*

The Honorable Algenon L. Marbley

the Southern District of Ohio, sitting by 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

KATHERINE GARDENHIRE andWALTER GARDENHIRE,

Plaintiffs-Appellees,

v.

DONALD SCHUBERT, in his

individual and officialcapacity as Chief of Police,

Defendant-Appellant.

Appeal from the United St

for the Middle District of Ten

No. 97-00061—Thomas A. H

Argued: August 

Decided and Filed: M

Before: BATCHELDER and C

MARBLEY, Distr
2 Gardenhire, et al. v. Schubert No. 98-6434

_________________

COUNSEL

ARGUED: Daniel H. Rader III, MOORE, RADER, CLIFT& FITZPATRICK, Cookeville, Tennessee, for Appellant.Lisa B. Harris, HARRIS LAW FIRM, Cookeville, Tennessee,for Appellees. ON BRIEF: Daniel H. Rader III, LaneMoore, MOORE, RADER, CLIFT & FITZPATRICK,Cookeville, Tennessee, for Appellant. Lisa B. Harris, SamuelJ. Harris, HARRIS LAW FIRM, Cookeville, Tennessee, forAppellees. 

MARBLEY, D. J., delivered the opinion of the court, in

which COLE, J., joined. BATCHELDER, J. (pp. 26-30),delivered a separate opinion concurring in part and dissentingin part.

_________________

OPINION

_________________

ALGENON L. MARBLEY, District Judge. PlaintiffsAppellees Katherine and Walter Gardenhire brought this suit

against the Defendant-Appellant, Algood Police Chief DonaldSchubert, alleging that Chief Schubert violated their civilrights, in violation of 42 U.S.C. § 1983, by arresting themwithout probable cause and refusing to arrest and to prosecutetheir neighbor for burglarizing their retail business. ChiefSchubert filed a motion for summary judgment based onqualified immunity, which the district court denied. Thisinterlocutory appeal followed, and raises the same questionspresented in the court below. For the following reasons, weAFFIRM in part and REVERSE in part the judgment of the

district court.

I.

In December of 1996, Katherine Gardenhire owned a retail

clothing store called Uniquely Yours. Located immediately
30 Gardenhire, et al. v. Schubert No. 98-6434

cause to arrest. Even absent probable cause, qualifiedimmunity is available if a reasonable police officer could havebelieved that his or her conduct was lawful, in light of clearlyestablished law and the information the searching officerspossessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987).

In 1996, the clearly established law of probable cause in thiscircuit was Criss v. City of Kent. The majority spends some

three pages distinguishing this case, but Chief Schubert wasnot required to anticipate the majority’s opinion here. ChiefSchubert was entitled to rely on the plain holding of Criss,and a reasonable and prudent man, rather than a legaltechnician, cf. Brinegar v. United States, 338 U.S. 160, 175(1949), could have read Criss to authorize the arrest, withoutfurther inquiry, of individuals who were in possession ofparticular goods that had been explicitly identified as stolen.Accordingly, I must dissent from this portion of the majority’sopinion.

No. 98-6434 Gardenhiadjacent to Ms. Gardenhire’s estabowned by Mary Della Sala. The common interior doorway. The batpanel for both stores were located Some time shortly before Decemband Ms. Della Sala agreed to trade 31, the two women were in the merchandise; both women had establishments and each had prope

On December 31, 1996, Ms. D

Algood Police Department to repoher thrift shop. She claimed thflamingo dish, television and VCstolen. Algood Police Officer BiDella Sala’s call by going to hecontacted Chief Schubert, who wathe city. When Chief Schubert arrDavis told him that Ms. Della Sala missing from her store, and that visible, through the windows, insi

Chief Schubert, dressed in civ

officer, in uniform, then went to thasked them to come to the poliinvestigation. There is no evidenthe officers phrased this directiGardenhire is the sole owner of Ualso solicited the cooperation Gardenhire. The Gardenhires aKatherine is Caucasian, and Walte

The Gardenhires drove their ow

they met Chief Schubert and Officexplained why the couple had been them their Miranda rights. Th

cooperate in the investigation questions. During the interview, thhad, at their home, the flamingo distolen. They also told the police 
4 Gardenhire, et al. v. Schubert No. 98-6434

1The parties have not stated, nor does the record reflect, exactly how

long the Gardenhires were detained at the police station.Della Sala store. Ms. Gardenhire alleges that she asked tocall her attorney at one point during the questioning, but thepolice denied the request. The police asked for permission tosearch Uniquely Yours, and Mr. Gardenhire signed a consentto search form. Ms. Gardenhire claims that throughout thisencounter, Chief Schubert made “condescending glares” ather and her husband. After spending some hours at the policestation1, the Gardenhires left, unaccompanied, in their own

car, and retrieved the flamingo dish from their home. Theythen met the police at their store.

At the store, Mr. Gardenhire opened the door and allowed

Officer Davis and Chief Schubert to enter and recover Ms.Della Sala’s items. The police found all of the goodsMs. Della Sala claimed were stolen. At that point, bothofficers noted that the placement of these items was oddlyconspicuous. Officer Davis thought it would be “foolish” forsomeone to steal merchandise and then display it in the nextdoor window in plain view.

