1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLORIANNA CERVANTES, Case No. 08-14390

Plaintiff, HONORABLE SEAN F. COX

United States District Judge

v.

KORY TORBETT and SAM PHILIPP,

Defendants.

___________________________________/

OPINION & ORDER DENYING DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT [Doc. No. 10]

Plaintiff Glorianna Cervantes (“Cervantes”) filed this § 1983 action, with pendant state

law claims, on or about August 19, 2008 in Michigan state court. Defendants Kory Torbett

(“Torbett”) and Sam Philipp (“Philipp”) (collectively, “the Defendants”) removed this action on

October 15, 2008. The matter is before the Court on the Defendants’ motion for summary

judgment [Doc. No. 10], in which the Defendants seek 1) outright dismissal; or in the alternative

2) qualified immunity from Ms. Cervantes’ claims. The parties have fully briefed the issues, and

a hearing was held February 18, 2010. For the reasons below, the Court DENIES the

Defendants’ motion [Doc. No. 10]. 

BACKGROUND

Many of the facts in this case are disputed by the parties - and many of the Defendants’

arguments in support of their motion for summary judgment are based upon their version of the

facts. Consistent with FED. R. CIV. P. 56(c), the following are the relevant facts of the instant

case, viewed in the light most favorable to Ms. Cervantes. 
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On July 11, 2007, at approximately 2:20 a.m., Officers Torbett and Philipp of the

Blackmun Township, Michigan, Public Safety Department were dispatched to an apartment

complex at 1512 Gallery Place Drive. [Torbett Dep., Def.’s Ex. 1, Doc. No. 10; Philipp Dep.,

Def.’s Ex. 10, Doc. No. 10]. Dispatch advised the officers that there was “a domestic assault

occurring in a yellow Mustang” between a male and a female. [Torbett Dep. at pp.5-7]. 

While the officers now argue that they did not know which of the Mustang’s passengers

was the victim and which was the assailant when they arrived on the scene [See Def.’s Br., Doc.

No. 10, p.11], this position is belied by Officer Torbett’s deposition testimony: 

Q: What do you recall being told by the dispatcher when you were initially

given this call?

A: That there was a yellow Mustang going through the parking lot at Gallery

Place [apartment complex] in the area of the address where we initially

looked for the subjects. Stated that the car was all over the parking lot

hitting curbs, and that the male suspect was striking the female suspect. 

[Torbett Dep., Def.’s Ex. 1, Doc. No. 10, p.59]. 

Upon arriving at the apartment complex on July 11, 2007, the officers located the yellow

Mustang, but were unable to locate the individuals involved. However, after a few minutes, the

officers saw a female - Ms. Cervantes - walk from an apartment building toward the Mustang,

retrieve her purse from the vehicle, and then walk back inside. Id. at 5. The officers then

followed Ms. Cervantes into the apartment complex. 

 Upon entering the common area of the apartment complex, the officers found Ms.

Cervantes in the hallway, intoxicated, with blood coming from her nose. Id. at 50. The officers’

interaction with Ms. Cervantes was captured on their on-person microphones. See id. at pp.49-

55. Officer Torbett asked Ms. Cervantes what had occurred, to which Ms. Cervantes simply

stated that “nothing happened.” Id. at p.50. 
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Both officers then demanded that Ms. Cervantes tell them which apartment she lived in

and demanded that she show them identification, to which Ms. Cervantes told them she did not

have identification and to leave her alone. Ms. Cervantes was irate and yelling at the officers

throughout most of their interaction. Id. at pp.50-54. 

Ms. Cervantes attempted to leave the common area of the apartment complex several

times, which Officer Philipp stated led him to grab Ms. Cervantes by her arm and say “[i]f you

try to walk by me again. . . .” Id. at 51. At this, Ms. Cervantes again told the officer to stop

grabbing her by her arm, to which Officer Phillip responded “stop yelling at me.” Id. Ms.

Cervantes then told the officers to get away from her, to which Officer Phillip responded by

saying “[d]on’t make me put you in custody.” Id. Ms. Cervantes then said “excuse me” as she

tried again to exit the apartment’s common area, and Officer Philipp repeated his threat to put

her in custody, and that Ms. Cervantes was not free to leave. Id. 

