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APPEAL FROM THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN  SOUTHERN DIVISION  CASE NUMBER : 02-73742

HONORABLE GERALD E. ROSEN

________________________________________________________________________

STATEMENT IN SUPPORT OF ORAL ARGUMENT 

The Plaintiffs – Appellees concur, with the Defendant – Appellant’s Statement in Support of Oral Argument.

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

The Plaintiffs – Appellees dissent, with the Defendant – Appellant’s Statement of Subject matter and Appellate Jurisdiction.

The Plaintiffs – Appellees disagree that the District Court denied the Defendants Motion for Summary Judgment on the grounds of qualified immunity in its March 12, 2005 Order. The District Court denied the Defendants Motion for Summary Judgment since material issues of fact precluded Summary Judgment on Plaintiff Basim’s excessive force, assault and battery and gross negligence claims.

The Plaintiffs – Appellees disagree that this Court has jurisdiction over this Interlocutory Appeal because the Defendants – Appellants raise the legal issue of the qualified immunity standard, when there remains for trial, determination of genuine issues of material fact. Hence this Court has no jurisdiction to review the trial court order, de novo.

The District Courts’ denial of the Defendants claim is on the ground of the existence of material facts. Therefore the denial of the claim by the District Court turns on issues of fact not law and this Court has no jurisdiction over this Interlocutory Appeal.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. WHETHER THE DISTRICT COURT PROPERLY DENIED THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT UPON FINDING THAT MATERIAL ISSUES OF FACTS WITH RESPECT TO PLAINTIFF BASIM’S CLAIMS, PRECLUDE SUMMARY JUDGMENT.
2. WHETHER THE APPELLANTS’ APPEAL IS LEGALLY SUSTAINABLE ON THE LEGAL ISSUE OF QUALIFIED IMMUNITY STANDARD WHEN THERE REMAIN FOR TRIAL GENUINE ISSUES OF MATERIAL FACT.

STATEMENT OF THE CASE

On 12/2/02, Plaintiffs-Appellees, Basim, Qasim and Abedulah Alkhateeb (hereinafter referred to as the “Plaintiffs”), brought this action under 42 U.S.C. §1983 and 42 U.S.C. §1985 against the defendants-Appellants (hereinafter referred to as the 4“Defendants”), alleging various constitutional violations by the Defendants. Plaintiffs Complaint alleged the violation of their rights to be free from unreasonable search and seizure including the use of excessive force under the Fourth Amendment and their rights to the equal protection of the law under the Fourteenth Amendment. Plaintiffs also alleged state causes of action for ethnic intimidation, false imprisonment, assault and battery, intentional infliction of emotional distress and gross negligence.

On July 31, 2003, Defendants filed a motion for summary judgment. On May 14, 2005, Plaintiffs filed a cross motion in response to Defendants motion for Summary Judgment, to deny Defendants motion for summary judgment, to impose Rule 11 sanctions against Defendants, and grant Plaintiffs motion for summary judgment as to the Defendants excessive use of force, tortuous liability of the Defendant officers in relation to claims of assault and battery and gross negligence of the Defendant officers, unreasonable search and seizure and false imprisonment.

The Honorable District Judge, Gerald E. Rosen after reviewing and considering the briefs and evidence of both the parties issued a Memorandum Opinion and Order regarding motions for summary judgment on 12/5/05.  The Court, granted in part, and denied in part, Defendants motion for summary judgment. Judge Gerald E. Rosen questioned the validity of the defendant’s position. Judge Rosen stated that depending on the circumstances some limited force may be reasonable, the record evidence of the case establishes that there exist a genuine issue of material fact regarding the degree of force used by the officers with regard to the detention of plaintiff Basim.  (R. 109 pg 25, Apx___).  Judge Rosen further observed that while defendants denied using anything more than reasonable force and the defendant’s testimony was corroborated by that of a number of witnesses,  Plaintiff Basim testified otherwise and there is medical evidence that the Plaintiff sustained some injuries. (R. 109 pg 26, Apx.___).

The District Court held that it was not the role of the Court on a motion for summary judgment to weigh the credibility of the witnesses.  In light of the contradictory evidence, summary judgment on Plaintiffs’ § 1983 excessive force claim would clearly be inappropriate as to Plaintiff Basim. The Court further held that, this same contradictory evidence as to the reasonableness of force used by the officers, compels denial of summary judgment on qualified immunity ground as well. (P. 109 pg 26, Apx.___).

