Th is c ourt ha s juri sd ic tio n o ve r a

dis tr ic t c ourt ’s de nia l of a cla im of qu a lif ie d im mun ity 1 provided it prese nts a pure issue of law; it is then reg arde d as an appea lable final decision within the meaningof 28 U.S.C. § 1291. Johnson v. J ones , 515 U. S. 304 , 313 , 317 (1 99 5) ; Mo rri so n v . B oa rd of Trust ees of Gre en Tp. , 583 F.3d 394, 399 ( 6th Cir. 2009).

NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 10a0030n.06 No. 09-5416 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

TAWANA WI L SON, Plaintiff-Appellee , v. B OY CE WI L KI

NS, De fe nd ant- Ap pe lla

nt, and METROPOL I TAN GO VERNMENT OF N ASHVI L L E AND D AVI DSON COUNTY, TEN

NESSEE, De fe nd ant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UN I TE D ST AT ES D I STR I CT C O U R T F O R

T H E M ID D LE DI STRI CT OF TEN

NESSEE O P I N I O N

Be for e : K

EN NE DY , M OORE, a nd WH ITE, Ci r c uitJudg e s. WHITE , Circuit Judge . I n this suit broug ht under 42 U.S.C

. § 1 9 8 3 , De fenda nt Boy ce Wil kins (Wil kins), a police of fice r with forme r-De fenda nt Me tropolitan Nashville Police De partment (MN PD), appe als the district court’ s denial of his motion for summary judgme nt br ou g ht o n q

ua lif ie d im mun ity

g ro un ds

. We a ff

ir m. 1No. 09-5416

W ilson v. W ilkins

2 I

. Plaintiff Tawa

na Wilson (W i l son) ca lled the MNPD on Dec ember 24, 2006, afte r she a

nd her husba nd, Timothy

Wil son, had a dome stic dispute. The MNP D d ec lined to intervene . On Dec ember

28, 2006, Wil son ag ain called the MNPD and re ported that he r husband ha d g rabbe d her around the neck a

nd shoved her

ag ainst a wa ll. Two male M NP D office rs, Wade and Smith, responde d. Wil son told them that she just wa nted her husband to leave , to give her some “ space .” Shortly afte r, De fenda

nt Office r Wilki ns arr ived. Officer Wil kins repea tedly urg ed Wilson t o have her husba nd arr ested. Wil son told Offic er Wilkins that she did not want her husband a rre sted, but Offic er Wilkins persisted, and Wilson eventually ag ree d. Offic er Smith infor

med Wil son that her husba nd would be take n “downtown” to appea r at nig ht c ourt . Wilso n wante d to dri ve he r ow n ve hic le , but Of fi c e r Wilki ns ins ist e d that she ri de wi th him, and asked that she sit in the front seat. She did so. Be cause Wil son had lived in the ar ea f or most o f h er l ife, she kne w the thre e quicke st routes to g et downtown. Of fice r Wilki ns passed the shortest route downtown, a nd then passed the second ro u t e. Du ri ng the drive, O ffice r Wilki ns

ru bb e d a nd c are sse d Wil so n’ s ha

nd thr e e tim e s, loo ke d a t he r se du c tiv e ly , tol d he r s he wa s b e a uti fu l, and sa i d h e wa n t ed to date her . The fir st tim e Of fice r Wilki ns car essed Wilson’s hand, Wil son thought he was just be ing sy mpathetic, beca

use she had crie d in r esponse to his inqui ring what had happene d with her husband. T he seco n d an d third touching s occur red a fter Wilson had stopped cry ing, a nd Wil son considere d them offe nsive and be came scar ed. After passing the two most direct route s downtown, Wil kins continued driving north, awa y from downtown. Althoug h there was a third route ava ilabl e (I-6 5) in the direc tion W ilkins wasNo. 09-5416

