NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0758n.06
No. 12-3796
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT SHANYA RAI

NEY; ANTWAN ROL AND, Plaintiffs-Appellants,

v. J EFF PATTON, I n his indivi dual ca pacity ; BRAND ON GOF F, I n his indivi dual ca pacity , Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O
OPI NI ON

BEF ORE: KETHL EDGE, WHI TE, and STRANCH, Circuit J udg es. JANE B. STRANCH , Circuit J udg e. Plaintiffs Shany a Rainey and Antwan Roland appea l the mag istrate judge ’s g rant of summary judgme nt in favor of Offic ers J eff Patton and Br andon Goff in this civil rig hts ac t ion filed under 42 U.S.C. § 1983. For the rea sons set forth below, we REVERSE and REMAND for f urther pr ocee dings. This c ase arises out of a tra ffic stop in Cheviot, O hio, on September 23, 2010. Prior to the stop, Offic ers Patton and Goff had responde d to a domesti c call at Rainey ’s apa rtment. Although

a p h y s i cal alterca

tion had not occur

red, Rainey and her boy friend were arg uing continuously , and she reque sted that the office rs escor t the boy friend from her residenc e. Rainey also left the
apar tment and was pulled over moments later by Patton for failing to y ield to oncoming tr affic. Rainey testified at her deposition that P atton then forc ed her to exi t the car

and g et on the g round;No. 12-3796

Rainey, e t al. v. Patton, et al. pointed his firea

rm at her fac e while y elling at her to do so; and eventua lly retrie ved his canine from the vehicle and broug ht i t o v er to wher e she was ly ing on the g round. The canine then bit her.

1 Roland, who happene d to be riding his scooter near by , saw the dog bite Rainey and watche d Patton and Goff place her under arr est. The office rs direc ted Roland to leave

. After Roland ref used, Goff cited him for disorde rly

conduct. An O hio municipal court ac quitted Roland after a benc h trial. Rainey and Roland subsequently filed this § 1983 action ag ainst Patton and Goff, claiming excessive fo rce, false arr est, and malicious prosec ution. The parties consente d to the mag istrate judge ’s jurisdiction. Following discovery , Patton and Goff filed a motion for summary judgme nt, which t h e m ag istrate judge g rante d. As to Rainey ’s excessive forc e claim, the mag istrate judge deter mined that Patton’s actions wer e rea sonable under the circ umstances beca use Rainey admitted that she did not immediately pull her vehic le over

afte r Patton turned on his cruiser lights; did not immediately comply with Patton’s instruction to lie on the g round and put her cell phone down; and
at t empted to use the cell phone during the stop. The mag istrate judge found that this “eva si v e b eh av i or” and failure to obey order s would “lea d a rea sonable office r to conclude that [she ] wa s evading arr est and/or posed [a] threa t to

. . . Patton’s safe ty .” The mag istrate judge also distinguished excessive forc e case s involving police dog s wher e qualified im mu n it y had been denied beca use they “involved an intentional commanded deploy ment of the canine by the Offic er handler

an d / o r i n v o lved alleg ations of inadequa te canine training .” The mag istrate judge found the

This is disput ed by

Patton, who claims that the dog esca ped out of the c ar w indow. 1 -2-No. 12-3796

Rainey, e t al. v. Patton, et al. “undisputed evidenc e” established that Patton did not command the dog to bite Rainey

. This timely
appea l followed.
We r eview de novo the mag istrate judge ’s decision to g rant summary judgme nt. Brooks v. Rothe , 577 F.3d 701, 705 (6th Cir. 2009 ). S u m m ar y judgme nt is appropr iate when, viewing the evidenc e in the light most favor able to the non-moving party , “ther e is no g enuine dispute as to any materia l f act and the movant is e ntitled to judgme nt a s a matter of law.” Fe d. R. Civ. P. 56( a); see also Barker v. G oodrich , 649 F.3d 428, 432 ( 6th Cir. 2011).
I. ANALYSIS The mag istrate judge g rante d summary judgme nt in f avor of Patton and Goff on qualifiedimmunit y g rounds