Lastly, the District Court also held that the same issues of fact which precluded summary judgment on the claims of excessive force and governmental immunity also precluded summary judgment on Plaintiff Basim’s assault and battery and negligence claims.  The District Court held that viewing the evidence in the light most favorable to Plaintiffs,’ as the court is compelled to do, issues of fact remain as to whether the officers’ contact with regard to Plaintiff Basim was “so reckless as to demonstrate a substantial lack of concern for whether an injury results”. (R. 109, p. 35-36, Apx.___).

The Plaintiff Basim Alkhateeb has succeeded on merits at the lower level and the Defendants now raise this frivolous appeal addressing legal issues on qualified immunity which involve determination of issues of material facts that are pertinent to the final outcome of the case to be decided by the District Court.

Statement of Facts

On December 2, 2004, Plaintiffs filed the present action, under 42 USC §1983 and 42 USC §1985. The Plaintiff’s nine count complaint alleged 1) Fourteenth Amendment violations 2) Fourth Amendment violations 3) Violation of Plaintiff constitutional rights by Waterford Township 4) Violations of 42 USC 1985 5) Ethnic Intimidation under MCLA 750.147 b 6) False imprisonment 7) Assault and battery 8) Intentional infliction of emotional distress 9) Gross negligence by Waterford Township police officers, on June 20, 2002.  It is undisputed that the Plaintiffs were just operating an ice cream truck on a summer day and not in violation in any law.  No charges were brought against the Plaintiffs, though the Defendants allege that citizens “complained to police that plaintiffs were engaged in illegal activity, possible abductions or drug trafficking” (R. 74, Defendant’s Motion for Summary Judgment, pg 1, Apx.__).  This is without any factual basis what so ever. Plaintiffs were illegally apprehended and searched for over 45 minutes. (R. 91, pg 7, Apx.__).  Their ice cream truck was ransacked and their personal property confiscated with no search warrant or consent. (R. 91, Exhibit Q, pgs 27-28, Apx.___). Then the plaintiffs were released. Plaintiffs sustained physical and emotional injuries as a result of this incident. (R. 91, Exhibit A, Apx.___).

Plaintiffs (Basim, Qasim and Abedulah Alkhateeb) are brothers of Arabic descent.  Abedulah Alkhateeb obtained his doctorate in engineering and is currently employed at Chrysler Corporaton as an engineer. Basim Alkhateeb who was a Major in the Jordanian Army arrived in the United States to pursue his doctorate. Basim who is close to obtaining his doctorate has recently been named International Student of the Year at Oakland University. Basim is also an engineer at Chrysler, and a Professor. He has recently filed a patent (R. 91, Exhibit B, Basim Affidavit, Apx.___). Qasim Alkhateeb arrived in the United States in May of 2002 and is currently in a graduate program (R. 91, Exhibit B Qasim Affidavit, Apx.___).It is undisputed that none of the plaintiffs has a criminal record. With the aspirations to operate a small business for additional income, Abedulah purchased and operated an ice cream truck with his brother-in-law in Waterford Township neighborhoods. They began their operation in May of 2002 with good success and without incident (R. 91, Exhibit B, Abedulah Affidavit, Apx.___).

All the plaintiffs lived together. Plaintiff Abedulah’s brother-in-law went on a vacation in the second week of June, 2002. The other plaintiffs, Basim and Qasim offered to assist their brother Abedulah in his ice cream business while his partner was out of town. Thus for at least 3 days before the incident, Plaintiffs coordinated their work and school schedules and agreed to the following arrangement: plaintiff, Basim would drive the ice-cream truck from their home in Rochester and sell ice cream during the early morning shift. Basim would then meet his two brothers at the entrance of a Waterford sub-division to change drivers for the afternoon shift. Basim would take the car along with his bag pack full of college books (sometimes he also had a plastic bag containing his dinner), and attended classes at Oakland University. The other two brothers would then drive the ice cream truck for the afternoon shift in the neighborhood (R. 91, Exhibit B, Apx.___).

The neighborhood where plaintiffs sold ice cream was known to be very safe. A resident of the Waterford Township neighborhood for approximately 30 years, Marcia Bovee, testified that there has never been any instance of drug activity or other criminal conduct in that neighborhood. In fact, Defendant Officer Good lived on the same street (R. 91, Exhibit 2, pg 13, Apx___). Apparently, defendant Officer Ross and his family also live in the neighborhood (R. 91, Exhibit 1, pg 22-23, Apx.___).

