                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0101n.06

                                       Case No. 17-1073

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Mar 01, 2018
JAMES BARTON,                                      )                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
CITY OF LINCOLN PARK; RYAN                         )       MICHIGAN
BEHRIK,                                            )
                                                   )
       Defendants-Appellants.                      )
                                                   )

BEFORE: MOORE, WHITE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge.                     This appeal concerns whether

Defendant-Appellants City of Lincoln Park (the “City”) and Officer Ryan Behrik (“Officer

Behrik”) were entitled to summary judgment on Plaintiff-Appellee James Barton’s (“Barton”)

42 U.S.C. § 1983 complaint. Defendants contend that the district court erred in two ways. First,

they argue the district court should have granted Officer Behrik qualified immunity because he

was neither a witness nor participant with respect to the alleged excessive force, had no

opportunity to intervene, and a reasonable officer in his position would not have been on notice

of either excessive force or a duty to intercede. Second, Defendants argue that the district court

erred in denying the City’s summary-judgment motion because the record fails to support any

inadequate training or policies.
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


       The district court denied Officer Behrik’s qualified-immunity based summary-judgment

motion on the grounds that his mere presence at the scene provided an avenue for a failure to

intervene claim, particularly because he was close enough to hear commotion and yelling. The

district court denied the City’s summary-judgment motion based primarily on the responding

officers’ inability to name their former supervisors or recall the last time they had received

training on the use of force, and on possibly questionable responses to previous complaints

lodged against Officer Jason Lasinskas. For the reasons stated below, we REVERSE the

judgment of the district court as to Officer Behrik and DECLINE to exercise pendent

jurisdiction over the City’s summary-judgment appeal.

                                               I.

       On November 21, 2013, Plaintiff James Barton and Todd Daw visited the Best Damn Bar

& Grill in Lincoln Park, Michigan. Barton and Daw each had seven to nine beers before walking

to Barton’s home around 1:30 a.m. Once there, Barton asked his live-in girlfriend, Michelle

Faulkner, to drive Daw home. Faulkner refused and an argument ensued. As the quarrel

continued, Faulkner’s daughter—Susan Ferrante—called the police.

       Lincoln Park Police Officers Scott Kerr and Jason Lasinskas first responded to Ferrante’s

call. Upon arrival, the officers observed Ferrante’s boyfriend—Bradley Dorow—outside the

home and heard Barton, Faulkner, and Ferrante yelling inside. The officers entered the home

and ordered Barton to calm down, which he eventually did. Subsequently, two other officers—

Chad Pierson and Behrik—arrived and spoke to Daw and Dorow outside. At some point, Officer

Pierson entered the home. Officer Behrik remained outside with Daw and Dorow.

       Barton testified that Officers Kerr and Lasinskas then informed him that he was under

arrest while grabbing and twisting his hand. Barton pulled his hand away because it had been



                                              -2-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


recently broken and surgically repaired. Faulkner and Barton each described Barton’s recent

injury and asked that the officers not bend his arm. Barton testified that Officers Kerr and

Lasinskas ignored these requests, threw him to the floor, and handcuffed him. Barton also

testified that he felt a couple of blows to his side and lower back while subdued on the floor.

       Officers Kerr and Pierson then pulled Barton up before pushing him head-first through an

aluminum screen door, causing a two-inch laceration on his forehead. According to Barton, once

outside, he was escorted to a police vehicle. Barton testified that before being placed in the

police vehicle, but before he was placed in the vehicle, he was pulled away from behind and

choked in the process. During the entire interaction, Officer Behrik was outside with Daw and

Dorow. Officer Behrik admits to hearing commotion inside the home and upset yelling outside,

but did not enter the house, witness any alleged force, or otherwise intervene. Barton was later

charged with four crimes related to domestic violence and assaulting, resisting, and obstructing

an officer. All but one of the charges were later dropped.

       Barton filed a complaint in the United States District Court for the Eastern District of

Michigan asserting three claims: (1) excessive force pursuant to 42 U.S.C. § 1983 against each

responding officer; (2) Fourth Amendment violations against the City of Lincoln Park for failure

to adequately train, supervise, or discipline its officers; and (3) gross negligence against both the

officers and the City. In his complaint, Barton claims to have suffered physical and mental

injuries, including the laceration to his head, additional injury to his hand and arm, and

subsequent back pain, anxiety, and nervousness. Following discovery, Defendants moved for

summary judgment based in part on their contention that the individual defendants were shielded

from liability under § 1983 by the doctrine of qualified immunity.




