                                      File Name: 08a0466n.06
                                       Filed: August 4, 2008

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 07-3732

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

JODI SCHNEIDER,

          Plaintiff-Appellee,

v.                                                           ON APPEAL FROM THE
                                                             UNITED STATES DISTRICT
FRANKLIN COUNTY, OHIO, et al.,                               COURT FOR THE SOUTHERN
                                                             DISTRICT OF OHIO
          Defendants-Appellants.


                                                       /

Before:          MARTIN and GRIFFIN, Circuit Judges, and GIBSON, Circuit Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge.             Plaintiff Jodi Schneider alleges that her

constitutional rights were violated when police officers pulled over the car in which she was riding

without probable cause and forced her to exit the vehicle despite an obvious medical injury. The

district court denied defendant police officers’ motion for summary judgment on grounds of

qualified immunity, and they have filed this interlocutory appeal. Appellee Schneider moved to

dismiss this appeal because of lack of jurisdiction, and alternately argues that the district court was

correct in denying qualified immunity. For the reasons set out below, we deny the motion to dismiss

and AFFIRM in part, and REVERSE in part the order of the district court.



          *
          The Honorable John R. Gibson, Senior United States Circuit Judge for the Eighth Circuit,
sitting by designation.
No. 07-3732
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Page 2

                                                    I

        Schneider moves to dismiss this appeal, arguing that jurisdiction is improper because the

defendants do not confine their appeal to issues of law and instead continue to dispute material facts.

In Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir. 1998), we stated that a defendant seeking to take

an interlocutory appeal from the denial of qualified immunity “should be prepared to concede the

best view of the facts to the plaintiff and discuss only the legal issues raised by the case.” We have

dismissed other interlocutory appeals for failing to conform to this standard. See Booher v. N. Ky.

Univ. Bd. of Regents, 163 F.3d 395, 396-97 (6th Cir. 1999). The defendants contend that their

appeal raises several legal issues to be resolved by this Court and dismissal is therefore

inappropriate. We agree that the legal questions at issue counsel in favor of jurisdiction, and will

hereinafter confine ourselves only to the legal issues raised in this case instead of the disputed facts.

See, e.g., Phelps v. Coy, 286 F.3d 295, 298-99 (6th Cir. 2002) (if the court can ignore defendant’s

attempts to dispute the facts and nonetheless resolve the legal issue, it will obviate the need to

dismiss the entire appeal for lack of jurisdiction); see also Beard v. Whitmore Lake Sch. Dist., 402

F.3d 598, 602 n.5 (6th Cir. 2005).



                                                   II

        This action is based on an incident that occurred during the early morning hours of November

14, 2003. Plaintiff Jodi Schneider and her boyfriend, Jason Jones, had been at a bar in Hilliard,

Ohio, since about 5:00 p.m. the previous day. They arrived in a Cadillac Eldorado, which was

parked in the bar’s parking lot. Earlier that evening, the Special Investigations Unit of the Franklin
No. 07-3732
Schneider v. Franklin County, Ohio, et al.
Page 3

County Sheriff’s Office had received a complaint of a suspect driving a Cadillac who was dealing

drugs in the vicinity of the bar. In response, two undercover Special Investigations Unit officers,

Burns and Strayer, went to stake out the parking lot in a Ford pickup truck. Two deputy sheriffs,

Meister and Wetzel, were also patrolling nearby in their official marked vehicle.

       Shortly after 1:00 a.m., Schneider and Jones left the bar. Schneider was noticeably

intoxicated and slipped and fell on her way to the car, injuring her right ankle. She was helped into

the passenger seat of the car by friends, whereupon she took off her shoes and socks to compare her

ankles. Jones began to drive out of the parking lot, through several other lots and down a service

road. Once he entered this service road, he traveled a short distance before being pulled over by

Meister and Wetzel.

       Prior to the traffic stop, Meister and Wetzel had been in radio contact with the undercover

Special Investigations Unit detectives. Burns advised the deputies that the Cadillac had left the bar

parking lot, and requested that the deputies stop the car and identify the occupants. Burns asked

Meister to “see if you can find a violation for me, so I don’t have to look as hard.” Meister’s

response was, “Oh, I’ll find something.” Burns replied, “If you don’t, I will.” JA 711-712. Burns

and Strayer followed Jones out of the parking lot and onto the road in their unmarked car. At this

point, one of the officers may or may not have paced Jones’s car and found it to have been speeding.1

Burns then radioed Meister to pull over the Cadillac.