While the police were recovering Ms. Della Sala’s items,

Ms. Gardenhire noticed that several pieces of merchandisefrom Uniquely Yours were missing. Mr. Gardenhirediscovered that the cash register was gone. The Gardenhiressuspected that Ms. Della Sala had stolen the items and toldChief Schubert that they had been robbed. The officer refusedto deal with their complaint. Ms. Gardenhire became agitatedand demanded to make a police report. According to Ms.Gardenhire’s affidavit, Chief Schubert told her to “shut up,”and ordered her to leave the store and wait in her car. She didso. 

Soon afterwards, Chief Schubert asked the Gardenhires to

follow Officer Davis to the Putnam County Justice Center topresent the facts to Magistrate Martin Wheeler. He advisedthe couple that they would be booked on charges of theft,burglary and criminal trespass, and would have to post bond

No. 98-6434 Gardenhifact in the Gardenhires’ possession“[f]urther investigation was necemajority goes on to speak of a “ducrime before making an arrest,Schubert was obligated to elicit anexplanation from the Gardenhimajority—although denying that promulgates the rule that arrestinconduct an investigation into the babefore making an arrest that is fo

Fuller v. M.G. Jewelry, 950 F.2d 1

(Hall, J., concurring).

This holding flies in the face of C

that “no such duty to investigate cCriss, 867 F.2d at 263. And Criss 

Court caselaw. In Baker v. McC

held that, “Given the requirements probable cause and that one detaitrial, we do not think a sheriff exerequired by the Constitution to iinnocence . . . .” Baker, 443 UAlthough the plaintiff in Baker did Fourth Amendment, this court, iapplied the Supreme Court’s deprobable cause. Criss, 867 F.2d at 

59 F.3d 1203, 1207 (11th Cir. 199duty to investigate is no part determination. Criss, 867 F.2d at 

F.3d 641, 646-47 (11th Cir. 1998extra requirement to the probable The inquiry is whether an officer hwhich to act, not whether it was reainvestigation.”).

Even if the majority were corre

Chief Schubert’s possession “waarrest,” the Chief would still be enton the basis of qualified immunityimmunity does not require that t
28 Gardenhire, et al. v. Schubert No. 98-6434

the determination whether probable cause to arrest exists.A policeman, however, is under no obligation to give anycredence to a suspect’s story nor should a plausibleexplanation in any sense require the officer to foregoarrest pending further investigation if the facts as initiallydiscovered provide probable cause. . . . 

To hold otherwise would be to allow every suspect,

guilty or innocent, to avoid arrest simply by claiming “itwasn’t me.” And if the arresting officer failed toinvestigate such claims prior to arrest, the arrestee couldbring a section 1983 suit. . . . [W]e find that no suchduty to investigate can nor should be created.

Criss, 867 F.2d at 263 (citations omitted).

The majority attempts, unconvincingly, to distinguish Criss.

The majority suggests that the items in Criss were of the typethat one must presume are stolen, while those in this casecould be deemed stolen only from Ms. Della Sala’saccusation. But this is to say that an inference that an officermight logically draw from the nature of a stolen object isentitled to greater weight than the testimony of the victim ofthe crime—a premise that itself is contrary to establishedprecedent. Where, as here, a citizen informant is the victimof the crime in question, her report is entitled to great weightin the probable cause determination. See, e.g., Adams v.

Williams, 407 U.S. 143, 147 (1972). Indeed, as this court hasrecently pointed out, a crime victim’s accusation standingalone can establish probable cause. Ahlers v. Schebil, 188F.3d 365, 370 (6th Cir. 1999); see also United States v.Maryland, 479 F.2d 566, 569 (5th Cir. 1973) (holding that“information given to law enforcement authorities by thevictim of the crime immediately after its occurrence wasclearly sufficient to supply probable cause for appellant’sarrest”).

From these shaky ramparts, the majority launches its

principal assault on the holding of Criss. After ChiefSchubert had received the crime victim’s complaint, and afterhe had corroborated that the allegedly stolen goods were in

No. 98-6434 Gardenhi

to be released. Ms. Gardenhireimpressions at that point: “We werand I understood that if I did not drphysically forced to go. We were wthe specified route and that if wPutnam County Justice Center thafor our arrest.” The parties stipulplace the Gardenhires in a police c“you are under arrest,” handcuff couple. The Gardenhires complied and followed Officer Davis to the Jcar. As Officer Davis led the coupdid not use his police lights or sire

At the Justice Center, Magistra

Gardenhires. After this interview, that there was no probable cause concluded that this was a civil matthe Justice Center episode, Chief they should “just collect up the reout of town.” The Gardenhfingerprinted or photographed. Tand were free to leave after the iWheeler.

On June 16, 1997, The Gardenh

United States District Court for Tennessee against Chief SchuberDepartment. Chief Schubert is the and is sued in both his individual Gardenhires have brought two claipursuant to 42 U.S.C. § 1983. Firthat Chief Schubert violated thprohibition against unreasonable arresting them without probabGardenhires claim Chief SchuberAmendment’s guarantee of equal not pursuing an investigation agaarresting the Gardenhires insteapremised on the theory that the off
6 Gardenhire, et al. v. Schubert No. 98-6434

was motivated by the fact that the Gardenhires are aninterracial couple.

