                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0413n.06

                                           No. 09-1844                                  FILED
                                                                                     Jul 12, 2010
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


EUGENE MARTIN MCCUMONS,                          )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
J. MAROUGI, Officer,                             )   EASTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellant.                      )



       Before: BATCHELDER, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.


       SUTTON, Circuit Judge. In this appeal, a police officer challenges the district court’s

summary-judgment order denying his request for qualified immunity from a false-arrest action filed

under § 1983. We affirm.


                                                I.


       On August 10, 2007, Officer Marougi went to Hawthorne Park, located in Pontiac, Michigan,

to work undercover in response to “numerous and recurring complaints” about “open sexual activity,

specifically between males, in the park.” R.15-11. While there, he met Eugene McCumons. Taking

McCumons’ factually supported allegations as true, as we must at this stage of the proceeding, here

is what happened next.
No. 09-1844
McCumons v. Marougi

          While McCumons sat in his parked car, he saw Officer Marougi drive past. The undercover

officer nodded at McCumons, and McCumons nodded back, after which the officer parked his car

nearby. McCumons drove toward another part of the park, and about ten minutes later the officer

drove by McCumons’ parked car and made eye contact again. The officer then drove toward the

front of the park. When McCumons drove toward the front of the park as well, he noticed the

officer’s car parked on the side of the road. McCumons stopped and said hello.


          The two men exchanged pleasantries, and eventually the officer asked McCumons what

would make it a “better day.” R.27-2, 122. McCumons asked him what he meant, and the officer

replied, “Well, you know what I mean.” Id. The men continued “flirting” and started to discuss

what they were “looking for.” Id. The officer said that he liked “everything but it,” and asked

McCumons what he liked. Id. He “liked it all too.” R.24 ¶ 18. The officer further explained, “I

do oral,” and McCumons responded, “I don’t have anywhere we can go.” R.24 ¶¶ 19, 22.


          The officer told McCumons that he had to get going, but then suggested that they “go to the

back” and gestured over his shoulder. R.24 ¶ 23. McCumons told the officer that he had to “think

about it,” R.27-2, 123, and after further urging asked, “Why? Are you horny?” R.24 ¶ 27. “Why

do you think I’m here?” the officer replied. Id. “Okay,” McCumons said, before starting to drive

his car around the circle on which they were both parked. R.27-2, 123. The officer pulled his car

over into the tall grass. McCumons stopped near the car, rolled down the passenger window and told

Marougi that he had seen a police officer nearby (little did he know) and was going to leave, which

he did.

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No. 09-1844
McCumons v. Marougi

       The officer followed McCumons out of the park to a flea market. At the market, he arrested

McCumons, impounded his car and released him from custody after fifteen minutes. McCumons

was charged with violating MCL 750.448, which prohibits a person from “invit[ing]” another to

engage in “lewd” behavior. The police seized McCumons’ car under MCL 600.3801, which permits

the seizure of any “vehicle” used for “lewdness.” McCumons paid $785 to redeem the car, and a

state court eventually dismissed the solicitation charge.


       On March 18, 2008, McCumons filed this action against Officer Marougi in federal court,

claiming that Marougi violated his rights under the First, Fourth and Fourteenth Amendments of the

United States Constitution and state law (gross negligence) as well. Marougi filed a motion for

summary judgment on the federal claims, invoking qualified immunity.


       Of importance here, the district court determined that the subject of the conversation was

“lewd” within the meaning of the statute, but it concluded that McCumons did not “invite” Marougi

to do anything and that “it was not objectively reasonable to conclude that Plaintiff violated [MCL

750.448]”—at least at summary judgment. R.33, 10–11. The court thus denied qualified immunity

on McCumons’ Fourth Amendment claims arising from his arrest and from the seizure of the car.

Officer Marougi appeals.


                                                 II.


       The denial of a motion for summary judgment ordinarily presents “neither a final appealable

order nor an appealable interlocutory order.” Jefferson v. Lewis, 594 F.3d 454, 459 (6th Cir. 2010).

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No. 09-1844
McCumons v. Marougi

But the Supreme Court has long held that denials of motions for qualified immunity amount to final

orders under the collateral-order doctrine. See Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1946

(2009); Hunter v. Bryant, 502 U.S. 224, 228 (1991); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). So long as the qualified-immunity

appeal “presents a question of law and does not require us to resolve disputes of material facts,” and

so long as the defendant is “willing to concede the plaintiff’s version of the facts for the purposes

of the appeal,” we have jurisdiction over the appeal. Jefferson, 594 F.3d at 459. Officer Marougi

has done just that, see Marougi Reply Br. 1, and so we may proceed.


                                                 III.