                                                -3-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


       The district court denied Defendants’ motion. As to Officer Behrik, the court found that

issues of material fact precluded an award of summary judgment on qualified immunity grounds.

Specifically, the district court found that although it is “undisputed that Officer Behrik did not

actively participate in or supervise the application of force,” his mere presence in close enough

proximity to the alleged force to hear signs of it provided a possible basis for relief. The district

court further concluded that the evidence was sufficient to sustain a § 1983 claim against the City

because inferences could be drawn from the officers’ testimony that they lacked adequate

training and were not subject to proper discipline in response to complaints made against them.

Officer Behrik and the City filed this timely appeal, asserting that the district court erred in

denying Officer Behrik qualified immunity, and that the record evidence refutes Barton’s failure

to train and supervise claims against the City.

                                                  II.

       The district court had jurisdiction over this 42 U.S.C. § 1983 action pursuant to 28 U.S.C.

§§ 1331 and 1343. The district court entered its order granting in part and denying in part

Defendants’ motion for summary judgment on December 22, 2016, from which Defendants

timely appealed on January 20, 2017. This Court has jurisdiction to review the judgment as to

Officer Behrik’s appeal pursuant to 28 U.S.C. § 1291.            Defendants argue that appellate

jurisdiction over the City’s appeal is conferred by the principles of pendent appellate jurisdiction,

and that the denial of their motion is inextricably intertwined with the qualified immunity

analysis properly before this Court.

                                                  III.

       Defendants first challenge the district court’s denial of qualified immunity. Ordinarily,

we lack jurisdiction over an appeal of a denial of a motion for summary judgment. Summers v.



                                                  -4-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


Leis, 368 F.3d 881, 886 (6th Cir. 2004). However, 28 U.S.C. § 1291 grants circuit courts

jurisdiction over “appeals from all final decisions of the district courts,” which include collateral

orders—those that “finally determine claims of right separable from, and collateral to, rights

asserted in the action” that are “too important to be denied review.” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 545–46 (1949). An order denying qualified immunity is a collateral

order because it is conclusive, separable from the merits of the action and, as the purpose of

qualified immunity is to provide officers with “immunity from suit rather than a mere defense to

liability,” is effectively unreviewable on appeal from a final judgment. Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). We review de novo a district court’s denial of summary judgment based

on qualified immunity. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679 (6th Cir. 2013).

       Circuit courts, however, can review a denial of qualified immunity only “to the extent

that it turns on an issue of law.” Mitchell, 472 U.S. at 530. The appeal cannot be from a district

court’s determination that there is a genuine dispute of material fact. Johnson v. Johnson, 515

U.S 304, 320 (1995). Therefore, a defendant appealing a denial of qualified immunity must

concede the plaintiff’s facts. See Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir.

2009). Still, “[e]ven if a defendant refuses to concede all of the plaintiffs’ facts,” Zulock v.

Shures, 441 F. App’x 294, 300 (6th Cir. 2010), and even if “the district court couched its ruling

in terms of factual disputes,” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008), we maintain

jurisdiction over purely legal questions. See Estate of Carter v. City of Detroit, 408 F.3d 305,

310 (6th Cir. 2005) (“aside from the impermissible arguments regarding disputes of fact, the

defendant also raises the purely legal question of whether the facts alleged ... support a claim of

violation of clearly established law.”) (internal quotations and citations omitted.”).




                                                -5-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


       A.      The District Court Erred in Denying Officer Behrik Qualified Immunity and
               Summary Judgment on Barton’s Fourth Amendment Excessive Force Claim

       Defendants argue that the district court erred in denying Officer Behrik qualified

immunity as there are no allegations that Officer Behrik used force of any kind against Barton,

nor did he have either the opportunity or ability to intervene to prevent the other officers’ alleged

use of excessive force. (Appellants’ Br. at 20-31.) Barton contends that Officer Behrik is not

entitled to qualified immunity because the facts alleged allow for a finding that he turned a blind

eye to excessive force. (Appellee’s Br. at 19-24.) We agree with Defendants.

       Qualified immunity is an affirmative defense that shields government officials “from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (citations omitted). “Qualified immunity strikes a balance between

compensating those who have been injured by official conduct and protecting government’s

ability to perform its traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167 (1992). Therefore,

overcoming an officer’s entitlement to qualified immunity requires that a plaintiff demonstrate

“(1) that the official violated a statutory or constitutional right, and (2) that right was clearly

established.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see Pearson v. Callahan, 555 U.S.

223, 232 (2009).

       In response to an assertion of qualified immunity, “the plaintiff bears the burden of

demonstrating that the defendant is not entitled to qualified immunity.” Livermore ex rel. Rohm

v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007). “If no reasonably competent officer would have

taken the same action, then qualified immunity should be denied; however, ‘if officers of

reasonable competence could disagree on [the legality of the action], immunity should be




                                                -6-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


recognized.’” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (alteration and emphasis

in original) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

       In denying Officer Behrik’s motion, the district court observed: “Behrik’s mere presence

at the scene of alleged excessive force provides an avenue for [Barton’s] ‘failure to intervene’

claim.” RE 42, PageID #503. Although Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir. 1982),

does quote with approval a Seventh Circuit case holding that mere presence while a harm is

being committed may be sufficient to support a claim, more recent precedent in this Circuit

makes clear that more is required. See Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013)

(officer’s “mere presence during the altercation, without a showing of direct responsibility

cannot subject them to liability”) (citing Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010));

see also Ghandi v. Police Dep’t of City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984) (“As a

general rule, mere presence at the scene of a search, without a showing of direct responsibility

for the action, will not subject an officer to liability.”) (citing Rizzo v. Goode, 423 U.S. 362

(1976)); see also Binay, 601 F.3d at 650 (mere presence is not enough; “[e]ach defendant’s

liability must be assessed individually based on his own actions.”) (citations omitted).

       We have held that although an officer’s “mere presence during the altercation, without a

showing of some direct responsibility, cannot suffice to subject [the officer] to liability,”

Burgess, 735 F.3d at 475, the officer may be liable where the officer supervised the offending

officer or owed the plaintiff a duty of protection. Turner v. Scott, 119 F.3d 425, 429 (6th Cir.

1997). Generally, a police officer will be liable for breaching a duty of protection when “(1) the

officer observed or had reason to know that excessive force would be or was being used, and

(2) the officer had both the opportunity and the means to prevent the harm from occurring.” Id.

(citing Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).



                                               -7-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


       As to the first prong, Barton presents no facts to support that Officer Behrik knew or had

reason to know that excessive force would be used or was being applied. Barton asserts that

Officer Behrik stood outside the house and heard a commotion, while Officers Kerr and

Lasinskas subjected him to excessive force. Barton acknowledges that Officer Behrik remained

outside when Officers Kerr and Pierson led him head-first through the screen door, and

subsequently pulled him by the neck out of the police vehicle he was being placed in, restricting

his airway in the process.

       On these facts, even viewed in the light most favorable to Barton, Officer Behrik did not

observe any excessive force occurring inside the house. Indeed, he saw nothing at all. Nor did

he have any reason to know that excessive force would be or was being used. Though he heard

“commotion” and “yelling,” this is typical of any scenario in which a verbal argument with

intoxicated participants ensues in the middle of the night. There is no allegation that the

comments heard were anything other than the same commotion that served as the basis for the

original call. Nor is there any assertion that Officer Behrik heard anything indoors that would

intimate excessive force—such as cries of pain, calls for backup, calls for help, or any assertion

that excessive force was being applied. Moreover, this does not raise a question of fact—both

Defendants and the court take all of Barton’s allegations as true—as Barton has identified no

facts that would permit an inference creating a dispute. Thus, the district court erred in finding

that the evidence presented against Office Behrik lends itself to a finding that he knew or had

reason to know that excessive force would be or was being used.