On November 14, 1997 Chief Schubert filed a motion for

summary judgment arguing that he is protected from this suitby the doctrine of qualified immunity. The district courtdenied this motion, holding that Chief Schubert was notentitled to qualified immunity because a reasonable jury couldfind that his actions on December 31, 1996 amounted to anarrest of the Gardenhires, and that the arrest was madewithout probable cause. The district court also held thatselective enforcement of state laws is actionable under theEqual Protection Clause of the Fourteenth Amendment.Chief Schubert now brings this interlocutory appeal of theissues raised in his original motion for summary judgment. 

II.

The denial of a summary judgment motion on the issue of

qualified immunity is immediately appealable. See Mitchell

v. Forsyth, 472 U.S. 511 (1985). The issue of qualifiedimmunity is a question of law to be reviewed de novo by this

Court. See Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.

1991). Summary judgment is only appropriate where the“pleadings, depositions, answers to interrogatories, andadmissions on file together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law.”Fed. R. Civ. P. 56(c). All facts, as well as all inferencesdrawn therefrom, must be viewed in the light most favorableto the nonmoving party. See Matsushita Elec. Indus. Co., Ltd.v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Schubert claims he is entitled to summary judgment based

on the affirmative defense of qualified immunity against theGardenhires’ § 1983 claims. Section 1983 provides: 

Every person who under color of any statute, ordinance,regulation, custom, or usage, of any State . . . subjects, orcauses to be subjected, any citizen of the United States orother person within the jurisdiction thereof to the

No. 98-6434 Gardenhi

Here, the apparent victim of an 

Gardenhires of the crime, and thwere found in the Gardenhirespossession. These objective facbelief that the Gardenhires had comthe fact that before he instructed thJustice Center, Chief Schubert deinvestigation on the basis that thwere visible through a window, Gardenhires protested their innprobable cause. A panel of this coof Kent, 867 F.2d 259 (6th Cprecedential grasp the majority acrobatics to evade.

In Criss, police officers observe

street signs belonging to the Citobtained a search warrant and quein the apartment. Criss maintainetaken by his roommate. The offihim for receipt of stolen propedismissed the charge, and Criss brviolation of his Fourth Amendmen

Despite Criss’s plausible on-th

association with the signs, and desin receipt of stolen signs would be public view, this court held that probable cause for the arrest. The were either the property of the replicas. Because Criss had eithpossession of them, the court coreasonable ground for their beliestolen property. The court went oto investigate is not part of the procourt’s holding in this regard is w

A suspect’s satisfactory explbehavior is certainly a factor wofficers are entitled to take into 
26 Gardenhire, et al. v. Schubert No. 98-6434

1Although I question whether the Gardenhires were ever arrested, I

will not take up the cudgels on that subject here. The important point isthat the police had probable cause to arrest them after the initial interview,and the totality of the circumstances did not subsequently tip the balancein favor of the Gardenhires.

_____________________________________________

CONCURRING IN PART, DISSENTING IN PART

_____________________________________________

ALICE M. BATCHELDER, Circuit Judge, concurring in

part and dissenting in part. The majority opinion creates anew factor in the determination of probable cause: a duty toinvestigate. Because this innovation runs counter to thesettled law of this circuit, and because Chief Schubert canhardly be expected to have anticipated it, I must dissent fromPart II of the majority opinion.

When viewed in the light most favorable to the plaintiffs,

the evidence establishes that from their earliest encounterwith the Gardenhires, the police were in possession of fourfacts. First, Mary Della Sala complained that her belongingshad been stolen, and that they were visible through thewindows of the Gardenhires’ shop. Second, the allegedlystolen items were in fact in the Gardenhires’ shop. Third, theplacement of the items in public view was somewhatsuspicious. Finally, the Gardenhires professed no knowledgeof the theft.

These facts plainly support a finding of probable cause,

regardless of when the Gardenhires were “arrested.”1Probable cause means “facts and circumstances within theofficer’s knowledge that are sufficient to warrant a prudentperson, or one of reasonable caution, in believing, in thecircumstances shown, that the suspect has committed . . . anoffense. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). It

is not an exacting standard; probable cause requires only theprobability of criminal activity, not some type of “primafacie” showing. Illinois v. Gates, 462 U.S. 213, 235 (1983).

No. 98-6434 Gardenhi

deprivation of any rights, prisecured by the Constitution and the party injured in an action aother proper proceeding for redr

By its terms, § 1983 creates no suprovides remedies for deprivatioelsewhere. See Tuttle v. Oklahoma In this case, the Gardenhires alletheir Fourth Amendment right to bsearches and seizures as well as theright to equal protection of the law

The affirmative defense of q

immunity shields “governmendiscretionary functions . . . from insofar as their conduct does not vstatutory or constitutional rights of would have known.” Harlow v. 818 (1982). An official may, holiable for civil damages for unlawaction was not objectively reasonrules that were “clearly establishedSee Anderson v. Creighton, 483 U“objective legal reasonableness” simmunity on a fact-specific, case-whether a reasonable official in the have believed that his conduct waperspective of the reasonable ofGraham v. Connor, 490 U.S. 386, 

When determining whether a rig

this Court must look "first to decisithen to decisions of this Court ancircuit, and finally to decisions of ov. Campbell, 935 F.2d 780, 784 contours of the right must be reasonable official would understviolates that right." Anderson v. 640 (1987). However, “[t]his not t
8 Gardenhire, et al. v. Schubert No. 98-6434

is protected by qualified immunity unless the very action inquestion has previously been held unlawful; but it is to saythat in the light of pre-existing law the unlawfulness must beapparent." Id. (citations omitted).

