                     NOT RECOMMENDED FOR PUBLICATION
                            File Name: 07a0415n.06
                              Filed: June 19, 2007

                                 Nos. 05-6664, 05-6801

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


JOE DUNCAN, LORETTA DUNCAN, CHRIS
JACKSON, DEBBIE J. DUNCAN, JOHNNY
GROOMS, JASON LYNCH,

      Plaintiffs-Appellees,

             v.                                             On Appeal from the United
                                                            States District Court for the
JAMES JACKSON (05-6664), RONNIE BURNETT                     Eastern District of Tennessee
(05-6801),                                                  at Chattanooga

      Defendants-Appellants,

CITY OF SOUTH PITTSBURG, TENNESSEE;
MARION COUNTY, TENNESSEE; FEDERAL
BUREAU OF INVESTIGATION,

      Defendants.

                                                      /

Before:      GUY, BATCHELDER, and GILMAN, Circuit Judges.

      RALPH B. GUY, JR., Circuit Judge.            Individual defendants James Jackson,

Police Chief for the City of South Pittsburg, Tennessee, and Ronnie Burnett, Sheriff of

Marion County, Tennessee, appeal from the denial of qualified immunity on the claims of

unlawful search and seizure brought against them by plaintiffs Loretta Duncan, Joe Duncan,

Debbie Jo Duncan, Johnny Grooms, and Chris Jackson. See 42 U.S.C. § 1983. These claims

were the subject of motions for summary judgment, in which Chief Jackson and Sheriff
No. 05-6664                                                                                 2

Burnett argued that they were entitled to qualified immunity because they did not have

personal involvement beyond providing backup for a sweep conducted by the Federal Bureau

of Investigation (FBI) at the residence of Loretta and Joe Duncan.

       The district court concluded that there were questions of fact concerning the

defendants’ involvement in the search and seizures that precluded a finding of qualified

immunity. This appeal followed. On remand for defendants to file a motion to supplement

the record with the complete deposition transcripts, the district court agreed with defendants

that statements in several of the plaintiffs’ affidavits had to be disregarded because they

contradicted their earlier deposition testimony. Nonetheless, in an order entered during the

pendency of this appeal, the district court again concluded that Chief Jackson and Sheriff

Burnett were not entitled to qualified immunity. We find, after review of the record, that

factual disputes concerning the defendants’ participation in the search and seizures preclude

summary judgment as to some but not all of the claims asserted by these plaintiffs. For this

reason, we affirm in part, reverse in part, and remand for further proceedings consistent with

this opinion.1

                                                       I.

       On December 26, 2002, the FBI received information that James Davis, an individual

wanted in connection with bank robberies committed in Georgia, might be staying with an

acquaintance named David Howard at 409 19th Street, South Pittsburg, Tennessee. FBI

Special Agent Paul Healy was contacted by the FBI office in Atlanta to investigate and he,


       1
           No appellee brief has been filed by plaintiffs in this matter.
No. 05-6664                                                                                         3

in turn, contacted Sheriff Burnett and Chief Jackson for assistance. Davis, the robbery

suspect, was considered armed and dangerous and was believed to be traveling in a white van

that matched the description of a van parked in the driveway of the premises in question.

Agent Healy also stated that before entering the Duncan property, he questioned a couple

who had just left the premises and showed them a photograph of the suspect. The couple

said they had seen an unknown white male fitting the suspect’s description on the premises.

       No search warrant was obtained, although there is a factual dispute as to whether the

ensuing search of the premises was consensual and an assertion that there were exigent

circumstances obviating the necessity for consent. The search did not turn up Davis or

Howard, although several plaintiffs acknowledged that Howard had lived there at one time.

Davis was eventually captured and convicted of bank robbery.

       The premises belonged to plaintiffs Loretta and Joe Duncan, husband and wife, who

were home at the time of the search. Among those also present on the evening of December

26 were Debbie Jo Duncan, Johnny Grooms, Chris Jackson, Jason Lynch, and James Duncan.