Ms. Cervantes then asked the officers again to move out of her way. Officer Phillip

responded by saying “Ma’am, no I can’t,” and Officer Torbett again demanded her

identification. Id. When Ms. Cervantes told the officers she did not have any ID - which was a

lie - Officer Torbett demanded that Ms. Cervantes get her identification from her purse. Id. at

52. At this, Ms. Cervantes again asked the officers to step back, to which Officer Philipp again

told Ms. Cervantes that she was not going anywhere, and grabbed her by the arm. Ms. Cervantes

asked “You’re putting your hands on me again?[,]” to which Officer Philipp responded, “You’re

right, I am. Now knock it off. You want to go to jail?” Id. When Ms. Cervantes replied “I

don’t need to go to jail,” Officer Philipp again demanded for her to hand over her purse. Ms.

Cervantes replied “No. You’re not getting my purse. Are you kidding me?” Id. at 52-53. 
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Ms. Cervantes then tried again to get away from the officers, prompting Officer Philipp

to again grab Ms. Cervantes by her arm. At this, Ms. Cervantes admits she made physical

contact with Officer Philipp. In the words of Officer Torbett, “Plaintiff used her other hand and

attempted to slide [Officer] Philipp’s hand off of her arm.” [Torbett Dep., Def.’s Ex. 1, Doc. No.

10, p.53]. Ms. Cervantes also pushed Officer Philipp “in the upper left arm/shoulder area,” in an

attempt to “get by” him. Id. In response, Officer Torbett advised Ms. Cervantes that she was

under arrest for assaulting a police officer. Id.

Ms. Cervantes resisted attempts to handcuff her, which at some point - it is not clear from

the deposition testimony, or from the officers’ on-person microphones - resulted in the two

officers securing Ms. Cervantes on the ground facing the floor. Ms. Cervantes - a 5'2", 135-

pound female - was therefore being held on the ground by two male police officers. Deposition

testimony further shows that Officer Philipp was a 5'9", 230-pound male, and Officer Torbett

was a 5'11", 193-pound male. 

At this point - after the officers already had Ms. Cervantes secured on the ground - Ms.

Cervantes still would not let go of her purse, which Officer Torbett testified was preventing them

from handcuffing her. Id. at 54. In light of this, and in response to Ms. Cervantes admitting that

she was “kicking them to try and get away,” [Cervantes Dep., Def.’s Ex. 3, Doc. No. 10, p.77]

Officer Philipp made what the Defendants characterize as a “split-second decision” [See Def.’s

Br., Doc. No. 10, p.6] to deploy his pepper spray in an effort to subdue Ms. Cervantes: 

Q: . . . Where were you, when you used the chemical agent?

A: Right next to her. 

Q: On the tile or on the carpet?

A: I was on the tile on my knees.

Q: And where was Officer Torbet[t]?

A: I think he was on the carpet behind her or to the side of her. She was
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facedown. 

Q: Okay. Was she sitting? Prone?

A: Prone. 

[Philipp Dep., Def.’s Ex. 2, Doc. No. 10, p.39]. The blast of pepper spray was to Ms. Cervantes’

eyes and nose - the later of which the Defendants knew had blood on it, suggesting an open

wound - and lasted “[one] second or less.” Id. After the pepper spray was administered, Officer

Philipp - though he vehemently denies saying as much - can clearly be heard on the audio calling

Ms. Cervantes a “tramp.” Id. at 54. 

The Blackmun Township police department has a written policy regarding the use of

force [See Use of Force Policy, Def.’s Ex. 6, Doc. No. 10.]. This policy requires the use of

empty hand techniques and/or verbal commands before a suspect is pepper sprayed. Further,

officers are not to utilize pepper spray on an area of the suspect containing open wounds. 

Finally, immediately after its use, officers are required to notify a supervisor and to begin

decontamination. The officers admitted at their depositions that they were each familiar with the

Use of Force Policy. 

After she was pepper sprayed, the officers were able to complete the handcuffing of Ms.

Cervantes. [Torbett Dep., Def.’s Ex. 1, Doc. No. 10, p.55]. However, instead of immediately

calling their supervisors and beginning decontamination procedures, as instructed by the Use of

Force Policy, the officers instead placed Ms. Cervantes into the back of a patrol car and left her

there while they returned to the apartment complex to continue their investigation. Id. “While

in the back of the police car, Plaintiff can be heard screaming, crying and yelling at the officers,

threatening a lawsuit, and uttering numerous profanities.” [Def.’s Br., Doc. No. 10, p.6]. Ms.

Cervantes was also pleading with the officers to decontaminate her eyes. 
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Instead of adhering to the Use of Force Policy’s requirement to immediately begin

decontamination procedures, the officers instead returned inside the apartment complex and

made contact with Ms. Cervantes’ boyfriend, Scott Pressler. Ultimately, after speaking with Mr.

