*

The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0165p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

BEVERLY NETTLES-NICKERSON,

 Plaintiff-Appellant,

v.

JOHN FREE; ANDREW MCCREADY; GREGORY

HARRIS,

 Defendants-Appellees.

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No. 11-1253

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:10-cv-281—Robert J. Jonker, District Judge.

Decided and Filed: June 1, 2012 

Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge.*

_________________

COUNSEL

ON BRIEF: Andrew Patrick Abood, ABOOD LAW FIRM, East Lansing, Michigan,

for Appellant. Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for

Appellees.

_________________

OPINION

_________________

ROGERS, Circuit Judge. Plaintiff Beverly Nettles-Nickerson was arrested after

police officers found her intoxicated, sitting in the driver’s seat of her running, but

legally parked, Hummer. Nettles-Nickerson was charged with operating a vehicle while

intoxicated, but the state trial court dismissed her case after it concluded that she was not

“operating” her Hummer as that term is defined under Michigan law. Nettles-Nickerson

1
No. 11-1253 Nettles-Nickerson v. Free, et al. Page 2

then sued her arresting officers in federal court, arguing, among other things, that they

unconstitutionally detained her without reasonable suspicion and arrested her without

probable cause. The district court, however, held that the officers had qualified

immunity. Nettles-Nickerson now appeals that ruling. Since there was a reasonable

basis to believe that Nettles-Nickerson was operating her Hummer while intoxicated, and

was therefore violating Michigan law, the district court properly determined that the

officers had qualified immunity.

On the evening of May 8, 2009, Nettles-Nickerson visited the Tap Room, a

neighborhood bar in Okemos, Michigan. Although it is unclear how much alcohol she

consumed there, Nettles-Nickerson does not dispute that she was too impaired to drive

home. After paying her check, Nettles-Nickerson grabbed her carry-out container and

left the bar. David Williams, another Tap Room customer who was dining on the

outdoor patio, saw Nettles-Nickerson walking in a zig-zag motion through the parking

lot toward her car, lose her footing, and fall to the ground. According to Williams,

Nettles-Nickerson got up, stumbled to her Hummer, opened the driver’s side door, got

into the driver’s seat, and started the car. Williams also saw the car’s tail lights come

on and brake lights illuminate. Believing that it was not in anyone’s interest for NettlesNickerson to be driving, Williams called 9-1-1 and told the dispatcher about the

situation.

Police Officers John Free, Andrew McCready, and Gregory Harris arrived on the

scene, and Williams directed Officer Free to the Hummer. Officer Free approached the

car, which he noticed was running but still in park, and saw Nettles-Nickerson sitting in

the driver’s seat. Officer Free announced his presence and, although Nettles-Nickerson

initially appeared to be sleeping, she immediately opened her eyes and made eye contact.

Officer Free observed that Nettles-Nickerson’s eyes were watery and bloodshot and that

she smelled of intoxicants. Officer Free then asked Nettles-Nickerson to step out of her

car and perform a variety of field sobriety tests, and she complied. According to Officer

Free, Nettles-Nickerson could not correctly recite the entire alphabet and had difficulty

maintaining her balance during a simple walk-and-turn test. Officer Free then
No. 11-1253 Nettles-Nickerson v. Free, et al. Page 3

administered two preliminary breath tests (PBTs), but both failed to register. Officer

Harris administered a third PBT, which revealed that Nettles-Nickerson had a blood

alcohol content of 0.165, well over the legal limit. After consulting with his fellow

officers, Officer Free arrested Nettles-Nickerson, without a warrant, for operating a

vehicle while intoxicated in violation of MICH. COMP. LAWS § 257.625.

The state trial court, however, dismissed the charge, finding that NettlesNickerson was not “operating” her Hummer as that term is defined under Michigan law.

The Michigan Department of State made a similar finding in Nettles-Nickerson’s license

restoration proceedings. Accordingly, Nettles-Nickerson’s criminal case was closed and

her license was not suspended.

Unsatisfied, Nettles-Nickerson sued Officers Free, McCready, and Harris in

federal court. Nettles-Nickerson argued, among other things, that the officers

unconstitutionally detained her without reasonable suspicion and arrested her without

probable cause. The district court, however, granted the officers’ motion for summary

judgment, holding that they were entitled to qualified immunity because NettlesNickerson did not have “a clearly established constitutional right to be free from

detention and eventual arrest while sitting, intoxicated, in the driver’s seat of a running

vehicle that is legally parked.” The district court determined that a reasonable officer

could have concluded that Nettles-Nickerson was “operating” her Hummer as that term

is statutorily defined. The district court also reasoned that while Michigan case law

could be read to reach a different conclusion, the case law was sufficiently unclear to

allow a reasonable officer to believe that Nettles-Nickerson was “operating” her vehicle.

Nettles-Nickerson now appeals that ruling.

Officers Free, McCready, and Harris are entitled to qualified immunity because

it would not have been clear to a reasonable police officer that detaining and arresting

Nettles-Nickerson was unlawful. Qualified immunity is warranted even if a

constitutional violation has occurred if the right violated was not clearly established,

Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier

v. Katz, 533 U.S. 194, 201 (2001)), and this court may proceed directly to that inquiry
No. 11-1253 Nettles-Nickerson v. Free, et al. Page 4

in appropriate cases. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “The relevant,

dispositive inquiry in determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004). Even if we assume that

the police lacked probable cause to arrest Nettles-Nickerson under Michigan law,

Officers Free, McCready, and Harris were nonetheless entitled to qualified immunity

because there was a reasonable basis to believe that Nettles-Nickerson was operating her

Hummer while intoxicated and was therefore violating Michigan law.

