NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0692n.06 No. 11-5427 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CURTI S GORDON, CANDACE SMI TH, I ndividually and as custod ial pare nt and next friend, for and on behalf of B.D ., a minor, SHANNON R. DAI L EY, I ndividually and as pare nt and next friend, for

and on beha lf of A.D., a

minor, Plaintiffs-Appellants,

v. LO U IS V ILLE / J E F F E R S O N C OU NT Y M E T R O GOVERNMENT , ET AL ., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) On Appea l from the Un i ted States District Court for the West er n District of Ke ntucky

Be fore : BO GGS, NORRI S, and KETHL EDGE, Circuit Judges.

BO GGS, Circuit J udg e. Curtis Gordon, his ex-wife, Candac e Smit h, and her sister, Shannon Dailey , filed various fede ral- and state-law claims rela t ed to the investiga tion and
p ro s ecution of Gordon for theft by dece ption and forg ery . The district court g rante d summ ar y 1 judgme nt for the de fenda nts on all of the par

ties’ fe dera l claims. We affirm.

Smit h and Dailey filed claims on behalf of themselves and also o n b eh al f of their 1 daug hters—B .D. (Smith’s 12-y ear -old daug hter) a nd A.D. (D ailey ’s 11-y ear -old daug hter).No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. I A This case arose out of alleg ations of fra ud made to the Public I nteg rity Unit of the L ouisvill e Metro Police Depa

rtment in October 2006

. T h e alleg ations arose when police wer e called to a alterc ation at a housing complex. The secur ity office r on duty hit a resident with a police baton and handcuf fed him, placing him under arr est. The office r, who wore a “deputy shirt,” identified himself to police as a “sher iff’s depar tment de puty .” Howeve r, the police deter mined that he was in fac t a “jailer who had been suspended or terminated.” He was employ ed by Commonwealth Security , I nc. (CSI ), a se curity

company owned by

Curtis Gordon. After the incident, police interviewe d other CSI employ ees who wer e being held out as sworn police office rs and who had come for wa rd to J ohn Grove s, the head of secur ity at the housing complex. One, Donnie Wil son, stated that he had never even applied for a job a s a police office r. Howeve r, Gordon had g iven h i m a p o lice badg e from the City of Strathmoor Villag e Police Depa rtment and a police shirt to wea r. Wil son g ave Grove s the shirt and the badg e, and Grove s g ave them to the police. Wil son told of fice rs that when he had worke d as a sworn police office r he was billed out in that capac ity at $19/hour. Debbie Bow an also spoke to police. She s t at ed t h at she was a resig ned rese rve auxil iary I ndiana police office r who did not have arr est power s in Kentucky

. Despite this fac t, she said Gordon a ssigne d her w ork as a sworn off

icer

.

- 2 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Ba sed on this evidenc e, police obtained a sear ch war rant for Gordon’s home and business. 2 The sear ch war

rant for Gordon’s home named th e h o me , six car s, and Gordon and Smit h themselves. The warra

nt provided for sear ching for documen t s and files, i ncluding elec tronic files, and poli ce uniforms or badg es.

B The sea rch w arr ant for the home, car s and the persons of Gordon and Smit h was executed on the morning of De cembe r 6, 2006. Gordon was at work when the office rs arr ived at the house to sear ch. The office r in char g e of Gordon’s case , Serg eant Osca r Gra as, was also at Gordon’s office , in order to execute the sear ch

war rant ther e, and w as not prese nt at the house sea rch. After office rs arrived at the residence, b u t b ef o re t h ey attempted to enter it, they observe d Smit h pulling out of the dr iveway and driving awa

y . Offic ers followed her in two police car s and pulled her over “[w]i thin 10 minutes of her leaving the residenc e.” One office r confisca ted Smit h’s cell phone and key s. He drove Smit h back to the house in his car , and a differ ent office r drove the children, A.D. and B.D

. back to the house in his car . W h en S m i t h ar rived back at the house, Serg eant J acobs stated that he “ga ve her a copy of t he search warr ant an d as k ed h er t o unlock t he door.” She did so.