Where a defendant moves for summary judgment based on

qualified immunity, the plaintiff must first identify a clearlyestablished right alleged to have been violated and second,establish that a reasonable officer in the defendant’s positionshould have known that his conduct violated that right. See

Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995);Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir.1991). The ultimate burden of proof is on the plaintiff toshow that the defendant is not entitled to qualified immunity.See Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991).The defendant bears the initial burden of coming forward withfacts to suggest that he acted within the scope of hisdiscretionary authority during the incident in question.Thereafter, the burden shifts to the plaintiff to establish thatthe defendant’s conduct violated a right so clearly establishedthat any official in his position would have clearly understoodthat he was under an affirmative duty to refrain from suchconduct. See Rich v. City of Mayfield Heights, 955 F.2d1092, 1095 (6th Cir. 1992). This Court has held, however,that:

summary judgment would not be appropriate if there isa factual dispute (i.e., a genuine issue of material fact)

involving an issue on which the question of immunityturns, such that it cannot be determined before trialwhether the defendant did acts that violate clearlyestablished rights. Summary judgment also should bedenied if the undisputed facts show that the defendant'sconduct did indeed violate clearly established rights. Ineither event, the case will then proceed to trial. . . .

Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988)

(citations omitted). 

In this case, to determine whether Chief Schubert’s actions

violated any clearly established constitutional rights, this

No. 98-6434 Gardenhiignore, see Criss, 867 F.2d at 2“citizen making a complaint” catSala’s store may have been sGardenhires geographically, by virespective complaints, she was situated to the Gardenhires on Dewas no police report implicating M

Second, the Gardenhires have n

to support their claim that Chidiscriminated against them becaucouple. While Chief Schubert’s conformed to Emily Post standardhe was motivated by racial animuargument is that the police had no lthem rather than Ms. Della Sala, so motivated by their interracial marriwould be sufficient in establishincase, the standard for a selective emore demanding. The Gardenhirthat Chief Schubert acted with dihave they presented the “clear esufficient to sustain their selectiovercome the presumption that the discharged their official duties. In lto the discretionary decisions of law the dearth of evidence to the condecision on this issue is therefoGardenhires’ Equal Protection cla
24 Gardenhire, et al. v. Schubert No. 98-6434

may find he was arrested and that his arrest, at least, wasbased on racial animosity. And, just as a police officer maynot unevenly apply the laws against a citizen because of hisrace, neither may he apply the laws unevenly because a citizenis married to someone of a particular race. See Loving v.Virginia, 388 U.S. 1, 8 (1967) (holding that state may nottreat interracial marriages differently from other marriages).

There is no question that in 1996, it was clearly established

that police officers could not selectively enforce state lawsbased on racial distinctions. 

2. Issues of Law and Fact

The Gardenhires argue that the facts, as they have alleged,

support their claim of selective enforcement. Applying theAnderson test, the couple contends that a reasonable jurycould find, first, that Chief Schubert singled out theGardenhires for prosecution by arresting them and not MaryDella Sala, who was not involved in an interracialrelationship, but was otherwise similarly situated to theGardenhires. Second, the Gardenhires argue that a jury couldfind that Chief Schubert arrested them with a discriminatorypurpose, based on his “condescending glares” and the “get outof town” comment. Third, the jury could find that ChiefSchubert’s actions had a discriminatory effect on anidentifiable group: the Gardenhires, an interracial couple,were arrested, while Ms. Della Sala, who is not involved in aninterracial relationship, was not. The Gardenhires’ argumentstretches the facts beyond reason to fit their chosen legaltheory.

First, the Gardenhires and Ms. Della Sala were not similarly

situated on December 31, 1996. For most of that day, therewas a police report implicating the Gardenhires in a crime;while they may not have had probable cause to arrest them,the police were justified in treating them as suspects in a theft.When the Gardenhires did eventually attempt to make apolice report concerning Ms. Della Sala, they were alreadycriminal suspects, putting their comments in the “suspectmaking an excuse” category -- which police may choose to

No. 98-6434 GardenhiCourt must decide, first, what the December 31, 1996, and, second, dispute on which the question of i955 F.2d at 1095.

A. Jurisdic

The Court's jurisdiction over i

claim of qualified immunity is limissues of law. Berryman v. RiegeCir. 1998) (finding that "[a] defendimmunity may file an interlocutoonly if that appeal involves the abswhether the facts alleged by the plaof clearly established law.") (ciquestions of fact and law are treWilliams v. Mehra, 186 F.3d 685banc). 

Here, the Court finds that it ha

Defendant's interlocutory appeal immunity, as the question of whcause for an arrest is a mixed qPainter v. Robertson, 185 F.3d (citing Ornelas v. United States(1996)). In finding that the determis a mixed question of law and faOrnelas reasoned that:

The principal components oreasonable suspicion or probable which first occurred leading up tthen the decision whether these from the standpoint of an objecofficer, amount to reasonable scause. The first part of the adetermination of historical facmixed question of law and fact: admitted or established, the rule othe issue is whether the facts statutory [or constitutional] stan
10 Gardenhire, et al. v. Schubert No. 98-6434

way, whether the rule of law as applied to the establishedfacts is or is not violated.'