Pressler - who was also intoxicated - the officers arrested him on domestic violence charges. It

was only after the officers completed their investigation of Mr. Pressler - twenty three minutes

later - that the officers radioed for an ambulance to decontaminate Ms. Cervantes’ eyes and

nose. Id. at 62. After a few hours, both Ms. Cervantes and Mr. Pressler posted bond and were

released from custody, though the prosecutor never issued charges against either of them. 

Ms. Cervantes filed this action on or about August 19, 2008 in Michigan state court,

alleging violations of her fourth amendment rights to be free from false arrest and from excessive

force, and a state law claim for assault and battery. The Defendants removed this action on

October 15, 2008. Following the close of discovery, the Defendants filed this motion, in which

they seek dismissal of all charges against them. In the alternative the Defendants argue that they

are entitled to qualified immunity on Ms. Cervantes’ federal claims, and governmental immunity

on Ms. Cervantes’ state law claim. 

STANDARD OF REVIEW

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgement as a

matter of law.” FED. R. CIV. P. 56(c). The party seeking summary judgment has the initial

burden of informing the court of the basis for its motion and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file together with the
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affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex

v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party who “must

set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)). 

ANALYSIS

The Defendants seek summary judgment on Ms. Cervantes’ causes of action, or, in the

alternative, qualified immunity. For the reasons that follow, the Court DENIES their motion for

summary judgment [Doc. No. 10]. 

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

In assessing qualified immunity inquiries, federal courts, viewing the facts in the light

most favorable to the plaintiff, evaluate: 1) whether the violation of a constitutional right has

occurred; and 2) whether the constitutional right at issue “was clearly established at the time of

the defendant’s alleged misconduct.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme

Court, in Pierson v. Callahan, 129 S.Ct. 808, 818 (2009), recently granted courts the discretion

to conduct this two-step analysis in the manner most appropriate to the case before them. See

also Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009). Despite Pierson, however, this Court

will begin with the traditional inquiry into whether the violation of a constitutional right

occurred before inquiring whether such rights were clearly established. 

I. Ms. Cervantes’ Excessive Force Allegations.
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In Count III of her Complaint, Ms. Cervantes alleges that Officers Torbett and Philipp

used excessive force in violation of the Fourth Amendment when they pepper sprayed her. The

Defendants argue that their use of pepper spray was objectively reasonable, and in the

alternative, argue that the nature of any such Fourth Amendment violation was not “clearly

established” at the time of their encounter with Mr. Cervantes. The Court disagrees. 

The first inquiry in a qualified immunity analysis is whether a constitutional violation has

occurred. Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008). In determining whether an

excessive force constitutional violation occurred, the Sixth Circuit counsels this Court to “look at

the objective reasonableness of the defendant’s conduct, which depends on the facts and

circumstances of each case viewed from the perspective of a reasonable officer at the scene and

not with 20/20 hindsight.” Grawey, 567 F.3d at 310 (internal citations and quotations omitted). 

Among the factors to consider in determining the reasonableness of force used are: 1) the

severity of the crime at issue; 2) whether the suspect posed an immediate threat to the safety of

the police officer or others; and 3) whether the suspect actively resisted arrest or attempted to

evade arrest by flight. Id., citing Graham v. Connor, 490 U.S. 386, 396 (1989). 

The Sixth Circuit has considered several excessive force claims involving the use of

pepper spray by police officers. The use of pepper spray on a handcuffed and hobbled person

has been clearly established as excessive force. See Champion v. Outlook Nashville, 380 F.3d

893, 903 (6th Cir. 2004). The use of pepper spray is also considered excessive where a detainee

has surrendered, is secured, is not acting violently, and does not pose a threat to officers or third

parties. Cabaniss v. City of Riverside, 231 Fed. Appx. 407, 413 (6th Cir. 2007). Officers also

use excessive force where they pepper spray a suspect who has not been told they are under
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arrest and is not resisting. Atkins v. Twp. of Flint, 94 Fed. Appx. 342, 349 (6th Cir. 2004). 

In Grawey v. Drury, 567 F.3d 302, 306 (6th Cir. 2009), the plaintiff - an intoxicated male

- was ejected from a bar after he got into an altercation with another patron and his head was

smashed into a table. During a conversation with police officers outside, in which Grawey told

them that he had just been attacked, Grawey “repeatedly reached for his injured head. Each time

Grawey reached for his head, [the officer] interrupted him and told him to put his hands down. 

This agitated Grawey, to the point that he turned and walked away from the officer - at which

point the officer discharged his pepper spray at Grawey.” Id. Grawey ran toward his mother’s

house with the officer chasing him, then stopped and put his hands on a building and waited for

the officer to catch up to him. Id. at 306-07. Despite other witnesses on the scene stating that

Grawey was not resisting, and despite Grawey never being told he was under arrest, the officer

again pepper sprayed Grawey when he caught up to him. Id. at 307. 