3

The sea rch c onducted a

t Gordon’s business is not at issue on appe al. 2 Smit h alleg ed in her depositio n t h at she asked to call her attorney at this time, but the 3 office rs ref

used to let her. There are no other statements in the rec ord conce rning this alleg ation, as - 3 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. During the sear ch, Smit h and the children wer e asked to rema in in the kitchen with an office r. B.D ., one of the children, be came upset and wa s g ag g ing. Smi th stated t hat B.D. “wa s eventua lly allowed to g o to the bathroom,” but that though “she repe atedly ask ed fo r h er m o t her [S mith]

. . . [a] cce ss to her mother was originally denied.” During her deposition, B.D

. said that she was sick during the sea

rch be cause she wa s nervous. She stated that she told Smith she neede d to g o to the bathroom bec ause she was g oing to be sick, but that “at fir st the lady wouldn’t—the lady

that was sitti ng there with us . . . wouldn’t let us g o.” She stated t hat when “the lady ” did let t h em g o, she said she insisted on acc ompany ing them. B.D

. stated, “So we walked to the bathroom and the lady

was just standing and watching us with the door open.” No particula r office r was identified as the office r who monitored the ba throom. Smit h stated that she was not allo we d t o answe r her cell phone, though her mother was calling , for 20 minutes. Eventually , howeve r, Smit h was allowed to answe r her phone, and Smit h’s mother was allowed to come to the front door to pick up the children. The children left the residenc e roug hly 20 minutes after

the sea rch be g an. After the g irls left, Smit h asked to use the bathroom ag ain. She was told that she could only do so with a fema le office r prese nt and a male office r outside the door. She also stated that she was not allowed to run water or flush the toilet. Ag ain, no particula r office r was identified as the office r who monitored the ba throom.

plaintiffs chose not to take depositions of any of the off icer s. - 4 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. During the sear ch, office rs sear ched inside a s af e i n Gordon’s bedroom. Serg eant J acobs called Serg eant Gra as, who was at Gordon’s office with Gordon, and asked for the combination to Gordon’s safe

. Gordon g ave them the code. I n an interview with the Public I nteg rity Unit attache d
to Gordon’s summary -judg ment response , Gra as stated that Gordon told him contempora neous with the call that the safe contained betwee n $5,000 and $7,000 in cash. Serg eant Butler , who helped open the sa fe, state d the following : [The safe ] was opened, there wa s o n e s t ack of money , one band around it, it was taken out and decision [ s i c] wa s m ade to count it, document it and leave it at the house. Sgt. J acobs and I had the money , there was a larg e picture fra me on the bed, we had the money on top of that, took it out and he counted a portion of the money , I counted another portion, and I think the total was about $6590, and then there was another $700

. . . in the dresse r and we photogr aphed the piles, put it in $1000 piles, I co unted out a $1000 in 20' s, and there wer e 5, 50' s and then 17 extra $ 2 0 's , s o I counted out $1590, he c ounted out $6000 or $5000. Gordon arg ues that the safe contained $11,000, and that the police stole $5,000 from the safe

. Smit h also claimed tha t the safe contained se vera l pictures of her, partially nude. She alleg ed that the picture s were missing af ter the se arc h and that the police stole them. As we l l as the thefts, Gordon also claimed in his deposition that the police drove his Corvette, ripped the door off of a Coke machine on the back patio, urinated in his toilet and did not fl u s h i t , and smoked in the house. Smit h claimed that the office rs tore apar t Christmas prese n t s , opened her daug hter’s collectible dolls, and left the house in disarra y . Smit h and Gordon offe red a video of what they alleg ed to be the damag e done by the sear ch. They alleg ed that the damag e done by the offic ers e x cee ded the sc ope of the war rant a nd unrea sonably

seized their prope rty

.

- 5 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. The police had a differ ent acc ount of the sear ch, which they swore to in aff idavits. They made an i n ventory of property they seized during the s ear ch. The li st of seiz ed property included documents, invoices, two laptop computers, r e c e ip ts , b a n k d e p o s it s lip s , th

r e e p o li ce/se curity jacke ts, and five police/sec urity shirts. The police also photogr aphed the home and car s befor e and afte r the

sear ch. One office r—De tective Crowell–swore in his af fi d avit that he “ac cidentally start[ed] the Corvette by pushing a button on the car ,” but did not drive it. The office rs prese nt at the sear ch all signe d aff idavits swear ing tha t they did not smoke in the hous e, did not take cash from the house, did not damag e the house , and did not open any Christmas gifts or B ratz dolls.