       1
        Jones testified that Burns’s pickup truck was at no point between Meister’s police cruiser
and his car, and could not have paced him. There is also conflicting testimony as to whether
Meister’s cruiser paced Jones’s car.
No. 07-3732
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         There was also a disputed lane change. Deputy Meister radioed to Burns, “I’ve got the lovely

marked lanes,” which Burns interpreted to mean that there had been a violation, but both Officers

Meister and Wetzel stated in their depositions that the only reason the Cadillac was stopped was for

speed. Jones also testified that Meister told him that he was stopped for speeding, but did not

mention a lane violation.

         After Meister and Wetzel stopped the car, Meister went to the driver’s side and Wetzel

approached Schneider’s side of the car. Meister examined Jones’s identification documents,

administered a field sobriety test (which Jones passed), and placed Jones into the back seat of the

officers’ car while Meister ran Jones’s information through the police computer. At this point Jones

told Meister that Schneider was hurt. Meanwhile, back at the Cadillac, Wetzel asked Schneider for

her drivers’ license, and she asked him why he needed to see it since she had not been driving. After

Wetzel asked a second time, she gave him her license. Wetzel then ordered Schneider to get out of

the car. She told him that she could not get out because of her hurt ankle. By this time Meister had

returned to the Cadillac, leaving Jones seated in the cruiser. Wetzel explained to Meister that

Schneider did not want to exit the car because of her injured ankle. Meister also observed

Schneider’s ankle himself, testifying that “I noticed her ankle was very dislocated. It was not as it

should have been . . . I just remember seeing the ankle and it was pretty gruesome . . . I’m not a

doctor or anything, but it was obviously, there was a deformity there.” JA 589, 626. At some point,

Wetzel yelled at Schneider, “I’m not going to ask you again [to get out of the car]” and Schneider

felt compelled to get out of the car, whereupon she immediately fell to the ground and broke her

ankle.
No. 07-3732
Schneider v. Franklin County, Ohio, et al.
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       Schneider brought this civil rights action against Meister, Wetzel, and various other Franklin

County defendants for violations of her Fourth and Fourteenth Amendment rights by detaining her

without probable cause during a traffic stop and, while she was in custody, ordering her out of the

car with knowledge of her pre-existing injury. The police officers moved for summary judgment on

various grounds, which the district court granted in part and denied in part. Meister and Wetzel now

appeal the denial of summary judgment, arguing that even viewing the facts in the light most

favorable to Schneider, they are entitled to qualified immunity.



                                                  III

       This Court reviews de novo a district court’s denial of summary judgment on qualified

immunity grounds. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). Upon a motion

for summary judgment on qualified immunity, this Court reviews all evidence in a light most

favorable to the plaintiff, taking all inferences in her favor. Champion v. Outlook Nashville, Inc.,

380 F.3d 893, 900 (6th Cir. 2004).



Qualified Immunity

       In order to prevail on a civil rights claim under 42 U.S.C. § 1983, a plaintiff must establish

that a person acting under the color of state law deprived her of a right secured by the Constitution

or laws of the United States. Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006). Plaintiffs must also

overcome the defense of qualified immunity, which shields government officials from “liability for

civil damages insofar as their conduct does not violate clearly established statutory or constitutional
No. 07-3732
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Page 6

rights of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)).

        In determining whether qualified immunity applies, this Court employs a two-part test, asking

(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional

right has been violated, and (2) whether that right was clearly established. Estate of Carter v. City

of Detroit, 408 F.3d 305, 310-311 (6th Cir. 2005). In effect, this requires that in order to hold the

officers liable in their individual capacities under 42 U.S.C. § 1983, Schneider must show not only

that the officers’ actions were unconstitutional, but also that they should have known at that time that

they were violating Schneider’s rights. See Harlow, 457 U.S. at 818. “The concern of the immunity

inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on

particular police conduct.” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (quoting Saucier

v. Katz, 533 U.S. 194, 205 (2001)). Schneider has the burden of demonstrating that the officers are

not entitled to qualified immunity. Id. at 846.



