                           File Name: 11a0426n.06
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 10-1906

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                       FILED
SHARMEL THORNTON, Next Friend of KT, BB,                   )
BB and RB, minors; KT, a minor, by Next Friend             )                      Jun 28, 2011
Sharmel Thornton; BB, a minor, by Next Friend              )
                                                                            LEONARD GREEN, Clerk
Sharmel Thornton; BB, a minor, by Next Friend              )
Sharmel Thornton; RB, a minor, by Next Friend              )
Sharmel Thornton,                                          )
                                                           )
       Plaintiffs-Appellees,                               )        ON APPEAL FROM THE
                                                           )        UNITED STATES DISTRICT
               v.                                          )        COURT FOR THE EASTERN
                                                           )        DISTRICT OF MICHIGAN
JEFF FRAY; JOE LASH; JEFF COLLINS; WAYNE                   )
SUTTLES; JOHN JOSEPH; FRANK SORENSON;                      )
ROGLIO VILLEREAL; E. RENEE PATRICK;                        )
KEITH URQUHART; CHAD BALDWIN,                              )
                                                           )
       Defendants-Appellants.                              )
                                                           )



BEFORE: MARTIN, SILER, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Police officers who enter a residence with a warrant to arrest a

murder suspect and search the premises generally may forcibly detain anyone they find inside for the

duration of the search. The defendant officers in this case seized the plaintiffs under these

circumstances, and are therefore shielded from liability to the extent the length of the search and the

use of force were not unreasonable in light of clearly established law. The officers do not seriously

challenge the existence of a genuine issue of material fact on claims arising out of two discrete
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actions that occurred incident to the search, and the plaintiffs have raised a genuine factual dispute

on their claim that the officers, when executing the warrant, failed to knock and announce their

presence. Apart from those three aspects of the detention in this case, summary judgment was

warranted on the basis of federal qualified immunity or state-law governmental immunity.

                                                  I.

        The defendants—Jeff Fray, Joe Lash, Jeff Collins, Wayne Suttles, John Joseph, Frank

Sorenson, Roglio Villereal, E. Renee Patrick, Keith Urquhart, and Chad Baldwin—are Flint,

Michigan police officers who executed a warrant to arrest Terrance Pugh and search his residence

on February 14, 2007. The plaintiffs are Pugh’s girlfriend, Sharmel Thornton, and her minor

children: KT, BB (male), BB (female), and RB. At the time of Pugh’s arrest, Thornton was

thirty-one, KT was fifteen, BB (male) was twelve, BB (female) was eleven, and RB was nine.

        We view the facts as the district court assumed them, in the light most favorable to the

plaintiffs. See Johnson v. Jones, 515 U.S. 304, 319 (1995). Relying on information that Pugh had

committed a drug-related murder outside his residence at 3513 Comstock Avenue, Flint police

obtained a warrant to arrest Pugh and search the house for drugs and evidence of the crime. A few

hours before the warrant was executed, a surveillance team consisting of Officers Villereal and Lash

saw KT exit the residence. The two officers pulled up beside KT in a van, opened the door, pointed




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a rifle at him, and demanded that he get in the van. The officers questioned KT in the van for

approximately ten minutes before releasing him.1

        The police executed the warrant around 7 p.m. The entry team included Officers Suttles,

Joseph, Sorenson, Villereal, Urquhart, and Baldwin. Thornton and Officer Villereal gave conflicting

accounts as to whether the officers knocked and announced their presence before breaking down the

door. Thornton testified that she was standing in the living room a few feet from the front door when

the officers entered, and that Urquhart pushed her down by her forehead, causing her to fall

backwards onto the floor. Thornton was dressed in a nightgown and was not wearing underwear.

She claimed that she was handcuffed and forced to remain seated on the floor with the lower part

of her body fully exposed while the officers secured the residence, and that she was not allowed to

dress or cover herself until the search was complete.

        Once inside the house, Officers Villereal and Sorenson quickly found and arrested Pugh.

Joseph and Suttles remained with Villereal and Sorenson in the living room while Urquhart and

Baldwin went to secure the rest of the house. Upstairs, they found two of Thornton’s minor children,

RB and BB (male), who were escorted downstairs to the living room at gunpoint. When the police

arrived, BB (female) was in a bathroom behind a closed door. One of the officers opened the door,

ordered BB out of the bathroom, escorted her to the living room at gunpoint, and lined her up against




        1
        Officer Patrick also conducted surveillance on the residence but was not involved in the
detention of KT, and after her shift ended later that afternoon, she had no further involvement in the
execution of the warrant.

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a wall with the other plaintiffs. At some point during the search, KT returned to the residence and

was also detained with the rest of his family.

        Thornton testified that the officers in the living room had their guns drawn, but that they were

pointed at the floor. Thornton and KT testified that they were handcuffed. The other children

testified that they were not handcuffed. After the residence was secured, Officers Fray and Collins

entered the house to assist in the completion of the search. All told, the plaintiffs were detained for

approximately two hours before they were released.

        The plaintiffs filed their suit under 42 U.S.C. § 1983, alleging that the officers violated their

Fourth Amendment rights by detaining them for an unreasonably long period of time, using

excessive force to effectuate the detention, and failing to knock and announce their presence before

entering the residence. In addition, the plaintiffs asserted state law claims of false imprisonment,

assault, intentional infliction of emotional distress, and gross negligence. After the defendants

moved for summary judgment on the basis of qualified and governmental immunity, the district

court dismissed the gross negligence claims, the intentional infliction of emotional distress claims

except for those arising out of KT’s detention in the van, and the claim that BB (female) was

unreasonably seized when the officers entered the bathroom while she was inside. The defendants

appeal the district court’s denial of summary judgment on the remaining claims of unreasonable

seizure, excessive force, failure to knock and announce, false imprisonment, assault, and intentional

infliction of emotional distress.

                                                   II.


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                                                  A.

        The officers are entitled to qualified immunity on the plaintiffs’ unreasonable seizure and

excessive force claims—except for those arising out of KT’s detention in the van and the officers’

refusal to allow Thornton to cover herself—because the length of the search, use of handcuffs, and

display of weapons did not violate clearly established law. Two well-established rules of criminal

procedure compel this conclusion. First, police officers executing a search warrant can detain the

occupants of the premises for the duration of the search. Michigan v. Summers, 452 U.S. 692, 705

(1981). Second, the officers can use reasonable force to effectuate the detention. Muehler v. Mena,

544 U.S. 93, 98-99 (2005). The officers are entitled to qualified immunity because the facts, viewed

as the district court assumed them, in the light most favorable to the plaintiffs, demonstrate that the

officers reasonably complied with these rules, and the plaintiffs have not met their burden of

demonstrating otherwise. See Moldowan v. City of Warren, 578 F.3d 351, 375 (6th Cir. 2009).2

        Summers establishes that “a warrant to search for contraband founded on probable cause

implicitly carries with it the limited authority to detain the occupants of the premises while a proper

search is conducted.” 452 U.S. at 705. This rule extends to nonresidents who are present at the

scene of a search, United States v. Fountain, 2 F.3d 656, 663 (6th Cir. 1993), overruled on other



        2
         The liability of each defendant officer must be assessed individually. Dorsey v. Barber, 517
F.3d 389, 399 n.4 (6th Cir. 2008). “[D]amage claims against government officials arising from
alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what
each defendant did to violate the asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673,
684 (6th Cir. 2008) (emphasis in original). If the plaintiffs have not specifically alleged that a
defendant participated in a constitutional violation, claims against that defendant must be dismissed.

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grounds by Trepel v. Roadway Express, 194 F.3d 708, 717 (6th Cir. 1999), and to those persons

leaving or entering the premises, even if they were not inside the residence when the police arrived,

United States v. Bohannon, 225 F.3d 615, 616 (6th Cir. 2000). Muehler elaborates that while

effectuating a Summers detention, officers may use reasonable force—including handcuffs—for the

duration of the search. 544 U.S. at 98-100.

        The defendant officers could reasonably rely on Summers and Muehler under the

circumstances. The detention lasted for approximately two hours, which did not exceed the duration

of the search. In Muehler, 544 U.S. at 100, the Supreme Court upheld a two- to three-hour detention

in handcuffs. The officers’ use of force to effectuate the detention was also reasonable. Upon entry

of the residence, the officers immediately encountered two people in the living room, one of whom

was the murder suspect they had come to arrest. The officers could reasonably believe that drawing

and pointing their weapons was necessary to “exercise unquestioned command of the situation” and

to ensure the safety of themselves and the occupants of the house. Summers, 452 U.S. at 703. And

the officers could reasonably continue to hold the occupants of the house at gunpoint until they were

satisfied that the premises were secure and any risk to their safety had sufficiently dissipated.

        The use of handcuffs on Thornton and KT during the search was also reasonable because “the

government’s continuing safety interest” outweighed the intrusion on the plaintiffs’ liberty.

Muehler, 544 U.S. at 99-100. The age and compliance of detainees are factors that may affect the

balancing of these interests. Cf. Tekle v. United States, 511 F.3d 839, 850 (9th Cir. 2007). Here, the

fact that the officers were searching a house in which drug trafficking was suspected, together with


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the presence of the murder suspect they had come to arrest, justified the precautionary use of

handcuffs on Thornton and KT. See Muehler, 544 U.S. at 100; see also Unus v. Kane, 565 F.3d 103,

119-21 (4th Cir. 2009) (reasonable to detain plaintiffs in handcuffs for nearly four hours). The

plaintiffs protest that they were not suspects in this case and were “innocent bystanders.” But the

“authority to detain incident to a search is categorical” and “does not depend on the ‘quantum of

proof justifying detention or the extent of the intrusion to be imposed by the seizure.’” Muehler ,

544 U.S. at 98 (quoting Summers, 452 at 705 n.19).

        The plaintiffs also argue that the right to be free from excessive force during the execution

of a search warrant is clearly established. That is certainly true. But the plaintiffs have not shown

that the right is “‘clearly established’ in a more particularized, and hence more relevant, sense”

because a reasonable officer would not have understood that his actions violated the plaintiffs’ rights.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The plaintiffs’ reliance on Binay v. Bettendorf,

601 F.3d 640 (6th Cir. 2010), is therefore misplaced. Binay was decided after the incidents at issue

in this case, and although it supports the unexceptional proposition that the right to be free from

excessive force during the execution of a warrant is clearly established, it does not reflect the more

“particularized sense” in which a right must be clearly established to deny qualified immunity, in

light of the different factual situation there presented. Here, the officers’ use of force was reasonable

considering “(1) the severity of the crime at issue, (2) the immediate threat the suspect pose[d] to the

safety of the officer or others, (3) the suspect’s resistance, if any, and (4) the possibility of flight.”

Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir. 2004).


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        Thornton claims that it was unreasonable for Officer Urquhart to push her to the floor

because she did not resist the officers’ entry, attempt to flee, or pose a threat to the officers’ safety.

But we must view the facts—as the district court assumed them in the light most favorable to

Thornton—from “the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). When the officers entered the

house, they had good reason to believe that someone inside might be armed. It was not unreasonable

for the police to order anyone they saw to get down on the floor and to forcibly put them there

without waiting for a response. See Dunigan, 390 F.3d at 493-94. In the “tense, uncertain, and

rapidly evolving” moments immediately before and after the forced entry, Graham, 490 U.S. at 396,

the officers could reasonably be on high alert and take the sort of precautions that would have been

prudent and wise in hindsight if the situation had turned out to be more dangerous than it was.

        At oral argument, defense counsel conceded that two aspects of the officers’ conduct raise

a question as to whether they exceeded the scope of their authority under Summers and Muehler.

First, prior to the execution of the search warrant, Officers Villereal and Lash detained KT by forcing

him into a police van at gunpoint. While the authority to detain pursuant to Summers extends to

individuals leaving and entering the premises during a search, Bohannon, 225 F.3d at 617, the

detention of KT in the van—hours before the police executed the warrant—could not reasonably be

deemed to fall within the rule. Accordingly, Officers Villereal and Lash are not shielded by qualified

immunity from liability on this claim. Because only Villereal and Lash were involved in the




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detention of KT, however, all of the remaining defendants are entitled to summary judgment on this

claim. See Lanman, 529 F.3d at 684.

        Second, the defendants concede that Thornton has raised a genuine issue of material fact as

to whether the officers’ refusal to allow her to dress or cover herself during the search was

reasonable. Thornton testified that she was forced to sit on the floor with the bottom half of her body

fully exposed, that she asked to cover herself, and that the officers refused. In Los Angeles County

v. Rettele, 550 U.S. 609, 615-16 (2007), the Supreme Court upheld a seizure where officers found

two occupants naked in bed and held them at gunpoint for several minutes before allowing them to

dress. However, given the length of time Thornton was allegedly forced to remain exposed to the

officers and to her children, the defendants concede that the officers may have prevented her from

getting dressed longer than necessary to protect their safety. Thornton testified that Officers Collins,

Suttles, Joseph, Sorenson, Villereal, Urquhart, and Baldwin were in the living room when she asked

to get dressed. Accordingly, these officers are not entitled to qualified immunity on this claim.

Officers Fray, Lash, and Patrick, however, who were not present when Thornton asked to cover

herself, are entitled to summary judgment. See Lanman, 529 F.3d at 684.

                                                  B.

        The district court properly determined that the defendants are not entitled to qualified

immunity on the plaintiffs’ knock-and-announce claim because—as the district court

assumed—there are material factual disputes both as to (1) whether the officers actually knocked and

announced, and (2) whether Thornton knew of their “authority and purpose.” United States v.


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Francis, 646 F.2d 251, 258 (6th Cir. 1981). “[I]t is clearly established law that the fourth

amendment forbids the unannounced, forcible entry of a dwelling in the absence of exigent

circumstances.” Hall v. Shipley, 932 F.2d 1147, 1151 (6th Cir. 1991) (internal quotations omitted).

Although Officer Villereal testified that he did knock and announce, Thornton claims she heard

nothing and was unaware of the officers’ presence and intention to enter the house until the front

door was broken down. At this stage of the case, we are bound by the district court’s view of the

facts in the light most favorable to Thornton.

        The district court also properly rejected the defendants’ argument that any failure to knock

and announce was justified by exigent circumstances. Exigent circumstances may include situations

where: “(1) there would be a danger to the officer; (2) there would be danger of flight or destruction

of evidence; (3) a victim or some other person is in peril; or (4) it would be a useless gesture such

as when the person within already knew the officer’s authority and purpose.” United States v.

Pelayo-Landero, 285 F.3d 491, 498 (6th Cir. 2002) (internal quotations omitted). Viewing the facts

as the district court assumed them, in the light most favorable to the plaintiffs, those circumstances

did not exist in this case. The officers executed the warrant five days after the murder, and their

surveillance of the residence gave them no reason to suspect that knocking and announcing their

presence would heighten the danger to themselves, permit flight or destruction of evidence, or risk

endangering someone within the house. While the police may take justified precautions when

entering a potentially dangerous situation such as the one they confronted here, “officers must have

more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and


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announcing their presence.” United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) (citations

omitted).

        The plaintiffs have sufficiently alleged which officers made the unannounced entry. See

Lanman, 529 F.3d at 684. There is no dispute that the entry team included Officers Suttles, Joseph,

Sorenson, Villereal, Urquhart, and Baldwin. Officers Patrick and Lash did not participate in the

search, and Officers Collins and Fray did not enter the house until sometime after the search was

underway; as to these defendants, the knock and announce claim must therefore be dismissed.

                                                  C.

