant to arrest Pugh and search the house for drugs and evidence of the crime. A few
hours before the warrant was executed, a surveillance team consisting of Officers Villereal and Lash
saw KT exit the residence. The two officers pulled up beside KT in a van, opened the door, pointed
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a rifle at him, and demanded that he get in the van. The officers questioned KT in the van for
approximately ten minutes before releasing him.1
The police executed the warrant around 7 p.m. The entry team included Officers Suttles,
Joseph, Sorenson, Villereal, Urquhart, and Baldwin. Thornton and Officer Villereal gave conflicting
accounts as to whether the officers knocked and announced their presence before breaking down the
door. Thornton testified that she was standing in the living room a few feet from the front door when
the officers entered, and that Urquhart pushed her down by her forehead, causing her to fall
backwards onto the floor. Thornton was dressed in a nightgown and was not wearing underwear.
She claimed that she was handcuffed and forced to remain seated on the floor with the lower part
of her body fully exposed while the officers secured the residence, and that she was not allowed to
dress or cover herself until the search was complete.
Once inside the house, Officers Villereal and Sorenson quickly found and arrested Pugh.
Joseph and Suttles remained with Villereal and Sorenson in the living room while Urquhart and
Baldwin went to secure the rest of the house. Upstairs, they found two of Thornton’s minor children,
RB and BB (male), who were escorted downstairs to the living room at gunpoint. When the police
arrived, BB (female) was in a bathroom behind a closed door. One of the officers opened the door,
ordered BB out of the bathroom, escorted her to the living room at gunpoint, and lined her up against
Officer Patrick also conducted surveillance on the residence but was not involved in the1
detention of KT, and after her shift ended later that afternoon, she had no further involvement in the
execution of the warrant.
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a wall with the other plaintiffs. At some point during the search, KT returned to the residence and
was also detained with the rest of his family.
Thornton testified that the officers in the living room had their guns drawn, but that they were
pointed at the floor. Thornton and KT testified that they were handcuffed. The other children
testified that they were not handcuffed. After the residence was secured, Officers Fray and Collins
entered the house to assist in the completion of the search. All told, the plaintiffs were detained for
approximately two hours before they were released.
The plaintiffs filed their suit under 42 U.S.C. § 1983, alleging that the officers violated their
Fourth Amendment rights by detaining them for an unreasonably long period of time, using
excessive force to effectuate the detention, and failing to knock and announce their presence before
entering the residence. In addition, the plaintiffs asserted state law claims of false imprisonment,
assault, intentional infliction of emotional distress, and gross negligence. After the defendants
moved for summary judgment on the basis of qualified and governmental immunity, the district
court dismissed the gross negligence claims, the intentional infliction of emotional distress claims
except for those arising out of KT’s detention in the van, and the claim that BB (female) was
unreasonably seized when the officers entered the bathroom while she was inside. The defendants
appeal the district court’s denial of summary judgment on the remaining claims of unreasonable
seizure, excessive force, failure to knock and announce, false imprisonment, assault, and intentional
infliction of emotional distress.
II.
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A.
The officers are entitled to qualified immunity on the plaintiffs’ unreasonable seizure and
excessive force claims—except for those arising out of KT’s detention in the van and the officers’
refusal to allow Thornton to cover herself—because the length of the search, use of handcuffs, and
display of weapons did not violate clearly established law. Two well-established rules of criminal
procedure compel this conclusion. First, police officers executing a search warrant can detain the
occupants of the premises for the duration of the search. Michigan v. Summers, 452 U.S. 692, 705
(1981). Second, the officers can use reasonable force to effectuate the detention. Muehler v. Mena,
544 U.S. 93, 98-99 (2005). The officers are entitled to qualified immunity because the facts, viewed
as the district court assumed them, in the light most favorable to the plaintiffs, demonstrate that the
officers reasonably complied with these rules, and the plaintiffs have not met their burden of
demonstrating otherwise. See Moldowan v. City of Warren, 578 F.3d 351, 375 (6th Cir. 2009).2
Summers establishes that “a warrant to search for contraband founded on probable cause
implicitly carries with it the limited authority to detain the occupants of the premises while a proper
search is conducted.” 452 U.S. at 705. This rule extends to nonresidents who are present at the
scene of a search, United States v. Fountain, 2 F.3d 656, 663 (6th Cir. 1993), overruled on other
The liability of each defendant officer must be assessed individually. Dorsey v. Barber, 5172
F.3d 389, 399 n.4 (6th Cir. 2008). “[D]amage claims against government officials arising from
alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what
each defendant did to violate the asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673,
684 (6th Cir. 2008) (emphasis in original). If the plaintiffs have not specifically alleged that a
defendant participated in a constitutional violation, claims against that defendant must be dismissed.