The Sixth Circuit in Grawey affirmed the district court’s denial of qualified immunity for

the officer, finding that the Graham factors weighed in favor of the plaintiff: 

Moreover, applying the three Graham factors - severity of the crime, immediate

threat to officers or others, and actively resisting arrest or trying to flee - [the

officer’s] conduct was not objectively reasonable when the facts are viewed in the

light most favorable to Grawey. Grawey’s crime, disturbing the peace, was

relatively minor. Grawey, who was unarmed, did not pose an immediate threat to

the officers or to others when [the officer] sprayed him. And Grawey was not

actively resisting arrest or trying to flee at the time he was pepper sprayed by [the

officer]. 

Id. at 311. 

Taken in totality, the Sixth Circuit’s holdings demonstrate several common themes

regarding claims of excessive force involving pepper spray. Qualified immunity is denied where
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the defendant is not actively resisting arrest or has surrendered, Cabaniss, 231 Fed. Appx. at

413; Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994), or where the suspect claims that the

police started the altercation. Atkins, 94 Fed. Appx. at 349. Qualified immunity is also denied

where the suspect is sprayed before being informed that he or she is under arrest. Atkins at 349;

Grawey, 567 F.3d at 307. Disobeying a lawful command to stop can still generate fact questions

on excessive force claims. Grawey at 306, Adams at 378. Failure to follow internal regulations

regarding the use of pepper spray can also generate fact questions. Grawey at 313. Even in

cases where the suspect has a size advantage on the officers - as in Greene v. Barber, 310 F.3d

889 (6th Cir. 2002), where the suspect was a verbally abusive, three-hundred pound male - fact

questions can still warrant the denial of qualified immunity. Greene, 310 F.3d at 898.

In the instant case, taking the facts in the light most favorable to Ms. Cervantes as

required by FED. R. CIV. P. 56(c), Officers Torbett and Phillip entered the common area of the

apartment complex, and found Ms. Cervantes - visibly intoxicated, and according to the officers,

apparently bleeding from the nose. When they asked Ms. Cervantes what had happened and for

her to produce identification, Ms. Cervantes told the officers to leave her alone, and tried to walk

away. Officer Philipp grabbed Ms. Cervantes’ arm to prevent her from leaving, at which point

Ms. Cervantes tried to push his hand off of her arm. When Ms. Cervantes told the officer to stop

touching her, Officer Philipp then threatened to put Ms. Cervantes in custody. When she

continued to refuse to supply the officers with identification, the officers attempted to turn Ms.

Cervantes around and arrest her - which Ms. Cervantes freely admits she physically resisted. 

During the struggle to handcuff Ms. Cervantes, after the officers already had her on the ground,

Ms. Cervantes was pepper sprayed. 
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After getting handcuffs on Ms. Cervantes, the officers escorted her to one of their patrol

vehicles. Ms. Cervantes was left inside the patrol car while the Officers went back inside to

continue their domestic assault investigation, ultimately taking Ms. Cervantes’ boyfriend into

custody as well. Ms. Cervantes can clearly be heard on the in-car audio recording pleading for

water to rinse her eyes out from the pepper spray. It was only when the officers completed their

domestic violence investigation - twenty three minutes later - that they radioed for an ambulance

to decontaminate Ms. Cervantes’ eyes. 

On these facts, the Court finds genuine issues of material fact remain regarding Ms.

Cervantes’ excessive force claim. The Graham factors weigh in favor of such a holding. 

Regarding the “severity of the crime,” Ms. Cervantes is alleged to have hindered and obstructed

a police investigation - a crime less severe than the disorderly conduct charge also found

excusable in Grawey - and assaulting a police officer - which, under Ms. Cervantes’ version of

the facts, did not even occur. Regarding the “threat to officers and others” prong, Ms. Cervantes,

like the plaintiff in Grawey, was unarmed and intoxicated - and Ms. Cervantes was clearly

overmatched physically by Officers Torbett and Philipp. Finally, under the “resisting or fleeing”

prong, while Ms. Cervantes admits she was trying to leave, she claims she was not physically

resisting the officers before they assaulted her. The Graham factors thus weigh in favor of Ms.

Cervantes. 

The Sixth Circuit’s holding in Greene is instructive. There, a verbally abusive, three

hundred pound male, who actively resisted officer attempts to restrain him, still generated fact

questions about the excessive nature of the pepper spray used on him. Greene, 310 F.3d at 898. 