However, a shift change by the brothers in front of resident Marcia Bovee’s home raised her suspicion. On June 17, 2002, three days before the incident in question in this case, plaintiffs met in front of her home to exchange vehicles. At that time Ms. Bovee, who was babysitting her grandchildren, Thomas and Eric, warned them to stay away from the men and vehicles. However, the children’s friend Brent Mortimer, who too was with them, was not warned to stay away and so when the ice cream truck stopped on the street, he ran up to it and ordered an ice cream. Thomas stood by his friend ‘to protect him’. Thomas saw a bag being passed from one driver to another, and strange looking foil packets on the floor of the truck.  When Thomas’ mother, Jill Michaels, returned from work, Mrs. Bovee told her of what had happened. She, immediately, took her son, Thomas, 14, to the Waterford Township police to report the suspicious activity. At the Waterford Township police station, Sergeant Palombo made a written statement of the report.  (R. 91, Exhibit E, Apx___).  This was the only report or any type of record produced by defendants regarding plaintiffs before the June 20, 2002 incident.  There is no reference to child abduction or drug activity in the report.  Further, Ms. Michaels was disturbed with the June 17 police report authored by defendants when she reviewed it at her deposition, and stated, “…I believe these are my son’s statements.  They made it look like my statements and they are not my statements.” (R. 91, Exhibit D, pg 25, Apx.___).  It is undisputed that Ms. Michaels never saw plaintiffs. Further, her son, Thomas, testified that he never said the word “Arab” as stated on page 5 of the report (R. 91, Exhibit E, Apx.___).  Instead, he stated that they had dark hair and tan skin (R. 91, Exhibit D, pg 14-16, Apx.___). On the basis of the statement, Officer Ritter was dispatched to the site and found no suspicious activities (R. 91, Exhibit F, pg 8-10, Apx.___).

The reference in defendants’ brief to “foil packets being found on the floor of the ice cream truck”, allegedly stated by resident Ms. Bovee (R. 74, Defendant’s Motion for Summary Judgment,  pg 3) is totally false. Ms. Bovee denied that claim in its entirety in her deposition (R. 91, Exhibit 2, pg 98, 116, Apx.___), and police were never told about alleged “foil packets’ before apprehending plaintiffs.

On June 20, 2002, Ms. Bovee again saw two of the plaintiffs in a car waiting for the ice cream truck and notified a neighbor, Ms. Boik of plaintiffs’ presence. Ms.Boik then called the police and spoke with dispatcher Debbie Mathewson.  There was no reference to plaintiff’s ethnicity, drug trafficking or child abduction, in a copy of the transcript of the phone conversation between Ms. Boik and the dispatcher (R. 91, Exhibit I., Apx___).  Acccording to Mathewson, serious crimes are coded “Red” I, meaning high priority and  non serious ones are coded “Blue”. (R. 91, Exhibit G, Apx___).  For suspicion of drug trafficking, an incident would be coded with number “1800” _meaning “narcotics complaint” (R. 91, Exhibit G, pg 46-47, Apx___).  In this case, dispatcher Mathewson coded the citizen call as a blue with code number 9027, meaning simply ‘surveillance detail” (R. 91, Exhibit G, pg 41, Apx___). Further dispatcher Mathewson ran a criminal history and LEIN[1] check on plaintiffs and found no criminal records (R. 91, Exhibit G, pg 31, Apx___).  In fact, Dispatcher Mathewson testified that based on the LEIN check, she had no concern for the officer’s safety (R. 91, Exhibit G, pg. 33, Apx___).

On the basis of the citizen phone call, Dispatcher Mathewson initially radioed uniformed officer Kirk Simpson. However, he did not answer. Dispatcher Mathewson then radioed defendant undercover officer Rick Lemos. Defendant Lemos advised he was near the area and would investigate it, and requested backup.  Exhibit I is a copy of the transcript of Ms. Mathewson’s phone activity and conversation with defendant Lemos. (R. 91, Exhibit I, Apx___).  This phone conversation and the statement of a 14 year old boy made three days earlier (R. 91, Exhibit E, Apx___) are the only information reported to the police department regarding plaintiffs produced by defendants.  As such, there is no substantive admissible evidence, whatsoever, to suggest that Lemos knew or could have reason to know that plaintiffs may have been armed or involved in drugs, child abductions or any sort of illegal activity when he arrived on the scene.