       As to the second prong, opportunity and means to prevent harm, there is no duty to

intervene where one officer’s act of excessive force occurs so rapidly that a second officer on the

scene lacks “‘a realistic opportunity to intervene and prevent harm.’” Wells v. City of Dearborn,



                                               -8-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


538 F. App’x 631, 640 (6th Cir. 2013) (quoting Ontha v. Rutherford Cnty., Tenn., 222 F. App’x

498, 507 (6th Cir. 2007)). Indeed, this Court has previously found that a duty to intervene did

not arise where an officer gave a warning before applying a taser but other officers present did

not have opportunity or means to prevent it. Kowolonek v. Moore, 463 F. App’x 531, 539 (6th

Cir. 2012). The court reasoned that, warning or no, the officer lacked the opportunity to stop the

force because the entire altercation lasted only minutes, and the excessive force “could only have

lasted for a fraction of this time.” Id. at 532.

        Here, Barton presents no facts to support that Officer Behrik had “opportunity and

means” to prevent the alleged excessive force. That is, Barton cannot show that the incident

lasted long enough for Officer Behrik to perceive what was going on and intercede to stop it.

See Durham v. Nu’Man, 97 F.3d 862, 868 (6th Cir. 1996); see also Kowolonek, 463 F. App’x at

539 (defendant lacked the opportunity to intervene given rapid sequence of events); Ontha,

222 F. App’x at 506 (six or seven seconds insufficient time to compel intervention). Barton has

not shown that Officer Behrik was in clear view or reasonable range of any excessive force, was

in ongoing voice contact with his fellow officers or Barton, or that any party apprised him of the

use of any force. Nor has Barton supported that Officer Behrik was close enough to the front

screen door to ensure that Barton was not forced through it—or even that he witnessed that

incident at all.1 Finally, with regard to Barton being pulled away from the vehicle and choked, it

remains unclear how Officer Behrik could have intervened. Though there is ambiguity as to how

long that event lasted—or what injuries it may have caused—there is no allegation that it lasted

long enough to provide Officer Behrik the opportunity to intervene. Moreover, Barton does not

suggest that Officer Behrik had any basis for anticipating the use of force in the house, the exit

1
  We note, as do Defendants, that Barton’s assertion that Officer Behrik was “only a yard” away from the house is,
at best, disingenuous. (Appellants’ Br. at 1-2.) The quote upon which that fact is based clearly states that Officer
Behrik was a “front yard” away from the house, rather than a three-foot unit of measurement.

                                                       -9-
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


from the house, or the subsequent choking and its result as those events were split-second

incidences that occurred without warning. On these facts, there was not enough time for Officer

Behrik to both perceive the incident and intervene to assist Barton.

       To the extent that Barton argues that the entire incident was of ample duration to permit

Officer Behrik to be on notice of the excessive force and to intercede, this too is unavailing.

Even taking all of Barton’s allegations as true—as we must—the incident cannot be viewed as a

singular event as to Officer Behrik. He was not in view of any of the indoors events, nor are

there allegations that he heard anything that would alert him of the use of actual or impending

excessive force. Barton presents no question of fact supporting that Officer Behrik witnessed the

screen door incident—thus giving him any warning about continued use of force. These cannot

be viewed as an interconnected singular sequence. Indeed, the district court acknowledged there

was no “ongoing conduct.” RE 42, PageID #509. Even under the most generous construction,

the allegations fail to describe a single episode of sufficient duration to support a conclusion that

Officer Behrik stood by, made no attempt to assist the victim, and thereby became a tacit

collaborator. As this Circuit has underscored: “courts have been unwilling to impose a duty to

intervene where, as here, an entire incident unfolds ‘in a matter of seconds.’” Ontha, 222 F.

App’x at 506 (collecting cases). The evidence Barton presented dictates the same result.

       Though we need not reach the second inquiry—whether a right is “clearly established”

such that any reasonable official in the defendant’s shoes would have understood that he was

violating it, Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014), we address it briefly. The

question here is whether a reasonable officer in Officer Behrik’s position would have been on

notice of a duty to intercede. Given that the parties cite no authority and we have found none

that imposed a duty of protection under analogous circumstances, we must conclude that at no



                                               - 10 -
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


point did Officer Behrik’s failure to intervene violate clearly established law. Behrik did not

stand idly near the front lawn while others inflicted excessive force. He was the last officer to

arrive at the scene and provided backup by remaining with Daw and Dorow outside the house

while the other officers addressed the conflict inside. We are aware of no case law holding that

the “commotion” Officer Behrik heard inside, or any quickly occurring incident with Barton

outside, required him to abandon the two men—whom he was watching or “keeping” outside

“until we knew what we had”—to intervene with the other officers. Because at the time of the

incidents, it would not have been evident to a reasonable officer in Officer Behrik’s position that

he was obligated to leave the two men and take action to prevent any use of excessive force.