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grounds by Trepel v. Roadway Express, 194 F.3d 708, 717 (6th Cir. 1999), and to those persons
leaving or entering the premises, even if they were not inside the residence when the police arrived,
United States v. Bohannon, 225 F.3d 615, 616 (6th Cir. 2000). Muehler elaborates that while
effectuating a Summers detention, officers may use reasonable force—including handcuffs—for the
duration of the search. 544 U.S. at 98-100.
The defendant officers could reasonably rely on Summers and Muehler under the
circumstances. The detention lasted for approximately two hours, which did not exceed the duration
of the search. In Muehler, 544 U.S. at 100, the Supreme Court upheld a two- to three-hour detention
in handcuffs. The officers’ use of force to effectuate the detention was also reasonable. Upon entry
of the residence, the officers immediately encountered two people in the living room, one of whom
was the murder suspect they had come to arrest. The officers could reasonably believe that drawing
and pointing their weapons was necessary to “exercise unquestioned command of the situation” and
to ensure the safety of themselves and the occupants of the house. Summers, 452 U.S. at 703. And
the officers could reasonably continue to hold the occupants of the house at gunpoint until they were
satisfied that the premises were secure and any risk to their safety had sufficiently dissipated.
The use of handcuffs on Thornton and KT during the search was also reasonable because “the
government’s continuing safety interest” outweighed the intrusion on the plaintiffs’ liberty.
Muehler, 544 U.S. at 99-100. The age and compliance of detainees are factors that may affect the
balancing of these interests. Cf. Tekle v. United States, 511 F.3d 839, 850 (9th Cir. 2007). Here, the
fact that the officers were searching a house in which drug trafficking was suspected, together with
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the presence of the murder suspect they had come to arrest, justified the precautionary use of
handcuffs on Thornton and KT. See Muehler, 544 U.S. at 100; see also Unus v. Kane, 565 F.3d 103,
119-21 (4th Cir. 2009) (reasonable to detain plaintiffs in handcuffs for nearly four hours). The
plaintiffs protest that they were not suspects in this case and were “innocent bystanders.” But the
“authority to detain incident to a search is categorical” and “does not depend on the ‘quantum of
proof justifying detention or the extent of the intrusion to be imposed by the seizure.’” Muehler ,
544 U.S. at 98 (quoting Summers, 452 at 705 n.19).
The plaintiffs also argue that the right to be free from excessive force during the execution
of a search warrant is clearly established. That is certainly true. But the plaintiffs have not shown
that the right is “‘clearly established’ in a more particularized, and hence more relevant, sense”
because a reasonable officer would not have understood that his actions violated the plaintiffs’ rights.
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The plaintiffs’ reliance on Binay v. Bettendorf,
601 F.3d 640 (6th Cir. 2010), is therefore misplaced. Binay was decided after the incidents at issue
in this case, and although it supports the unexceptional proposition that the right to be free from
excessive force during the execution of a warrant is clearly established, it does not reflect the more
“particularized sense” in which a right must be clearly established to deny qualified immunity, in
light of the different factual situation there presented. Here, the officers’ use of force was reasonable
considering “(1) the severity of the crime at issue, (2) the immediate threat the suspect pose[d] to the
safety of the officer or others, (3) the suspect’s resistance, if any, and (4) the possibility of flight.”
Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir. 2004).
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Thornton claims that it was unreasonable for Officer Urquhart to push her to the floor
because she did not resist the officers’ entry, attempt to flee, or pose a threat to the officers’ safety.
But we must view the facts—as the district court assumed them in the light most favorable to
Thornton—from “the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). When the officers entered the
house, they had good reason to believe that someone inside might be armed. It was not unreasonable
for the police to order anyone they saw to get down on the floor and to forcibly put them there
without waiting for a response. See Dunigan, 390 F.3d at 493-94. In the “tense, uncertain, and
rapidly evolving” moments immediately before and after the forced entry, Graham, 490 U.S. at 396,
the officers could reasonably be on high alert and take the sort of precautions that would have been
prudent and wise in hindsight if the situation had turned out to be more dangerous than it was.