       When a government official invokes qualified immunity in a § 1983 action, the claimant

must make two showings to overcome the defense: He must show that the officer’s conduct violated

a constitutional right, and he must show that the constitutional right in question was “clearly

established.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). McCumons plainly

satisfies the first requirement: Officer Marougi concedes that, in retrospect, he did not have probable

cause to arrest McCumons. At first blush, it might appear that McCumons just as plainly satisfies

the second requirement: No one doubts that “it is clearly established that arrest without probable

cause violates the Fourth Amendment.” Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007).

But it is not that simple. The second question turns not just on whether the legal right is “clearly

established” in the abstract but on whether the officer’s action, “assessed in light of the legal rules

that were ‘clearly established’ at the time it was taken,” was “objective[ly] . . . reasonable[].”

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No. 09-1844
McCumons v. Marougi

Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quotations omitted). “[R]easonable mistakes,”

the Supreme Court reminds us, “can be made as to the legal constraints” on police officers, and when

that is the case, “the officer is entitled to the immunity defense.” Saucier v. Katz, 533 U.S. 194, 205

(2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. __, 129 S.Ct. 808 (2009). The

key question, then, is: Did Officer Marougi make a “reasonable mistake” in concluding that he had

probable cause to arrest McCumons?


        We think not—at least under the facts alleged and supported by the claimant, McCumons.

The relevant Michigan law says: “A person sixteen years of age or older who accosts, solicits or

invites another person in a public place or in or from a building or vehicle, by word, gesture, or any

other means, to commit prostitution or to do any other lewd or immoral act, is guilty of a crime . . . .”

MCL 750.448. The provision thus permitted Officer Marougi to arrest McCumons if he reasonably

believed that McCumons “invite[d]” him to engage in lewd behavior.

        Here is how McCumons described the encounter in his deposition:

        I was sitting there and that’s when Marougi came around off of the circle and came
        by me.
            When he went by, he nodded and I nodded back. He pulled on ahead a little bit
        next to some of those cars then, so he was in that bunch of cars. . . . I pulled out and
        went around the opposite way and back around the circle, went down to the other part
        of the park . . . . Probably took maybe, I don’t know, seven, 10 minutes and
        Marougi’s vehicle came down, around the pond and then crossed in front of me
        where I was parked, and he looked again.
            He went back up toward the front of the park and I did not follow him at that
        time. . . . It is getting closer to where it’s time to go so I moved up and went back up
        into the hill in the secluded part of the park, I can’t tell you directions as to where,
        but up the hill as I’m going I notice that he parked at the top of the hill. . . .
            As he is parked on one side off on the side of the road, I come up and we are a
        distance apart but I am still on the road. I stopped and that is when I said hello.

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No. 09-1844
McCumons v. Marougi

R.27-2, 120–21. The two men then had this conversation:

       McCumons:     “Hello.”
       Officer:      “Hello.”
       McCumons:     “How are you doing?”
       Officer:      “Doing alright, how about you?”
       McCumons:     “I’m fine.”
       Officer:      “Well, what would make it a better day?”
       McCumons:     “I don’t know, what do you mean?”
       Officer:      “Well, you know what I mean.”
       ...
       Officer:      “Well, what’s going on?”
       McCumons:     “I don’t know, what’s up?”
       Officer:      “Well, what are you looking for?”
       McCumons:     “I don’t know.”
       ...
       Officer:      “You know, I like everything.”
       McCumons:     “What do you mean?”
       Officer:      “I like everything but ‘it.’ What do you like?”
       McCumons:     “It? What’s ‘it’?”
       Officer:      “You know. What do you like?”
       McCumons:     “I like everything.”
       ...
       Officer:      “I do oral.”
       McCumons:     “I don’t have anywhere we can go.”
       ...
       Officer:      “I got to go to work. You know how that is.”
       McCumons:     “Yeah, I do.”
       Officer:      “Let’s go back to the back.”
       McCumons:     “Where?”
       Officer:      “Come on, you can get in my truck. No one will see us.”
       McCumons:     “Let me think about it.”
       Officer:      “Well, I got to get going.”

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No. 09-1844
McCumons v. Marougi

       McCumons:        “Why? Are you horny?”
       Officer:         “Why do you think I’m here?”
       McCumons:        “Okay.”

R.27-2, 121–23; R.24 ¶¶ 19, 22. Followed by this interaction:

       So I started driving around because I got to come back around to go down the hill.
       . . . He quickly drives around towards the back also, going from the other way, and
       he drives off into the high grass. I’m not going to get into the high grass, so I keep
       going, I stop and I lean over and I roll down my passenger’s window and he comes
       up on an angle and I said I got to get going, I saw a police officer over there. . . .

       . . . At that point I said I got to get going and I drove away.

R.27-2, 124.