Ornelas, 517 U.S. at 696-97 (citing Pullman-Standard v.

Swint, 456 U.S. 273, 289 n.19 (1982)).

In making the determination of whether the right was

clearly established in this case, the Court must apply the factsto determine the legal question of whether there was probablecause for an arrest. This Court will only rely on theundisputed facts in making this determination. Theundisputed facts are as follows: when the Gardenhires wereat their residence, Chief Schubert told them that they “neededto go” to the police station. The Gardenhires, while at thepolice station, were read their Miranda rights and questioned.It is also undisputed that when the Gardenhires were withChief Schubert at their store, Chief Schubert told theGardenhires that they “needed to go” to the Justice Center;instructed them that they “needed to follow” a police officerto the station; and advised them that they would be booked oncriminal charges and released on bond once they reached theJustice Center. 

As for the determination of probable cause, the undisputed

facts before the Court are that Mary Della Sala claimed thatobjects from her store were missing and that those objectswere visible in the store-front window of the Gardenhires'store which was adjacent to Sala's store. 

What is in dispute in this case is whether Chief Schubert

arrested the Gardenhires, and if he did arrest them, whether hehad probable cause to do so. Just as in Williams v. Mehra, theonly "'facts' in dispute are the ultimate issues to be decided byapplying the law to the basic facts. . . ." 186 F.3d at 690. Thedetermination of whether there was probable cause andwhether there was an arrest involves mixed issues of law andfact, which are treated as an issue of law, and vest this Courtwith jurisdiction to hear the present interlocutory appeal. Id.at 690. 

No. 98-6434 Gardenhithat the plaintiff make at least a similarly situated persons outsidprosecuted.” S temler v. City of Fl(6th Cir. 1997). Furthermore, “thethat the state actors have properly duties, and to overcome that presupresent clear evidence to the codemanding one.” Id. (citations om

Equal Protection claim is based Schubert selectively enforced Tenarresting them on December 31investigate Ms. Della Sala. 

Appellant argues that the Garde

a clearly established right which he 1996, because they have not met thcase showing that they have a cocriminal laws enforced against otargument misapprehends the enforcement. While it is truconstitutional duty to protect citizeactors, see DeShaney v. WinnebaServ., 489 U.S. 189, 195 (1989), it “the State may not, of course, seleservices to certain disfavored minoEqual Protection Clause.” Id. at 

Hopkins, 118 U.S. 356 (1886)). 

Appellant also raises the arg

Gardenhire is Caucasian and admiof Uniquely Yours, neither Mr. nor an Equal Protection claim. There premise. To begin, this is the first the issue. Appellate courts are freof arguments made for the first timn.2. This argument also fails on sthe Gardenhires’ Equal Protection cSchubert’s failure to protect Ms. Gthe allegedly wrongful arrest of dispute that Mr. Gardenhire is A
22 Gardenhire, et al. v. Schubert No. 98-6434

this context, the court should dismiss a case, or take otherappropriate action, if the defendant can prove that theprosecutor or investigator intentionally singled him out forpunishment because of membership in a protected group orthe exercise of a constitutionally protected right.” Id. “In ourcriminal justice system, the Government retains broaddiscretion as to whom to prosecute.” Wayte v. United States,470 U.S. 598, 607 (1985). Although such discretion is broad,“it is not unfettered.” Selectivity in the enforcement ofcriminal laws is subject to constitutional constraints. Inparticular, the decision to prosecute may not be deliberatelybased upon an unjustifiable standard such as race, religion orother arbitrary classification.” Id. at 608 (citations omitted).

“Selective enforcement can also lead to § 1983 liability if

the plaintiff pleads ‘purposeful discrimination.’” Id.; see also

Oyler v. Boles, 368 U.S. 448, 456 (1962) (selectiveenforcement is a federal constitutional violation if “basedupon an unjustifiable standard such as race, religion, or otherarbitrary classification”). Discrimination is “purposeful” if itis intended to accomplish some “forbidden aim.” SeeFuternick, 78 F.3d at 1056. Such “forbidden aims” includeintentional selective enforcement because of race, nationality,religion, gender or “other arbitrary classification.” Id. at1056-57. 

This Court has established a three-part test for determining

if selective enforcement has occurred: 

First, [an official] must single out a person belonging toan identifiable group, such as those of a particular race orreligion, or a group exercising constitutional rights, forprosecution even though he has decided not to prosecutepersons not belonging to that group in similar situations.Second, [the official] must initiate the prosecution witha discriminatory purpose. Finally, the prosecution musthave a discriminatory effect on the group which thedefendant belongs to.

United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991).With regard to the first element, “it is an absolute requirement

No. 98-6434 Gardenhi

2These "facts" in dispute in the prese

to be decided and are not those factual dcourt of jurisdiction." See Williams v. Me

1999). 