Plaintiff, Basim concluded the morning shift and met his other brothers at the subdivision entrance as previously agreed. The two brothers got out of their car and entered the ice cream truck (R. 91, Exhibit M pg 66, Apx___).  Plaintiff, Basim, then left the ice cream truck, and walked towards the car with his lunch bag which had an apple , a sandwich and a review paper for an exam he was going to take at the University (R. 91, Exhibit J pg 169, Apx___). Basim, did not have his customary book bag because it was exam day (R. 91, Exhibit J, pg 168-169, Apx___).  As plaintiff Basim was about to enter the car, undercover Officer defendant Rick Lemos, muscularly built, tattooed, and wearing cut-off shorts, earrings, sunglasses, cap, and a tank top, suddenly drove up and parked his truck diagonally in front of Basim’s car (R. 91, Exhibit B, Apx___).  Lemos then drew his .38 Wesson hair trigger gun (no safety lock) (R. 91, Exhibit Y, Apx___), pointed it towards Basim’s head and shouted at Basim to put his hands on the car.  Basim fully complied. (At that time Basim thought he was being robbed) (R. 91, Exhibit J pg 51, Apx___).  Lemos ordered Basim to kneel on the ground with his hands behind his neck, which he did (R. 91, Exhibit J, pg 154-155, Apx___). Lemos then stepped behind Basim and kicked him in the back, causing him to fall and strike his head on the ground (R. 91, Exhibit J, pg 156, Apx___).  Then, Lemos asked if he was Arabic, to which Basim responded in the affirmative (R. 91, Exhibit J, pg 158 Apx___).  Lemos then engaged in a tirade of repeatedly kicking Basim’s leg, shouting, “Damn you, I am a Police Officer, admit it, admit it, admit it, what are you hiding, at least 10-15 times (R. 91, Exhibit J pg 156-160, Apx___).  Basim replied, “nothing” (R. 91, Exhibit J, pg 159, Apx___).  Lemos then crouched low and pointed his hair-trigger gun at Basim’s head, pressing the gun to his temple (R. 91, Exhibit J, pg 160 Apx___).  Basim feared for his life.  (R. 91, Exhibit B, Apx___).  Subsequently, another officer, defendant Ross approached Basim and placed his knees on Basim’s neck (R. 91, Exhibit J pg 256, Apx___).  Defendant officers then searched plaintiff’s pockets and confiscated plaintiff’s personal possessions (R. 91, Exhibit J pg 254, Apx___), including his identification card, telephone book, bank statements, university notes and his password for his Oakland University e-mail account (R. 91, Exhibit P-document, Apx___).  It is undisputed that plaintiff Basim, never gave his consent to his pockets being searched. Further, plaintiff, Basim was fully compliant (R. 91, Exhibit B, Apx___), did not pose any risk, and did not attempt to resist or flee. This was confirmed by defendant officer Ross (R. 91, Exhibit K, pg 41-44, and Exhibit R, pg 52, Apx___).  Basim was then handcuffed. Ross testified that, to effectuate the handcuffing, he put his knees on plaintiff’s back and shoulder (R. 91, Exhibit K pg 44, Apx___).  Basim was then pulled to his feet and placed in the back of the car by defendant Ross (R. 91, Exhibit K pg 44, Apx___).

According to Lemos’ deposition, it was he who led the investigation (R. 91, Exhibit R pg 32, Apx___).  Further, he asserts he was allegedly “50 feet away”, behind the front end of his truck, for protection, when he ordered Basim to the ground (R. 91, Exhibit R pg 43, 45-46, Apx___).  Within 10 seconds, defendant officers Ross and Warner arrived, and Ross handcuffed Basim on the ground (R. 91, Exhibit R pg 48, Apx___).  Lemos then searched the car and saw the lunch bag that plaintiff was carrying. He recalls seeing food in it. (R. 91, Exhibit R pg 61, Apx___).  Defendant Lemos then testified that the main thing that made him suspicious to justify a stop was that he saw Basim put another bag in the truck of the car (Bag# 2) (R. 91, Exhibit R pg 41, Apx___).  Plaintiff did not do so (R. 91, Exhibit B, Apx___).  He also believed plaintiffs “were up to not good”   (R. 91, Exhibit R pg 86, Apx___).  When Lemos was asked at his deposition whether he inquired further about this alleged Bag#2, his response was incredibly ‘No, my screw up… I actually forgot”  (R. 91, Exhibit R pg 63, 85-86, Apx___).  Lemos further testified that he never once even attempted to communicate to or ask any of the plaintiffs about the reason for their presence or this alleged Bag#2 that allegedly caused him to be suspicious, because “people lie”  (R. 91, Exhibit R pg 81, 85-86, Apx___).  Lemos could not even describe the color, size or type of Bag#2 (R. 91, Exhibit R pg 38, 39, Apx___).  To date, there is no evidence whatsoever, that plaintiff, had any bag other than his lunch bag.