C On J anuar y 31, 2007, Serg eant Gra as testified befor e a g rand jury

. Gra as discussed all of the
events that led to secur ing the sear ch war rant and the items the office rs obtained in the sear ches. He discussed witnesses Wil son and Bow en, as well as interviews with Grove s, who had stated that “Gor don knew he was supposed to provide police office rs . . . [a] nd it was his job as awa rded in the
contract t o d o backg rounds on these.” Gra as discussed 43 invoices found during the sear ch of Go rdon’s house that had char g es for “Police” at the housing complex for $19/hour. Finally , he discussed a forg ed l et t er found during the sear ch of Gordon’s business. The letter was ostensibl y from D. Rey

nolds, Chief of the City of Strathmoor Police Depa rtment, and it stated that Don Wil son

was a police office r authorized to work off duty

. Rey nolds told police that Wil son had never applied
to the Police Depa

rtment, that he had never met Wil son, and that he had never seen the letter befor e.

- 6 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Gra as stated sever al times that Gordon’s company “has a contra ct” wi t h L o u isvill e Metro Housing Authority , stating, for example, that an ag ree ment regarding differ ent rate s of pay for

secur ity personne l and sworn police office rs “is indee d part of the contra ct.” Ba sed on Gra as’s testimony , Gordon was indicted on 43 counts of theft by dece ption of over $ 3 0 0 , K Y . R E V . S T A T . (KRS) § 514.040(1)( a), and one count of second- deg ree forg ery , KR S § 516.030. Gordon wa s later trie d by a jury and ac quitted on all counts. Whil e Gordon was still being prosec uted, Gordon and Smit h filed complaints reg arding Smit h’s detention and the sear ch of the re s i d en ce. After Gordon was acquitted, he amende d his complaint to add a c laim for malicious prose cution.

II Gordon, Smit h (individually and on behalf of B.D ., her daug hter), and Dailey (individually and on behalf of A.D., her daug hter) sued the defe ndants in J eff erson County Circuit Court, naming

as defe ndants the following parties: L ouisvill e/J eff erson County Metro Gover nment, Se r g e a

n t Osca r Gra as, and the ten other police office rs prese nt at the sear ch of Gordon’s house. All of the office rs

wer e sued in their of

ficial a nd individual capac ities. Gordon alleg ed that he was entitled to relief under 42 U.S.C. § 1983 beca use the defe ndants “conspir[ed] toge ther” to deprive him of his constitutional rig hts. Specifica lly , Gordon arg ued that the defe ndants used unnece ssary and excessive forc e in the execution of the sear ch war rant, that the defe n d an t s u n lawfully deprive d him of his persona l proper ty , that the defe ndants damag ed his - 7 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. proper ty , and that the sear ch conducte d exceede d the scope authorized by the war rant. Gordon also alleg ed a sta te-lawconver sion claim. Smit h and Dailey fi l ed a separ ate complaint. They sued the defe ndants under § 1983 for unlawfully detaining Smit h, B.D ., and A.D.; taking Smit h’s persona l proper ty without justification

or probable cause ; intentionally damag ing her proper ty ; and excee d i n g t h e scope of the sear ch

war rant. Smith and Dailey

also alleg ed var ious state-law c laims. The Circuit Court consolidated the case s, and the defe ndants remove d the case to the United States District Court for the Western District of Kentucky , basing jurisdiction on 28 U.S.C. § 1331. After remova l, Gordon filed an amende d complaint adding a claim of malicious prosec ution. After discovery , the defe ndants moved for summary judge ment. The district court g rante d
summary judgme nt for the defe ndants on all fe d er al cl ai m s. The court declined to exercise its discretion to decide the state-law claims based on supplemental jurisdiction. I t rema nded the statelaw cla ims to J eff

erson County , Kentucky , Circuit Court. Wit h reg ard to the § 1983 claims alleg ing theft and proper ty damag e during the sear ch, and naming the office rs in their individual capa cities, the court deter mined that Gordon and Smit h’s claim failed beca

use they did not offe r any evidenc e to indicate which individual or individuals wer e responsible for the alleg ed theft or damag e. The court noted that only o ff i ce rs wi t h direc t responsibility

are subject to liability

under § 1983, W

ilson v. Morgan , 477 F.3d 326, 337 (6th Cir. 2007), and “conc lusory alleg ations of office rs’ collective responsibility ” are insufficient to survive
summary judgme nt. Hessel v . O’He arn , 977 F.2d 299, 305 ( 7th Cir. 1992).