At oral argument, defense counsel conceded that two aspects of the officers’ conduct raise
a question as to whether they exceeded the scope of their authority under Summers and Muehler.
First, prior to the execution of the search warrant, Officers Villereal and Lash detained KT by forcing
him into a police van at gunpoint. While the authority to detain pursuant to Summers extends to
individuals leaving and entering the premises during a search, Bohannon, 225 F.3d at 617, the
detention of KT in the van—hours before the police executed the warrant—could not reasonably be
deemed to fall within the rule. Accordingly, Officers Villereal and Lash are not shielded by qualified
immunity from liability on this claim. Because only Villereal and Lash were involved in the
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detention of KT, however, all of the remaining defendants are entitled to summary judgment on this
claim. See Lanman, 529 F.3d at 684.
Second, the defendants concede that Thornton has raised a genuine issue of material fact as
to whether the officers’ refusal to allow her to dress or cover herself during the search was
reasonable. Thornton testified that she was forced to sit on the floor with the bottom half of her body
fully exposed, that she asked to cover herself, and that the officers refused. In Los Angeles County
v. Rettele, 550 U.S. 609, 615-16 (2007), the Supreme Court upheld a seizure where officers found
two occupants naked in bed and held them at gunpoint for several minutes before allowing them to
dress. However, given the length of time Thornton was allegedly forced to remain exposed to the
officers and to her children, the defendants concede that the officers may have prevented her from
getting dressed longer than necessary to protect their safety. Thornton testified that Officers Collins,
Suttles, Joseph, Sorenson, Villereal, Urquhart, and Baldwin were in the living room when she asked
to get dressed. Accordingly, these officers are not entitled to qualified immunity on this claim.
Officers Fray, Lash, and Patrick, however, who were not present when Thornton asked to cover
herself, are entitled to summary judgment. See Lanman, 529 F.3d at 684.
B.
The district court properly determined that the defendants are not entitled to qualified
immunity on the plaintiffs’ knock-and-announce claim because—as the district court
assumed—there are material factual disputes both as to (1) whether the officers actually knocked and
announced, and (2) whether Thornton knew of their “authority and purpose.” United States v.
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Francis, 646 F.2d 251, 258 (6th Cir. 1981). “[I]t is clearly established law that the fourth
amendment forbids the unannounced, forcible entry of a dwelling in the absence of exigent
circumstances.” Hall v. Shipley, 932 F.2d 1147, 1151 (6th Cir. 1991) (internal quotations omitted).
Although Officer Villereal testified that he did knock and announce, Thornton claims she heard
nothing and was unaware of the officers’ presence and intention to enter the house until the front
door was broken down. At this stage of the case, we are bound by the district court’s view of the
facts in the light most favorable to Thornton.
The district court also properly rejected the defendants’ argument that any failure to knock
and announce was justified by exigent circumstances. Exigent circumstances may include situations
where: “(1) there would be a danger to the officer; (2) there would be danger of flight or destruction
of evidence; (3) a victim or some other person is in peril; or (4) it would be a useless gesture such
as when the person within already knew the officer’s authority and purpose.” United States v.
Pelayo-Landero, 285 F.3d 491, 498 (6th Cir. 2002) (internal quotations omitted). Viewing the facts
as the district court assumed them, in the light most favorable to the plaintiffs, those circumstances
did not exist in this case. The officers executed the warrant five days after the murder, and their
surveillance of the residence gave them no reason to suspect that knocking and announcing their
presence would heighten the danger to themselves, permit flight or destruction of evidence, or risk
endangering someone within the house. While the police may take justified precautions when
entering a potentially dangerous situation such as the one they confronted here, “officers must have
more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and
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announcing their presence.” United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) (citations
omitted).
The plaintiffs have sufficiently alleged which officers made the unannounced entry. See
Lanman, 529 F.3d at 684. There is no dispute that the entry team included Officers Suttles, Joseph,
Sorenson, Villereal, Urquhart, and Baldwin. Officers Patrick and Lash did not participate in the
search, and Officers Collins and Fray did not enter the house until sometime after the search was
underway; as to these defendants, the knock and announce claim must therefore be dismissed.