During that time, the other two brothers, who had just started to drive the ice cream truck, stopped when they saw their brother, Basim , being accosted by a large man at gunpoint (R. 91, Exhibit N pg 199, Apx___).  Qasim, thinking it was a robbery, told Abedulah, “your brother is gone’, thinking he would be killed (R. 91, Exhibit M pg 93, Apx___).

Plaintiff Qasim saw defendant Lemos hold Basim at gunpoint aimed at his head, while Basim was on his knees. (R. 91, Exhibit M pg 93, Apx___).   They parked the ice cream truck next to a curb (R. 91, Exhibit B, Apx___).  At that point another undercover officer, defendant Scott Good, was also at the scene. Officer Good ordered plaintiffs, Abedulah and Qasim, to get out of the ice cream truck and lay on the ground, which they did without resistance (R. 91, Exhibit 3 pg 25, Apx___).  Another office, defendant Warner, then handcuffed the two brothers while they were lying on their stomachs face down in a ditch near the right side of the ice cream truck (R. 91, Exhibit O pg 36, Apx___).  One officer (either Warner or Good) then placed his knees on Abedulah’s back and another put his knees on his legs (R. 91, Exhibit N pg 210, Apx___). Without plaintiffs’ consent, they confiscated plaintiffs’ personal possessions from their pockets (R. 91, Exhibit N pg 210, Apx___), including plaintiff Abedulah’s phone book for his colleagues at Chrysler “Corporation, the original Bill of Sale for the ice cream truck, personal notes and his bank statements (R. 91, Exhibit B and Exhibit M-Abedulah’s documents, Apx___).  After a period of time, the two brothers were then led, handcuffed, in front of residents and their ice cram customers, and placed in the back of the police car (R. 91, Exhibit O pg 43, Apx___).  At that time, plaintiff Abedulah heard a uniformed officer tell a plain clothed officer, “we can’t do that,” (R. 91, Exhibit N pg 281, Apx___).  During that time, two more officers arrived at the scene, Officers Simpson and Bartle (R. 91, Exhibit 6, 6/20 police report, Apx___).  Defendant Officer Lemos then ordered a K–9 unit to come to the scene.  Officer Quaittato then arrived with the K-9 dog and searched the vehicle and ice cream truck (R. 91, Exhibit Q pg 27-28, Apx___).  It is undisputed that the officer never obtained consent from plaintiffs or obtained a warrant to search their person, the car or truck (R. 91, Exhibit B, Apx___).  Because of the search, much of the ice cream contents became inedible and / or destroyed  (R. 91, Exhibit N pg 222, Apx___).  After nearly 45 minutes, the plaintiffs were released, without explanation. Their personal documents were confiscated and Basim missed his university examination (R. 91, Exhibit B, Apx___).  No charges were ever filed.  No drugs were found.  It is undisputed that during this whole ordeal, plaintiffs were compliant.  In fact, according to Officer Ross who arrived immediately at the scene to assist Lemos and remained during the whole incident, all three brothers were fully cooperative and complied with all of the officers’ orders.  Officer Ross saw no signs of improper conduct on the part of plaintiffs (R. 91, Exhibit K pg 52-54, Apx___)[2].

Accompanying Plaintiff’s Response to Motion for Summary Judgment, the Plaintiffs produced a videotape obtained from another squad car that arrived on the scene[3].  Initially the officer parked his vehicle in such a manner in a residential driveway when he arrived to the scene at approximately 17:37:06, so as not to show the apprehension of the plaintiffs. At approximately 17:53:04 on the tape[4], the officer then moved the vehicle to tape the scene, which depicts the officers eventually raising the two handcuffed brothers

For the next two minutes, the brothers repeatedly asked defendants for their personal belongings, upon which they heavily depended, as well as a police report to try to understand why this event happened. They were ignored and even told, at one time, that there was no such record of the incident (R. 91, Exhibit N pg 276, Apx___). Defendant Good later testified that he did not prepare a report right after the incident but, instead, prepared one only after his supervisor told him to do so because of litigation which was filed three months later (R. 91, Exhibit 3 pg 9, Apx___).  After suit was filed, plaintiffs’ personal possessions were finally returned in May of 2003, eleven months after they were confiscated.

Defendants never bothered to question plaintiffs about their presence because according to defendant officer, Lemos, “people lie” (R. 91, Exhibit R pg 81, Apx___) Nor did they even check for an alleged bag#2 that supposedly justified the stop, which would have dispelled any alleged suspicions that defendants had. Defendant Lemos excuses himself with the following pathetic excuses: “my screw up” and “I actually forgot’ (R. 91, Exhibit R pg 63, 85, 86, Apx___).  Instead, defendants unconstitutionally conducted a full blown investigation, searching plaintiffs their documents, vehicle and ice cream truck, in addition to confiscating their personal documents.

SUMMARY OF ARGUMENT

The Plaintiff’s excessive force claim is based on the allegation that he was kicked and punched and threatened with a gun held to his head. There is medical evidence on record to show that the Plaintiff sustained injuries. The Defendants denied all this and produced witnesses to support their claim. Thus, the question before the District Court was whether a question of material fact remained as to whether excessive force was used in light of material evidence produced by both the parties. The District Court rightly held that a grant of summary judgment would preclude the necessary examination of witnesses and weighing of their credibility by the fact finder.  Such evidence can only be developed and assessed at the trial stage. Since there remained a substantial issue of material fact, the Court rightly denied the defendants’ motion for summary judgment on these issues. A grant of summary judgment cannot be successfully appealed when there remain issues of material fact. The District Court properly rejected the defendants’ motion for summary judgment on the Use of Excessive Force (Count II), Assault and Battery (Count VIII) and Gross Negligence (Count IX).

Qualified immunity is not a defense to a factually supported charge that a police officer used excessive force. Defendants have challenged the summary judgment on an issue of law which other than the ground on which the District Court actually denied the Motion for Summary Judgment. No issue of law forms the basis of the present appeal. Whether the force used was excessive or not is an issue of fact which can only be decided at trial. Hence the District Court was correct in finding the existence of material facts yet to be resolved with respect to the Plaintiff’s excessive force, assault and battery and gross negligence claims.  Therefore, a grant of the Defendants’ motion for summary judgment and claims of qualified immunity are precluded.

ARGUMENT

1. DID THE DISTRICT COURT PROPERLY DENY THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UPON FINDING THAT MATERIAL ISSUES OF FACTS REMAIN WITH RESPECT TO PLAINTIFF’S CLAIMS?

1. STANDARD OF REVIEW

When an appellate court reviews a grant of summary judgment, the district court decision is reviewed de novo. See, e.g.  National Bank of Detroit v. Shelden, 730 F.2d 421, 423 (6th Cir. 1984); Glenway Industries, Inc. v. Wheelabrator-Frye Inc., 686 F.2d 415, 417 (6th Cir. 1982).

However, in reviewing a district court’s ruling denying a summary judgment motion on grounds that a material issue of fact exists appellate review is governed by an “abuse of discretion” standard. The difference in the standards of review has been explained as follows:

Discretion plays no real role in the grant of summary judgment: the grant of summary judgment must be proper under the above principles or the grant is subject to reversal. The trial court may, however, exercise a sound discretion in denying summary judgment where, although the movant may have technically shouldered his burden, the court is not reasonably certain there is no triable issue of fact; where a portion of an action may be ripe for summary judgment but is intertwined with another claim(s) that must be tried; and in certain other situations.

6 Moore’s Federal Practice para. 56.15[8] (2d ed. 1985).

In Cleamtee Garner, v. Memphis Police Department , 8 F.3d 358 (1993), Defendants’ response to the summary judgment motion raised only legal arguments and did not argue that there remained genuine issues of material fact. The Court followed the principle articulated in Pinney Dock and Transport Co. v Penn Cent. Corp., 838 F.2d 1446, 1472 (6^th Cir.), cert den., 488 U.S. 880 *1988), and held:

Because the district court denied plaintiff’s partial summary judgment motion solely upon legal grounds, we review this denial de novo.

In reviewing a summary judgment motion, credibility judgments and weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the non-moving party. Thus, the facts and any inferences that can be drawn from those facts, must be viewed in the light most favorable to the non-moving party. Donald Bennett, V. City Of Eastpointe, 410 F.3d 810, 817 (6^th Cir. 2005).

In considering a motion for summary judgment, the judge’s function is limited to determining whether sufficient evidence has been presented to make the issue a proper jury question, and not to judge the evidence and make findings of fact. James Bultema V. United States Of America, 359 F.3d 379 (6^th Cir.2004).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp v Catrett, 477 U.S. 317, 333; 106 S.Ct. 2548; 91 L. Ed. 2d 265 (1986). When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in a light most favorable to the nonmoving party. All reasonable inferences are to be drawn in favor of the nonmovant. Shepherd Montessori Center Milan v Ann Arbor Charter Township, 259 Mich. App. 315, 324; 675 N.W.2d 271 (2004).