Meister’s violation of Schneider’s Fourth Amendment rights

        Schneider first alleges that officer Meister had no probable cause to stop Jones’s car, and thus

knew they were committing a constitutional violation and should not be entitled to qualified

immunity.2 The law is established that “the decision to stop an automobile is reasonable where the



        2
         The Fourth Amendment charge can be dismissed as to Wetzel, since Schneider presented
no evidence that Wetzel was actually responsible for the stop. See Ghandi v. Police Dep’t of Detroit,
747 F.2d 338 (6th Cir. 1984) (mere presence without a showing of direct responsibility will not
subject an officer to liability). Burns and Strayer also did not stop the car.
No. 07-3732
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Page 7

police have probable cause to believe that a traffic violation has occurred.” Whren v. United States,

517 U.S. 806, 810 (1996). Subjective intentions play no role in probable cause Fourth Amendment

analysis. Id. at 812-13.

       The issue here on review is whether, examining the facts in the light most favorable to

Schneider, Meister knew that pulling Jones over was a constitutional violation. Schneider first offers

Jones’s testimony that he was aware that police officers frequented the area, that he saw the deputies

in the official car were behind him, and that his 1985 Cadillac could not have reached 60 mph in

such a short distance and thus would not (and could not) have been speeding. Second, expert

testimony established that even if the officers had paced the car, they could not have done so for long

enough to obtain an accurate reading of the Cadillac’s speed. Finally, both Meister and Wetzel

testified that speeding was the only basis on which the Cadillac was stopped. We therefore conclude

for the purpose of this review that the violations did not occur and Schneider’s constitutional rights

were violated. See United States v. Ferguson, 8 F.3d 385, 388 (6th Cir. 1993) (a police officer

cannot make a stop without probable cause).

       Defendants argue that even if Schneider’s clearly established constitutional rights were

violated by the stop, Meister is entitled to qualified immunity because his conduct in relying on the

direction of Burns was not objectively unreasonable. The reasonableness of Meister’s reliance on

Burns is not our only concern, however. Our case law states that a seizure conducted in reliance on

a dispatch is proper only if the law enforcement officer who issued the information possessed the

necessary reasonable suspicion. Smoak, 460 F.3d at 779. We do not entitle one officer to rely on

another officer’s unreasonable directive, insulating both the officer issuing the directive (because he
No. 07-3732
Schneider v. Franklin County, Ohio, et al.
Page 8

did not effectuate the actual stop) and the officer who made the stop (because he was acting at the

direction of the issuing officer). Because the facts viewed in a light most favorable to Schneider

compel the conclusion that Burns did not have a reasonable suspicion that Jones was speeding,

Meister was therefore not entitled to rely on those representations. Evidence of Burns’s and Meister’s

conversation before the stop (deciding together to “find” a violation) could also support Schneider’s

assertion that Meister knew that Burns was making up a violation. Therefore, the district court

properly denied qualified immunity to Meister.



The violation of Schneider’s Fourteenth Amendment rights

        Schneider next argues that Wetzel violated her Fourteenth Amendment rights by ordering

her out of the car despite her clear medical injury. Defendants argue that an officer making a traffic

stop may order passengers out of the car pending completion of the stop. Maryland v. Wilson, 519

U.S. 408, 415 (1997). Schneider’s claim concerns not the legality of the order, but the officers’

alleged unreasonableness in forcing her to exit her car despite a clear medical injury. She argues that

under two separate theories, the “special relationship” doctrine as well as the “state-created danger”

doctrine, the police officers should have realized that ordering her out of her car would have caused

her to further injure herself.