If anything, the suspect in Greene was more of a threat to officer safety than was Ms. Cervantes. 
1

 Though the officers dispute knowing that the blood on Ms. Cervantes’ face was from an open

wound on her face, a jury could certainly find that a reasonable officer on the scene of a domestic

violence call, confronted with a female who potentially could be the victim of the crime they were sent to

investigate, would inquire further into the blood on that person’s face which appeared to be coming from

her nose, before using pepper spray on that individual. 

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Atkins is also instructive: like Ms. Cervantes, though the plaintiff in Atkins was charged

with assaulting an officer, his version of events - that the officers started the altercation, and that

he was merely defending himself - was sufficient to survive summary judgment on qualified

immunity grounds. Atkins, 94 Fed. Appx. at 349. 

The officers freely concede that Ms. Cervantes had blood on her face, which appeared to

be coming from her nose. Indeed, this was one of the facts the officers relied upon in identifying

Ms. Cervantes as the possible female involved in the domestic dispute. Under the Use of Force

Policy [Def.’s Ex. 6, Doc. No. 10] officers are required to notify a supervisor, and begin

decontamination, immediately after using pepper spray. At deposition, Officer Torbett also

acknowledged that officers were not to use pepper spray on an area with open wounds.

1

 Here,

Ms. Cervantes alleges that the officers used pepper spray on her before utilizing other, “open

hand” techniques, that they sprayed her face which contained an open wound, and that the

officers waited twenty-three minutes before calling for an ambulance to decontaminate her eyes. 

As in Grawey, 567 F.3d at 513, these potential violations of internal policy generate fact issues

regarding the potentially excessive force used on Ms. Cervantes. 

Further, the excessive force cases discussed supra also hold that the nature of conduct

similar to that alleged by Ms. Cervantes was “clearly established” as a Fourth Amendment

violation at the time of the incident. The key determination is whether a defendant moving for

summary judgment on qualified immunity grounds was on notice that his alleged actions were
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unconstitutional. Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005). 

“[A]n action’s unlawfulness can be apparent from direct holdings, from specific

examples of conduct described as prohibited, or from the general reasoning that a court

employs.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). “In an obvious case, general

standards can clearly establish the answer, even without a body of relevant case law.” Sample v.

Bailey, 409 F.3d 689, 699 (6th Cir. 2005). “[T]here need not even be a case with the exact same

fact pattern or even fundamentally similar or materially similar facts; rather, the question is

whether the defendants had fair warning that their actions were unconstitutional.” Cummings v.

City of Akron, 418 F.3d 676, 687 (6th Cir. 2005) (internal quotations omitted). Thus, “officials

can still be on notice that their conduct violates established law even in novel factual

circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). 

In Grawey, the Sixth Circuit held that “the general consensus among our cases is that

officers cannot use force, including pepper spray, on a detainee who has been subdued, is not

told he is under arrest, or is not resisting arrest.” Grawey, 567 F.3d at 314. “[A] reasonable

officer would know that using pepper spray on a suspect who has submitted, is not resisting, and

is no danger to anyone constitutes excessive force.” Id. 

Though the Defendants here obviously were not aware of Grawey in July of 2007 -

Grawey, after all, was not decided until 2009 - the Sixth Circuit’s holdings in Atkins, Greene and 

Adams demonstrate that the nature of the officer’s alleged actions as violating Ms. Cervantes’

right against excessive force was “clearly established” on July 11, 2007. For these reasons, the

Court DENIES summary judgment on Ms. Cervantes’ excessive force claims. 

II. Ms. Cervantes’ False Arrest Allegations.
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In Count I of her Complaint, Ms. Cervantes alleges that Officers Torbett and Philipp

violated her Fourth Amendment protection against unreasonable seizures when they prevented

her from leaving the common area of her apartment building. Further, Count II of Ms.

Cervantes’ Complaint alleges that the officers violated her Fourth Amendment protection against

false arrest when they arrested her without probable cause. The Defendants argue that their

initial detention of Ms. Cervantes was constitutional under Terry v. Ohio, 392 U.S. 1 (1968), and

that their arrest of Ms. Cervantes was based upon probable cause. In the alternative, the officers

argue that the nature of any such Fourth Amendment violation was not “clearly established” at

the time of their encounter with Ms. Cervantes. The Court disagrees. 