B.  LEGAL ARGUMENT

Defendants have raised this appeal on issues of law, from the Summary Judgment of the District Court denying the Defendants’ claim of qualified immunity.  In this case the District Court while deciding the summary judgment motions applied the principles established by the Sixth Circuit to be applied to motions for Summary Judgment. (Memorandum Opinion and Order, 17).

Defendants’ argument in this Appeal ignores the finding of the District Court that it is the existence of issues of material facts with regard to Plaintiff Basim’s claims that precluded a summary Judgment in favor of the Defendants.  The defendants had argued and produced witnesses in support of their claim of not having used excessive force, before the District Court. Plaintiff Basim had complained of use of excessive force by the defendants and placed medical evidence on record, to support his claim.

Judge Gerald E. Rosen considered the test articulated by the US Supreme Court in Graham v Connor, 490 U.S. 368, 109 S. Ct. 1865 (1989) and a line of 6^th Circuit decisions with regard to “reasonableness” under the Fourth Amendment and held:

“While the Foregoing standards make clear that, depending on the circumstances, some limited force may be reasonable, the record evidence of the case establishes that there exists a genuine issue of material fact regarding the degree of force used by the officers with regard to the detention of the Plaintiff Basim Alkhateeb. Defendants all deny any kicking or punching, deny putting a gun to anyone’s head, and deny using anything more than the reasonable force in handcuffing and placing the Plaintiff in the patrol cars. The defendant’s testimony is corroborated by that of a number of witnesses. Plaintiff Basim Alkhateeb, however, testified in his deposition to being kicked and punched and threatened with a gun to his head, and there is medical evidence that Plaintiff sustained some injuries. It is not the role of the Court at summary judgment to weigh the credibility of the witnesses. In light of this contradictory evidence, summary judgment on Plaintiffs @ 1983 excessive force claim would be inappropriate as to Plaintiff Basim Alkhateeb”

(Memorandum Opinion and Order, 25,26).

The District Court further held with respect to the Plaintiff Basim’s claims of assault and battery and gross negligence that:

“However, just as issues of fact exist with regard to Plaintiff Basim Alkhateebs claim of excessive force, the same issues of fact which precluded summary judgment on that claim also preclude a finding that the defendant officers are protected by governmental immunity on Basim’s assault and battery and gross negligence claim. Viewing the evidence in a light most favorable to Plaintiffs as the Court is compelled to do, issues of fact remain as to whether the officers’ conduct with regard to Plaintiff Basim Alkhateeb was “so reckless as to demonstrate a substantial lack of concern for whether an injury results”.

(R. 109, Memorandum Opinion and Order, 35,36, Apx___).

The decision of the District Court was based on principles established and upheld by the Sixth Circuit. A court may not resolve disputed questions of fact in a summary judgment decision, and if a disputed question of fact remains, the district court should deny the motion for summary judgment and proceed to trial. Where the district court must assess the relative credibility of witnesses, it is particularly inappropriate to grant a motion for summary judgment, and a full hearing on the merits is required. In Re: Atlas Concrete Pipe, Inc., v. Roger J. Au & Son, Inc, 668 F.2d 905 (1982).

The very purpose of a summary motion would be defeated if the Court goes to judge the evidence and make findings of fact since this would be equivalent to conducting a trial which is not contemplated for purposes of summary Judgment. The judge’s function is limited to determining whether sufficient evidence has been presented. The Plaintiff had presented sufficient evidence to show that he had sustained injuries. Medical evidence was produced for this purpose. Although the defendant produced witnesses to show that no excessive force was used, in light of the contradictory evidence produced by both sides the Judge could not go into the aspect of judging the evidence and weighing the credibility of witnesses at the Summary stage. Therefore the Court was justified in rejecting the defendant’s motion for summary judgment.

In conclusion, the district court’s denial of summary judgment was based on well-established principles of law and precedent and took into consideration the existence of issues of material fact while denying the defendants’ motion of summary judgment with respect to Plaintiff Basim’s claims. Plaintiffs respectfully request that this Honourable Court affirm the District Court’s holding and order of May 12, 2005 that denied the defendants motion for summary judgment on Plaintiff Basim’s Counts II, VIII and IX..

1. IS THE APPELLANTS’ APPEAL ON THE ISSUE OF QUALIFIED IMMUNITY LEGALLY SUSTAINABLE WHEN THERE REMAIN GENUINE ISSUES OF MATERIAL FACT?

