                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0030n.06

                                             No. 09-5416
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                               Jan 19, 2010
                                FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk


TAWANA WILSON,                         )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE MIDDLE
                                       )                   DISTRICT OF TENNESSEE
BOYCE WILKINS,                         )
                                       )
                                                                   OPINION
      Defendant-Appellant,             )
                                       )
      and                              )
                                       )
METROPOLITAN GOVERNMENT                )
OF NASHVILLE AND DAVIDSON              )
COUNTY, TENNESSEE,                     )
                                       )
      Defendant.                       )
_______________________________________)


Before: KENNEDY, MOORE, and WHITE, Circuit Judges.

       WHITE, Circuit Judge. In this suit brought under 42 U.S.C. § 1983, Defendant Boyce

Wilkins (Wilkins), a police officer with former-Defendant Metropolitan Nashville Police

Department (MNPD), appeals the district court’s denial of his motion for summary judgment

brought on qualified immunity grounds.1 We affirm.




       1
        This court has jurisdiction over a district court’s denial of a claim of qualified immunity
provided it presents a pure issue of law; it is then regarded as an appealable final decision within the
meaning of 28 U.S.C. § 1291. Johnson v. Jones, 515 U.S. 304, 313, 317 (1995); Morrison v. Board
of Trustees of Green Tp., 583 F.3d 394, 399 (6th Cir. 2009).
No. 09-5416
Wilson v. Wilkins

                                                 I.

       Plaintiff Tawana Wilson (Wilson) called the MNPD on December 24, 2006, after she and

her husband, Timothy Wilson, had a domestic dispute. The MNPD declined to intervene. On

December 28, 2006, Wilson again called the MNPD and reported that her husband had grabbed her

around the neck and shoved her against a wall. Two male MNPD officers, Wade and Smith,

responded. Wilson told them that she just wanted her husband to leave, to give her some “space.”

Shortly after, Defendant Officer Wilkins arrived. Officer Wilkins repeatedly urged Wilson to have

her husband arrested. Wilson told Officer Wilkins that she did not want her husband arrested, but

Officer Wilkins persisted, and Wilson eventually agreed.

       Officer Smith informed Wilson that her husband would be taken “downtown” to appear at

night court. Wilson wanted to drive her own vehicle, but Officer Wilkins insisted that she ride with

him, and asked that she sit in the front seat. She did so. Because Wilson had lived in the area for

most of her life, she knew the three quickest routes to get downtown. Officer Wilkins passed the

shortest route downtown, and then passed the second route. During the drive, Officer Wilkins

rubbed and caressed Wilson’s hand three times, looked at her seductively, told her she was beautiful,

and said he wanted to date her. The first time Officer Wilkins caressed Wilson’s hand, Wilson

thought he was just being sympathetic, because she had cried in response to his inquiring what had

happened with her husband. The second and third touchings occurred after Wilson had stopped

crying, and Wilson considered them offensive and became scared.

       After passing the two most direct routes downtown, Wilkins continued driving north, away

from downtown. Although there was a third route available (I-65) in the direction Wilkins was

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Wilson v. Wilkins

driving, Wilson did not think Wilkins would drive that far north just to go downtown. Wilson did

not believe Wilkins was taking her to the police station and, at a point when the police vehicle

slowed, she unbuckled her seat belt and opened the passenger door. Officer Wilkins grabbed her

sleeve, but Wilson was able to jump out of the police vehicle and run toward a motel, screaming.

       After Wilson jumped from Wilkins’s police vehicle and screamed at passers-by for help,

Wilkins called for backup, requesting a female officer. Officer Angela Booker, whom Wilson knew,

responded to the scene, and Wilson told her something to the effect that Officer Wilkins was trying

to rape her.

       Wilson brought suit in Tennessee circuit court asserting claims under 42 U.S.C. § 1983,

alleging Officer Wilkins’s conduct violated the Fourth and Fourteenth Amendments, as well as state

statutory claims of assault and official misconduct and common law assault and battery.2 Wilson

alleged that because of the incident, one of her vocal chords was damaged, did not respond to

treatment and would require corrective surgery. Defendants removed the case to the United States

District Court.

                                                 A

       Officer Wilkins moved for summary judgment, asserting inter alia that Wilson failed to state

a claim under the Fourth Amendment because she was not “seized,” and that she failed to state a

claim under the Fourteenth Amendment because his conduct would not “shock the conscience” for

purposes of the Fourteenth Amendment. Wilkins also asserted that even if a constitutional violation



       2
           Wilkins does not appeal the denial of summary judgment as to Wilson’s state law claims.

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No. 09-5416
Wilson v. Wilkins

occurred, he is entitled to qualified immunity because there was no clearly established right at the

time of the incident that would have informed him that he was violating the Constitution.