A. Ms. Cervantes’ Unreasonable Seizure Claims.

In their brief, the Defendants argue that they were justified, pursuant to Terry v. Ohio,

392 U.S. 1 (1968), in initially detaining Ms. Cervantes: 

Here, the Officers had been advised by dispatch that a male and female had been

involved in a potential physical domestic situation in a yellow Mustang located

within the apartment complex. However, they did not know which of the

individuals was the instigator and which was the victim. In addition, even

assuming they suspected Plaintiff to be the victim, the [department’s domestic

violence] policy required them to interview her so that they could complete not

only their criminal investigation into the domestic violence complaint, but also to

ensure that she was not in need of medical attention. 

[Def.’s Br., Doc. No. 10, p.11 (emphasis added)]. Therefore, the Defendants argue that their

initial detention of Ms. Cervantes was warranted under Terry v. Ohio. 

The officer’s purported lack of information regarding whether Ms. Cervantes was the

victim or the assailant, however, is belied by Officer Torbett’s deposition testimony: 

Q: What do you recall being told by the dispatcher when you were initially

given this call?

A: That there was a yellow Mustang going through the parking lot at Gallery
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Place [apartment complex] in the area of the address where we initially

looked for the subjects. Stated that the car was all over the parking lot

hitting curbs, and that the male suspect was striking the female suspect. 

[Torbett Dep., Def.’s Ex. 1, Doc. No. 10, p.59 (emphasis added)]. While the officers now argue

that they did not know whether Ms. Cervantes was the victim or the assailant, that position is not

supported by the record, taken in the light most favorable to Ms. Cervantes. For purposes of this

motion, therefore, the Court assumes that the officers knew Ms. Cervantes - as the female

thought to be connected with the 911 dispatch - was the suspected victim of the disturbance they

were called upon to investigate.

The U.S. Supreme Court has held that, in general:

law enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking him

if he is willing to answer some questions, by putting questions to him if the

person is willing to listen, or by offering in evidence in a criminal prosecution his

voluntary answers to such questions.

Florida v. Royer, 460 U.S. 491, 497 (emphasis added). “The person approached, however, need

not answer any question put to him; indeed, he may decline to listen to questions at all and go on

his way.” Id., quoting Terry v. Ohio, 392 U.S. at 32-33 (emphasis added). 

The Supreme Court’s holding in Terry v. Ohio “created a limited exception to this

general rule.” Royer, 460 U.S. at 498. Pursuant to Terry, “certain seizures are justifiable under

the Fourth Amendment if there is articulable suspicion that a person has committed or is about

to commit a crime.” Id. (emphasis added). 

Thus, pursuant to Royer, Officers Torbett and Philipp were free to approach Ms.

Cervantes and ask questions of her without violating her Fourth Amendment rights. Given the

Blackmun Township Police Department’s domestic violence policy, the officers were likely
16

required to look into Ms. Cervantes’ condition. Under Royer, however, Ms. Cervantes was free

to ignore the officers’ questions and “to go on h[er] way,” Id. at 497, if she so chose. That the

police department’s domestic violence policy states that on-scene investigations “will include

interviewing witnesses and collecting evidence of all possible crimes committed” [Def.’s Ex. 5,

Doc. No. 10, p.9] is irrelevant - the Blackmun Township Police Department’s furtherance of the

public good can not take precedence over the Fourth Amendment. 

Again, Terry’s allowance for police officers to engage in a brief, investigatory detentions

is limited to individuals for whom the officer has reasonable suspicion “has committed or is

about to commit a crime.” Royer, 460 U.S. at 498. As explained supra, in the light most

favorable to Ms. Cervantes, the officers could not have suspected Ms. Cervantes committed the

domestic assault they were called upon to investigate - they knew from the 911 dispatch that the

assailant was a male. The Defendants have provided the Court with no case law which supports

the right of the police to engage in Terry stops of suspected victims.

The Defendants concede that Ms. Cervantes was “seized” for purposes of the Fourth

Amendment during their purported Terry investigatory detention. As outlined in Royer, the

officers did not have reasonable suspicion that Ms. Cervantes committed a crime at the time they

seized her. Therefore, Ms. Cervantes has sufficiently alleged a violation of her Fourth

Amendment right to be free from unreasonable seizure. 

Under the second prong of the qualified immunity analysis, Ms. Cervantes has alleged a

Fourth Amendment “unreasonable seizure” violation which was clearly established. Royer,

decided in 1983, makes clear that the right of the police to engage in Terry stops is limited to

situations where the police have “articulable suspicion that [the] person has committed or is
17

about to commit a crime.” Royer, 460 U.S. 491. The Defendants’ arguments to the contrary are

without merit. 

 B. Ms. Cervantes’ False Arrest Claims. 

Ms. Cervantes has also sufficiently alleged a “clearly established” violation of her Fourth

Amendment right to be free from arrest without probable cause. For a false arrest claim to

succeed under § 1983, a plaintiff must prove that the police lacked probable cause to arrest. 

