                                     NOT FOR PUBLICATION
                                      File Name: 07a0129n.06
                                      Filed: February 15, 2007

                                              No. 06-5570

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


CHRISTOPHER NELSON,

                Plaintiff-Appellee,
                                                         ON APPEAL FROM THE
v.                                                       UNITED STATES DISTRICT
                                                         COURT FOR THE WESTERN
MATTHEW RIDDLE and                                       DISTRICT OF KENTUCKY
THOMAS O. MOORE,
individually and in their
official capacities; CITY OF
CADIZ POLICE DEPARTMENT,

            Defendants-Appellants.
_____________________________________/

BEFORE:         GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

        PER CURIAM.         Appellants Matthew Riddle and Thomas O. Moore, appeal the district

court’s denial of summary judgment on the basis of qualified immunity in Appellee Christopher

Nelson’s § 1983 action alleging an illegal arrest arising out of a traffic stop in violation of the Fourth

Amendment. Appellants seek interlocutory review on this limited basis. For the following reasons,

we REVERSE.

                                                    I.

        At the time of the incident in question, August 2002, Nelson was twenty-three years old and

a recent graduate of the University of Illinois. He had recently returned to the Western Kentucky

area to live with his parents and search for employment. On the night of August 21-22, 2002, Nelson

left his parents’ home on Old Hopkinsville Road in Trigg County, Kentucky, outside the city of
Cadiz, to visit friends and shop at the Wal-Mart in Hopkinsville. Nelson was in Hopkinsville from

the early evening until after midnight. Upon leaving the Wal-Mart in Hopkinsville, Nelson drove

westbound on US Highway 68 towards his parents’ home outside Cadiz.

        Cadiz police officers, Defendants Matthew Riddle and Thomas Moore, were parked next to

each other in their marked patrol cars, driver’s door to driver’s door. A civilian “ride along” was in

Moore’s car. Both patrol cars were parallel to Highway 68, with Riddle’s vehicle facing in an

easterly direction and Moore’s facing in a westerly direction. Nelson’s car passed their position at

about 1:30 a.m. Moore told Riddle that he did not think Nelson’s car had a license plate. Both

officers thought that Nelson’s car also failed to have illumination over the license plate, as is required

by Ky. Rev. St. § 186.170. Riddle followed Nelson.

        Nelson turned left off of US Highway 68 onto Rocky Ridge Baptist Church Road at a short

distance from where the officers were parked. Moore, who was watching, testified that just past that

turn Nelson was perhaps 100 yards in front of Riddle. Riddle estimated that he caught up to Nelson

within three quarters of a mile from the officers’ original parked position.

        Riddle testified that Nelson “cut the curve” on Rocky Ridge Road, which Riddle thought

constituted erratic or reckless driving, that he switched on his patrol car’s blue emergency lights and

siren, radioed to his dispatcher that he had initiated a pursuit, and that Nelson was failing to stop.

According to Hollis Alexander, Cadiz’s Chief of Police, a police siren can clearly be heard in the

background of the radio communication between Officer Riddle and the dispatcher.

        Riddle stated that on a straight section of Rocky Ridge Road just past the curve that Nelson

had “cut,” he was as close as three car lengths to Nelson, but Nelson failed to stop in response to the

blue lights and spot light Riddle had shined into Nelson’s rearview mirror. Riddle testified that he

had reached dangerously high speeds while chasing Nelson.

                                                   -2-
        Nelson turned right onto Old Hopkinsville Road. Riddle, still about three car lengths behind

Nelson, overshot the turn, and had to back up to resume his pursuit. Riddle testified that he was

nonetheless able to keep Nelson in view, and that Nelson was driving erratically on Old Hopkinsville

Road, crossing the center line of the highway and driving at a very high speed. Riddle said that

Nelson’s tail lights also went out, as if Nelson had purposefully switched them off.

        Moore testified that when he heard the radio transmission, he joined the pursuit. He caught

up to the pursuit on Old Hopkinsville Road. He stated that Riddle had his blue emergency lights

turned on during the pursuit.

        Nelson pulled into his parents’ driveway off of Old Hopkinsville Road. Riddle testified that

Nelson jumped out of his car, threw both arms into the air and yelled “what?!” Riddle said that

Nelson had something in his hand and that Riddle told him to slowly place it on the ground. Riddle

handcuffed Nelson. He thought Nelson was slow to react to verbal commands and had bloodshot

eyes.   He also thought that Nelson may have been under the influence of marijuana or

methamphetamine, given his erratic driving and failure to stop in response to the police blue lights,

and administered field sobriety tests.     Nelson was able to stand on one foot but failed the

“countdown” test by failing to follow instructions regarding the numeric countdown. 1 Nelson also

failed the horizontal gaze nystagmus (HGN) test.