. Qualified immunit y shields an office r from § 1983 liability unless “the fac ts alleged s how the office r’s conduct violated a constitutional rig ht,” and “the rig ht was clea rly established” such that “it would be clea r to a rea sonable office r that his conduct was unlawful in the sit u at i o n he confr onted.” Saucier v. Katz , 533 U.S. 194, 201–02 (2001), abrogated in part by
Pearson v. Callahan , 555 U.S. 223, 236 (2009). I n order to preva il, a plaintiff “must establish that the defendant acted knowingly or intentionally to violate his or her constituti onal rights, such t hat

mere neg lige nce or rec klessness is i n s u fficie nt.” Ahlers v. Schebil , 188 F.3d 365, 373 (6th Cir. 1999). A. Rainey’s Claim We be g in w ith Rainey ’s excessive forc e claim. “A seizure must oc cur befor e an excessive forc e claim is cog nizable under the Four th Amendment.” Dunigan v. Noble , 390 F.3d 486, 492 (6th Cir. 20 0 4 ) (citing Cnty. of Sacrame nto v. Lewis , 523 U.S. 833, 844–45 & n.7 (1998))

. Rainey -3-No. 12-3796

Rainey, e t al. v. Patton, et al. alleg es that Patton “intentionally rele as[ed] his police dog onto her,” in order t o ef fectuate an unlawful seizure. “A seizure within the meaning o f the Four th Amendment

. . . ‘re quires an intentional a cquisition of phy sical control.’” Id. (quoting Brower v. Inyo Cnty. , 489 U.S. 593, 596 (1989))

. I n other words, the Four th A mendment is implicate d “only when there is a g overnme ntal termination of freedom of movement through means int entionally a p p l i ed

. ” Brower , 489 U.S. at 597. This court has applied the Four th Amendment intent require ment to excessive forc e claims involvi n g police dogs. See Neal v. Melton , 453 F. App’x 572, 577 (6th Cir. 2011); Dunigan , 390 F.3d a t 492. Howeve r, “c laims involvi ng proof of a def endant’ s intent seldom lend themselves to
summary dispositi on” and “ rar ely

will be supported by direc t evidenc e of such intent.” Holzeme r

v. City of Mem phis , 621 F.3d 512, 525 (6th Cir. 2010) (interna l quotation marks omitted); see W alker
v. Dav is , 643 F. Supp. 2d 921, 928–29 (W.D. Ky . 2009) (e x plaining tha t a sheriff ’s intent to seize

a motorist by striking his motorcy cle with the s h eriff ’s police cruiser could be proved throug h circ umstantial evidence ). The magi strate judge , as well as the defe ndants, put weig ht on the fac t that Patton did not
g ive the dog any ty

pe of verba l command, and t h at R ainey ’s non-expert testimony alleg ing that 2
P atton did, in fac t, “command” the dog to bite her cannot be used to cre ate a g enuine issue of materia l fac t. Although Rainey ’s aff idavit conten d s t h at t h e rele ase of the choke chain “most

Offic er Patton explained t hat his dog is not trained to “attac k” suspects, but was instead 2 trained to bite and hold a suspect when: (1) the dog is sent to trac k and appre hend the suspect or (2) the suspect moves de fensively

. -4-No. 12-3796

Rainey, e t al. v. Patton, et al.

cer tainly was a command to the dog to a ttack” under the circ umstances, her de position t estimony 3

more clea rly states that Patton “let the chain g o, he loosened up on the chain beca use [t he dog ] was like barking and

. . . he was choking hisself [si c] barking at me and the office r let him g o a littl e bit and that’s when he bit me beca use he was that close to me wi t h t h e d o g.” Patton admits that he broug ht the dog just two fee t awa y from Rainey while she was on the g round. Whil e Rainey turned her head just befor e she was bitten, her testimony indicates that she co u l d h ea r the dog straining
ag ainst the cha in, and could also he ar the chain loosene d rig ht before the bite. Construing t h e t es t i m o ny in the light most favor able to her, Rainey is alleg ing that while
Patton was y elling at her, he broug ht an ag itated dog over, place d it in extremely close proxi mity to her, and intentionally loosened the choke chain that was keeping the dog from rea ching her. Roland also testified that he saw Patton rele ase the choke chain, and while his asser tion of knowledg e as to what this meant in terms of dog -training is dubious, his testimony on what he saw bolsters Rainey ’s

a s s e r ti o n s . F u rther, a rea sonable jury could infer Patton’s intentionality from Rainey ’s testimony th a t

She specific ally

states as follows: 3 [W ]hi le it is true I did not hear defe ndant Patton g ive any specific verbal command to the dog to attack me it is not tr ue that I did not hear Patton g ive such a command at all. Patton y elled at me, t hus causing the dog t o become ag itated, an d ad vance d the dog to me while I was lay ing fac e down and flat on the g round. Patton took the ag itated and fra

ntically b arking dog direc tly over to me while Patton continued shouting, and then P atton rele ased the ‘choke chain’ on the dog’s collar just afte r I turned my head awa

y from the dog

. The dog then bit me. The rele ase of the choke chain under these circ umstances most cer tainly was a command to the dog to attack me.