Fridley v. Hughes, 291 F.3d 867, 872 (6th Cir. 2002). Probable cause is defined as a “fair

probability that the individual to be arrested has either committed or intends to commit a crime.” 

Id. Put another way, probable cause exists where reasonably trustworthy facts and

circumstances known to the police officer were sufficient for a prudent man to believe the

arrestee had committed or was committing an offense. Diamond v. Howe, 288 F.3d 932, 936

(6th Cir. 2002). Courts assess an officer’s determination of probable cause from the perspective

of a reasonable officer at the scene, rather than with the benefit of hindsight reflection. 

Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001).

The Defendants argue that, from her interactions with them on July 11, 2007, they had

probable cause to arrest Ms. Cervantes for violation of two Michigan statutes. The first statute,

assault and battery, states as follows: 

Except as otherwise provided in this section, a person who assaults or assaults and batters

an individual, if no other punishment is prescribed by law, is guilty of a misdemeanor

punishable by imprisonment for not more than 93 days or a fine of not more than

$500.00, or both. 

M.C.L. § 750.81(1). 

The officers argue that Ms. Cervantes “made physical contact” with Officer Philipp in

order to “push his hand off” of her, and that this constituted a battery upon Officer Philipp. [See
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Def.’s Br., Doc. No. 10, p.14]. The Defendants also argue that Ms. Cervantes “physically hit

Officer Torbet[t] in the chest,” though their citation to Ms. Cervantes’s deposition does not

support this allegation. [Id., citing Cervantes Dep., Def.’s Ex. 3, pp.55-56, 65]. 

Again, however, for purposes of this motion the Court must construe all fact questions in

the light most favorable to Ms. Cervantes, who denies striking or attempting to strike either

officer. [See Cervantes Affidavit, Pl.’s Ex. 3, Doc. No. 14]. Rather, Ms. Cervantes alleges that

the officers assaulted her, and that she only defended herself from their attacks. 

Michigan law permits an individual not engaged in the commission of a crime to use nondeadly force in self defense: 

An individual who has not or is not engaged in the commission of a crime at the

time he or she uses force other than deadly force may use force other than deadly

force against another individual anywhere he or she has a legal right to be with no

duty to retreat if he or she honestly and reasonably believes that the use of that

force is necessary to defend himself or herself or another individual from the

imminent unlawful force by another individual. 

M.C.L. § 780.92(2). Individuals who use such non-deadly force, in compliance with §

780.92(2), are immunized from criminal prosecution. See M.C.L. § 780.961(1). Thus,

construed in the light most favorable to Ms. Cervantes, the facts show that Ms. Cervantes

defended herself from assault by Officers Torbett and Philipp, and that she used non-deadly

force to defend herself. As her use of such force in self-defense is immunized from criminal

prosecution, the officers could not have had probable cause to arrest her for assaulting them. 

The Defendants also allege that probable cause existed to arrest Ms. Cervantes for

hindering and obstructing their domestic violence investigation. The relevant Michigan statute

states as follows, in pertinent part: 

(1) . . . an individual who assaults, batters, wounds, obstructs, opposes, or
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endangers a person who the individual knows or has reason to know is

performing his or her duties is guilty of a felony punishable by

imprisonment for not less than 2 years or a fine of not more than

$2,000.00, or both. 

*****

(7) As used in this section: 

(a) “Obstruct” includes the use or threatened use of physical interference

or force or a knowing failure to comply with a lawful command. 

M.C.L. § 750.81d (emphasis added). Defendants argue that Ms. Cervantes’ conduct established

probable cause to arrest her for obstructing their investigation as follows: 

Plaintiff was aware that the Officers were there to investigate a crime. . . . Despite

this knowledge, Plaintiff refused to heed the Officers’ repeated orders that she

“step back,” provide them with identification, and explain to them how she

obtained blood on the ridge of her nose and in her left nostril. In addition,

Plaintiff repeatedly attempted to walk through the Officers in an attempt to leave

the area, even though she had been told that she was not free to leave until their

domestic violence investigation was complete. 

[Def.’s Br., Doc. No. 10, p.14]. 