B. Fourth Amendment: The 

Unreasonable S

1. State of the 

The Fourth Amendment gua

officials may not subject citizens to seizures without proper authorizatisuch authorization is presumptiveonly to a few specifically establiexceptions.” See Katz v. United (1967). For example, police only nof criminal activity to conduct a briSee Terry v. Ohio, 392 U.S. 1, 30 (of “reasonableness” in a Terry st

balance between “the need to seainvasion which the search [or seiWhen a detention rises to the levhowever, the Fourth Amendment dsupported by probable cause. See D

U.S. 200, 212-14.

There is no question that in 1

established that, absent probable offense had been committed, was about to be committed, officers maSee Dietrich v. Burrows, 167 F1999)(discussing the state of the laquestions as to the Gardenhires’ Fothose of fact: did Chief Schubert “December 31, 1996? If so, did the aIf a reasonable jury could answer “case must proceed to trial.2
12 Gardenhire, et al. v. Schubert No. 98-6434

2. Mixed Question of Law and Fact

a. Whether Officer Schubert “Arrested” the

Gardenhires

To constitute a seizure of the person, just as to constitute an

arrest, there must be either the application of physical force,however slight, or, where that is absent, submission to anofficer’s “show of authority” to restrain the subject’s liberty.See California v. Hodari D., 499 U.S. 621, 626-28 (1991). In

this case, it is undisputed that the officers never physicallytouched the Gardenhires. Thus, in determining whethercouple was actually arrested, we must focus on whether theGardenhires submitted to Officer Schubert’s “show ofauthority.” “The test for existence of a ‘show of authority’ isan objective one: not whether the citizen perceived that hewas being ordered to restrict his movement, but whether theofficer’s words and actions would have conveyed that to areasonable person.” Id. at 628. A person has been “seized”within the meaning of the Fourth Amendment when “in viewof all the circumstances surrounding the incident, a reasonableperson would have believed that he was not free to leave.”United States v. Mendenhall, 446 U.S. 544, 544 (1980). 

Chief Schubert contends that because he never formally

arrested the Gardenhires, the guarantees of the FourthAmendment were never implicated. This argument fails. TheFourth Amendment’s protections are not limited to traditionalarrests: “a clear deprivation of liberty caused by lawenforcement officers without formal words is nonetheless anarrest.” See Centanni v. Eight Unknown Officers, 15 F.3d

587, 590 (6th Cir. 1994) (citations omitted). The SupremeCourt has explained:

There is no doubt that at some point in the investigativeprocess, police procedures can qualitatively andquantitatively be so intrusive with respect to a suspect’sfreedom of movement and privacy interests as to triggerthe full protection of the Fourth and FourteenthAmendments. And our view continues to be that the lineis crossed when the police, without probable cause or a

No. 98-6434 Gardenhimaking the determination whetheexists.” Criss, 867 F.2d at 262. Hefind that Chief Schubert did not hon the totality of information he haGardenhires. 

Furthermore, the jury will hav

cause question in light of when thoccurred, because the factors determination shifted as the day officers gathered more facts abototality of the circumstances changfinds that the arrest took place whGardenhires to go to the police sdetermination centers on Ms. Desiting of the “stolen” items in the jury finds that the arrest occurreUniquely Yours with the Gardeconsider the Gardenhires’ statementhe fact that the officers noticed aplacement of the supposedly stoGardenhires’ allegation that they hfluid, fact-specific elements at the hinquiry, it is a question properly rprovince of a jury. The district cois, therefore, AFFIRMED.

C. Fourteenth Amendment: S

1. State of the 

“Sometimes the enforcement of 

be a means of violating constitutdiscrimination. To address thdeveloped the doctrine of selective 

v. Sumpter Township, 78 F.3d 10Selective enforcement claims aordinary Equal Protection stanpetitioner to show both a discrdiscriminatory effect. See id. Usenforcement arise as a defense in c
20 Gardenhire, et al. v. Schubert No. 98-6434

warrant a finding that the Gardenhires had committed an offense or toestablish probable cause. See Beck v. Ohio, 379 U.S. at 91. Therefore,the Chief is not entitled to summary judgment on the basis of qualifiedimmunity. 

In her Dissent, Judge Batchelder states that the Court has

added a "duty to investigate" as a new factor to be used indetermining probable cause. The Dissent finds that the policehad probable cause irrespective of when the Gardenhires werearrested. The factors the Dissent puts forward as establishingprobable cause include: that the allegedly stolen items werevisible through the Gardenhires' shop; that the stolen itemswere actually located in the Gardenhires' shop, and finally,that the placement of the allegedly stolen items wassuspicious. Citing Criss v. City of Kent, 867 F.2d 259 (6th

Cir. 1998), the Dissent states that probable cause is noteliminated by the fact that the Gardenhires claimed they wereinnocent. 

Contrary to the Dissent's assertion, this Court is not adding

a duty to investigate as a factor for the establishment ofprobable cause. This Court recognizes that an officer doesnot have to investigate independently every claim ofinnocence. See Baker v. McCollan, 443 U.S. at 145-56. But,this axiom does not suggest that an officer has no duty toinvestigate an alleged crime before making an arrest. Apolice officer has probable cause only when he discoversreasonably reliable information that the suspect hascommitted a crime. See Beck, 379 U.S. at 91. And, inobtaining such reliable information, an officer cannot lookonly at the evidence of guilt while ignoring all exculpatoryevidence. Rather, the officer must consider the totality of thecircumstances, recognizing both the inculpatory andexculpatory evidence, before determining if he has probablecause to make an arrest. See Dietrich, 167 F.3d at 1012.While it is true that “[a] valid arrest based upon then-existingprobable cause is not vitiated if the suspect is later foundinnocent,” “[a] suspect’s satisfactory explanation ofsuspicious behavior is certainly a factor which lawenforcement officers are entitled to take into consideration in

No. 98-6434 Gardenhi

warrant, forcibly remove a persoplace in which he is entitled to the police station, where he is defor investigative purposes. We such seizures, at least whersupervision, are sufficiently liktraditional rule that arrests may conly on probable cause.