       On this record, if believed, it was Officer Marougi who “invited” McCumons to engage in

sexual behavior, not the other way around. It was Marougi who asked McCumons what would make

it a “better day.” It was Marougi who prompted McCumons by saying that he liked “everything but

it.” It was Marougi who said “I do oral.” And above all, it was Marougi who asked McCumons to

“go to the back.” How on this version of the facts could one say McCumons “invite[d]” Officer

Marougi to have sex in the park? It was Officer Marougi who did the soliciting. Perhaps

McCumons was amenable to the invitation, but even then he ultimately rejected it. A reasonable

officer could not think that McCumons made an invitation when he was the one invited and he was

the one who declined.


       Officer Marougi insists that, in the context of an invitation for a sexual liaison, we should

consider not just the words exchanged but the non-verbal setting in which they were uttered.



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McCumons v. Marougi

Gestures, facial expressions, tone of voice and other contextual clues, he adds, might cast a different

light on the conversation. Marougi is right, and indeed the statute refers to invitations made through

“word, gesture or any other means.” MCL 750.448. But Marougi has only himself to blame for our

inability to take him up on this invitation. The summary judgment record does not contain any such

facts, and we may not assume their existence to the detriment of the nonmoving party. Had Officer

Marougi filed an affidavit to the effect that McCumons’ tone, body language, together with other

visual and verbal clues, signaled an invitation, and had McCumons not contradicted these

observations, that might be a different matter. But we cannot credit factual allegations never made

and we cannot draw inferences in favor of the officer and against the nonmoving party.


       The probable-cause determination was a close call, Officer Marougi adds, and accordingly

we must find his assessment to be reasonable. This is the nub of the matter, and it is the nub of our

reason for rejecting Marougi’s argument. This was not a close call. If McCumons’s account is

accurate, no reasonable officer could conclude that he had “invite[d]” the officer to have sex in the

park—when the officer made the sexual advances and when McCumons was merely receptive to

them. The statute covers people who invite others to have sex in the park, not those merely willing

to have sex in the park.


                                                 IV.


       In view of this conclusion, we can make quick work of Officer Marougi’s other contentions.

He argues that the district court improperly resolved factual disputes against him in ruling for


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No. 09-1844
McCumons v. Marougi

McCumons. But that is not how we read the opinion. Consistent with its duty at this phase of the

litigation, the court gave McCumons the benefit of all inferences in determining whether, as a matter

of law, Officer Marougi merely made a “reasonable mistake” in arresting him. Nothing in the

district court’s opinion (or for that matter ours) prohibits the jury from playing its time-honored

role—resolving the competing accounts of what happened at the park—and from then deciding

whether Marougi acted reasonably in arresting McCumons.


       Officer Marougi separately argues that the district court erred in denying his qualified

immunity defense on a different claim—for malicious prosecution—which McCumons included in

his amended complaint. But, again, we do not read the district court’s order that way. The court’s

decision responds to a motion filed before McCumons amended his complaint. To the extent the

court’s decision (briefly) mentions malicious prosecution cases, that is because they had some

bearing on the extant Fourth Amendment claim, not because the court addressed, much less resolved,

the merits of this freestanding (and later-filed) claim.


       Officer Marougi also challenges the district court’s rejection of his qualified immunity

defense with respect to McCumons’ freestanding First Amendment claim. Below and in their

appellate briefs, the parties (and the district court) appeared to treat this claim as the tail on

McCumons’ Fourth Amendment claim. If McCumons invited Marougi to have sex in the park, the

parties agreed, the First Amendment does not bar enforcement of the statute against McCumons.

But if McCumons made no such invitation, he argued, the First Amendment barred the police from

enforcing the statute against people who merely talk about having sex. The district court thought

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No. 09-1844
McCumons v. Marougi

that this last point was wrapped up in the material factual disputes that precluded resolution of the

Fourth Amendment claim as a matter of law, and as a result it rejected Marougi’s qualified immunity

defense to this claim as well.


       That may or may not be correct. The parties agree that the statute is constitutional if

McCumons made the requisite invitation, leaving McCumons to complain about the validity of the

statute only in the context of invitations never made. Neither Marougi nor the Pontiac Police

Department, however, has expressed any interest in enforcing the statute in that setting, prompting

us to wonder whether we have a live “case or controversy” on our hands. We need not resolve the

point today. In view of our ruling on the Fourth Amendment claim, Marougi must face a trial either

way (unless the parties settle). To the extent McCumons wishes to continue to pursue his First

Amendment claim, it is up to the parties and the district court to reconsider whether, even in light

of these fact disputes, this First Amendment claim is a cognizable one and whether it arises in the

context of a live dispute.


                                                 V.


       For these reasons, we affirm the district court’s rejection of Officer Marougi’s qualified

immunity defense to the Fourth Amendment claim.




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