-5-No. 12-3796

Rainey, e t al. v. Patton, et al. Patton was loudly y elling at her while she was g etting on the g round and pointed a g un at her fac e. Ba sed on these alleg ations and the totality of the circ umstances, we do not think that expertise in dog training is nece ssary to establish that a fac tual dispute exis ts. This dispute is undoubtedly materia l, as it g oes to whethe r Patton’s ac tions were intentional a s opposed to rec kless or neg lige nt.
I n order to establish that Patton’s intentional seizure involving the dog constituted an excessive use of forc e, Rainey must show that such forc e was objectively unrea sonable under the circ umstances. S

ee Gr a ham v. Connor , 490 U.S. 386, 395 (1989); Dunigan , 390 F.3d at 493. A
court “ consider[s] not the ‘extent of the injury inflicted’ but w hether an off icer subjects a de tainee
to ‘g ratu i t o u s v i o l ence .’” Miller v. Sanilac Cnty. , 606 F.3d 240, 252 (6th Cir. 2010) (quoting
Morrison v. Bd. of Tr. of G reen Twp. , 583 F.3d 394, 407 (6th Cir. 2009) ). This analy sis require s a
court to balanc e “the nature and quality of the i n t ru s i o n on the individual’s Four th Amendment interests ag ainst the counter vailing g overnme ntal i n t er es t s at stake.” Graham , 490 U.S. at 396 (interna l qu o t at i o n marks omitted). The court “pay [s] particula r attention to ‘the sever ity of the crime at issue, whether the suspect poses an immediate threa t to the safe ty of the office rs or others, and whether [s] he is actively resisting arr est or attempting to evade arr est by flig ht.’” Kostrzewa v. City of Troy , 247 F.3d 633, 639 (6th Cir. 2 0 0 1 ) (q u o t i n g Graham, 490 U.S. at 396). The

rea sonablene ss of a police office r’s use o f fo rc e “m u s t be judge d from the perspe ctive of a

rea sonable office r on the scene , rathe r than with the 20/20 vision of hindsight.” Graham , 490 U.S.
at 396. I n assessing such claims, the cour t co nstrues the fac ts in the light most favor able to the plaintiff. Schreibe r v. Moe , 596 F.3d 323, 332 ( 6th Cir. 2010).

-6-No. 12-3796

Rainey, e t al. v. Patton, et al. Viewing the fac ts in the light most favor able to Rainey , we conclude that Patton’s decision
to employ his canine during the course of t he traff ic stop was unrea sonable. Rainey committed a minor traff

ic offense. P atton had just come from responding to a domesti c call place d by Rainey , and nothing in the rec ord indicates that Rainey was a person Patton would have considere d a threa t
to his safe ty or that of others such that it would be nece ssary to employ a canine

. Moreove r, Patton

was a 6' , 220-pound man, wher eas Rainey was around 5' 6" and betwee n 150 and 175 pounds. Whil e admitting that she did not stop immediately , Rainey ’s testimony indicates that it would not have been
appropr iate to stop on the road so she drove to a near by parking lot. She also testified that she drove
very slowly in the parking lot while finding a place to park. Although Rainey did not g et on the
g round initially when Patton command ed her to do so, there was not an inordinate delay in her compliance and she was on the g round by the time the dog was broug ht over. We there fore cannot consider her to have been “ac tively resisting arr est or attempting to evade arr est by fl i gh t ” at t hat point. Viewe d in the light most favor able to Rainey , we cannot conclude that a “re asonable office r

on the scene ” with Patton’s y ear s of experience would perc eive Rainey to be such a safe ty threa t or such a flig ht risk that the use of a police dog would be nece ssary to detain her. I n s u m , Rainey established that a r easona ble jury could find that a F ourth Amendment violation occ urre d. The ne x t q uestion in the qualified immunit y analy sis is “whe ther or not [R ainey ’s] Four th Amendment prote ctions ag ainst excessive forc e, as it re lates to the use of police dog s, was cle arly established at the time the incident[] occur red.” Campbell v. City of Springboro , 700 F.3d 779, 788 (6th Cir. 2012). I n order to be clea rly established, “‘[t] he contours of th[ e] rig ht must be sufficie ntly clea r that a rea s o n ab l e officia l would understand that what he is doing violates that rig ht.’” Id. -7-No. 12-3796