        The district court denied Wilkins’s motion. It analyzed Wilson’s claims under the Fourth

Amendment, found that a reasonable jury could conclude that Wilson had been “seized,” indicated

that the clearly established right violated was Wilson’s constitutional right not to have her physical

freedom impinged by a state actor, and found that Wilkins’s actions were not objectively reasonable:

                * * * even assuming that Plaintiff “voluntarily” entered Officer Wilkins’
        patrol car, a reasonable jury could readily conclude that she was seized. Construed
        in her favor, the facts show that once Plaintiff was in the vehicle, she was captive in
        a moving police vehicle. While being so held, Officer Wilkins chose not to drive
        directly downtown, but chose instead to make untoward comments and to touch the
        Plaintiff in an offensive manner.

                The Court also rejects Officer Wilkins’ suggestion that the rights allegedly
        violated were not clearly established. Mendenhall[3] was decided in 1980 and
        Graham[4] was decided in 1989. Moreover, in the landmark decision of Terry v.
        Ohio, 392 U.S. 1, 16 (1968) decided in 1968, the Supreme Court held that
        “[w]henever a police officer accosts an individual and restrains his freedom to walk
        away, he has ‘seized’ that person.”

                Moreover, Officer Wilkins’ actions were not objectively reasonable. Having
        insisted that Plaintiff ride with him, Officer Wilkins should have merely driven
        Plaintiff, a victim of a crime, downtown. He should not have detoured and made
        untoward advances.

                                                   II.

        Qualified immunity is generally available for “government officials performing discretionary

functions . . . insofar as their conduct does not violate clearly established statutory or constitutional


        3
            United States v. Mendenhall, 446 U.S. 544 (1980).
        4
            Graham v. Connor, 490 U.S. 386 (1989).

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No. 09-5416
Wilson v. Wilkins

rights of which a reasonable person would have known.” Slusher v. Carson, 540 F.3d 449, 453 (6th

Cir. 2008). The plaintiff bears the ultimate burden of demonstrating that the defendant is not entitled

to qualified immunity. Baker v. City of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006). The district

court must consider the undisputed evidence produced as a result of discovery, viewed in the light

most favorable to the non-moving party. Poe v. Hayden, 853 F.2d 418, 425 (6th Cir. 1998). A court

required to rule on the qualified immunity issue must consider whether the facts alleged show the

officer’s conduct violated a constitutional right and whether that constitutional right was clearly

established. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v.

Callahan, 129 S. Ct. 808 (2009). “The judges of the district courts and courts of appeals should be

permitted to exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” Pearson, 129 S. Ct. at 818. This court reviews the district court’s denial of qualified

immunity de novo. Carver v. City of Cincinnati, 474 F.3d 283, 285 (6th Cir. 2007).

        A constitutional right is clearly established if “it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “The contours

of the [constitutional] right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006)

(internal quotation marks omitted). “This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “[O]fficials can still be on notice that their conduct violates

established law [even] in novel factual circumstances.” Safford Unified Sch. Dist. v. Redding, 129

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No. 09-5416
Wilson v. Wilkins

S. Ct. 2633, 2643 (2009) (internal quotation marks omitted). “In determining whether a reasonable

officer would have known that his conduct was unlawful, this Court looks first to the precedents of

the Supreme Court, then to case law from this circuit, and finally to decisions from other circuits.”

Humphrey v. Mabry, 482 F.3d 840, 852 (6th Cir. 2007).

                                                   A

       We agree with the district court that Wilson’s claims are properly analyzed under the Fourth,

rather than Fourteenth, Amendment. The district court correctly noted in this regard:

                Plaintiff sues for both Fourth and Fourteenth Amendment violations pursuant
       to 42 U.S.C. 1983. However, where a plaintiff complains of an “unreasonable search
       and seizure,” the claim is more properly analyzed under the Fourth Amendment than
       the substantive due process provision of the Fourteenth Amendment, since the former
       is a “more explicit textual source of constitutional protection.” Graham v. Connor,
       490 U.S. 386, 395 (1989). Given the explicit protections afforded by the Fourth
       Amendment, a plaintiff cannot “also proceed with a claim under the ‘more
       generalized notion of substantive due process.’” Wilson v. Collins, 517 F.3d 421, 428
       (6th Cir. 2008) (citing, Graham, 490 U.S. at 395); see United States v. Lanier, 520
       U.S. 259, 272 [n.7] (1996) (“Graham simply requires that if a constitutional claim is
       covered by a specific constitutional provision, such as the Fourth or Eighth
       Amendment, the claim must be analyzed under the standard appropriate to that
       specific provision, not under the rubric of substantive due process”). . . . [5]