        Riddle testified that he arrested Nelson for fleeing a police officer, in violation of Ky. Rev.

Stat. Ann. § 520.095,2 and driving under the influence. The DUI report indicates that the reason for


        1
        Nelson allegedly failed the countdown test because he was instructed to count backwards
from 39 to 17, and he counted back to 14.
        2
        Ky. Rev. Stat. Ann. § 520.095 (West 1998) entitled, “Fleeing or evading police in the first
degree,” states that:


                                                  -3-
stopping the vehicle was “[i]nitially for a license plate violation,” and “[s]econdly for reckless

driving, fleeing or evading police, and DUI suspicion.”

       Nelson was taken to the local emergency room where a blood sample was drawn. He was

then lodged in the Trigg County Jail for the remainder of the night. The blood tests were negative

for alcohol or narcotics.

       Nelson tells a different story. He claims that just west of the intersection of Highway 68 and

Interstate 24, he observed two police cars sitting side-by-side. Nelson testified that when he saw the




(1) A person is guilty of fleeing or evading police in the first degree:
       (a) When, while operating a motor vehicle with intent to elude or flee, the person
       knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given
       by a person recognized to be a police officer, and at least one (1) of the following
       conditions exists:
       ...
       2.      The person is driving under the influence of alcohol or any other substance
               or combination of substances in violation of KRS 189A.010;
       ...
       4.      By fleeing or eluding, the person is the cause, or creates substantial risk, of
               serious physical injury or death to any person or property . . . .
       ...

(2) Fleeing or evading police in the first degree is a Class D felony.

Ky. Rev. St. § 520.100, entitled “Fleeing or evading police in the second degree,” provides as
follows:

(1) A person is guilty of fleeing or evading police in the second degree when:
       ...
       (b) While operating a motor vehicle with intent to elude or flee, the person knowingly
       or wantonly disobeys a recognized direction to stop his vehicle, given by a person
       recognized to be a peace officer.
...

(3)    Fleeing or evading police in the second degree is a Class A misdemeanor.


                                                 -4-
police cars he was driving 53 mph in a 55 mph zone. Nelson stated that he did not see emergency

lights on the police cars until he got out of his car and Riddle shouted at him.

       Nelson was placed in “deferred prosecution” for six months, and at the end of that period,

no further crimes having been committed, the Trigg County Attorney dismissed the charges against

him.

       Nelson then brought this action against Moore and Riddle, in both their individual and

official capacities. Defendants moved for summary judgment. The district court denied the motion.

First, the court held that there was a genuine issue of material fact as to whether Riddle had probable

cause to stop Nelson’s vehicle. The district court reasoned that:

       While it is true that Kentucky law prohibits the operation of a motor vehicle without
       an illuminated rear license plate, neither Officer Moore nor Officer Riddle could
       determine whether Nelson’s car was in fact lacking a proper license plate without
       further investigation. At that point, Officer Riddle could only have had reasonable
       suspicion that a non-moving traffic violation was occurring. The additional factors
       cited by Officer Riddle as justification for the ensuing pursuit include acceleration,
       cutting a curve, and the ambiguously described erratic driving.


       The district court also rejected the officers’ contention that they were entitled to qualified

immunity. It reasoned that:

               The question of immunity in the instant case turns on whether a reasonable
       person in possession of the facts known by Officers Riddle and Moore would believe
       that the Plaintiff was violating KRS 186.170, 186.990(1). The Court has carefully
       reviewed the facts of the record and, as discussed herein-above, notes that several
       factual disputes exist central to the determination of whether Officers Riddle and
       Moore could have reasonably believed probable cause existed to arrest Nelson at any
       time during the pursuit and resulting events.

       Defendants sought interlocutory review in this Court of that portion of the district court’s

order that denied summary judgment on the basis of qualified immunity.

                                                  II.


                                                  -5-
        Defendants argue that their decision to arrest Nelson for the offense of fleeing or evading

police should be protected by the doctrine of qualified immunity because Nelson never stopped his

car in response to the officers’ emergency lights and sirens as they pursued him, and it is not clearly

established in a particularized sense that a police officer violates probable cause standards by

arresting a motorist for failing to stop when signaled to do so.

        Before addressing the merits of this argument, however, we must address the substantive and

procedural doctrines which govern this type of appeal.              Government officials performing

discretionary functions are entitled to qualified immunity from suit for civil damages unless their

actions have violated a clearly established statutory or constitutional right. Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Thus, to show that a § 1983 defendant is not entitled to immunity from suit,

a plaintiff must prove that (1) the facts as alleged by the plaintiff show a violation of a constitutional

right; and (2) such right was clearly established. Saucier v. Katz, 533 U.S. 194, 200 (2001).

        A district court’s denial of a defendant’s claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable final decision within 28 U.S.C. § 1291 under the collateral

order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, Mitchell is limited to

appeals challenging purely legal issues of whether the alleged facts amounted to a constitutional

violation and whether the constitutional right was clearly established. It does not apply to a district

court’s determination about what factual issues are genuine and triable. Johnson v. Jones, 515 U.S.

304, 313 (1995). That is, “summary judgment determinations are appealable when they resolve a

dispute concerning an abstract issue of law relating to qualified immunity–typically, the issue

whether the federal right allegedly infringed was clearly established.” Behrens v. Pelletier, 516 U.S.

299, 313 (1996). Thus, “‘in order for an interlocutory appeal to be appropriate, a defendant seeking

qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only

                                                   -6-
the legal issues raised by the case.’” LeMarbe v. Wisneski, 266 F.3d 429, 435 (6th Cir. 2001)

(quoting Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir. 1999)). see also Wilhelm v. Boggs, 290 F.3d

822, 824-25 (6th Cir. 2002) (discussing standards); Williams v. Mehra, 186 F.3d 685, 689-90 (6th

Cir. 1999) (en banc) (same).

        Finally, “regardless of the district court’s reasons” for the denial of qualified immunity, this

Court may exercise jurisdiction over the appeal to the extent it raises questions of law. Williams, 186

F.3d at 689-90 (citations omitted).

        This Court reviews the district court’s grant or denial of summary judgment de novo, under

Fed. R. Civ. P. 56(c). Id. at 689. Summary judgment is warranted where “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). In resolving this question, we view the factual evidence and

draw all reasonable inferences in favor of the non-moving party. Williams, 186 F.3d at 689. A non-

movant must show sufficient evidence to create a genuine issue of material fact. Id.           A “mere

scintilla of evidence is insufficient; ‘there must be evidence on which the jury could reasonably find

for the [non-movant.]’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

        This Court reviews mixed questions of law and fact de novo. Id. A district court’s “findings

of ultimate facts based upon the application of legal principles to subsidiary facts are subject to de

novo review.” Id. Thus, a district court’s denial of qualified immunity, a mixed question of law and

fact, is reviewed de novo. See Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006),

petition for certiorari filed, 75 USLW 3065 (July 31, 2006) (No. 06-171).

        In this case, Defendants acknowledge the district court ruled that a question of fact existed

as to whether Defendants had probable cause to arrest Nelson. However, they claim that the district

                                                  -7-
court erroneously held that the question of immunity turned on whether a reasonable person in

possession of the officers’ knowledge would have believed that Nelson was violating Ky. Rev. St.

§ 186.170 and Ky. Rev. St. § 186.990, which require that license plates on motorists’ vehicles be

illuminated. Defendants contend that the focus should instead be on the officers’ decision to arrest

Nelson for “fleeing from the police” in violation of Ky. Rev. St. § 520.095 and Ky. Rev. St. 520.100.

They assert that, in the latter context, the uncontested facts are that Nelson failed to pull over and

stop when signaled by Riddle. They argue Nelson’s assertion that he “never knew” the officers were

pursuing him is irrelevant in this § 1983 analysis, and that the pure legal issue to be decided is

whether Defendants were clearly on notice that their decision to arrest Nelson for fleeing or evading

when he failed to stop would be unlawful.

       It is beyond question that in August 2002, Nelson had a clearly established Fourth

Amendment right to be free from arrest without probable cause. See Beck v. Ohio, 379 U.S. 89, 90-

91 (1964); Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). It is also true that if, in fact,

Nelson failed to stop when signaled, Defendants had probable cause to arrest.3

       Thus, the ultimate fact in this case–whether Defendants had probable cause to arrest Nelson

for failing to stop–turns on the subsidiary or basic fact of whether and when Defendants signaled him

to stop. See generally Williams, 186 F.3d at 690 (explaining that the issue of ultimate fact, which

requires this Court to compare the defendants’ conduct with a legal standard, is distinguishable from

issues of subsidiary or basic fact, which concern what actions the defendants performed). To answer




       3
        Nelson does not otherwise argue that a violation of Ky. Rev. St. § 520.095 and Ky. Rev. St.
§ 520.100 would not give rise to probable cause.

                                                 -8-
this question, we must view the factual evidence and draw all reasonable inferences in Nelson’s

favor.4 See Williams, 186 F.3d at 689.

        Defendants contend that Nelson’s testimony that he “never knew they were there, or behind

me,” fails to rebut the officers’ testimony that they pursued Nelson with emergency lights and sirens

of their patrol cars activated and that Nelson failed to stop. We agree.