Rainey, e t al. v. Patton, et al. (quoting W

heele r v. City of Lansing , 660 F.3d 931, 938 (6th Cir

. 2 0 1 1 )) (a l t eration in orig inal).
“Howe ver, ‘there need not be a case with the exact same fac t pattern, or even fundame ntally simil ar

or materia lly simil ar fac ts; rathe r, the question is whether the defe ndants had fair war ning that their actions we re unc onstitut ional.’” Norton v. Still e , No. 12-1778, 2013 WL 1955889, at *4 (6th Cir. May 13, 2013) (quoting Cummings v. Ci t y o f A kron , 418 F.3d 676, 687 (6th Cir. 2005)) (interna l apostrophes omitted). Campbell outlined the contours of the rig ht to be fre e from excessive forc e in police canine

case s. There we noted the rang e of develope d law, observing that summary judgme nt in favor of the office r has been upheld when there wer e “potentially dang erous” suspects who exhibi ted “irrational behavior ” and when the suspects wer e in unlit buildings or heavily wooded are as wher e the “police

wer e vulnera

ble to ambush.” Campbell , 700 F. 3 d at 7 8 9

. On the other end of the spectrum, we 4

n oted that summary judgme nt on qualified immunit y g rounds was denied in case s in which t h e

o ff i ce r “a l l owed a littl e-tra ined canine , who had previously bitten someone, to bite a handcuf fed suspect.” Id. The mag istrate judge deter mined that the fac ts of this case “more closely alig ned” with

These case s also involved proper ly trained dog s, and war nings wer e g iven prior to the 4 rele ase of the dog s. The mag istrate judge specifi ca l l y n o t ed that no alleg ations had been made reg arding the dog ’s training in this case . Although c ourts have c onsidered this par ticular fa ctor in other c ases, they

have done so in response to plaintiffs’ alleg ations. See, e .g. , Matthews v. Jone s , 35 F.3d 1046, 1049 (6th Cir. 1994) (consider ing plaintiff’s claims that the police depar tment had a policy or prac tice of using deadly forc e in the form of police do g s and that there was a policy of inadequa tely training the dog s). Her e, there was no claim of improper training ; inst ea d , t h er e is simply an alleg ation that a police office r broug ht an ag itated dog t o stand over a suspect on the g round; continued to y ell at the suspect; and intentionally loosened the chain that was restra ining the dog

. Although an alleg ation of improper training may fre quently be asser ted in these ty

pes of case s, we do not find it nec essar y to avoid summary

judgme nt under the f

acts pre sented he re.

-8-No. 12-3796

Rainey, e t al. v. Patton, et al.
t h e former cate g ory based on Rainey ’s failure to pull over immediately , failure to obey Patton’ s commands, at lea st init ially , and due to the f act that she was not handc uffe d. We disag ree . As previously noted, there is nothing to indicate tha t Rainey was c onsidered dang erous. Patton had just left Rainey ’s apar tment wher e h e was responding to her reque st that police intervene in a domestic dispute. He pulled her over for a minor traff ic violation—failure to
y ield to oncoming traff

ic. Although Rainey was not y et handcuf fed when Patton broug ht the canine

over to he r, she was on the g round, and there is no sug g estion in a ny deposition te stimony that she

was attempting to flee at the point that she was on the g round. Although Rainey appea rs to have had her cell phone in hand, she alleg ed that she did not try to make a call until she was bitten and she was
not text ing any one, which direc tly co n t radic ts Patton’s testimony that Rainey “would not stop
text ing.” The interac tion occur red in a parking lot with an overhe ad street light, so there was no risk that Patton would be “ambushe d.” Moreove r, nothing indicates that Rainey was a phy sically intimi dating fema le o r that she was in a position to flee such that Patton, a veter an police office r, neede d the assistance of a canine

. These fac ts stand in stark contra st to the case s in which summary judgme nt was g rante d. See Matthews v. Jones , 35 F.3d 1046, 1048, 1051–52 (6th Cir. 1994) (finding employ ment of canine rea sonable wher e plaintiff, who was speeding and driving rec klessly , tried to evade police in marke d car , and eventua lly ran into the woods and failed to surre nder afte r being commanded to do so); Robinette v. Barnes , 854 F.2d 909, 913–14 (6th Cir. 19 8 8 ) (f inding employ ment of ca

nine to appre hend suspec t rea sonable be cause suspect likely “knew the building

was surrounde d,

. . . [and] had been war n ed

. . . . t h at a dog would be used, and

. . . g ave ever y indication of unwillingne ss to surrende r”)