                                                   B




       5
         See also Phelps v. Coy, 286 F.3d 295, 299-300 (6th Cir. 2002) (“Which amendment applies
depends on the status of the plaintiff at the time of the incident, whether free citizen, convicted
prisoner, or something in between. . . . If the plaintiff was a free person . . . and the use of force
occurred in the course of an arrest or other seizure . . . [then] the plaintiff’s claim arises under the
Fourth Amendment and its reasonableness standard. . . . [I]f a plaintiff is not in a situation where his
rights are governed by the particular provisions of the Fourth or Eighth Amendments, the more
generally applicable due process clause of the Fourteenth Amendment still provides the individual
some protection against physical abuse by officials.” Internal citations omitted.)

                                                   6
No. 09-5416
Wilson v. Wilkins

       Next, we must determine whether Wilson alleged sufficient facts and produced evidence to

demonstrate a “seizure” under the Fourth Amendment and, if so, whether any such seizure could be

considered constitutionally unreasonable. See Slusher, 540 F.3d at 454. We review de novo the

district court’s holding that Wilkins’s touchings and remarks of a sexual nature to Wilson while she

was in a moving vehicle under Wilkins’s control, during a ride he extended by taking a circuitous

route to police headquarters, constituted a “show of authority.” See Graham v. Connor, 490 U.S.

386 (1989). The circumstances that led Wilson to ride with Officer Wilkins were that Wilkins

repeatedly urged Wilson to have her husband arrested. Although Wilson told Officer Wilkins that

she did not want her husband arrested, Wilkins persisted, and Wilson eventually agreed. Wilson

wanted to drive her own vehicle downtown, where her husband was being taken, but Officer Wilkins

insisted that she ride with him, and asked that she sit in the front seat. Once captive in Wilkins’s

moving police vehicle, Wilkins touched and caressed Wilson’s hand several times, and told her he

wanted to date her.

       The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . .

against unreasonable searches and seizures.” U.S. CONST . amend. IV. “A ‘seizure’ triggering the

Fourth Amendment’s protections occurs only when government actors have, by means of physical

force or show of authority, in some way restrained the liberty of a citizen.” Slusher, 540 F.3d at 454

(quoting Graham, 490 U.S. at 395 n.10); see also Terry v. Ohio, 392 U.S. 1, 16 (1968) (“whenever

a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that

person.”).



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No. 09-5416
Wilson v. Wilkins

                [A] person has been “seized” within the meaning of the Fourth Amendment
       only if, in view of all the circumstances surrounding the incident, a reasonable person
       would have believed that he was not free to leave. Examples of circumstances that
       might indicate a seizure, even where the person did not attempt to leave, would be
       the threatening presence of several officers, the display of a weapon by an officer,
       some physical touching of the person of the citizen, or the use of language or tone of
       voice indicating that compliance with the officer’s request might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980) (citations and footnote omitted) . On the

other hand, “not every governmental interference with an individual’s freedom of movement raises

such constitutional concerns that there is a seizure of the person.” Skinner v. Ry. Labor Executives’

Ass’n, 489 U.S. 602, 618 (1989).

                                                  C

       Analyzing the incident in temporal segments,6 Wilkins asserts that the district court erred in

holding that he seized Wilson during what he classifies as the third time segment – when he touched

her hand and made untoward comments to her. We disagree.

       We review de novo the district court’s holding that a seizure occurred. United States v.

Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). Whether a seizure occurred depends on the

circumstances. Mendenhall, 446 U.S. at 554. We reject Wilkins’ characterization of the district

court’s conclusion that a seizure occurred as resting only on the touchings and concomitant



       6
         Wilkins splits the incident into three segments, the first being Wilson’s voluntarily sitting
in the front seat of Wilkins’s patrol car to be transported to police headquarters. He asserts no
seizure occurred, as there was no evidence that Wilson was under arrest, handcuffed, or locked in
the back of the patrol car. Wilkins isolates a second segment, contending that he did not seize
Wilson when he failed to travel by what she believed to be the best route to police headquarters. In
any event, whether analyzed in time segments or more broadly, we still arrive at the conclusion that
Wilson’s allegations support that she was seized.