Hayes v. Florida, 470 U.S. 811, omitted). Thus, the fact that Chief arrest the Gardenhires does not retheir detention amounted to an cause. 

Instead, the question is whether a 

that a person in the Gardenhires’ poto leave. We agree with the dconcluding that a jury could find tthe Gardenhires’ position would nThe undisputed facts the district cChief Schubert: (1) told the Gardthey “needed to go” to the police sMiranda rights at the police staGardenhires extensively at the pGardenhires later, at the store, that Justice Center; (5) instructed thfollow” a police officer to the staGardenhires that they would be boand released on bond. 

Based on these facts, a jury co

person in the Gardenhires’ positiowere not free to leave. A police ofneed to go” somewhere carries weight. We think very few people from a police officer and still thotherwise. Once the police remotheir home to the police station, arrest-like nature. See Hayes, 470 
14 Gardenhire, et al. v. Schubert No. 98-6434

the line separating a Terry stop and an arrest is crossed whenpolice “forcibly remove a person from his home or other placein which he is entitled to be and transport him to the policestation, where he is detained, although briefly, forinvestigative purposes”). The custodial nature of the policestation encounter intensified with the time the Gardenhiresspent there and the fact that Chief Schubert read them theirMiranda rights. See United States v. Obasa, 15 F.3d 603, 608(6th Cir. 1994) (holding police officer knew that Mirandarights are required to be given only to individuals who are incustody, and “[a]lthough giving Miranda warnings to adetainee may not automatically convert a Terry stop into anarrest, it is evidence that the nature of the detention has grownmore serious”). The most compelling factor may be OfficerSchubert’s telling the Gardenhires, at their store, that theywere going to be booked and released on bond once theyreached the Justice Center. We do not think a reasonableperson would believe he is free to leave after a police officerhas stated that he must go to a government center to be“booked” and that he would have to post bond to be released.

In United States v. Obasa, 15 F.3d 603 (6th Cir. 1994),

under facts similar to this case, this Court held that the policehad in fact “arrested” the suspect. In Obasa, a police officerstopped a man in an airport, searched his clothing, gave himMiranda warnings and transported him to the police station ina police cruiser. The Court held that, although the policenever formally arrested the suspect, under these circumstancesthe officer had gone beyond a mere Terry stop and hadarrested the man. Except for the suspect’s transportation in apolice cruiser, the facts in Obasa are nearly identical to thosepresented in this case. Indeed, the Gardenhires weretransported from their home, rather than an airport,implicating a higher level of intrusiveness. See Hayes, 470U.S. at 815-16.

Additionally, the district court only considered the

undisputed facts in making its arrest determination. There aredisputed facts, such as Ms. Gardenhire’s alleged attempt tocall a lawyer, which a jury should hear. The facts we have on

No. 98-6434 Gardenhi

5The Dissent finds that Chief Schub

immunity even if the information the Cenough to justify an arrest of the Gardenhin 1996, when the Chief arrested the Garestablished law," and did not require poliarresting an individual who was in pidentified as stolen. 

However, following Terry v. Ohio

established law at the time of the incideSchubert only had a reasonable suspicwould only justify a brief investigatory denot have the requisite “reasonably trustw

Perhaps this investigation would retheft sufficient to establish probaalone, the woman’s mere allegatwould not create probable cause Porsche. 

The foregoing hypothetical is al

in this case. Chief Schubert had when he began investigating the GaSala claimed that several items froand that these items were visible iof the adjacent store. We believe a that the police officers did not havthe Gardenhires on this informatiowas enough evidence to justify a Tauthorized to ask the Gardenhires them, to inquire as to why the itemgather information about the relatiSala and Ms. Gardenhire. Butallegation that she owned the items front was not enough to justinvestigation was necessary at that had asked further questions, they wGardenhire and Ms. Della Sala shstores and were in the process of information would lead a reasonabsomething other than a theft – susimple misunderstanding – had oc
18 Gardenhire, et al. v. Schubert No. 98-6434

street signs – a good almost impossible for private citizens toobtain legally – the police in Criss could have been almostcertain that someone in the house had committed a crime.Even if the officers had believed the suspect’s statement thathe had not stolen the signs, the suspect still could have beenguilty of other crimes, such as the receipt of stolen property,or aiding and abetting the theft. Here, if the Gardenhires’statements were true, it would mean that they were not guiltyof any crime. Moreover, there was evidence in addition to theGardenhires’ bare statements, that would lead a reasonableofficer to rethink whether the Gardenhires had committed acrime. The obvious placement of the supposedly stolen goodsand the common doorway between the shops should havetriggered at least a suspicion that the “theft” was not what itappeared. 