. -9-No. 12-3796

Rainey, e t al. v. Patton, et al. The case s g ranting qualified immunit y to the office r highlig ht t h e importance of fac ts establishing that a suspec t has failed to surr ender or has y et to be appr ehende d and has been g iven the opportunity to avoid an encounte r with a dog befor e its employ ment. When such fac ts have not been prese nt, use of a police canine has been deeme d unrea sonable. See W hite v. Harmon , 65 F.3d 169, 1995 WL 518865, at *3 (6 t h Cir. 1995) (finding office r’s actions unrea sonable wher e he broug ht a dog “into the immediate prese nce of the handcuf fed plaintiff the dog was ‘trac king’ [] close
enoug h to permit the dog to bite the plaintiff”)

. Ba sed on the principles articula ted i n these cases, it would be clear to a reasonable o ff i cer that employ ing a pol ice dog ag ainst an unarmed sus pect detained on the basis of a traff ic o ff ense, who was on the ground and not attempting to flee , would constitute excessive force. Thus, in the

case broug ht by Rainey , the mag istrate judge ’s g rant of summary judgme nt on qualified immunit y
g rounds was ina

ppropriate

. B. Roland ’s Claim s Roland broug ht a § 1983 claim for false arr est ag ainst both defe ndants an d fo r m al icious
prosec ution under Ohio law ag ainst Offic er Goff. (On appea l, Roland presse s these claims only
ag ainst Offic er Goff, thus abandoning his false arr est claim ag ainst Offic er Patton. See Music v. Arrowood Indem

. Co. , 632 F.3d 284, 286 n.1 (6th Cir. 2011). ) The mag istrate judge conclude d that both claims failed a s a matter of law bec ause pr obable c ause e x isted for Roland’s a rre st. To state a claim for false arr est, a plaintiff must prove that the arr esting office r did not have probable cause to arre st the plaintiff. Radvansky v. City of Olmsted Falls , 395 F.3d 291, 302, 307
n.12 (6th Cir. 2005). To state a claim for malicious prosec ution under Ohio law , a plaintiff must -10-No. 12-3796

Rainey, e t al. v. Patton, et al. show that the char g ing office r di d n ot have probable cause to char g e the plaintiff. Harris v. Bornhor s t , 5 1 3 F.3d 503, 520 (6th Cir. 2008). An office r has probable cause to arr est if the information he possessed at the time of the ar re s t wa s “s ufficie nt to lead a rea sonable office r to conclude that the arr estee has committed or is committing a crime.” Id. at 511. L ikewise, an office r has probable cause to prosec ute if, at the time he initiated criminal proce eding s, the information he possessed would lead a rea sonable office r to c onclude that the arr estee had committed the char g ed offe nse. Syke

s v. Anderson , 625 F.3d 294, 310–11 ( 6th Cir. 2010). Offic er Goff cited Roland for disorderly conduct under Ohio Revised Code § 2917.11(A)( 5), which prohibits a person from “re cklessly caus[ing] inconvenienc e, annoy ance , or alar m to another by

. . . [c] rea ting a condition that is phy sically offe nsive to persons or that prese nts a risk of phy sical h arm to persons or proper ty , by any act that serve s no lawful and rea sonable p u rp o s e o f t h e offe nder.” The fa cts, viewe d in the light most favor able to Roland, do not indicate that he cre ated

a condition that was phy sically offe nsive or prese nted a risk of phy sical harm. Acc ording to Roland, he stood on a sidewalk about 100 fee t awa y from the office rs while they arr ested Rainey

. Unlike the

arr estee s in the case s cited by Offic er Goff, Roland did not move toward the office rs or any one else

or loudly protest Rainey ’s arres t

. C f

. W heele r v. Newell , 407 F. App’x 889, 892 (6th Cir. 2011);
State v. Fant , 607 N.E.2d 548, 549–50 (Ohio C t. Ap p . 1 992). To the ex tent Roland spoke l oudly
to the office rs, it was beca use of his distance from them. And althoug h Offic er Goff said that Roland

was on his cell phone and that he fea red that Roland was summoning others, Roland denied that he had his ce ll phone out.