As described supra, Royer permits Ms. Cervantes to completely disregard the questions -

and later instructions stemming from those questions - of the officers. Again, probable cause to

believe a suspect has “obstructed” an investigation is contingent, per M.C.L. § 750.819(7)(a),

upon those commands ignored having been lawful. As Officers Torbett and Philipp lacked

reasonable suspicion that Ms. Cervantes had committed a crime, they had no authority under

which to engaged in a Terry investigative detention of Ms. Cervantes - ergo, the orders allegedly

disobeyed by Ms. Cervantes were not “lawful” for purposes of the statute. The facts, taken in

the light most favorable to Ms. Cervantes, do not establish probable cause for the Defendants to

have arrested Ms. Cervantes for obstructing their investigation. 

Under the second prong of the qualified immunity analysis, Ms. Cervantes has also

alleged Fourth Amendment “false arrest” violations which were clearly established. The Sixth
20

Circuit, in Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) held that “[e]ven in 1991,

the law was clearly established that, absent probable cause to believe that an offence had been

committed, was being committed, or was about to be committed, officers may not arrest an

individual.” The Defendants’ arguments to the contrary are without merit. 

III. Ms. Cervantes’ Assault and Battery Allegations. 

In Count IV of her Complaint, Ms. Cervantes alleges that Officers Torbett and Philipp

assaulted and battered her, in violation of Michigan state law. The Defendants argue that “a

police officer is permitted to use substantial but necessary force to subdue a restraint [sic]

suspect so long as the force used was objectively reasonsble,” and the Officers allege that the

force they used was reasonable under the circumstances. [Def.’s Br., Doc. No. 10, p.19]. In the

alternative, the officers argue that they are entitled to governmental immunity, under Odom v.

Wayne County, 482 Mich. 459 (2008), for intentional torts committed during the performance of

their discretionary duties and while acting in good faith. The Court disagrees. 

To recover civil damages for battery, a wilful and harmful or offensive touching of

another person resulting from an act intended to cause such contact must be shown. See

Espinoza v. Thomas, 189 Mich.App. 110, 119 (1991). When making a lawful arrest, officers

have the right to use that force necessary under the circumstances to effect the arrest. Tope v.

Howe, 179 Mich.App. 91, 106 (1989). “[T]he measure of necessary force is that which an

ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting

officer, would have deemed necessary.” Brewer v. Perrin, 132 Mich.App. 520, 528 (1984). 

As explained supra, however, the facts - construed in the light most favorable to Ms.

Cervantes - demonstrate that the officers’ arrest of Ms. Cervantes was without probable cause,
21

and therefore not lawful. Therefore, the officers were not entitled to use any force on Ms.

Cervantes - regardless of whether that force was of a “necessary” amount to effectuate her arrest. 

Even if the officers had been justified in arresting Ms. Cervantes, however, summary

judgment in favor of the officers would still be improper. The facts, taken in the light most

favorable to Ms. Cervantes, demonstrate genuine issues of material fact regarding whether the

amount of force used in arresting Ms. Cervantes was reasonable. Again, the facts show that

pepper spray was not used on Ms. Cervantes - a 5'2", 135-pound female - until after she had

already been wrestled to the ground and held prone by two adult male officers, each of which

were at least seven inches taller than she was, and each of which outweighed Ms. Cervantes by

at least fifty-eight pounds. A reasonable jury could find, on these facts, that using pepper spray

to subdue Ms. Cervantes constituted a battery. 

Nor, on these facts, are the Defendants entitled to the benefit of governmental immunity

under Michigan law. Under Odom, to be entitled to immunity the officers must establish: (1)

that the acts were undertaken during the course of employment and the employee was acting, or

reasonably believed that they were acting, within the scope of their authority; (2) that the acts

were undertaken in good faith, or were not undertaken with malice; and (3) that the acts were

discretionary, as opposed to ministerial. Odom, 482 Mich. at 481-82. 

Regarding the first, “scope of employment,” prong, the Michigan Supreme Court has

expressly held that ultra vires activities engaged in by a government actor - the arrest of a

suspect without probable cause, for example - are not entitled to governmental immunity. Ross

v. Consumers Power Co., 420 Mich. 567, 635 (1984); see also Lowery v. Dep’t of Corrections,
22

146 Mich.App. 342, 380 (1985) (holding that assaults committed by corrections officers could

not be viewed as coming within the scope of their authority). Further, as Ms. Cervantes argues,

“question[s] of fact exist as to whether Defendants were acting in good faith or were acting

maliciously. Calling her a tramp, spraying her without warning, and waiting 23 minutes to call

for decontamination do not create an inference of good faith. . . .” [Pl.’s Br., Doc. No. 14, pp.19-

20]. Defendants’ arguments to the contrary are without merit. 

CONCLUSION 

For the reasons explained supra, the Court DENIES the Defendants’ motion for

summary judgment [Doc. No. 10]. 

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: March 1, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

March 1, 2010, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager