               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0806n.06
                          Filed: November 2, 2006

                                          No. 05-2245

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


RONALD JERNIGAN, JR.; TIMOTHY                   )
ROBERT SMITH; CHARLES BERNARD                   )
PERRYMAN,                                       )
                                                )
       Plaintiffs-Appellees,                    )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
CITY OF ROYAL OAK; ROYAL OAK                    )   EASTERN DISTRICT OF MICHIGAN
POLICE DEPARTMENT; J. BALLINGER;                )
R. MILLARD; M. MURRAY; J. STEHLIN;              )
K. SPENCER; S. TEICHOW; R.                      )
SPELLMAN,                                       )
                                                )
       Defendants-Appellants,                   )
                                                )
WOODY’S BAR AND GRILL, ET AL.,                  )
                                                )
       Defendants.


       Before: CLAY and SUTTON, Circuit Judges; and SHARP, District Judge.*


       SUTTON, Circuit Judge. Several material issues of fact preclude us from granting summary

judgment on qualified immunity grounds to the government defendants in this case. We affirm.

                                               I.




       *
        The Honorable Allen Sharp, United States District Judge for the Northern District of
Indiana, sitting by designation.
No. 05-2245
Jernigan v. Royal Oak


        While spending an evening at Woody’s Bar and Grill on July 5, 2002, Bobby Joe Phillips

realized that he could not find ninety dollars that he had brought with him to the bar. Fearing

repercussions from his wife, he entered the first-floor bathroom of the bar, tore his shirt and emerged

with the fiction that he had just been robbed. When employees of the bar learned of the alleged

robbery, they called 911 and began monitoring three suspects—Ronald Jernigan, Timothy Smith and

Charles Perryman. The Royal Oak Police Department (of Royal Oak, Michigan) dispatched several

officers to the bar. Upon their arrival, the officers were led to the second-floor bar where Jernigan,

Smith and Perryman were located. The officers placed the three men in handcuffs, led them

downstairs and outside of the bar, where each man was placed in the backseat of a separate police

car. About an hour after detaining the three men, the officers released them.


        This broad-brush description of the events of the evening papers over three topics that

became central features of the lawsuit that the three detainees eventually filed over their false arrest:

(1) Phillips’ interaction with the bar’s employees before the officers’ arrival; (2) the officers’ actions

before detaining Jernigan, Smith and Perryman and (3) the plaintiffs’ detention. Each topic deserves

more attention before turning to the issues raised on appeal.


        Phillips’ interaction with the bar’s employees before the officers’ arrival. In his deposition,

Phillips acknowledged that he had consumed five or six “Captain and Cokes” on the night in

question (perhaps a partial explanation for the “disappearance” of his money) and that he was drunk

when he concocted the robbery story. JA 186–87. After roughing himself up in the first-floor


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Jernigan v. Royal Oak


bathroom at around 12:30 a.m., he approached Joseph Ivy (the manager on duty) and told him, “I was

in the bathroom and a gentleman came and hit me from the back and I fell to the ground. I felt him

go in my pocket and then [he] exited the rest room.” JA 189. Phillips disclaimed ever seeing his

assailant’s face but described him as having “khaki shorts on, white socks, and . . . tennis shoes” and

“darker legs.” JA 187. Ivy and Jim Gibbons (a bouncer) led Phillips upstairs to the second-floor bar.

Gibbons pointed to the plaintiffs and asked, “[A]re those the gentlemen that did this?” JA 188.

Phillips never responded, and the police arrived shortly thereafter. Although Phillips acknowledged

later in his deposition that he may have told Ivy that two men, rather than one man, attacked him and

that he may have identified the race of his assailant(s) as black, he insists that he never identified the

plaintiffs as his attackers and that he did not want the police to be called.


        Ivy and Gibbons tell a different story. Ivy claims that he learned of the robbery when

Phillips’ wife accused him of letting three men attack her husband in the men’s restroom. In

response, Ivy found Phillips, noticed he had been drinking and asked him what had happened.

Phillips said that three men had robbed him in the restroom and that he could identify them by their

clothing and footwear. At this point, the stories diverge slightly. Ivy says that he, Gibbons and

Phillips looked around the bar for the assailants and that when Phillips saw the plaintiffs, he pointed

at them and insisted they had attacked him. Gibbons says that he and Ivy located the plaintiffs based

on Phillips’ description, then asked Phillips to confirm their identification. It “was definitely them,”

Phillips insisted, noting that even though he had not seen their faces he could tell it was them based



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No. 05-2245
Jernigan v. Royal Oak


on what they were wearing. JA 229–30. Ivy or Gibbons then called 911 (neither man can remember

who) to report the robbery.


        The officers’ actions before detaining Jernigan, Smith and Perryman. Officer Spellman

claims that the officers were dispatched to the bar to investigate a robbery. The dispatcher informed

the officers that two black male suspects had been located and remained on the premises. Upon their

arrival at about 1:30 a.m., Gibbons met the officers and related to them what had happened (as

described by Ivy’s and Gibbons’ version of events). Gibbons led the officers to the second floor

where they met Phillips and several other employees in the stairwell. Officer Spellman observed that

Phillips’ shirt was ripped and that he was somewhat red in the face. Phillips related what had

happened in the bathroom and informed the officers that the bar’s security had detained the men who

attacked him. Another bouncer, Tito Wallee, led Officers Spellman, Stehlin and Ballinger to the bar

and identified Jernigan, Smith and Perryman as the perpetrators.


        Ivy and Gibbons again tell a different story. Ivy says that he and Gibbons met the officers,

that he explained that “apparently [Phillips] got attacked” and that he told the officers he did not “see

why [Phillips] would lie to me about something like this.” JA 177. Ivy says that he and Gibbons

led the officers upstairs and identified Jernigan, Smith and Perryman. Gibbons says that Phillips

identified the suspects.


        Phillips, for his part, claims that he did not interact with the police until after they had

detained the plaintiffs and that he never identified the plaintiffs to the police as the people who had

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No. 05-2245
Jernigan v. Royal Oak


attacked him. Further complicating matters, the officers argued to the district court that “they had

no opportunity to initially question Mr. Phillips before investigating Plaintiffs” because “they were

not given any information as to the identity of the alleged victim . . . upon [their] arrival at the bar.”

2d D. Ct. Order at 2.


        The plaintiffs’ detention. Jernigan, Smith and Perryman were sitting at the second-floor bar

when the police arrived, blissfully ignorant of everything that had happened so far—under any of the

above chronicles of events. Ivy doubted the men had done “anything wrong because they didn’t

seem nervous or anything.” JA 178.


        According to Officer Spellman, the officers approached the three men as they were sitting

at the bar and asked them to come outside to answer some questions. Before leaving the bar, the

officers handcuffed each suspect. Jernigan initially refused to be led outside, and he continued to

challenge the officers verbally as they led him and his friends downstairs. Once outside, the officers

placed the men in separate police cars; Jernigan again initially refused but again ultimately

acquiesced. After placing the men in the police cars, Officers Ballinger and Spencer interviewed

Phillips while Officer Stehlin interviewed each plaintiff. After interviewing Phillips and about an

hour after arriving at the bar, the officers realized that none of the men matched his description of

the assailant(s), and the officers released the men.


        Jernigan, Smith and Perryman remember the evening quite differently. They insist that Smith

was apprehended first. Smith claims that the police approached him and immediately asked him to

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No. 05-2245
Jernigan v. Royal Oak


turn around for handcuffing without explanation. He was too shocked to respond and complied with

the officers’ request. Perryman and Jernigan approached an officer to ask why he had handcuffed

Smith. The officer did not answer Perryman when he asked the question; instead he inquired,

“You’re with him?” and placed him in handcuffs. App’ee Br. App’x § 11 at 8. Jernigan was then

handcuffed without any conversation. Smith and Perryman were largely quiet as the police led them

downstairs and into the police cars, but Jernigan repeatedly questioned why he was being detained.

He only remembers being told that the handcuffing was “for his safety” and to “shut the f*** up.”

App’ee Br. App’x § 10 at 29, 35. Perryman estimates they were in handcuffs for at least an hour.


       On November 19, 2002, Jernigan, Smith and Perryman filed a lawsuit against the City of

Royal Oak, the Royal Oak Police Department, several police officers, the bar and several employees

of the bar, alleging that their federal constitutional and state-law rights had been violated. The

district court dismissed several of the claims and dismissed the complaint against the City of Royal

Oak, the Royal Oak Police Department, the bar and the bar’s employees in its entirety. The court,

however, denied the individual officers’ motion for summary judgment with respect to the § 1983

claims premised on the officers’ illegal search and seizure and with respect to a state-law false-arrest

claim, holding that qualified immunity did not shield the officers from liability.


                                                  II.


       In reviewing the officers’ interlocutory appeal of the district court’s qualified-immunity

ruling, we consider “whether, on the facts alleged, a constitutional violation could be found.”

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No. 05-2245
Jernigan v. Royal Oak

Saucier v. Katz, 533 U.S. 194, 207 (2001). If so, we then ask “whether the law clearly established

that the officer’s conduct was unlawful in the circumstances of the case.” Id. at 201. On this record

we agree with the district court that the “Plaintiffs have shown sufficient facts to create a genuine

issue of material fact as to whether Defendant Officers are entitled to qualified immunity” on the

federal search-and-seizure claims and the state-law false-arrest claim. 1st D. Ct. Order at 12. We

see no reason to go beyond the thorough opinions of the district court explaining why the officers

are not entitled to qualified immunity at this stage in the case, save to emphasize three points.


       First, giving Jernigan, Smith and Perryman the benefit of the doubt on all inferences from

the facts and resolving all disputes of fact in their favor, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), they have shown that their detention lasted longer than a reasonable

investigatory stop and therefore must be supported by probable cause, not reasonable suspicion. An

investigatory stop, we have said, must be “reasonably related to the basis for the original intrusion.”