By all accounts, Joe, his brother James, and Chris were in the garage.2 Chief Jackson arrived

in a marked patrol car and took a position out front.

       Loretta Duncan, who was in the house, testified that she went into the kitchen and

found an armed FBI agent standing at or in the doorway. Agent Healy’s affidavit stated that

an unidentified white woman gave permission for them to conduct a security sweep for the

suspect. However, Loretta Duncan denied that she gave permission to search and testified

       2
         James Duncan never joined this lawsuit, and the claims of Jason Lynch were dismissed after he
repeatedly failed to appear for deposition.
No. 05-6664                                                                                 4

that the FBI agent simply directed her to call everyone into the kitchen while others

conducted the sweep. Debbie Duncan and Johnny Grooms were sent outside, and Chief

Jackson called them over to his position by the police cars. According to these plaintiffs,

Chief Jackson had his weapon drawn and ordered Debbie Duncan to stand with her hands

on the car. Johnny Grooms and Jason Lynch were placed in handcuffs at that time by the

Chief or another officer. At some point, Debbie Duncan called out to Sheriff Burnett and he

allowed her to go back inside the house to retrieve a child that had been left behind.

       Sheriff Burnett testified that he arrived to see a white male come out of the house to

Chief Jackson’s position, and two FBI agents standing at the garage door. Sheriff Burnett

testified that he saw Joe Duncan in the garage and went in to talk with him. According to

Sheriff Burnett, Duncan asked what the FBI was doing there, and Burnett told him that they

were looking for a bank robbery suspect. Sheriff Burnett testified that Joe Duncan agreed

that they could look for the suspect, although Duncan denied that any consent was given.

There is also a factual discrepancy about whether Sheriff Burnett participated in a search of

the garage.

       Chief Jackson testified that he assisted by securing the individuals exiting the house.

Once everyone had been identified and the FBI determined that Davis was not present,

everyone was released and all law enforcement personnel left the premises. None of the

plaintiffs were arrested, and no charges resulted from the search. Agent Healy estimated that

the “time on the premises conducting the search lasted no longer than ten minutes,” while

other witnesses estimated that the entire encounter lasted between 15 and 30 minutes.
No. 05-6664                                                                                 5

       One year later, plaintiffs commenced this action against Chief Jackson, the City of

South Pittsburg, Sheriff Burnett, Marion County, and the FBI. The claims against the FBI

were dismissed without prejudice early in the proceedings, and the city and county

defendants moved for summary judgment on the remaining federal and state law claims. In

an order entered September 28, 2005, the district court granted summary judgment on all the

claims except the federal claims for unlawful search and seizure and the state law claims for

trespass against Chief Jackson and Sheriff Burnett. These appeals are limited to the denial

of qualified immunity on the § 1983 claims.

                                             II.

       In considering a claim of qualified immunity, courts must first address the threshold

question of whether, taken in the light most favorable to the party asserting the injury, the

alleged facts show that the defendant’s conduct violated a constitutional right. Saucier v.

Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to determine

whether the right was clearly established in a particularized sense, such that “it would be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Id. at 202. Qualified immunity is a question of law, which we review de novo. Dickerson

v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).

       Making a broad challenge, Chief Jackson and Sheriff Burnett argued for qualified

immunity on the grounds that they did not have direct responsibility for the search and

seizures in this case. The argument was, in effect, that it was not these defendants’ conduct

that allegedly violated the plaintiffs’ constitutional rights. This court has held that: “As a
No. 05-6664                                                                                     6

general rule, mere presence at the scene of a search, without a showing of direct

responsibility for the action, will not subject an officer to liability.” Ghandi v. Police Dep’t

of Detroit, 747 F.2d 338, 352 (6th Cir. 1984). The court in Ghandi affirmed summary

judgment to the officers on the basis of unrefuted evidence that they were “merely backup

officers who did not actually participate in the search.” Id. Applying this rule in another

case, however, this court rejected an officer’s denial of direct responsibility when he was not

only “the prime mover” in obtaining the warrant and initiating the search, but entered the

apartment and conducted the search. Hall v. Shipley, 932 F.2d 1147, 1154 (6th Cir. 1991).