- 8 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Wit h reg ard to Smit h’s and Dailey ’s claims of unlawful detention, the court held that office rs executing a sear ch war

rant may detain individuals found on the premises, even if the individuals are not named in the war

rant. Muehle r v. Mena , 544 U.S. 93, 98, 100 n.2 (2005). The court noted that office rs may also detain individuals seen leaving the premises and require them to re- enter the home and rema in for the duration of the sear ch. Michigan v. Summers , 452 U.S. 692, 705 (1981); United States v. Bohannon , 225 F.3d 6 15, 616 (6th Cir. 2000). The court noted that the detention of an individual leaving a residenc e descr ibed in a s ea rc h war rant should be eff

ecte d “as soon as prac ticable a fter de parting [t he individual’s] residence .” United St ates v. C ochran , 939 F.2d 337, 339 (6th Cir. 1991). S m i t h ’s d et en t i o n on the highw ay may have been outside the “as soon as prac ticable” rang e, but the court deter mined that the office rs wer e protec ted by qualified immunit y reg ardle ss, be cause the law at the time of the stop did not establish a fixed radius or time fr ame a s per se “pra cticable .” 4

Circuits are split on whether it is rea sonable for office rs to detain residents observe d leaving 4 a residenc e for which office rs have a valid sear ch war rant and bring them back to the residenc e. The Six th Circuit permits such stops if th ey ar e m ad e “as soon as prac ticable.” Cochran , 939 F.2d at 339. The Seventh and Fifth Circuits also hold such stops rea sonable. See United States v. Bullock , 632 F.3d 1004, 1020 (7th Cir. 2011) (allowing the stop when “there [was] nothing to sug g est that the vehicle was not pulled over a s soon as prac ticable.” ); United States v. Cavazos , 288 F.3d 706, 711 (5th Cir. 2002). The T enth and Eig hth Circuits have held that such a stop is not rea sonable. United States v. Edwards , 103 F.3d 90, 94 (10th Cir. 1996); United States v. Sherrill , 27 F.3d 344, 346 (8th Cir. 1994). The Supreme Court has gra nted certiorar i in a si milar case , and perhaps will clar ify the acc eptable distance for such a stop. See United States v. Bailey , 652 F.3d 197, 200, 204–07 (2d Cir. 2011) (holding that Summers permitted the traff ic stop and return of residents seen leaving an apartment for which officer s had a se arc h war rant, whe n the traf

fic stop was ma de five minutes after

residents lef

t), cert. granted , No. 11-770, 2012 WL 1969365 (U.S. J une 4, 2012).

- 9 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Gordon’s claim of malicious prosec ution failed beca use the court deter

mined that there was sufficie nt evidenc e to es tablish probable cause for Gordon’s i ndictment even if Gra as’s statement that Gordon had a “contr act” with the housing community wa s ex ci s ed

. McKinley v. City of Mansfield , 404 F.3d 418, 445 ( 6th Cir. 2005). Finally , the plaintiffs’ claims ag ainst L ouisvill e/J eff erson County Metro failed beca use plaintiffs had offe red no evidenc e sug g esting that an “off icial municipal policy ” cause d the office rs’ complained- of conduct. Monell v. Dep’ t of Social Servs. of the City of New Y ork , 436 U.S. 658, 691 (1978). For the s am e re ason, the district court deter mined that the plaintiffs’ claims ag ainst the office rs in their officia l capa cities must fail. W i l l v. Mi ch

. Dep’ t of State Police , 491 U.S. 58, 71 (1989). Gordon, Smith, and Dailey jointly filed this timely

appea l.