Smoak v. Hall, 460 F.3d 768, 781 (6th Cir. 2006) (internal quotation marks omitted); see also Terry

v. Ohio, 392 U.S. 1, 20 (1968) (An investigatory stop must be “reasonably related in scope to the

circumstances which justified the interference in the first place.”). “[T]he length of the detention,

the manner in which it is conducted, and the degree of force used” all go into the reasonableness

calculation. Smoak, 460 F.3d at 781.


       The plaintiffs’ version of the facts, together with several of Phillips’ statements, would

permit a reasonable jury to conclude that the stop was unreasonable in all three respects. The



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No. 05-2245
Jernigan v. Royal Oak

officers purported to detain the plaintiffs to determine whether they had robbed Phillips. Yet it took

the officers an hour to determine the startlingly obvious fact that the men had done nothing wrong.

Phillips was at the scene, and yet for reasons that remain unclear the officers did not ask Phillips to

identify the men before seizing them or even immediately after seizing them. Instead of taking

control of the three men and simply asking Phillips which one of the men (if any of them) robbed

him, they handcuffed them and placed them in the police cars. No reasonable explanation is given

for the handcuffing, as no one at the bar and none of the officers says that the men appeared in any

way to be armed, otherwise threatening or at risk of flight. And no reasonable explanation is given

for declining to ask Phillips to identify his attackers at the outset, even though Phillips was there and

himself wondered aloud what had prompted the officers to apprehend these three men.


        Second, a jury not only could conclude that the detention was unreasonable in its length,

manner and degree of force, but that probable cause also did not justify a full-blown arrest. Probable

cause requires officers to possess “reasonably trustworthy information . . . sufficient to warrant a

prudent man in believing that the [plaintiffs] had committed or [were] committing an offense,” Beck

v. Ohio, 379 U.S. 89, 91 (1964), a requirement that we review under the totality of the circumstances,

Illinois v. Gates, 462 U.S. 213, 238 (1983).


        As the officers see things, they not only had reasonable suspicion to stop the plaintiffs but

also had probable cause to arrest them. When they arrived at the bar that evening, they spoke to

Gibbons or Ivy (they do not know whom). One of these two employees said that they had spoken



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No. 05-2245
Jernigan v. Royal Oak

to the victim, and he had identified the plaintiffs as his assailants. On that basis alone, the officers

arrested the three men.


        There are two problems with this theory of probable cause. For one, there is good reason to

doubt whether these conversations took place. Phillips testified that he never identified the plaintiffs

as his assailants—whether to Gibbons, to Ivy, to the officers or to anyone else. Phillips testified that

he always told Gibbons, Ivy and others that there were only one or two assailants, not three. And

according to the plaintiffs’ version of the arrest, the officers did not approach all three of them and

arrest them, which is presumably what the officers would have done if they had been told that the

victim said all three of the men had robbed him. Instead, the officers approached Smith and

handcuffed him, then arrested Perryman and Jernigan only after they asked the officers why they had

arrested their friend. Rather than answer this straightforward question, one of the officers said to

Perryman, “You’re with him?” and placed him in handcuffs, and soon after that did the same to

Jernigan. Plaintiffs are entitled to ask a jury to resolve these inconsistencies, to determine who is

telling the truth.


        For another, even if Gibbons or Ivy did tell the officers that the victim had identified the

plaintiffs as his attackers, the officers offer no reasonable explanation for stopping there. They did

not ask the employee to recount his conversation with the victim. They did not ask the employee

who the victim was or how the victim knew these were the robbers: Did he see them face to face?

Did he see all three of them or just one or two of them? Nor of course did the officers—any of



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No. 05-2245
Jernigan v. Royal Oak

them—speak to the victim before handcuffing the three men. And most conspicuously, the officers

fail to explain why they did not simply detain the three suspects through a Terry stop, then ask the

victim to determine whether these three men had robbed him. All of this occurred to three men

whose behavior that evening, several employees commented, offered no indication that they had

done anything wrong.


        Police officers, no doubt, have a difficult job to do. And for that reason, we do well to give

them the benefit of the doubt in qualified-immunity cases and to appreciate that the probable cause

necessary to arrest a suspect does not require beyond-a-reasonable-doubt guilt, just “reasonably

trustworthy information . . . sufficient to warrant a prudent man in believing that the [plaintiffs] had

committed or [were] committing an offense.” Beck, 379 U.S. at 91. But whether it is a difficult job

or not, it remains a job, which consists at least of doing more than merely arriving at a bar and

arresting whomever an employee fingers as the villains, without inquiring into why and what that

person claims to know about the crime. A jury, in short, could reasonably conclude that while the

officers may have had reasonable suspicion to stop the plaintiffs, the stop exceeded the bounds of

a reasonable Terry stop and the officers did not have probable cause to arrest them.


        Third, because it is clearly established that officers need probable cause before arresting an

individual and searching him, we cannot grant qualified immunity based on the second Saucier

inquiry. See St. John v. Hickey, 411 F.3d 762, 770 (6th Cir. 2005) (holding that disputed issue of




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No. 05-2245
Jernigan v. Royal Oak

material fact regarding probable cause precluded the court from granting the officers qualified

immunity).


                                              III.


       For these reasons, we affirm.




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