W ilson v. W ilkins

Wilk ins do e s n ot a

pp e a l th e de nia l of

summa ry jud g me nt a s to Wils on ’s state law c la ims

. 2 3 dr ivi ng , Wil so n d id not thi nk Wilk ins wo uld dr ive that far nor th j us t to g o d ow nto wn . Wil so n d id

no t be lie ve Wilk ins wa s ta kin g he r t o th e po lic e statio n a nd , at a po int wh e n th e po lic e ve hic le slowed, she unbuc kled her seat be lt and opened the passeng er door . Offic er Wilkins gra bbed her sleeve , but Wilson w as able to jump out of the police vehicle and run toward a motel, screa ming. After Wil son jumped from Wil kins’s police vehicle and scre amed at passer s-by for he lp, Wil kins called for

backup, r equestinga fe male off icer . Offic er A ng ela Booke r, whom Wil son knew, responde d to the scene , and W ilson told her something to the eff ect that Of

fice r Wilki ns was trying to rape her. Wil son broug ht suit i n Tenne ssee c ircuit co u rt as s ertingclaims under 42 U .S.C. § 1983,

a lle g ingOf

fi c e r Wi lki ns ’s c on du c t vi olate d th e F ourt h a nd F ourt e e nth

Am e ndme nts , as w e ll a s st a te statutory claims of assa

ult and officia l misconduct and co m m o n law assa ult and battery

. Wil son 2

a lle g e d th a t be c a

us e of the inc ide nt, on e of her vo cal c ho rd s w a s d a ma g e d, did no t r e sp on d to treatment and would re quire c orre ctive surg ery . Def endants re moved the ca se to the United States District Court. A Of fi ce r W i l k i n s m o v edfo r s u m m ary j u d gm en t , as s er t i n g inter alia that Wils on fa ile d to state a cla im u n d e r th e F o u rth A me n dme n t b e c a u s e s h e w a s n o t “ s e iz e d , ” an d th a t s h e f a il e d to sta te a claim under the Four

teenth Amendment beca

use his conduct would not “shoc k the consc ience ” for purposes of the Four

teenth Amendment. Wilkins also asser ted that eve n if a c onstitut ional violationNo. 09-5416

W ilson v. W ilkins

Un ite d S tates v . M e nd e nh all , 446 U.S. 544 (1980). 3 Graham v. Connor , 490 U.S. 386 (1989). 4 4 occur red, he is entitled to qualified immunit y beca use there was no clea

rly established rig ht at the time of the incident that would have informe d him that he was violating the Constitut ion. Th e dis tr ic t c ourt

de nie d Wil kin s’ s mo tio n. I t ana ly zed W il so n’s c la ims un de r t he F ourt h Amendment, found that a re asonable jury could conc lude that Wils on had been “se ized,” indicated that the clearly established right vi olated was Wil son’s constitutional rig ht not to have he r phy sical fre edom impinge d by

a state a ctor, a

nd found t hat W ilkins’s actions we re not objec tively rea sonable: * * * e ve n a ssumin g that Pla int if f “ vo lun tari ly ” e nte red O ff ic e r Wi lki ns ’ patrol ca r, a r easona

ble jury could readily

conclude that she wa s seized. Construed in h e r f a vo r, the fa c ts s ho w that on c e Pla int if f w a s in the ve hic le , s he wa s c a

pti ve in a moving police vehic le. While being so he ld, Office r W i l k i n s chose not to drive direc tly downtown, but chose instea d to make untowar d comments and to touch the Plaintiff in an offe nsive manner

. Th e Court

a lso re je c ts O ff ic e r Wi lki ns ’ s ug g e sti on

tha t th e ri g hts a lle g edly violated wer e not clea

rly established. Mende nhall[ ] wa s d ec i ded in 1980 and 3 Gra ham[ ] was decided in 1989. More over, i n t he landmar k decision of Te rry

v. 4 Ohio, 392 U.S. 1, 16 (1968) dec ided in 1968, the Supreme Court h eld t hat

“ [w]he ne ve r a po lic e of

fi c e r a c c os ts an ind ivi du a l and re str a ins his fr e e do m to wa lk awa y , he has ‘ seized’ that per son.” Moreove r, Offic er Wil kins’ actions wer e not obje ctively rea sonable. Ha ving insis te d th a t P la in ti f

f r id e w it h h im , O f

f ic e r Wi lk in s s h o u ld

h a v e me r e ly

dr iven Plaintiff, a victim o f a cr ime, downtown. He should not have detoure d and made un tow ard a dv anc e s. II. Quali f ie d im mu n it y is g e n e r a lly

available for “ g overnme nt officials pe rfor ming discr etionary functions

. . . insofar as their conduc t does not violate clea rly established statutory

or constitutionalNo. 09-5416

W ilson v. W ilkins

5 rig hts of which a r easona

ble per son would have know n.” Slusher v. Carson , 540 F .3 d 449 , 4 53 (6 th Cir. 2008). The plaintiff be ars the ultimate burden of demonstrating that the def endant is not entitled to qualified immunity