III A We revie w a district court' s g rant of summary judgme nt de novo. W uliger v. Mfrs. Life Ins. Co. , 567 F.3d 787, 792 (6th Cir. 2009). S ummary judgme nt is appropr iate if the pleading s, depositions, a

nswers to inter

rog atories, and admissions on file, toge ther with the aff idavits, if any , “s h o w t h at there is no g enuine dispute as to any materia l fac t and that the movant is entitled to a judgme nt a s a matter of law.” F E D . R. C I V . P. 56(a) . We must vi ew the e vidence in the light most favor able to plaintiffs to deter mine whether a g enuine issue of materia l fac t exis ts. Birgel v. Bd. of Com m’ r s o f B u t ler Cnty., Ohio , 125 F.3d 948, 950 (6th Cir. 1997). Howeve r, we need not make - 10 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. infere nces that amount to no more than “metaphy sical doubt as to the materia l fac ts.” Masushit a Elec. Indus. Co., Ltd. v. Z enith Radio Corp. , 475 U.S. 574, 586 (1986); see also Visser v. Pack er Eng’g Assocs., Inc. , 924 F. 2 d 6 55, 659 (7th Cir. 1991) (holding t hat “inferenc es and opinions

. . . must not be flights of f

ancy , specula tions, hunches, intuitions , or rumors . . . .” ).

B On appea l, Gordon and Smit h rene w all five of their fede ral claims. We revie w these claims in turn. First, we addre ss plaintiffs’ claims that police took $5,000 an d p i ct u re s of S mith from the safe

. L aw- enfor ceme nt activities that unrea sonably damag e or destroy persona l proper ty , there fore “seizing” it within t he mea ning of the Four th Amendment, ca

n g ive rise to liability under § 1983. S o l d a l v. C ook Cnty., Ill. , 506 U.S. 56, 61–62 (1992). Eac h defe ndant’s liability is assess ed individually , acc ording to his own actions. Dorsey v. Barber , 517 F.3d 389, 399 n.4 (6th Cir. 2008) (citing Ghandi v. Police Dep’ t of Detroit , 7 4 7 F. 2d 338, 352 (6th Cir. 1984)). An office r who is “pre sent at a scene [of a § 1983 violation] but is not direc tly responsible for the complained of action is entitled to qualified immunit y under § 1983.” W

ilson , 477 F.3d a t 337. On appea l, Gordon arg ues that the district court err ed in holding that Gordon’s claim failed

as a ma tter of law beca

use he wa s unable to prove who alleg edly stole the money

or the picture s. Howeve r, the rule that a plaintiff bear s the burden of establishing individual office r liability in § 1983 claims is well established in our Circuit. See, e.g. , Binay v. Bettendorf , 601 F.3d 640, 650 (6th Cir. 2010) (“Ea ch defe ndant’s liability must b e assessed individually based on his own actions.”) - 11 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. (citing Ghandi , 747 F.2d at 352 (“A s a g ener al rule, mere prese nce at the scene of a sear ch, without

a showing of direc t responsibility for the action, will not subject an o fficer to liability [under § 1983].”)). Gordon arg ues that the district court ignor ed binding Six th Circuit prec edent he cited in his opposition to defe ndants’ motion for summary judgme nt, but his prec edents are not on point. Bonds

v. Cox , 20 F.3d 697 (6th Cir. 1994), only dealt with Bonds’ s standing to sue, not the issue of whether he was require d to establish direc t responsibility for each office r. Hill v. McIntyre , 884 F.2d 271, 278 (6th Cir. 19 8 9 ), als o did not addre ss the issue of direc t responsibility for damag e. Gordon is incorre ct that the district court failed to apply binding Six th Circuit prec edent on the issue of direc t liability

. The case s he has cited do not addre ss the i s sue. I n fac t, the bulk of Gordon’s arg ument reg arding the direc t-liability issue is merely

rhetoric al. Gordon has not pointed to evidenc e indicating that any particula r office r was responsible for

unrea sonable seizure of his proper ty during the sear ch. We there fore aff irm the district court’s g rant of summary

judgme nt to the office rs in their individual capa cities. 5 Second, we addre ss the c la im s th a t Sm ith and the children wer e unrea sonably detained during the sea rch. Plaintiffs’ c laims do not withst and scr utiny

.

