                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0080p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                                          -
 DEVIN NAGALE MITCHELL and PRESTON D.

                                 Plaintiffs-Appellants, -
 CULPEPPER,
                                                          -
                                                          -
                                                              No. 04-2219

                                                          ,
             v.                                            >
                                                          -
                                                          -
                                                          -
 MARK BOELCKE, LENNY ROTHROCK, and DALE

                                                          -
 EASTON, individually and in their capacities as City

                                Defendants-Appellees. -
 of St. Joseph police officers,
                                                          -
                                                         N
                           Appeal from the United States District Court
                       for the Western District of Michigan at Kalamazoo.
                        No. 02-00106—Richard A. Enslen, District Judge.
                                   Argued: December 8, 2005
                               Decided and Filed: March 1, 2006
               Before: DAUGHTREY, GILMAN, and SUTTON, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Roosevelt Thomas, WESTRATE & THOMAS, Dowagiac, Michigan, for Appellants.
Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan, for Appellees.
ON BRIEF: Roosevelt Thomas, WESTRATE & THOMAS, Dowagiac, Michigan, for Appellants.
Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan, for Appellees.
                                       _________________
                                           OPINION
                                       _________________
        MARTHA CRAIG DAUGHTREY, Circuit Judge. In this civil rights action, filed under
42 U.S.C. § 1983, plaintiffs Devin Mitchell and Preston Culpepper appeal from the district court’s
denial of their motion for a new trial following a jury verdict in favor of defendants Mark Boelcke,
Dale Easton, and Lenny Rothrock. The plaintiffs assert that defendants Easton and Rothrock did
not have reasonable suspicion to detain them in connection with an investigation of a neighborhood
assault and robbery. They further claim that all three defendants engaged in selective law
enforcement when they charged only African-American suspects in connection with the incidents.
For the reasons set out below, we conclude that the district court erred in denying plaintiff
Culpepper’s motion for a new trial. In all other respects, however, the district court appropriately


                                                 1
No. 04-2219           Mitchell, et al. v. Boelcke, et al.                                        Page 2


resolved the issues before it. As a result, we affirm the judgment of the district court in part, reverse
in part, and remand for a new trial on Culpepper’s claim of detention without reasonable suspicion.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
        During the evening hours of June 13, 2000, while responding to a call for police assistance,
Officer Mark Boelcke of the Saint Joseph (Michigan) Police Department was flagged down by
Benjamin Tourney, who explained that he had been assaulted and robbed by a group of four or five
males, some black, some white, all wearing white T-shirts. Daniel Churchill, a witness to the crime
who was still at the scene, also informed Boelcke that he (Churchill) knew two of the assailants,
identifying them as Jamie Otis and Antonio Sherman. Boelcke then broadcast a request for
assistance in apprehending suspects, a request that was answered by Officers Easton and Rothrock.
        Patrolling the area near the crime scene, Easton observed three African-American males,
Devin Mitchell, Antonio Sherman, and Ted Palmer, and a white male, Jamie Otis, walking together
just a “few hundred feet” from the site of the assault and robbery. Although only one of the four
men, plaintiff Mitchell, was wearing a white T-shirt at the time, Easton immediately recognized
Palmer and Otis from previous encounters, knew where they lived, and found it unusual that they
were in the area where he found them. In light of the fact that Mitchell was wearing a white T-shirt;
that the group consisted of Otis, a white male, and three black males; that Otis and Sherman had
been identified by Churchill as among the assailants; and that they were in an area they did not
normally frequent, Easton detained the four men and brought them to the crime scene to “show them
to the victim.”
         Simultaneously, Officer Rothrock was patrolling an area a few blocks from the crime scene
in an effort to find suspects or witnesses and saw plaintiff Culpepper on the sidewalk in front of his
home. Despite the fact that Culpepper was wearing a faded blue T-shirt, not a white T-shirt,
Rothrock stopped and questioned Culpepper, who denied knowing anything about the robbery.
Because Culpepper was unwilling to get into Rothrock’s patrol car, Rothrock directed him to walk
to the crime scene. Culpepper complied. Rothrock later confirmed at trial that although Culpepper
was not in physical custody, he was detained at that time, i.e., not free to refuse the officer’s order.
        At the scene, Tourney positively identified all five of the men rounded up and presented by
the police as his attackers. The five suspects were then taken to the police station for questioning
before being released. Eventually, the charges brought against plaintiffs Mitchell and Culpepper
were dismissed, leading them to file suit against the police officers and the City of Saint Joseph,
alleging both selective enforcement of the law based on race and violations of the plaintiffs’ Fourth
Amendment rights to be free from unreasonable detention. The case proceeded to trial before a jury,
resulting in a verdict in favor of all defendants on all claims. The plaintiffs filed a timely motion
for a new trial. The motion was denied, and this appeal ensued.
                                          II. DISCUSSION
A. Review Of The Denial Of A Motion For A New Trial
        We review a district court’s denial of a motion for a new trial under the highly deferential
abuse-of-discretion standard. See Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th
Cir. 1994). “We will find an abuse of discretion only when [we have] ‘a definite and firm conviction
that the trial court committed a clear error of judgment.’” Id. (quoting Logan v. Dayton Hudson
Corp., 865 F.2d 789, 790 (6th Cir. 1989)).
       In pertinent part, Federal Rule of Civil Procedure 59(a) provides that new trial motions may
be granted, in an action involving a trial by jury, “for any of the reasons for which new trials have
heretofore been granted in actions at law in the courts of the United States.” Generally, this
No. 04-2219           Mitchell, et al. v. Boelcke, et al.                                        Page 3