        Nelson never unequivocally stated that the emergency lights were not on prior to the time he

got out of his car and Riddle shouted at him, but consistently couched his answers in terms of his

“subjective awareness,” which as Defendants assert is irrelevant in assessing what a reasonably

objective police officer would have believed. One exchange is particularly telling:

        Q:      Okay. So tell me if I’m wrong then. If that’s your recollection, then your
                testimony is that the police officers–that Officer Riddle did not have his
                emergency or blue lights on as he followed you.
                A:     I never knew if he was following me.

Further, Nelson never asserted in his complaint that the lights were not on (prior to his arrival at his

parents’ home) and does not make this assertion on appeal either. Thus, “the best inference available

to [Nelson] is that he was simply unaware of Appellants’ efforts to get him to stop his car,” which

does not rebut Defendants’ unequivocal testimony that they signaled him prior to his stopping at his

parents’ home and that he failed to respond. Nelson therefore failed to meet his burden of producing

more than “a mere scintilla of evidence” on which the jury could find for him. See Williams, 186

F.3d at 689.

        In sum, this Court holds that Nelson did not meet his burden of showing that the defendants

are not entitled to qualified immunity. See Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002). For



       4
       Rather than “conceding to facts as alleged by the plaintiff,” see Marbe, 266 F.3d at 365,
Defendants contend that those facts are irrelevant, because Nelson failed to stop when signaled.

                                                  -9-
these reasons, we need not rely on the district court’s incorrect focus on the alleged violations of Ky.

Rev. St. § 186.170 and Ky. Rev. St. § 186.990.

                                                  III.

        For the foregoing reasons, we hold that Defendants Riddle and Moore are entitled to qualified

immunity, and REVERSE the order of the district court denying them qualified immunity, and

REMAND for further proceedings consistent with this opinion.




                                                 -10-
       Ralph B. Guy, Jr., dissenting.         As the majority acknowledges, for this court to have

jurisdiction over an interlocutory appeal from the denial of qualified immunity, the defendant must

“concede the most favorable view of the facts to the plaintiff for purposes of the appeal.” Berryman

v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998). Defendants argue that, whatever else may be disputed,

the evidence demonstrated probable cause to arrest plaintiff for fleeing or evading an officer. Fleeing

or evading requires that a person operating a motor vehicle with intent to elude or flee, must

knowingly or wantonly disobey a direction to stop the vehicle given by a person recognized to be an

officer. K Y . R EV. S TAT. §§ 520.095 and 520.100. To be sure, Nelson did not stop his car until he

parked it in his driveway. For probable cause, however, the material question is whether a

reasonable officer would have believed that Nelson’s failure to stop was a knowing disregard of a

recognized officer’s signal to stop. In other words, would a reasonable officer have believed Nelson

was or should have been aware of Riddle’s attempt to stop him.

       If Riddle’s testimony is to be believed, Nelson failed to stop even though an officer in a

marked car activated his lights and siren, came within three car lengths of the car during the high-

speed pursuit, and directed a spotlight into the back window of Nelson’s car.             This would

undoubtedly establish probable cause. Defendants argue there can be no question of fact because

Nelson did not (and for that matter could not) testify that Riddle’s lights were not on. On that issue,

Nelson said all that he could under the circumstances—that he did not see Riddle’s lights or the

police car until after Riddle pulled into his driveway. As I see it, this misses the crux of the case.

       Nelson argued that the most favorable view of all the evidence permits an inference that

Riddle did not come close enough to Nelson’s car during the pursuit for a reasonable officer to

believe Nelson knowingly disobeyed a recognized officer’s signals to stop. That evidence includes

testimony that the sight lines were short on the curvy, hilly, poorly lit roads over which the two-mile

                                                 -11-
pursuit was conducted. There is no dispute that Nelson had a head start, and that Riddle only

initiated pursuit after observing Nelson going into a sharp curve. Even Officer Moore testified that

he could not see Riddle’s patrol car until he approached the scene outside plaintiff’s residence on Old

Hopkinsville Road. To this is added Nelson’s testimony that he had to slow to nearly a stop in order

to make the sharp turn onto Old Hopkinsville Road—a turn that Riddle admittedly overshot. From

that, Nelson argues that if Riddle had been following close enough for his lights to be seen, then

Riddle should also have seen Nelson’s brake lights and would not have missed the turn himself. In

addition, Nelson specifically averred by way of affidavit that there was a delay of 30 to 45 seconds

between the time that he arrived in the driveway of his home and when Riddle pulled into the

driveway behind him. This, Nelson argues, supports his claim that Riddle was not close enough

during the pursuit for a reasonable officer under the circumstances to believe that Nelson had

knowingly or wantonly disobeyed a recognized officer’s signal to stop.

       Because I believe the disputed facts concerning the pursuit create a question of fact whether

there was probable cause to arrest Nelson for fleeing or eluding an officer, I would affirm the denial

of qualified immunity on Nelson’s claim that he was arrested without probable cause.




                                                 -12-