Gordon also claims that the district court err ed when it stated that he did not proper ly alleg e 5 a conspirac y in his complaint. Howeve r, Gordon only made a single mention of conspirac y , when he claimed that office rs “conspir[ed] toge ther to violate Plaintiff’s Constit utionally protec ted Civil Rights.” I t is well-settled that plaintiffs must plead a conspirac y with particula rity , and must provide more than “vag ue and conclusory alleg ations.” Spadafore v. Gardner , 330 F.3d 849, 854 (6th Cir. 2003) (interna l quotation marks omitted). Gordon’s bare mention of conspirac y does not satisfy this standard. - 12 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. The threshold inquiry in a § 1983 suit is whether there has been a constitutional or statutory violation at al l , and, if so, whether the rig ht alleg edly violated was clea rly established at the t ime

o f the defe ndant’s actions. W illiams v. City of Grosse Pointe Park , 496 F.3d 482, 485 (6 t h C i r. 2007); Turner v

. Scott , 119 F.3d 425, 429 (6th Cir. 1997)

. I f there was no violation, or if the rig ht

wa s n o t cl ea rly established at the time of the violation, then the office r is entitled to qualified immunit y as a matter of law. W illiams , 496 F.3d at 485. Either step can prec ede the other as desired. Pearson v. Callahan , 555 U.S. 223, 236 (2009). The plainti ff bears the bur den of pr oving tha t an office r is not e ntitled to qualifie d immunit y . Rodriguez v. Passinault , 637 F.3d 675, 689 ( 6th Cir. 2011). For a rig ht to be clea rly established, the “contour s of the rig ht must be sufficie ntly clea r” that

a rea sonable officia l would understand that what he is doing violates that rig ht. Feathers v. Aey , 319 F.3d 843, 848 (6th Cir. 2003) (interna l quotation marks omitted). I n deter mining the “contour s of the rig ht,” the very action in question need not have been held unlawful, but “in the light of preexis ting law

the unlawf

ulness must be appar ent.” Ibid. (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987))

. The fundame ntal inquiry is “whe ther it would be clea r to a rea sonable office r that his conduct was unlawful in the situation he confr onted.” Saucier v. Katz , 533 U.S. 194, 202 (2001), overruled on othe r grounds by Pearson , 555 U.S. 223. L imited or routine detention of resid en t s p u rs u ant to a valid sear ch war rant is lawful. Summers , 452 U.S. at 705. The rig ht has more rec ently been held to be “ca teg orica l.” Muehle r , 544 U.S. at 98; see also Bletz v. Gribble , 641 F.3d 743, 755 (6th Cir. 2011) (“[E]ven absent particula rized rea sonable suspicion, innocent by sta n d er s may be temporar ily detained wher e - 13 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al.

nece ssary to secure the scene of a valid sear ch or arr est and ensure the safe ty of office rs and others.”)

. Neve rtheless, while a

detention is a smaller e ncroa chment on liberty than t he sea rch itself, the detention is “admittedly a sig nificant re straint on [t he re sident’s] li berty .” Summers , 452 U.S.
at 701. There fore , the manner and scope of the detention must be rea sonable. See Bletz , 641 F.3d at 755 (it is “expected that any detention under these circ umstances would be limit ed or r outine.”) (interna l quotation marks omitted); Binay v. Bettendorf , 601 F.3d 640, 652 (6th Cir. 2010) (holding that it is “cle arly established that the authority of police office rs to detain the occupa nts of the premises during a proper sear ch for contra band is ‘limited’ and that the office rs are only entitled to

use ‘re asonable forc e’ to eff ectua te such a detenti o n . ”) (q u oting Summers , 452 U.S. at 705). A deter mination of rea sonablene ss hinge s on “the law enfor ceme nt interest and the nature of the ‘ar ticulable fac ts’ supporting the detentio n . ” S u mm ers , 452 U.S. at 702. Preventing flig ht,

m i n i miz ing the risk of harm to the office rs, a suspicion of wrong doing reg arding the detained resident, and promoting the order ly completi o n o f t h e sear ch wer e the specific fac tors named in Summers , with the Court noting that residents’ “self- interest may induce them to open locked doors

or locked container s . . . .” Id. at 702–04. The Court noted that “spec ial circ umstances, or possibly

a prolong ed detention, might lead to a differ ent conclusion in an unusual case . . . .” Id. at 705 n.21. Detentions of chil d re n h av e been held to “ra ise additional conce rns[,] ” Franklin v. Foxworth , 31 F.3d 873, 876 ( 9th Cir. 1994), but have not bee n held unre asonable per se . I n this case , plaintiffs have failed to put forth evidenc e sug g esting that the office rs eng ag ed in an unrea sonable detention or, if they did, that they should not be entitled to qualified immunit y . - 14 -No. 11-5427

Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Offic ers broug ht Smit h and the chil dren to the residenc e so that Smit h could help the office rs perf orm the sear ch more eff

iciently —for example, by letting them in the house. This is one of the justifications descr ibed in Summers

. Moreove r, Smit h’s person and her car wer e named in the sear ch

war rant; bring ing them back to the residenc e allowed the sear ch to be conducte d more fully

. Thoug h the children wer e not named in the war rant, it was no t unrea sonable, even if it was not the ideal solution, to bring them back to the house with Smit h. Moreove r, beca use the office rs we re n ot deposed, the rec ord conta ins no indication as to whether they knew if the children w ere g oing, f or example, to school. The officer s kept S mith and the children in the ki tchen, supe rv i s ed, and required that they be acc ompanied to the bathroom—while this might be overly cautious, espec ially with reg ard to the children, it is not so unrea sonable as to violate clea rly established law. See, e.g. , Dawson v. City of Seattle , 435 F.3d 1054, 1069 (9th Cir. 2006) (holding i t re as o nable to acc ompany residents to the b at h room in a non-drug -re lated sear ch); cf. Spafford v. Romanowsky , 348 F. Supp. 2d 40, 44–4 5 (S.D.N.Y. 2004) (ac company ing office r had to preve nt resident from locking herse lf in the bathroom during a sear ch of her residenc e). Ag ain, no individual office r was single d out as being responsible for particula

r misconduct. There fore , while it does not seem to have been wholly nece ssary for the office rs t o d etain the children, their detention was not unrea sonable in scope or duration, so as to violate a clea

rly established rig ht and, even if it had been, the office r responsible for such misconduct

was not identified. For these rea sons, we ag ree with the district court that Smit h’s and the children’ s detentions pursuant to the execution of the sear ch war rant cannot de fea t the qualified immunit y of
any individual officer

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Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Third, we consider the claim that the traff ic stop was a violation of § 1983. The district court is corr ect that persons leaving a residenc e that is the targ et of a sear ch war rant may be followed, detained and broug ht back to the house. See Cochran , 939 F.2d at 339. Mere ly being stopped and broug ht back to the house was not a violation of Smit h’s constitutional rig hts. Moreove r, we ag ree with the d i s t ri ct court that the exact number of minutes or miles that police may follow befor e detaining the i ndividual was not clea rly established at t h e t i m e of t he st op; there fore , the officers

wer e prote cted by

qualified immunity

. We affir m the district c ourt’s g rant of summary judgme nt 6 with reg ard to the of

fice rs’ stop of Smith. Four th, we consider Gordon’s claim of malicious prosec ution. After car efully examining the

rec ord evidence, we agr ee with the di strict court that the g rand jury had ample evidenc e on which
to base a finding of probable cause for 43 counts of theft by dece ption and one count of forg ery , even if Gra as’s statements about the exis tence of a written or otherwise formalized contra ct wer e excised. Even without evidenc e of a written contra ct, the g rand jury would have had probable cause to indict Gordon. There fore , we af fi rm the district court’s g rant of summary judgme nt to defe ndants
reg arding Gordon’s ma licious-prosec ution claim.

One Kentucky case held that a police stop of a resident who left a residenc e that was the 6 subject o f a v al i d sear ch war rant was unrea sonable. Parks v. Commonwealth , 192 S.W .3d 318, 331–33 (Ky

. 2006). Howeve r, Parks is differ ent from this case in at least one important respe ct. I n Parks , the office r beg an following Parks befor e the war rant was obt ai n ed

. Id. at 329. After the war rant was issued, the office r following the residents was notif i ed t o p u l l the residents over and return them to the residenc e. Ibid. The fac t that Parks was “off premises” when the office rs obtained the warrant was key to the court’s decision that the stop was unla wful. Id. at 331. I n our ca se, the office rs had the se arc h war rant while Smith was still “on premises.”

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Gordon, et al. v. Louisville/Jefferson Cnty. Me tro Gov’t., et al. Finally , we consider plaintiffs’ claims ag ainst the county g overnme nt and the office rs in their officia l capa cities. We ag ree with the district court that the plaintiffs did not put forth any evidenc e that the municipal g overnme nt had a policy supporting office r misconduct. There fore , the
g overnme nt cannot be held liable. For t h i s re as o n , t h e office rs also cannot be held liable in their officia l capa cities.

III For the fore g oing r easons, the district c ourt’s judg ment is AFF I RMED.

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