-11-No. 12-3796

Rainey, e t al. v. Patton, et al. The office rs arg ue that the municipal court’s denial of Roland’s Ohio Rule of Criminal Procedur e 29 motion for ac q u i t tal is “proba tive evidenc e” of probable cause . Rule 29 states that “[t] he court on motion of a defe ndant

. . . , afte r the evidenc e on either side is closed, shall order the entry of a judgme nt of

acquittal of one or more of fense s char g ed . . . if the e vidence is insufficient
to sustain a conviction[.] ” “When considering a [R ule] 29 motion for acquittal, the trial court must
construe the evidenc e in a light most fa vorable to the state[.] ” State v. Cash , 951 N.E.2d 486, 492 (Ohio Ct. App. 2011). During the state-c ourt proce eding s, Roland moved for acquittal at the close of the state’s case . The prosec utor arg ued that the motion should be denied beca use, viewing the evidenc e in the light most fa v orable to the state, Roland had his cell phone out and the office rs

rea sonably feared that a crow d might form. The court denied the motion. Her e, in contra st, the evidenc e must be viewed in the light most favor able to Roland, and he denies having his cell phone
out. The state court’s denial of t he mot ion there fore has no probativ e v al u e h er e. See Syke s , 625 F.3d at 310 n.8; see also Brunswick v . City of Ci ncinnati , No. 1:10-cv- 617, 2011 WL 4482373, at *5–6 (S.D. Ohio Sept. 27, 2011). The office rs also arg ue that probable cause exis ted to cit e Roland for obstructing officia l business in violation of Ohio Revised Code § 2921.31(A). Probable cause to arr est can be based on

an office r’s belief that the arr estee committed a crime, even if it is not the crime eventua lly char g ed. Radvansky , 395 F.3d at 307 n.12. I n Ohio, a conviction for obstruction of officia l business require s: “(1) the perf

ormanc e of an unprivileg ed act (2) wit h the purpose of preve nting, obstructing or delay ing the perf

ormanc e by a public officia l of an authorized act within his officia l capa city (3) which hamper s or impedes the public officia l in the perf ormanc e of his lawful duties.” Lyons v. City -12-No. 12-3796

Rainey, e t al. v. Patton, et al. of Xenia , 417 F.3d 565, 573 (6th Cir. 2005). The office rs contend that Roland interfe red with their lawful arr est of Rainey

. But the rec ord bel i es t h ei r contention. During Roland’s trial, Patton testified that Roland did not interfe re with Rainey ’s arr est. R. 10-5, Pag eI D# 152 (“Q. Di d Mr. Roland interfe re w ith y our ar rest of Miss Rainey ? A. No”)

. The office rs respond that Roland’s ref usal to leave the scene was an aff irmative act. But the

case they cite for support— State v. Foster , No. 13-97-09, 1997 WL 576353 (Ohio Ct. App. Sept. 17 1997)—could hardly be more differ ent. There, the court upheld a defe ndant’s conviction for obstructing officia l business wher e the evidenc e s h owed that he y elled at a police dispatcher in a police station for approximately half an hour. During that time, the dispatcher was attem p t i n g t o “addr ess citizens who ent er ed t h e police station, answe r the phones, listen to police radio transmissions, make radio calls to police office rs, and m o n i t o r calls to the fire depar tment and ambulance .[.] ” Id. at *1. The defenda nt was also repe atedly told that his conduct wa s interfe ring with the d i s patche r’s ability to do her job. Id. Her e, in contra st, Roland was 100 fee t awa y from Goff and Patton during Rainey ’s arr est. His only communication with them was in response to their querie s. And he wa s never told that he was interf

ering with police business.
I n sum, vie wing the fac ts in the light most favor able to Roland, Goff did not have probable

cause either to arr est Roland or to cha rge h im with disorderly conduct. And it was clea rly established at that time that such actions, in the absenc e of probable cause , v i o late the Four th Amendment. Spurlock v. Satterfield , 167 F.3d 995, 1006–07 (6th Cir. 1999); Donovan v. Thames , 105 F.3d 291, 297–98 ( 6th Cir. 1997). Goff the ref ore is not entitled to qualified immunity

.

-13-No. 12-3796

Rainey, e t al. v. Patton, et al. II. CONCLUSION
T he mag istrate judge ’s decision as to Rainey ’s excessive-for ce claim and Roland’s false

arr est and malicious-prosec ution claims is REVERSED, and the case REMANDED for further
proce eding s consistent with this opi nion.

-14-No. 12-3796

Rainey, e t al. v. Patton, et al. KETHLEDGE, Circuit Judge, concurring in part and dissentin g in part. I would aff irm the judgme nt g ranting qualified immunit y to Offic er Patton, but otherwise concur with the Court’s Opinion.

-15-