        For the same reasons that the officers did not violate clearly established federal law in

detaining the plaintiffs during the search, they are entitled to governmental immunity on the

plaintiffs’ state-law false imprisonment, assault, and intentional infliction of emotional distress

claims. Pursuant to Michigan Court Rules, an order denying governmental immunity is a “final

judgment” providing defendants with an appeal of right to the Michigan Court of Appeals. Mich.

Ct. R. 7.202(6)(a)(v). Accordingly, “this court has jurisdiction over interlocutory appeals concerning

pendent state law claims of governmental immunity.” Livermore v. Lubelan, 476 F.3d 397, 408 (6th

Cir. 2007).

        Under Michigan law, a governmental employee is immune from liability for intentional torts

if he can establish that: “(1) the employee’s challenged acts were undertaken during the course of

employment and that the employee was acting, or reasonably believed he was acting, within the

scope of his authority, (2) the acts were undertaken in good faith, and (3) the acts were discretionary,


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rather than ministerial, in nature.” Odom v. Wayne Cnty., 760 N.W.2d 217, 218 (Mich. 2008). To

the extent the length of the seizure and the use of force did not violate clearly established Fourth

Amendment law, the officers could also reasonably believe that they were acting within the scope

of their authority for purposes of governmental immunity under state law.

        The plaintiffs first allege that they were falsely imprisoned during the execution of the search

warrant. “The elements of false imprisonment are (1) an act committed with the intention of

confining another, (2) the act directly or indirectly results in such confinement, and (3) the person

confined is conscious of his confinement.” Walsh v. Taylor, 689 N.W.2d 506, 514 (Mich App.

2004) (internal quotations omitted). As the district court found, the plaintiffs have raised a genuine

issue of material fact as to whether KT was falsely imprisoned in the van. Accordingly, the court’s

denial of summary judgment to Officers Villereal and Lash was proper. However, all of the other

defendants are entitled to governmental immunity on this claim to the extent they are entitled to

qualified immunity on the plaintiffs’ Fourth Amendment claims.

        Equally unavailing are the plaintiffs’ allegations of assault. To recover civil damages for

assault, a plaintiff must establish an “intentional unlawful offer of corporal injury to another person

by force, or force unlawfully directed toward the person of another, under circumstances which

create a well-founded apprehension of imminent contact, coupled with the apparent present ability

to accomplish the contact.” VanVorous v. Burmeister, 687 N.W.2d 132, 142 (Mich. App. 2004)

(internal quotations omitted). Taking the district court’s view of the facts in the light most favorable

to the plaintiffs, these elements were satisfied when Officers Villereal and Lash detained KT in the


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van. However, the plaintiffs have not presented evidence that the officers’ actions in forcing

Thornton to the ground, escorting RB and BB (male) downstairs, and detaining the family in the

living room were unlawful. See id. Indeed, to overcome governmental immunity, the plaintiffs

needed to present evidence that the officers could not have reasonably believed that they were acting

within the scope of their authority. See Odom, 760 N.W.2d at 218.

        Finally, the district court found that KT had raised a genuine issue of material fact as to

whether the officers’ conduct in detaining him in the van was extreme and outrageous. The elements

of a claim of intentional infliction of emotional distress are: “(1) extreme and outrageous conduct,

(2) intent or recklessness, (3) causation, and (4) severe emotional distress.” VanVorous, 687 N.W.2d

at 141-42 (internal quotations omitted). The district court also found that KT raised a genuine

factual dispute as to the other elements, and we are bound by that view of the facts. Accordingly,

Officers Villereal and Lash are not entitled to summary judgment on this claim either.

                                                III.

        For these reasons, we affirm the district court’s denial of summary judgment as to (1) all

claims against Officers Villereal and Lash arising out of KT’s detention in the van, (2) the

unreasonable seizure claims against Officers Collins, Suttles, Joseph, Sorenson, Villereal, Urquhart,

and Baldwin arising out of the officers’ refusal to allow Thornton to dress or cover herself during

the search, and (3) the knock-and-announce claims against Officers Suttles, Joseph, Sorenson,

Villereal, Urquhart, and Baldwin. We reverse the denial of summary judgment as to the plaintiffs’

remaining claims.


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