Unlike the street signs in Criss, the items in Uniquely

Yours are not the type that one must presume are stolen.Guitars, banjos, televisions and VCRs are commonly -- andlegally -- owned by countless people. In this case, all thepolice had was the bare allegation by Mary Della Sala thatthese items belonged to her. An allegation by one individualthat items in another’s possession actually belong to her is notenough to create probable cause that a crime has beencommitted. Consider the following situation: a woman flagsdown a police officer and points out a Porsche being drivenby a young man, which the woman claims is her car andwhich has been stolen by the man. Would the officer haveprobable cause to arrest the Porsche’s driver at that point?We think not. The officer would have a reasonable suspicionof criminal activity justifying a brief investigatory detentionpursuant to Terry v. Ohio, 392 U.S. at 30. But, without more,the officer would not yet have the requisite “reasonablytrustworthy information” sufficient to warrant a prudent manin believing that the young man driving the Porsche hadcommitted or was committing an offense. See Beck v. Ohio,

379 U.S. at 91. Rather, the police officer would have theright and duty to detain and question the driver for a shorttime: to ask if the car was his, research his licence plate, andrequest to see his drivers licence, registration and insurance.

No. 98-6434 Gardenhithe record before us are the mere skmust be animated by the details of police officers arrived at the Gardthem at the police station and interastore. Other relevant points of inqGardenhires were detained at the exactly the officers said to the Gardduring the investigation. Becauapplied, the officers’ words at each in determining whether a reasonabfree to leave. And, of course, the jto which they believe the GardeThe issue of whether Chief Schubertherefore, is one which must be pr

b. Whether Chief Schubert h

arrest the Gard

Any arrest, whether formal or d

cause. See Centanni, 15 F.3d determines that Chief Schubert did next inquiry must be whether he haGenerally, probable cause exist“reasonably trustworthy informatioa prudent man in believing that the or was committing an offense.” B

91 (1964). “Probable cause deexamination of all facts and circumknowledge at the time of an arrestat 1012. “In general, the existen§ 1983 action presents a jury queone reasonable determination possF.3d 1211, 1215 (6th Cir. 1995). a light most favorable to the Gardewhether a jury could conclude that have believed that the couple had prcommitting a crime. There is substeach party’s position.
16 Gardenhire, et al. v. Schubert No. 98-6434

3Chief Schubert has never admitted that he believed at the time of his

investigation that the Gardenhires were set up – despite the Gardenhires’claim to the contrary.

4The Gardenhires argue that because Ms. Gardenhire and Ms. Della

Sala were in the process of trading store-fronts, Chief Schubert had noprobable cause to believe the items found in Uniquely Yours were stolen.The couple has not, however, provided any evidence demonstrating thatChief Schubert was at any time made aware of the women’s businessarrangement.

As the Gardenhires point out, there were factors present at

the time of the initial police investigation which may havemade it unreasonable for Chief Schubert to believe that theGardenhires had committed any crime. For example, theplacement of the allegedly stolen goods was suspicious. It isunlikely that one store owner would steal goods from anotherand then leave those goods in the window of her own storefront. In fact, based on where the goods were found, two ofthe initial investigating officials believed that the Gardenhireshad been set up: both Officer Davis and Magistrate Wheelerthought the alleged theft was a set-up. Even Chief Schubertadmits now that the placement of the items suggests that theGardenhires had not committed a theft.3 And, the

Gardenhires tried to explain to the officers then that they hadnot committed a crime, but had been the victims of one. Theofficers did not bother to investigate the Gardenhires’ claim,which, in hindsight, appears to have been a reasonable one.4

On the other hand, there was substantial inculpatory

evidence against the Gardenhires. The officers had receiveda report of theft and discovered the very items described inthat report in the Gardenhires’ store. The Gardenhiresadmitted to having a key to Ms. Della Sala’s store and tohaving Ms. Della Sala’s flamingo dish at their house. 

It is true, as the appellant notes, that in Criss v. City of

Kent, 867 F.2d 259 (6th Cir. 1988), this Court found thatofficers in a similar situation did have probable cause to arrestthe suspect. In Criss, two police officers noticed, through the

No. 98-6434 Gardenhiopen windows of an apartment, hanging on the walls of the plaiofficers went in and spoke with ththat he was a co-tenant of the houswere hanging in his residence, but to his roommate. The officers astolen property. In fact, the plaintistolen the street signs. The plaintiofficers, arguing that his innocencwith the officers’ failure to investigthere was no probable cause to arrthat the officers had probable cause Court reasoned:

A suspect’s satisfactory explbehavior is certainly a factor wofficers are entitled to take into the determination whether probaA policeman, however is under ncredence to a suspect’s story explanation in any sense requiarrest pending further investigatidiscovered provide probable cau

Id. at 262. “To hold otherwise,” thbe to allow every suspect, guilty osimply by claiming ‘it wasn’t me.echoes the Supreme Court’s priMcCollan, 443 U.S. 137 (1979), sheriff executing an arrest warConstitution to investigate indepinnocence.” Id. at 145-56 (1979); Wixom, 820 F.2d 170 (6th Cir. sufficient facts to warrant a prudeposition to believe that a crime wperson charged committed it, the investigation does not negate prob

While instructive, however, the 

analogous to this one. Because the