. Bake r v. City of Hamilton , 471 F.3d 601, 605 (6th Cir. 2006). The district court must consider the undisputed evidenc e produc ed as a result of discovery , viewed in the light most favora

ble to the non-moving party

. Poe v . Hayde n , 853 F.2d 418, 425 ( 6th Cir. 1998). A court require d to rule on the qualified immunity issue must consider whe ther the f acts a lleg ed show the of fi c e r’ s c on du c t vi olate d a c on sti tut ion a l r ig ht a

nd wh e the r t

hat c on sti tut io nal ri g ht w a s c le arl y established. Sa uc ie r v . Ka tz , 533 U.S. 194, 201 (2001), overruled on othe r grounds by Pearson v. Callahan , 129 S. Ct . 808 (2009). “ The judg es of the district courts and c ourts of appe als should be permitted to exercise the ir sound discretion in dec iding whic h of the t wo p ro n g s of the qualifie d immunit y analy sis should be add re ssed first in light of the circ umstances in the pa rticular c ase at hand.” Pearson , 129 S. Ct . at 818. This court re views the district cour t’s denial of qua lified immunit y de novo. Carv e r v . Ci ty

of Cinc inn ati , 474 F.3d 283, 285 ( 6th Cir. 2007). A constitutional right is clea rly established if “it would be cle ar to a rea sonable off

icer that his conduct was unlawful in t he situation he conf ronted.” Saucier , 533 U.S. at 202. “The contours of t he [ constitutional] rig ht must be sufficiently clea r that a r easona

ble offic ial would understand that what he is doingviolates that rig ht.” Ciminil lo v. Streiche r , 434 F.3d 4 6 1 , 4 6 8 (6 t h Cir. 2006) (interna l quotation marks omitted). “This i s not to say that an official action is protec ted by qualified immunit y unless the ver

y action in question has pre viously been he ld unlawful.” Anderson v. Creighton , 483 U.S. 635, 640 (1987). “[O]fficials can still be on notice that their conduc t violates established law [eve n] i n novel fa ctual cir cumstance s.” Safford Unified Sch. Dist. v . Redding , 129No. 09-5416

W ilson v. W ilkins

See also Phelps v. Coy , 286 F.3d 295, 299-300 (6th Cir. 2002) (“ Which amendment applies 5 depends o n t he status of the pla intiff at the time of the inc ident, whether fre e citizen, convicted p ri s o n er, or something in be tween. . . . I f the plaintiff w as a f ree person . . . a

nd the use of f

orce occur red in the c ourse of

an ar rest or othe r seizure . . . [then] t he plaintiff’ s claim arise s under the F ourt h A me ndme nt a

nd its re a so na

ble ne ss s tand ard

. . . . [I ]f a p la int if f i s n ot i n a

sit uatio n w he re his rig hts are g overne d by

the par ticular provisions of the F ourth or Eig hth Amendm en t s , t h e more g ener ally applicable due proce ss c lause of the Four teenth Amendment still provides the individual some protec tion ag ainst phy sical abuse by officia ls.” I nterna l citations omit ted.) 6 S. Ct. 263 3, 26 43 (2 00 9) (i nte rn a l quot a tio n ma rk s o mitte d) . “ I n d e te rm ini ngwh e the r a re a so na ble office r would have known that his conduct wa s unlawful, this Court looks first to the prec edents of the Supreme Court, then to case law fr om this circuit, and finally to decisions from other

circ uits.” Hu mp hr e yv . M ab ry , 482 F.3d 840, 852 ( 6th Cir. 2007). A We ag ree with the district court t hat W ilson’s claims are proper ly analy zed under the F ourth, rathe r than F ourtee nth, Amendment. The district c ourt corr ectly noted in this reg ard: Plaintiff sues for both F ourth and F ourtee nth Amendment vi o la tions pursuant to 42 U.S.C. 1983. Howeve r, where a plaintiff complains of a n “unre asonable sear ch and seizure,” the claim is more proper ly analy zed unde r the Four