provision has been interpreted to mean that a district court should grant a motion for new trial only
“when a jury has reached a ‘seriously erroneous result’ as evidenced by: (1) the verdict being
against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to
the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.”
Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045-46 (6th Cir. 1996). Here, plaintiffs Mitchell
and Culpepper contend that the jury’s verdict that the police had reasonable suspicion to detain them
for the assault and robbery of Benjamin Tourney was against the weight of the evidence. Mitchell
and Culpepper also maintain that the evidence adduced at trial in this matter clearly established
selective enforcement of the laws by the police against African-American suspects.
        Before assessing these claims, we note that the officers' sole defense to the Fourth
Amendment claims is that sufficient evidence supported the jury's conclusion that the officers had
"reasonable suspicion to detain" the plaintiffs. They have not attempted to justify the verdict on the
alternative ground that they were entitled to qualified immunity. Thus, the question "whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,"
Saucier v. Katz, 533 U.S. 194, 202 (2001), is not before us.
B. Reasonable Suspicion To Detain Plaintiff Mitchell
        In Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme Court held that law
enforcement officers may briefly detain an individual for investigative purposes on reasonable
suspicion that the suspect either has been or is about to be involved in some criminal activity. When
determining whether such “reasonable suspicion” is in fact present in any given situation, reviewing
courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining
officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States
v. Arvizu, 534 U.S. 266, 273 (2002) (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
         In this case, the jury, by its verdict, determined that Officer Easton had reasonable suspicion
of plaintiff Mitchell’s involvement in criminal acts that justified the officer’s brief detention of him.
Despite Mitchell’s arguments to the contrary, the evidence adduced at trial supports such a
conclusion. The jury obviously credited the testimony of Officer Boelcke that an eyewitness to the
crimes had identified Jamie Otis and Antonio Sherman as two of the men involved in the assault and
robbery. Boelcke also relayed to officers in the field that both black and white males were involved
in the crimes and that the suspects were wearing white T-shirts at the time of the beating and
robbery. While searching the immediate area in which the crime was committed, Easton happened
upon four young men, three of whom were African-American, one of whom was white. One of the
men was wearing a white T-shirt and another individual, Jamie Otis, was known to Easton and had
been identified as one of the assailants. Even though only Mitchell was dressed in a white T-shirt
at that time Easton saw the young men, these observations, coupled with the fact that Jamie Otis and
Ted Palmer, another member of the group that the officer knew, were not usually seen in that area
of town justified Easton’s suspicion that the men could have been involved in the criminal activity
under investigation and that a brief detention of them was warranted.
        “Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the
likelihood of criminal activity need not rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the evidence standard.” Id. (citations omitted).
In this case, the information known to Easton and the facts observed by him fell within these
parameters and justified the detention of plaintiff Mitchell. The district court did not abuse its
discretion in denying the plaintiff’s motion for a new trial based upon the allegation that the jury’s
verdict that Mitchell’s Fourth Amendment rights were not violated by the detention was against the
weight of the evidence.
No. 04-2219           Mitchell, et al. v. Boelcke, et al.                                           Page 4