Affirming the denial of qualified immunity in Hall, this court found a direct causal

connection between the officer’s actions and the alleged constitutional violation.

A.     Search

       While the Fourth Amendment guarantees the right to be free from unreasonable

searches and seizures, Fourth Amendment interests are personal in nature such that each

plaintiff must demonstrate invasion of his or her own rights. Minnesota v. Carter, 525 U.S.

83, 88 (1998). Here, while the record indicates that the property in question belonged to

Loretta and Joe Duncan, no other plaintiff has demonstrated a reasonable expectation of

privacy in the premises. Accordingly, only Loretta and Joe Duncan may pursue a claim for

unreasonable search of the premises.

       It is established that the existence of probable cause to arrest a suspect does not justify

entry into the premises of a third party to search for him. Steagald v. United States, 451 U.S.

204, 213-14 (1981). Rather, a search of a residence without a warrant issued upon probable
No. 05-6664                                                                                 7

cause is presumptively unreasonable, subject to a few well-delineated exceptions that include

both consent and exigent circumstances. Payton v. New York, 445 U.S. 573, 586 n.25

(1980); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Defendants have asserted that

there were exigent circumstances, but we can reach no conclusion in that regard because the

issue has not been developed on appeal.

       Defendants also argue that consent excused the necessity of a warrant. Florida v.

Royer, 460 U.S. 491, 497 (1983). There is indeed evidence that the homeowners consented

to a search of the premises, which would entitle defendants to qualified immunity on this

claim if the matter were not in dispute. As the district court properly recognized, however,

because both Loretta and Joe Duncan denied giving consent, there is a question as to a

material fact on this issue. Because this court does not have jurisdiction to resolve factual

issues in an appeal challenging the denial of qualified immunity, the defendants must

“concede the most favorable view of the facts to the plaintiff for purposes of the appeal.”

Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998); see Johnson v. Jones, 515 U.S. 304,

313 (1995).

       This brings us to the question of whether there is evidence of a direct connection

between the actions of either Chief Jackson or Sheriff Burnett and the search of the premises.

In one case shedding light on this issue, this court found that one officer was entitled to

qualified immunity while another was not. Aquisto v. Danbert, No. 97-1668, 1998 WL

661145 (6th Cir. Sept. 1, 1998). The claims were for forcible entry, excessive force, and

damage to property during the search. Both of the officers were at the scene to assist a
No. 05-6664                                                                                  8

county task force with the execution of a search warrant and had participated in the pre-raid

meeting. Officer Danbert was assigned to cover the back of the house in case the occupants

tried to flee, but did not participate in the forced entry, the seizure of the occupant, or the

search of the premises. There being no dispute on this, and even though Danbert entered the

house at some later point, this court held that he was entitled to qualified immunity. In

contrast, we rejected fellow Officer Vesco’s claim that he also played no role in the forced

entry because he did not personally breach the door. There was evidence that although Vesco

did not make the decision or use the battering ram, he entered the house as part of the raid

with his weapon drawn. Vesco also admitted some limited participation in the search itself.

Because Vesco was not present when other officers secured the plaintiff, he could not be

liable for the allegedly abusive use of force, but he was not entitled to qualified immunity on

the claims for forcible entry and search of the premises.

       1.     Chief Jackson

       Chief Jackson argues on appeal that the district court erred in relying on statements

in the plaintiffs’ affidavits to support a finding that there was a question of material fact

concerning his personal involvement in the search. As he argues—and as the district court

acknowledged on remand—a party cannot create a factual issue by filing an affidavit after

a motion for summary judgment has been made that contradicts his or her earlier testimony.

Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). Although the affidavits

of Loretta Duncan, Joe Duncan, and Chris Jackson stated that Chief Jackson was personally

involved in the search of the house and garage, those statements were directly contradicted
No. 05-6664                                                                                9

by their earlier deposition testimony.

       Specifically, Loretta Duncan testified that she knew Chief Jackson; that he did not

enter her home during the search; and that, in fact, she did not see him at all that night.

Likewise, Joe Duncan and Chris Jackson testified during earlier depositions that Chief

Jackson was not one of the men who entered the garage. Chris stated that he never actually

saw Chief Jackson that night, while Joe Duncan indicated that the only time he saw Chief

Jackson was when Jackson was standing outside near the street light after the search was

completed. Disregarding the statements in the affidavits, the evidence showed that Chief

Jackson was not involved in the investigation or the decision to search the premises, and did

not personally participate in the search of the premises. Plaintiffs have failed to come

forward with evidence sufficient to demonstrate a direct causal connection between Chief

Jackson’s conduct and the allegedly unreasonable search of the premises. We find, therefore,

that Chief Jackson is entitled to summary judgment on the grounds of qualified immunity

with respect to all claims that the search violated the Fourth Amendment, and we reverse the

district court’s decision in this regard.

       2.      Sheriff Burnett

       Although Sheriff Burnett continues to argue that the search was consensual, there is

a question of material fact whether one or both homeowners consented to a search for the

bank robbery suspect. However, a defendant may not appeal from the denial of qualified

immunity “insofar as that order determines whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Jones, 515 U.S. at 320. This leaves the argument that
No. 05-6664                                                                                   10

Sheriff Burnett did not have direct responsibility for the search.

       Relying on his own testimony, Sheriff Burnett contends that he arrived on the scene

to find two FBI agents standing at the door of the garage and entered the garage looking for

Joe Duncan, with whom he was acquainted. According to Burnett, he asked Joe Duncan if

he would allow the FBI to search for the bank robbery suspect; conveyed Joe Duncan’s

consent to the FBI agents; and then stayed to converse with Duncan and the others while the

FBI conducted the search. In contrast, Joe Duncan testified that Sheriff Burnett entered the

garage with the FBI agents, did not ask for consent, personally participated in the search of

the garage, and made sure that the occupants stayed in the garage until the search of the

premises was completed. Taking the evidence in the light most favorable to the plaintiffs,

as we must, there is a question of fact concerning Sheriff Burnett’s involvement whether by

obtaining consent or by personally participating in the search of the garage. As a result, we

affirm the district court’s determination that questions of fact preclude a finding of qualified

immunity as to Sheriff Burnett on the claims of Loretta and Joe Duncan for unlawful search

of the premises.

B.     Seizure

       With respect to the plaintiffs’ respective seizures, this court has recognized that “[l]aw

enforcement officials have a limited authority to detain occupants of a premises while a

proper search is being conducted.” United States v. Bohannon, 225 F.3d 615, 616 (6th Cir.

2000) (citing Michigan v. Summers, 452 U.S. 692, 705 (1981)); see also United States v.

Enslin, 327 F.3d 788, 797 n.32 (9th Cir. 2003); United States v. Bearden, ___ F. App’x ___,
No. 05-6664                                                                                  11

No. 05-6595, 2007 WL 79012 (6th Cir.), cert. denied, ___ S. Ct. ___, 2007 WL 1107163

(2007). This authority extends over not only residents, but also others on the premises at the

time of the search. United States v. Fountain, 2 F.3d 656, 663 (6th Cir. 1993). “An officer’s

authority to detain incident to a search is categorical; it does not depend on the ‘quantum of

proof justifying detention or the extent of the intrusion to be imposed by the seizure.’”

Muehler v. Mena, 544 U.S. 93, 98 (2005) (quoting Summers, 452 U.S. at 705, n.19).