th Amendment than the substantive due pr ocess pr ovision o f th e F o u r te enth Amendment, since the forme r is a “more expli cit text ual s ource of constit utional protec tion.” Gra ham v. Connor, 49 0 U .S. 38 6, 39 5 (198 9) . G ive n th e e xplic it p ro te c tio ns a ff or de d b y the F ourt

h Amendment, a pla intiff cannot “ also proce ed wi th a claim under the ‘more g ener alized notion of substantive due proce ss.’” Wilson v. C ollins, 517 F. 3 d 4 2 1 , 4 28 (6 Cir. 2008) (citing , Gra ham, 490 U.S. at 3 9 5 ); see U nited States v. L anier , 520 th U. S. 2 59 , 2 72 [n.7 ] (1 99 6) (“ Gr aham si mpl y re qu ir e s th a t if

a c on sti tut ion a l c la im i s c ov e re d b y

a sp e c if ic c on sti tut ion a l pr ov isi on , s uc h a s th e F ourt h o r E ig hth Amendment, the c l ai m m u s t be ana ly zed under the standa

rd appr opriate to that specific provision, not under the rubr ic of substantive due proce ss”). . . . [ ] 5 BNo. 09-5416

W ilson v. W ilkins

7 Ne xt, w e mus t det e rm ine wh e the r Wilso n all e g e d suf fi c ie nt fa c ts an d pro du c e d e vid e nc e to demonstrate a

“seizure” under the Four

th Amendment and, if so, whe ther a ny such seizure c ould be considere d constitutionally unrea sonable. See Slushe r , 540 F.3d at 454. We review d e novo the district court’s holding that Wil kins’s touching s and remarks of a sex ual nature to Wil son while she was in a movingvehicle unde r Wil kins’s control, during a ride he extended by taking a cir cuitous route to police he adquar

ters , constituted a “show of authority .” See G raham v. Connor , 4 90 U. S. 386 (1989). The circ umstances that led Wilson to ride with Office r Wil k i n s wer e that Wilkins repe atedly urg ed W ilson to have her husband arre sted. Althoug h Wil son told Office r Wilki ns that she di d not want her

husband ar

rested, Wilkins persisted, and Wilson eventually ag ree d. Wil son wanted to dr ive her own vehicle downtown, wher e her husband wa s being taken, but Of fice r Wilki ns insisted that she ride with him, and aske d that she sit in the front seat. Once captive in Wilkins’s moving police vehicle, Wilkins touched and c are ssed Wils on’s hand se vera l times, and told her he wanted to date her

. The F ourth Amendment prote cts “[t] he rig ht of the pe ople to be sec ure in their pe rsons . . . ag ainst unrea sonable searc hes and seizures.” U.S. C O N ST . amend. IV. “A ‘ seizure’ trig g eringthe Four th Amendment’s prote ctions occur s only when gove rnment actors have, by means of phy sical forc e or show of authority , in some way restra ined t he li berty of a c itiz en.” Slusher , 540 F.3d at 454 ( quoting Graham , 4 90 U. S. at 39 5 n .1 0) ; se e als o Te rry v . O hio , 392 U.S. 1, 16 (1968) (“ whene ver a police of

fice r ac costs an individual an d re s t ra i n s his free dom to walk awa y , he has ‘ seized’ that person.” ).No. 09-5416

W ilson v. W ilkins

Wil kins split s the incident into three seg ments, the first being Wil son’s voluntarily sitti ng 6 in the front seat of Wil kins’s patrol ca r to be tra

nsported to police he adquar ters. H e asser

ts no se izur e oc c ur

re d, a s the re wa s no e vid e nc e that Wils on wa s und e r a

rr e st, ha nd c uf fe d, or loc ke d in th e b a c k o f th e p a tr o l c ar . Wi lk in s is o late s a s e c o nd seg me n t, c o n te n d in g th a t h e d id n o t s e iz e W i l s o nw h e nh e f

a i l e d t o t r a v e l b y w h a t s h e b e l i e v e d t o b e t h e b e s tr o u t e t o p o l i c e h e a d qu art e r s . In any event, whether analy

zed in time se g ments or more broadly , we still arrive at the conc lusion that Wil son’s alleg ations support that she was se ized. 8 [A] person ha s been “seized” within the me aning of the F ourth Amendment only if, in view of a ll the circumstances sur roundingthe incident, a r easona ble per son would have be lieved that he w as not fre e to leave