C. Reasonable Suspicion To Detain Plaintiff Culpepper
        The fact that the jury’s verdict regarding Mitchell’s detention claim was supported by the
evidence adduced at trial does not, however, necessarily insulate the verdict against Culpepper from
challenge. In fact, Officer Rothrock’s detention of Culpepper was based upon no articulated facts
or observations other than that the officer knew Culpepper and, following the broadcast of the
robbers’ description, saw Culpepper in the general vicinity of the crime. But, at the time of that
observation, Culpepper was not in the company of any other individuals and was wearing a faded
blue, not a white, T-shirt. He was on the sidewalk in front of his house, which, according to his
mother, he had just left to go to a friend’s house on foot. Testifying at trial, Culpepper’s mother said
that she saw the initial conversation between Officer Rothrock and her son and heard Rothrock
direct him to go to the scene of the crime for identification purposes. She apparently tried to
persuade the officer that her son had not been involved in the robbery but was not successful.
        To assume that a young man lawfully walking on the sidewalk in front of his home and
dressed differently from the described assailants is somehow involved in the crime being
investigated stretches even the concept of a “hunch” beyond its breaking point. The record before
us on appeal contains absolutely no evidence to support the jury’s verdict that the police had a
“reasonable” suspicion that plaintiff Culpepper was involved in criminal activity at or before the
time of his detention. And, obviously, the defendants’ contention on appeal that Culpepper’s
subsequent identification at the scene supports the jury’s verdict begs the question – events that
occurred after the detention cannot retroactively be taken to justify it as reasonable. See, e.g.,
Radvansky v. City of Olmstead Falls, 395 F.3d 291, 302 (6th cir. 2005) (probable cause to arrest is
judged by examining facts and circumstances that existed “at that moment”); see also Garmon v.
Lumpkin County, 878 F.2d 1406, 1409 (11th Cir. 1989) (not even a subsequent indictment can
retroactively provide probable cause for an arrest that has already taken place).
        In the absence of any reasonable basis to support Culpepper’s detention by Officer Rothrock,
we conclude that the jury’s verdict was against the clear weight of the evidence. The district court’s
denial of plaintiff Culpepper’s motion for a new trial therefore constituted an abuse of discretion.
D. Selective Enforcement of Criminal Laws
        In a final appellate issue, the plaintiffs submit that the jury disregarded overwhelming
evidence that defendants Boelcke, Easton, and Rothrock engaged in selective law enforcement in
violation of the plaintiffs’ constitutional rights. According to the plaintiffs, Benjamin Tourney
identified a group of both black and white individuals who attacked and robbed him, but the
defendants chose to press criminal charges only against African-American individuals. Jamie Otis,
a white male, was detained by the police but was not formally charged with any criminal offense.
       We review selective enforcement claims “according to ordinary Equal Protection standards,
which require a petitioner to show both a discriminatory purpose and a discriminatory effect,”
Gardenshire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000), and apply a three-part test to determine
whether selective enforcement has indeed occurred:
        First, [an official] must single out a person belonging to an identifiable group, such
        as those of a particular race or religion, or a group exercising constitutional rights,
        for prosecution even though he has decided not to prosecute persons not belonging
        to that group in similar situations. Second, [the official] must initiate the prosecution
        with a discriminatory purpose. Finally, the prosecution must have a discriminatory
        effect on the group which the defendant belongs to.
Id. at 319.
No. 04-2219           Mitchell, et al. v. Boelcke, et al.                                       Page 5


        Without question, the plaintiffs, both African-Americans, have made a prima facie showing
that a similarly-situated white individual (Jamie Otis) was not prosecuted in this matter. They
cannot, however, point to any evidence indicating that the prosecution of them, but not of Otis, was
initiated with a discriminatory purpose. Officer Boelcke testified that Otis was first detained
because initially “Benjamin Tourney indicated that Jamie Otis struck him.” Later, however,
Tourney “admitted that Jamie Otis was [not] in position to strike him, he was behind him . . . .”
Thus, the different treatment of the plaintiffs and of Otis was not based on the race of the individuals
but rather on the circumstances of their alleged involvement in the criminal episode.
       Similarly, Officer Easton testified that he did not and still does not handle cases differently
based upon the race of the suspects. He stated, “There is no difference. I mean when you’re
handling a complaint, you handle the complaint, you don’t look at the color, you just look at the
people and talk to the people and the witnesses, get your information. There is no color.” Likewise,
Officer Rothrock testified that plaintiff Culpepper’s “race had nothing to do with” his arrest.
        The plaintiffs have offered no evidence of a discriminatory purpose in the defendants’ arrests
of Mitchell and Culpepper. The district court thus did not abuse its discretion in concluding that the
jury’s verdict on the selective enforcement claim was not unreasonable.
                                           CONCLUSION
        In order to prevail on appeal, the plaintiffs must establish that the district court abused its
discretion by concluding that the jury’s verdicts were not against the weight of the evidence. They
have failed to meet this onerous burden in connection with their claims of selective enforcement.
Plaintiff Devin Mitchell has likewise failed to establish an abuse of discretion with regard to his
motion for a new trial on his Fourth Amendment claim. We conclude, however, that the weight of
the evidence adduced at trial is against the jury’s verdict finding that defendant Rothrock acted
reasonably in detaining plaintiff Culpepper, in the absence of any basis for concluding that
Culpepper had engaged in the criminal activity under investigation.
    We therefore AFFIRM the judgment of the district court in part, REVERSE in part, and
REMAND for a new trial on plaintiff Culpepper’s Fourth Amendment claim.