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No. 09-5416
Wilson v. Wilkins

comments. The court’s opinion noted that a physical touching is a circumstance that might indicate

a seizure, and that in Slusher7 this court concluded that the plaintiff had been seized when a police

officer grabbed her hand. Beyond that, we think it clear that the district court’s determination that



       7
         Among the cases the district court relied on was Slusher, 540 F.3d 449. In Slusher, two
deputies were at the Slushers’ property to recover equipment that had been hidden on the property.
The deputies allowed the plaintiff, Linda Slusher, to review their court order. When the deputies
asked Slusher to hand over the court order, she said she had not finished reading it. One of the
deputies said she had had sufficient time and directed her to hand it over to him. The deputy reached
for the order, Slusher retracted her hand holding the order and asked if she could make a copy of it
inside her house. The deputy again attempted to retrieve the order and in the process pulled
Slusher’s arm down with one hand and used his other hand to grab her right hand. Slusher claimed
she was injured as a result, and brought suit under 42 U.S.C. § 1983, alleging a Fourth Amendment
violation due to excessive force. The defendant deputies moved for summary judgment, claiming
entitlement to qualified immunity. The district court granted the defendants summary judgment,
analyzing Slusher’s claim under the Fourteenth Amendment and concluding there was no
constitutional violation. 540 F.3d at 458 (Ryan, J., concurring).

This court concluded that Slusher had articulated sufficient facts that would allow a jury to conclude
she was “seized” when she was physically grabbed by one of the deputies:
       [A]t a minimum, Slusher’s liberty was restrained when Deputy Carson grabbed her
       right hand as she certainly was not “at liberty to ignore the police presence and go
       about [her] business.” Kaupp v. Texas, 538 U.S. 626, 629, 123 S. Ct. 1843, 155 L.
       Ed. 2d 814 (2003) (concluding that a seizure takes place for purposes of the Fourth
       Amendment when “taking into account all of the circumstances surrounding the
       encounter, the police conduct would ‘have communicated to a reasonable person that
       he was not at liberty to ignore the police presence and go about his business.’ ”
       (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389
       (1991)); see also Hodari D., 499 U.S. at 625, 111 S. Ct. 1547 (“[A]n arrest is
       effected by the slightest application of physical force.”) . . . .

Slusher, 540 F.3d at 454-55. This court affirmed the grant of summary judgment on the ground that
the seizure was not unreasonable: “once Slusher became agitated and pulled the order away from
[deputy] Carson, it was reasonable for the officers to conclude that a brief show of force might be
necessary to ensure she complied with their orders.” Id. at 456. This court also concluded that
Slusher had not alleged facts that supported a finding that the officers used more force than was
necessary. Id.

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No. 09-5416
Wilson v. Wilkins

a seizure occurred was a contextual one – Wilson’s being “captive” in a “moving police vehicle”

which was under Wilkins’s control. Wilkins asserts that even if this court finds that he seized

Wilson, there was no clearly established law that would have told him that his conduct under these

circumstances – however inappropriate it may have been – violated the Fourth Amendment.

                                                 D

       The district court noted that Mendenhall was decided in 1980 and Graham in 1989. Under

Mendenhall, a seizure occurs when “in view of all the circumstances surrounding the incident, a

reasonable person would have believed that [s]he was not free to leave.” 446 U.S. at 554. Under

Graham, a seizure triggering the Fourth Amendment’s protections occurs when a government actor

in some way restrained the liberty of a citizen by means of physical force or show of authority. 490

U.S. at 395 n.10.

       Under the cases the district court relied on, the right of Wilson’s infringed – to be free from

having her liberty impinged by a state actor exerting authority over her – was clearly established in

December 2006 when this incident occurred. When considering whether qualified immunity applies,

“[p]re-existing law need not address the very question at hand; rather, ‘[t]he contours of the right

must be sufficiently clear.’” Logsdon v. Hains, 492 F.3d 334, 343 (6th Cir. 2007) (quoting Center

for Bio-Ethical Reform v. City of Springboro, 477 F.3d 807, 830 (6th Cir. 2007).

       The remaining question is whether Wilson alleged sufficient facts and supported the

allegations by sufficient evidence to indicate that what Wilkins allegedly did was objectively

unreasonable in light of the clearly established constitutional right. Dickerson v. McClellan, 101

F.3d 1151, 1158 (6th Cir. 1996). The district court concluded that Wilkins’s actions were “not

                                                 10
No. 09-5416
Wilson v. Wilkins

objectively reasonable. Having insisted that Plaintiff ride with him, Officer Wilkins should have

merely driven Plaintiff, a victim of a crime, downtown. He should not have detoured and made

untoward advances.” Viewing the facts in a light most favorable to plaintiff, we agree. A reasonable

officer would have known that he was not free to make sexual overtures and repeatedly touch a

citizen in his control in a moving vehicle.

       AFFIRMED.




                                                11