. Ex amples of c ircumstance s that might indicate a seizure, e ven whe re the person did not attempt to leave , would be the threatening prese nce of sever al offic ers, the di s p l ay o f a we apon by an off icer , some phy sical touchingof t he person of t he citiz en, or the use of languag e or tone of voice indicating that c ompliance with the of fice r’s re quest might be compelled. Un ite d S tates v . M e nd e nh all , 446 U.S. 544, 554 (1980) (c itations and footnote om i t t ed )

. On the other ha nd, “not ever

y g overnme ntal interfe renc e with an individual’s fr eedom of movement ra ises such constit utional conce rns t hat t here is a seizure of the per son.” Sk

inn e r v . Ry

. Lab or

Ex e c uti v es’ Ass’n , 489 U.S. 602, 618 (1989). C An a ly zingthe inc ide nt i n te mpo ra l se g me nts , Wilk ins a sse rt s tha t the dis tr ic t c ourt e rr e d in 6 holding that he seized Wil son during what he classifies as the t hird time seg ment – when he touched her ha nd and made untoward c omments to her. We disag ree . We review d

e novo t h e district court’s holding that a seizure oc curr ed. United States v. Buchanon , 72 F.3d 1217, 1223 ( 6th C i r. 1 9 9 5 ). W hether a seizure oc curr ed depe nds on the circ umstances. Me nd

e nh all , 446 U.S. a

t 554. We r ejec t Wilkins’ c hara cter ization of th e d i s t ri ct court’s c onclusion that a seizure oc curr ed as r esting only on the touching s and concomitantNo. 09-5416

W ilson v. W ilkins

Am on g the c a se s th e dis tr ic t c ourt re lie d o n w a s Slusher , 540 F.3d 449. In Slusher , two 7 d e p u t i e s w e r e a t t h e S l u s h e r s ’ p r o p e rt y t o r e c o v e r e qu i p m e n tt h a th a d

b e e nh i d d e no nt h e p r o p e rt y. The de puties allowed the pla intiff, L inda Slusher, to revie w their c ourt order . When the deputies asked Slusher to ha

nd over t he cour

t order, she said she had not f inished rea ding it. One of the deputies said she ha d had suff icient time and dire cted he r to hand it over to him. The deputy rea ched fo r t he or de r, Slu sh e r r e tr a c te d h e r h and ho ldi ngthe or de r a

nd a sk e d if she c ou ld make a c op y of it inside her house . The de puty ag ain a t t em p t ed t o retrie ve the or der a nd in the proce ss pulled Slusher’s ar

m down with one hand a

nd used his othe r hand to g rab her rig ht hand. Slusher claimed she wa s injured as a result, and broug ht suit under 42 U.S.C. § 1983, alleg ing a Four th Amendment violation due to excessive forc e. The defe ndant deputies moved for summary judgme nt, claiming e nti tle me nt t o q

ua lif ie d im mun ity . T he dis tr ic t c ourt g ranted th e de fe nd ants su mma ry jud g me nt, analy zing Slusher’s cla im under the F ourtee nth Amendment and c oncluding there was no constitutional viol ation. 540 F.3d at 458 (Ry an, J., concurring ). This court conc luded that Slusher had articulated sufficie nt f acts that would allow a jury to conclude sh e wa s “ se ize d” wh e n s he wa s p hy sic a lly g ra bb e d b y on e of the de pu tie s: [A] t a minimum, S lusher’s liber ty was restra ined when Deputy Carson g rabbe d her ri gh th an d

as s h e c e r t ai n l y

wa s n o t“a tl i b er t y

t o i gn o re t h e p o l i ce p re s en ce an d go about [her] business.” Kaupp v . Texas , 5 3 8 U

