                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0165p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                          Plaintiff-Appellant, -
 BEVERLY NETTLES-NICKERSON,
                                                 -
                                                 -
                                                 -
                                                     No. 11-1253
          v.
                                                 ,
                                                  >
                                                 -
                                                 -
 JOHN FREE; ANDREW MCCREADY; GREGORY

                       Defendants-Appellees. -
 HARRIS,
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
               No. 1:10-cv-281—Robert J. Jonker, District Judge.
                              Decided and Filed: June 1, 2012
Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge.*

                                      _________________

                                           COUNSEL
ON BRIEF: Andrew Patrick Abood, ABOOD LAW FIRM, East Lansing, Michigan,
for Appellant. Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for
Appellees.
                                      _________________

                                            OPINION
                                      _________________

        ROGERS, Circuit Judge. Plaintiff Beverly Nettles-Nickerson was arrested after
police officers found her intoxicated, sitting in the driver’s seat of her running, but
legally parked, Hummer. Nettles-Nickerson was charged with operating a vehicle while
intoxicated, but the state trial court dismissed her case after it concluded that she was not
“operating” her Hummer as that term is defined under Michigan law. Nettles-Nickerson


        *
           The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                  1
No. 11-1253        Nettles-Nickerson v. Free, et al.                                Page 2


then sued her arresting officers in federal court, arguing, among other things, that they
unconstitutionally detained her without reasonable suspicion and arrested her without
probable cause. The district court, however, held that the officers had qualified
immunity. Nettles-Nickerson now appeals that ruling. Since there was a reasonable
basis to believe that Nettles-Nickerson was operating her Hummer while intoxicated, and
was therefore violating Michigan law, the district court properly determined that the
officers had qualified immunity.

        On the evening of May 8, 2009, Nettles-Nickerson visited the Tap Room, a
neighborhood bar in Okemos, Michigan. Although it is unclear how much alcohol she
consumed there, Nettles-Nickerson does not dispute that she was too impaired to drive
home. After paying her check, Nettles-Nickerson grabbed her carry-out container and
left the bar. David Williams, another Tap Room customer who was dining on the
outdoor patio, saw Nettles-Nickerson walking in a zig-zag motion through the parking
lot toward her car, lose her footing, and fall to the ground. According to Williams,
Nettles-Nickerson got up, stumbled to her Hummer, opened the driver’s side door, got
into the driver’s seat, and started the car. Williams also saw the car’s tail lights come
on and brake lights illuminate. Believing that it was not in anyone’s interest for Nettles-
Nickerson to be driving, Williams called 9-1-1 and told the dispatcher about the
situation.

        Police Officers John Free, Andrew McCready, and Gregory Harris arrived on the
scene, and Williams directed Officer Free to the Hummer. Officer Free approached the
car, which he noticed was running but still in park, and saw Nettles-Nickerson sitting in
the driver’s seat. Officer Free announced his presence and, although Nettles-Nickerson
initially appeared to be sleeping, she immediately opened her eyes and made eye contact.
Officer Free observed that Nettles-Nickerson’s eyes were watery and bloodshot and that
she smelled of intoxicants. Officer Free then asked Nettles-Nickerson to step out of her
car and perform a variety of field sobriety tests, and she complied. According to Officer
Free, Nettles-Nickerson could not correctly recite the entire alphabet and had difficulty
maintaining her balance during a simple walk-and-turn test.            Officer Free then
No. 11-1253        Nettles-Nickerson v. Free, et al.                                Page 3


administered two preliminary breath tests (PBTs), but both failed to register. Officer
Harris administered a third PBT, which revealed that Nettles-Nickerson had a blood
alcohol content of 0.165, well over the legal limit. After consulting with his fellow
officers, Officer Free arrested Nettles-Nickerson, without a warrant, for operating a
vehicle while intoxicated in violation of MICH. COMP. LAWS § 257.625.

       The state trial court, however, dismissed the charge, finding that Nettles-
Nickerson was not “operating” her Hummer as that term is defined under Michigan law.
The Michigan Department of State made a similar finding in Nettles-Nickerson’s license
restoration proceedings. Accordingly, Nettles-Nickerson’s criminal case was closed and
her license was not suspended.

       Unsatisfied, Nettles-Nickerson sued Officers Free, McCready, and Harris in
federal court.    Nettles-Nickerson argued, among other things, that the officers
unconstitutionally detained her without reasonable suspicion and arrested her without
probable cause. The district court, however, granted the officers’ motion for summary
judgment, holding that they were entitled to qualified immunity because Nettles-
Nickerson did not have “a clearly established constitutional right to be free from
detention and eventual arrest while sitting, intoxicated, in the driver’s seat of a running
vehicle that is legally parked.” The district court determined that a reasonable officer
could have concluded that Nettles-Nickerson was “operating” her Hummer as that term
is statutorily defined. The district court also reasoned that while Michigan case law
could be read to reach a different conclusion, the case law was sufficiently unclear to
allow a reasonable officer to believe that Nettles-Nickerson was “operating” her vehicle.
Nettles-Nickerson now appeals that ruling.

       Officers Free, McCready, and Harris are entitled to qualified immunity because
it would not have been clear to a reasonable police officer that detaining and arresting
Nettles-Nickerson was unlawful.         Qualified immunity is warranted even if a
constitutional violation has occurred if the right violated was not clearly established,
Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier
v. Katz, 533 U.S. 194, 201 (2001)), and this court may proceed directly to that inquiry
No. 11-1253         Nettles-Nickerson v. Free, et al.                                 Page 4


in appropriate cases. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004). Even if we assume that
the police lacked probable cause to arrest Nettles-Nickerson under Michigan law,
Officers Free, McCready, and Harris were nonetheless entitled to qualified immunity
because there was a reasonable basis to believe that Nettles-Nickerson was operating her
Hummer while intoxicated and was therefore violating Michigan law.

        Michigan makes it a crime for a person who is intoxicated to “operate a vehicle
upon a highway or other place open to the general public or generally accessible to
motor vehicles, including an area designated for the parking of vehicles.” MICH. COMP.
LAWS § 257.625(1). Since there is no dispute that Nettles-Nickerson was intoxicated,
the only question is whether she was “operating” her Hummer. Michigan’s legislature
defined “operating” as “being in actual physical control of a vehicle.” MICH. COMP.
LAWS § 257.35a. Here, a reasonable officer could have concluded that Nettles-
Nickerson was in actual physical control of her Hummer. She had opened the driver’s
side door, gotten into the driver’s seat, started the car, turned the tail lights on, and
pressed the brake pedal, and she sat behind the steering wheel while the vehicle was
running. Moreover, no one else was in the car and nothing impeded Nettles-Nickerson’s
ability to move the car. Since a reasonable officer relying on the plain language of the
relevant statute could have concluded that Nettles-Nickerson was operating her Hummer
while intoxicated, the district court properly determined that Officers Free, McCready,
and Harris were entitled to qualified immunity.

        It is true that prior to 1995, the Michigan Supreme Court had held that “a person
sleeping in a motionless car cannot be held to be presently operating a vehicle while
sleeping.” People v. Pomeroy, 355 N.W.2d 98, 99 (Mich. 1984). In People v. Wood,
however, the Michigan Supreme Court explicitly overruled this broad holding, and on
the contrary held that “operating” should be defined such that “[o]nce a person using a
motor vehicle as a motor vehicle has put the vehicle . . . in a position posing a significant
No. 11-1253         Nettles-Nickerson v. Free, et al.                               Page 5


risk of causing a collision, such a person continues to operate it until the vehicle is
returned to a position posing no such risk.” 538 N.W.2d 351, 353 (Mich. 1995). The
court applied the definition to include the defendant in Wood. In that case,

        police officers found Wood unconscious in his van at a McDonald’s
        drive-through window . . . . Wood was slumped forward, with his head
        resting on the steering wheel. The vehicle’s engine was running, and the
        automatic transmission was in drive. Wood’s foot, which rested on the
        brake pedal, kept the vehicle from moving. Wood had a twenty-dollar bill
        in his hand, and a Budweiser beer between his legs. He smelled of
        alcohol and, when the police awakened him, appeared confused.

Id. at 352.

        It was perfectly reasonable for a police officer fully familiar with this precedent
to arrest Nettles-Nickerson. By getting into the driver’s seat of her Hummer, starting the
car, turning the tail lights on, pressing the brake pedal, and being able, at any moment,
to drive away, Nettles-Nickerson had put her Hummer in a position posing a significant
risk of causing a collision.

        To be sure, an argument could be made that Wood was distinguishable because
Nettles-Nickelson’s car was parked in a legal parking space, and may not have just been
driven while she was intoxicated. Such an argument apparently persuaded the state trial
court to dismiss Nettles-Nickerson’s criminal case and the Michigan Department of State
to refuse to suspend her driver’s license. Indeed, some subsequent unpublished
decisions by the intermediate Michigan appellate courts provide some support for the
distinction. People v. Burton, 651 N.W.2d 143 (Mich. Ct. App. 2002); People v. Andres,
No. 258280 2006 WL 448811 (Mich. Ct. App. Feb. 23, 2006). Those cases, however,
were themselves distinguishable from Nettles-Nickerson’s case.            In Burton, the
defendant was asleep and the officers had some difficulty waking him after they found
him parked in a golf course parking lot in the middle of the night. Burton, 651 N.W.2d
at 145. And in Andres, the vehicle involved was not even running. Andres, 2006 WL
448811, at *1.
No. 11-1253           Nettles-Nickerson v. Free, et al.                                         Page 6


         Reasonable lawyers’ arguments could be made either way as to whether Nettles-
Nickerson’s situation was closer to that in the Michigan Supreme Court case of Wood
or that of the two court of appeals cases.1 Under well-recognized principles of qualified
official immunity, the police officers cannot be required to pay damages merely because
they anticipated the law incorrectly. Instead, the law must be clearly established before
there can be such liability. See Pearson, 555 U.S. at 232; Anderson v. Creighton,
483 U.S. 635, 640 (1987). The requirement that the law must be clearly established
extends as well to state law where one interpretation of a state law is necessary to
establish a federal constitutional violation. See King v. Ambs, 519 F.3d 607, 612-13
(6th Cir. 2008); Nails v. Riggs, 195 F. App’x 303, 311-12 (6th Cir. 2006). In this case,
moreover, the police officers commendably consulted with each other before executing
the arrest. This is a paradigm case for qualified official immunity.

         The judgment of the district court is affirmed.




         1
          Indeed, in a case decided after Nettles-Nickerson’s arrest, the Michigan Court of Appeals held
that a vehicle was operated where the automobile was put in gear, but was legally parked and had not
moved. See People v. Longeway, No. 300493 2012 WL 933597 (Mich. Ct. App. March 20, 2012).