        Police are generally not liable for injuries sustained by private citizens as a result of their own

or another private citizen’s conduct. See, e.g., Deshaney v. Winnebago County Dep’t of Soc. Servs.,

489 U.S. 189, 196 (1989). The two applicable exceptions to this general rule are (1) the custody

exception, also called the “special relationship” exception, and (2) the state-created danger
No. 07-3732
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Page 9

exception. Id. at 199-201. The first exception is premised on an affirmative act that exposes an

individual to harm after being placed in a “special relationship” with the state, such as in an officer’s

custody. Jackson v. Schultz, 429 F.3d 586, 591-92 (6th Cir. 2005). In order to show an affirmative

duty under the state-created-danger exception, Schneider must show (1) an affirmative act by the

police that created or increased a risk that Schneider would be exposed to injury or violence, (2) a

special danger to Schneider such that the officers’ acts placed her specifically at risk, as

distinguished from a risk that affects the public at large, and (3) that the officers knew or should have

known that their actions specifically endangered Schneider. Kallstrom v. City of Columbus, 136

F.3d 1055, 1066 (6th Cir. 1998). Liability requires “deliberate indifference” by the police when the

police “had time to deliberate on what to do.” Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir.

2003).

         Turning to the first exception, the officers had placed Schneider in custody and thus owed

her a duty of care. Police have “seized” a person when, in view of all the circumstances surrounding

the incident, a reasonable person would have believed that he was not free to leave. See United

States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Since the officers had taken the driver of her

car into custody and began to issue verbal commands, Schneider would not have felt free to leave

the scene and thus was in custody. Id. at 554 (“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 . . . or the use of language or tone of voice indicating that compliance with the officer’s

request might be compelled.”). This custody created a “special relationship,” and thus the officers
No. 07-3732
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owed a duty of care to Schneider. See Stemler v. City of Florence, 126 F.3d 856, 869 (6th Cir.

1997).

         Once Schneider was placed into custody, the police officers affirmatively acted in a way that

exposed her to harm.3 The question of whether the officers exhibited a deliberate indifference to

Schneider’s injury should be answered by a jury, but taking the facts on the record in the light most

favorable to Schneider, it appears that the officers knew enough to realize that ordering her out of

the car could create a substantial risk of injury. See Sperle v. Mich. Dep’t of Corrs., 297 F.3d 483,

493 (6th Cir. 2002) (“the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference.”). Both

men were able to see that Schneider was hurt and conferred over the fact that Schneider did not want

to exit the car; Meister also testified that “I noticed her ankle was very dislocated. It was not as it

should have been . . . I just remember seeing the ankle and it was pretty gruesome . . . I’m not a

doctor or anything, but it was obviously, there was a deformity there.” JA 589, 626 (internal citation

and quotation marks omitted).

         Schneider also established a violation under the second exception: state-created danger.

Here, Wetzel’s commanding Schneider to exit the car after seeing her injury was (1) an affirmative

act that created or increased a risk that Schneider would be exposed to injury or violence; (2) that

created a special danger to Schneider such that the officers’ acts placed her specifically at risk. Cf.

DeShaney, 489 U.S. at 201 (finding no liability where the State “played no part in [the] creation” of



         3
        Deputy Meister’s role in ordering Schneider out of the car is unclear and should be
determined by the jury.
No. 07-3732
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the danger). Further, based on their observations of her injuries, the officers knew or should have

known that the order specifically endangered Schneider.

       Turning to the qualified immunity analysis under either exception, determining whether the

officers’ conduct violated “clearly established statutory or constitutional rights of which a reasonable

person would have known” requires an examination in light of the specific conduct alleged in this

case, “not as a broad general proposition.” See Smoak, 460 F.3d at 777; Saucier, 533 U.S. at 201.

Schneider alleges that although police officers can require passengers to exit a car during a traffic

stop under Maryland v. Wilson, 519 U.S. at 415, defendants should have known this did not give

them the power to order a non-violent, non-threatening woman with a serious injury out of a car

where the exit threatened to further compound the injury. Indeed, Deputy Meister admitted as much

in his deposition: in response to the question, “Given what you saw of her leg before she got out .

. . would it be reasonable for an officer to order her out of the vehicle?” Meister answered, “No.”

JA 614. Qualified immunity is thus inappropriate as to Schneider’s Fourteenth Amendment claims.



                                                  IV

       Because the facts taken in the light most favorable to Schneider would establish Fourth and

Fourteenth Amendment violations, and because the reasonableness of the officers’ actions depend

heavily on the determination of contested facts, the judgment of the district court denying qualified

immunity to the officers is AFFIRMED in part, and REVERSED in part.