Officer Behrik is entitled to qualified immunity as to Barton’s claim that he breached a duty of

protection.

           B.       This Court Lacks Jurisdiction Over the District Court’s Denial of the City’s
                    Motion for Summary Judgment on Barton’s Monell Claims

           The City also appeals the district court’s denial of summary judgment on Barton’s

Monell2 claim. However, the City, unlike Officer Behrik, “is not entitled to invoke the defense

of qualified immunity and therefore has no grounds to seek an interlocutory appeal of the district

court’s denial of its motion for summary judgment.” Campbell v. City of Springboro, 700 F.3d

779, 790 (6th Cir. 2012). The City maintains that by mentioning the failure-to-train and failure-

to-supervise complaints in addressing Officer Behrik’s claim to qualified immunity, inextricably

intertwined the question of the City’s alleged custom or policy, thus allowing this Court to

review that otherwise non-final denial of summary judgment. (Appellants’ Br. at 31-35.) We

disagree.




2
    Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

                                                           - 11 -
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


       “Although not appealable as a final decision under 28 U.S.C. § 1291, an appellate court

can exercise pendent appellate jurisdiction on a § 1983 claim alleging municipal liability where

the municipality’s motion for summary judgment is inextricably intertwined with the qualified

immunity analysis properly before the Court.” Lane v. City of LaFollette, 490 F.3d 410, 423 (6th

Cir. 2007) (internal quotation marks omitted).          A pendent appellate claim is “inextricably

intertwined” with a properly reviewable claim on collateral appeal “only if . . . appellate

resolution of the collateral appeal necessarily resolves the pendent claim as well.” Mattox v. City

of Forest Park, 183 F.3d 515, 524 (6th Cir. 1999) (citation omitted). Though the exercise of

pendent jurisdiction is a matter of discretion, “the ‘inextricably intertwined’ requirement is not

meant to be loosely applied . . . . Rather [it] is satisfied only if the resolution of the properly

appealable issue ‘necessarily and unavoidably’ decides the non-appealable issue.” Bates v. Dura

Auto. Sys., Inc., 625 F.3d 283, 287 (6th Cir. 2010) (quoting Wedgewood Ltd. P’ship I v. Twp. of

Liberty, 610 F.3d 340, 348 (6th Cir. 2010)).

       While the district court’s mention of the Monell claims in addressing Officer Behrik’s

qualified-immunity defense is curious, it does not inextricably intertwine the two issues.

Although we agree that Officer Behrik is entitled to qualified immunity, that determination turns

solely on Officer Behrik’s duty to intervene on any alleged force, rather than any training or

policy. The City’s liability hinges on its failure to train and supervise the officers. This court

has previously recognized that an officer’s appealable claim and a city’s non-appealable claim

are inextricably intertwined where “the finding of nonexistence of a constitutional claim for

immunity purposes necessarily decides[s] the whole case not only in favor of the officer, but also

in favor of the city . . . .” Brennan v. Twp. of Northville, 78 F.3d 1152, 1158 (6th Cir. 1996).

Thus, Officer Behrik’s challenge to the denial of qualified immunity is not “inextricably



                                               - 12 -
Case No. 17-1073, Barton v. City of Lincoln Park, et al.


intertwined” with the district court’s summary-judgment ruling on the City’s Monell liability.

Moreover, the claims against the remaining officers were not before the district court. Those

claims of excessive force will continue. Because resolution of Officer Behrik’s interlocutory

appeal does not necessarily determine the City’s training and supervision obligations, we do not

have jurisdiction to consider the City’s municipal-liability appeal.

                                                IV.

       For the reasons set forth above, we reverse the district court’s denial of qualified

immunity as to Officer Behrik and decline to address the district court’s denial of the City of

Lincoln Park’s motion for summary judgment for lack of jurisdiction.




                                               - 13 -