C.
For the same reasons that the officers did not violate clearly established federal law in
detaining the plaintiffs during the search, they are entitled to governmental immunity on the
plaintiffs’ state-law false imprisonment, assault, and intentional infliction of emotional distress
claims. Pursuant to Michigan Court Rules, an order denying governmental immunity is a “final
judgment” providing defendants with an appeal of right to the Michigan Court of Appeals. Mich.
Ct. R. 7.202(6)(a)(v). Accordingly, “this court has jurisdiction over interlocutory appeals concerning
pendent state law claims of governmental immunity.” Livermore v. Lubelan, 476 F.3d 397, 408 (6th
Cir. 2007).
Under Michigan law, a governmental employee is immune from liability for intentional torts
if he can establish that: “(1) the employee’s challenged acts were undertaken during the course of
employment and that the employee was acting, or reasonably believed he was acting, within the
scope of his authority, (2) the acts were undertaken in good faith, and (3) the acts were discretionary,
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rather than ministerial, in nature.” Odom v. Wayne Cnty., 760 N.W.2d 217, 218 (Mich. 2008). To
the extent the length of the seizure and the use of force did not violate clearly established Fourth
Amendment law, the officers could also reasonably believe that they were acting within the scope
of their authority for purposes of governmental immunity under state law.
The plaintiffs first allege that they were falsely imprisoned during the execution of the search
warrant. “The elements of false imprisonment are (1) an act committed with the intention of
confining another, (2) the act directly or indirectly results in such confinement, and (3) the person
confined is conscious of his confinement.” Walsh v. Taylor, 689 N.W.2d 506, 514 (Mich App.
2004) (internal quotations omitted). As the district court found, the plaintiffs have raised a genuine
issue of material fact as to whether KT was falsely imprisoned in the van. Accordingly, the court’s
denial of summary judgment to Officers Villereal and Lash was proper. However, all of the other
defendants are entitled to governmental immunity on this claim to the extent they are entitled to
qualified immunity on the plaintiffs’ Fourth Amendment claims.
Equally unavailing are the plaintiffs’ allegations of assault. To recover civil damages for
assault, a plaintiff must establish an “intentional unlawful offer of corporal injury to another person
by force, or force unlawfully directed toward the person of another, under circumstances which
create a well-founded apprehension of imminent contact, coupled with the apparent present ability
to accomplish the contact.” VanVorous v. Burmeister, 687 N.W.2d 132, 142 (Mich. App. 2004)
(internal quotations omitted). Taking the district court’s view of the facts in the light most favorable
to the plaintiffs, these elements were satisfied when Officers Villereal and Lash detained KT in the
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van. However, the plaintiffs have not presented evidence that the officers’ actions in forcing
Thornton to the ground, escorting RB and BB (male) downstairs, and detaining the family in the
living room were unlawful. See id. Indeed, to overcome governmental immunity, the plaintiffs
needed to present evidence that the officers could not have reasonably believed that they were acting
within the scope of their authority. See Odom, 760 N.W.2d at 218.
Finally, the district court found that KT had raised a genuine issue of material fact as to
whether the officers’ conduct in detaining him in the van was extreme and outrageous. The elements
of a claim of intentional infliction of emotional distress are: “(1) extreme and outrageous conduct,
(2) intent or recklessness, (3) causation, and (4) severe emotional distress.” VanVorous, 687 N.W.2d
at 141-42 (internal quotations omitted). The district court also found that KT raised a genuine
factual dispute as to the other elements, and we are bound by that view of the facts. Accordingly,
Officers Villereal and Lash are not entitled to summary judgment on this claim either.
III.
For these reasons, we affirm the district court’s denial of summary judgment as to (1) all
claims against Officers Villereal and Lash arising out of KT’s detention in the van, (2) the
unreasonable seizure claims against Officers Collins, Suttles, Joseph, Sorenson, Villereal, Urquhart,
and Baldwin arising out of the officers’ refusal to allow Thornton to dress or cover herself during
the search, and (3) the knock-and-announce claims against Officers Suttles, Joseph, Sorenson,
Villereal, Urquhart, and Baldwin. We reverse the denial of summary judgment as to the plaintiffs’
remaining claims.
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