. S

. 6 2 6 , 6 2 9 , 1 2 3 S

. C t

. 1 8 4 3 , 1 5 5 L. Ed

. 2d 81 4 (2 00 3) (c on c lud ing that a se izur e take s pla c e fo r purp os e s of the F ourt h Amendme n t wh e n“ ta

k in g in to a c c o u n t a ll o f

th e c ir c u ms ta

n c e s s u r r o u n d in g the encounte r, the police conduct would ‘ have c ommunicated to a r easona ble per son that he wa s not at liberty

to ignor e the police prese nce an d go ab o u t his business.’ ” (q u o t i n g Florida v . Bostick , 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L . Ed. 2d 389 (1 99 1) ); see also Hoda ri D. , 4 99 U. S. at 62 5, 11 1 S. Ct. 15 47 (“ [A]n a rr e st i s eff ecte d by the slighte st application of phy sical for ce.” ) . . . . Slusher , 540 F.3d at 454-55. This c ourt aff irmed the g rant of summary judgme nt on the g round that the seizure wa s not unreasona ble: “once Slusher beca

me agitated and pul led the orde r aw ay from [deputy ] C arson, it was reasona ble for the officers to conclude that a brie f show of f orce might be nece ssary to ensure she complied with their orde rs.” Id. at 456. This court al s o conclude d that Slusher had not alleg ed fa cts that supported a f inding that the of

fice rs used more forc e than wa s nece ssary . Id

. 9 c omm e nts

. Th e c ourt ’s op ini on no te d that a phy sic a l touc hin g is a c ir c ums tanc e that mi g ht i nd ic a te a seizure, a

nd that in Slusher this court conclude d that the plaintiff had be en seized when a police 7 office r g rabbe d her hand. Be y ond that, we think it clea r t hat t he district cour

t’s deter mination thatNo. 09-5416

W ilson v. W ilkins

10 a seizure oc curr ed wa s a conte x tual one – Wil son’s being “ca ptive” in a “moving police vehic le” which wa s under Wilkins’s control. Wi lkins as s erts that eve n if this court finds that he seized Wils on , th e re wa s n o c le arl y e sta bli sh e d la w that wo uld have tol d him that his c on du c t un de r t he se

c ir c ums tanc e s –

ho we ve r i na

pp ro pr iate it m ay

have be e n –

vio late d th e F ourt

h A me ndme nt. D Th e dis tr ic t c ourt

no te d th a t Me nd

e nh all was decided in 1980 and Graham in 1989. U nder Me nd e nh all , a s ei z ure oc curs whe n “in view of all the circ umstances surr ounding the incident, a

rea sonable pe rson would have believed that [s]he w as not f ree to leave.” 446 U.S. at 554. Under Graham , a seizure trig g ering the Fourth Amendment’s pr otections occ urs when a g overnme nt actor in some way

restra ined the liberty

of a c itiz en by

means of phy sical force or show of author ity . 490 U.S. at 395 n.10. Under the ca ses the district cour t relied on, the r ight of

Wil son’s infring ed – to be fre e fr om havin g he r l ibe rt

y imp ing e d by a state a c tor e xer tin g a uth or ity ov e r h e r –

wa s c le arl y

e sta bli sh e d in De c e mbe r 2 00 6 w

he n th is i nci den t o ccurred. W hen con si deri ng whe th er qu ali fi ed i mm un it y app li es, “[p] re- exis ting law

need not a ddress the very question at hand; rather, ‘[t]he contours of the rig ht must be sufficie ntly

clea r.’” Logsdon v. Hains , 492 F.3d 334, 343 ( 6th Cir. 2007) ( quoting Center for Bi o-Et hic al R e for m v . Ci ty of S pr ing bo ro , 477 F.3d 807, 830 ( 6th Cir. 2007). The re m aini ng question is whether Wilson alleg ed suff icient fa cts and supporte d the

a lle g a tio ns by

su ff ic ie nt e vid e nc e to i nd ic a te that w hat W il kin s a lle g e dly did wa s o bje c tiv e ly

unrea sonable in lig ht of the cle arly established constitutional rig ht. Dicke rso n v. Mc C l ell an , 101 F.3d 1151, 1158 (6th Cir. 1996)

. The district c ourt conclude d that Wil kins’s actions w er e “notNo. 09-5416

W ilson v. W ilkins

11 objectively

rea sonable. Ha

ving insisted that Plaintiff ride w i t h h i m, Office r Wilki ns should have

mere ly d ri ven Plaintiff, a victim of a crime, dow ntown. He should not have detoure d and made

un tow ard a dv anc e s. ” Vi e wi ng the fa c ts in a lig ht mos t fa vo ra ble to p la int if

f, we a g re e . Are a so na

ble office r would h av e known that he was not fr ee to make sexual overtures a nd repe atedly

touch a citizen in his control in a moving vehicle. AFF I RMED.