       The Court in Mena found that the governmental interests in not only detaining, but

using handcuffs, were at a maximum in a search for weapons where a wanted gang member

resided. The Court added: “Though this safety risk inherent in executing a search warrant

for weapons was sufficient to justify the use of handcuffs, the need to detain multiple

occupants made the use of handcuffs all the more reasonable.” Id. at 100. Recognizing that

the duration of a detention can affect the balance of interests, the Court in Mena held that the

two- to three-hour detention in handcuffs did not outweigh the government’s safety interests.

       1.     Chief Jackson

       To begin with, the parties have failed to distinguish between the plaintiffs in asserting

this claim against Chief Jackson. Disregarding the inconsistent statements in the plaintiffs’

affidavits, there can be no dispute that Chief Jackson played no role in the detention of Joe

Duncan or Chris Jackson, who were in the garage the entire time, or Loretta Duncan, who

admitted that she never even saw Chief Jackson. This leaves only Debbie Jo Duncan and

Johnny Grooms, both of whom were directed out front by the FBI and detained under the

authority of Chief Jackson. Chief Jackson and one or more officers secured Debbie Duncan,
No. 05-6664                                                                                   12

directing her to stand with her hands on the car, where she stayed until Sheriff Burnett gave

her permission to go back into the house. Johnny Grooms and Jason Lynch (who is not a

party to this appeal) were both secured and handcuffed during the search and were released

once everyone had been identified and the FBI determined that the suspect was not present.

       If it is determined that the search was proper, we find that Chief Jackson’s seizures

of Debbie Duncan and Johnny Grooms were reasonable. Given that the search was for a

fugitive bank robbery suspect believed to be armed and dangerous and that a number of

individuals were present at the time of the search, the governmental interests in the safety of

the officers and others, preventing flight, and facilitating the orderly completion of the search

justified the detention of the occupants and handcuffing of the two white males until the

identities of everyone were established and the sweep of the premises was completed.

Because a question of fact remains concerning the validity of the search, however, we affirm

the denial of qualified immunity to Chief Jackson with respect to the claims of Debbie

Duncan and Johnny Grooms for unlawful seizure.

       2.     Sheriff Burnett

       As with Chief Jackson, there has been no effort to distinguish between the plaintiffs’

claims for unlawful seizure. Because there is no dispute that Sheriff Burnett had no direct

involvement in the seizures of Loretta Duncan, Debbie Duncan, or Johnny Grooms, he is

entitled to qualified immunity on those claims. This leaves Joe Duncan and Chris Jackson,

who were in the garage with Sheriff Burnett during the search of the premises. Again, if the

search is determined to be valid, the detention of these two plaintiffs would also have been
No. 05-6664                                                                              13

reasonable. Neither of them was handcuffed, nor was Sheriff Burnett apparently armed.

Nonetheless, the plaintiffs testified that Sheriff Burnett entered the garage with the armed

FBI agents, addressed Joe Duncan, personally participated in the search, and stayed with

them in the garage until the search had been completed. On the other hand, Sheriff Burnett

said he arrived only after the FBI had secured the garage, simply conveyed Joe Duncan’s

consent to the FBI, and stayed to converse with Joe Duncan and the others until the FBI had

completed the search.    The factual dispute concerning Sheriff Burnett’s involvement

precludes a finding of qualified immunity with respect to the claims of Joe Duncan and Chris

Jackson for unlawful seizure.

                                            III.

       For the reasons stated above, we find that the defendants are entitled to qualified

immunity on the plaintiffs’ Fourth Amendment claims except for: (1) the claims of Loretta

and Joe Duncan against Sheriff Burnett, only, for unreasonable search of the premises; (2)

the claims of Debbie Duncan and Johnny Grooms against Chief Jackson, only, for

unreasonable seizure; and (3) the claims of Joe Duncan and Chris Jackson against Sheriff

Burnett, only, for unreasonable seizure. Accordingly, the district court’s decision denying

qualified immunity is AFFIRMED in part and REVERSED in part, and the case is

REMANDED for further proceedings consistent with this opinion.