Michigan makes it a crime for a person who is intoxicated to “operate a vehicle

upon a highway or other place open to the general public or generally accessible to

motor vehicles, including an area designated for the parking of vehicles.” MICH.COMP.

LAWS § 257.625(1). Since there is no dispute that Nettles-Nickerson was intoxicated,

the only question is whether she was “operating” her Hummer. Michigan’s legislature

defined “operating” as “being in actual physical control of a vehicle.” MICH. COMP.

LAWS § 257.35a. Here, a reasonable officer could have concluded that NettlesNickerson was in actual physical control of her Hummer. She had opened the driver’s

side door, gotten into the driver’s seat, started the car, turned the tail lights on, and

pressed the brake pedal, and she sat behind the steering wheel while the vehicle was

running. Moreover, no one else was in the car and nothing impeded Nettles-Nickerson’s

ability to move the car. Since a reasonable officer relying on the plain language of the

relevant statute could have concluded that Nettles-Nickerson was operating her Hummer

while intoxicated, the district court properly determined that Officers Free, McCready,

and Harris were entitled to qualified immunity.

It is true that prior to 1995, the Michigan Supreme Court had held that “a person

sleeping in a motionless car cannot be held to be presently operating a vehicle while

sleeping.” People v. Pomeroy, 355 N.W.2d 98, 99 (Mich. 1984). In People v. Wood,

however, the Michigan Supreme Court explicitly overruled this broad holding, and on

the contrary held that “operating” should be defined such that “[o]nce a person using a

motor vehicle as a motor vehicle has put the vehicle . . . in a position posing a significant
No. 11-1253 Nettles-Nickerson v. Free, et al. Page 5

risk of causing a collision, such a person continues to operate it until the vehicle is

returned to a position posing no such risk.” 538 N.W.2d 351, 353 (Mich. 1995). The

court applied the definition to include the defendant in Wood. In that case,

police officers found Wood unconscious in his van at a McDonald’s

drive-through window . . . . Wood was slumped forward, with his head

resting on the steering wheel. The vehicle’s engine was running, and the

automatic transmission was in drive. Wood’s foot, which rested on the

brake pedal, kept the vehicle from moving. Wood had a twenty-dollar bill

in his hand, and a Budweiser beer between his legs. He smelled of

alcohol and, when the police awakened him, appeared confused.

Id. at 352. 

It was perfectly reasonable for a police officer fully familiar with this precedent

to arrest Nettles-Nickerson. By getting into the driver’s seat of her Hummer, starting the

car, turning the tail lights on, pressing the brake pedal, and being able, at any moment,

to drive away, Nettles-Nickerson had put her Hummer in a position posing a significant

risk of causing a collision.

To be sure, an argument could be made that Wood was distinguishable because

Nettles-Nickelson’s car was parked in a legal parking space, and may not have just been

driven while she was intoxicated. Such an argument apparently persuaded the state trial

court to dismiss Nettles-Nickerson’s criminal case and the Michigan Department of State

to refuse to suspend her driver’s license. Indeed, some subsequent unpublished

decisions by the intermediate Michigan appellate courts provide some support for the

distinction. People v. Burton, 651 N.W.2d 143 (Mich. Ct. App. 2002); People v. Andres,

No. 258280 2006 WL 448811 (Mich. Ct. App. Feb. 23, 2006). Those cases, however,

were themselves distinguishable from Nettles-Nickerson’s case. In Burton, the

defendant was asleep and the officers had some difficulty waking him after they found

him parked in a golf course parking lot in the middle of the night. Burton, 651 N.W.2d

at 145. And in Andres, the vehicle involved was not even running. Andres, 2006 WL

448811, at *1.
No. 11-1253 Nettles-Nickerson v. Free, et al. Page 6

1

Indeed, in a case decided after Nettles-Nickerson’s arrest, the Michigan Court of Appeals held

that a vehicle was operated where the automobile was put in gear, but was legally parked and had not

moved. See People v. Longeway, No. 300493 2012 WL 933597 (Mich. Ct. App. March 20, 2012).

Reasonable lawyers’ arguments could be made either way as to whether NettlesNickerson’s situation was closer to that in the Michigan Supreme Court case of Wood

or that of the two court of appeals cases.1 Under well-recognized principles of qualified

official immunity, the police officers cannot be required to pay damages merely because

they anticipated the law incorrectly. Instead, the law must be clearly established before

there can be such liability. See Pearson, 555 U.S. at 232; Anderson v. Creighton,

483 U.S. 635, 640 (1987). The requirement that the law must be clearly established

extends as well to state law where one interpretation of a state law is necessary to

establish a federal constitutional violation. See King v. Ambs, 519 F.3d 607, 612-13

(6th Cir. 2008); Nails v. Riggs, 195 F. App’x 303, 311-12 (6th Cir. 2006). In this case,

moreover, the police officers commendably consulted with each other before executing

the arrest. This is a paradigm case for qualified official immunity.

The judgment of the district court is affirmed.