 1. STANDARD OF REVIEW

A denial of qualified immunity on purely legal grounds is immediately appealable. A denial of qualified immunity that turns on evidentiary issues is not. A defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record set forth a “genuine” issue of fact for trial. Turner V. Scott, 119 F.3d 425; 1997

1. LEGAL ARGUMENT

The Defendants’ argument that they are entitled to qualified immunity is necessarily fails. Though the Defendant has stated that for the purposes of the appeal they do not dispute the facts alleged by the Plaintiff, they have concealed facts and hotly contested certain material facts with regard to the treatment meted out to the Plaintiff Basim. The defendants have merely made this statement that they are conceding facts to invoke the jurisdiction of this Honorable Court. Defendants have made a conscious effort to distract attention from the material fact of medical evidence produced by the Plaintiff, which clearly would indicate that Plaintiff suffered injuries. Defendants had also produced witnesses to show that no excessive force was used. None of these facts have been referred to by the defendants. Since contradictory evidence is produced by both sides, there remain material facts in issue which require the determination by a jury.

In Johnson v. Jones, 515 U.S. 304, (1995), the plaintiff, a diabetic ,was having an insulin seizure when he was arrested for being drunk. He claimed that the five policemen used excessive force when he was arrested and that they beat him at the station. Three of the policemen claimed there was no evidence in the pretrial record that they beat the diabetic person or were present and filed a motion for summary judgment. The court held that the determination that the summary judgment record raised a genuine issue of fact concerning the three policemen’s’ involvement in the alleged beating was not a final decision within the meaning of 28 U.S.C.S. § 1291 because (1) this case was not merely a question of law, but involved a genuine issue of fact; (2) that the immediately appealable issue was not a final decision that could have been separated from the case; and (3) policy concerns argued for limiting interlocutory appeals of qualified immunity matters to cases that present more abstract issues of law. Thus, the court held the three police officers could not have appealed the district court’s order denying summary judgment because the order determined whether or not the pretrial record sets forth a genuine issue of fact for trial. The Court held:

A defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a “genuine” issue of fact for trial.

Id at 320.

In Canter v. County of Otsego, 14 Fed. Appx. 518 (2001), the Court held that a district court’s denial of a claim of qualified immunity, to the extent it turns on an issue of law, is an immediately appealable final decision within the meaning of 18 U.S.C.S. § 1291. Where a district court denies a defendant’s motion for summary judgment based on its determination that a genuine factual dispute exists as to the merits of the constitutional claim presented, the defendant may not bring an immediate appeal. First, an appellate court has jurisdiction to hear an appeal of the separable and abstract issues of law that were necessarily determined by the district court’s denial, even where the district court denies the motion with the unadorned statement that material issues of fact remain. Second, the appellate court does not have jurisdiction to hear such an appeal where what is at issue is nothing more than whether the evidence could support a finding that particular conduct occurred.

In, Ray v. Wolters, 30 Fed. Appx. 550, plaintiff mother filed a multi-count suit against defendant police officer which included claims of false arrest and imprisonment, and malicious prosecution, both in the form of 42 U.S.C.S. § 1983 claims. Defendant appealed the decision of the United States District Court for the Western District of Michigan denying his motion for summary judgment on the ground of qualified immunity The critical factual issue upon which the question of qualified immunity turned was whether the officer – as he claimed – told the mother that he intended to search her car incident to her son’s arrest. The mother claimed that the officer said nothing of the sort, and that therefore she felt free to drive off. The officer, however, maintained that he did tell her that he intended to conduct a search. After finding that the mother asserted a violation of clearly established law – the constitutional right to be free from arrest without probable cause – the district court concluded that genuine issues of fact remained such that summary judgment was improper. The district court concluded that the legal question of qualified immunity turned on whose version of the facts were to be believed – a matter for the jury. Because the appellate court had jurisdiction to hear qualified immunity interlocutory appeals only where questions of law were at issue, it had no jurisdiction over the instant appeal since there remained to be decided an elementary question of fact: did or did not the officer tell the mother that he would search her car incident to the arrest of her son?

In Sova v. City of Mt. Pleasant. 142 F.3d 898. 902 (6th Cir. 1998),the Court held;

This Court has established that summary judgment is inappropriate where there are contentious factual disputes over the reasonableness of the use of deadly force. When “the legal question … is completely dependent upon which view of the facts is accepted by the jury,” the District Court cannot grant a defendant police officer immunity from a deadly force claim. (Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. 1989)). This is because the reasonableness of the use of force is the linchpin of the case. If the jury determines the officer shot the suspect without a reasonable elief that he posed a significant threat of death or serious physical injury to the officer or others, then the officer’s actions were legally unreasonable under the Fourth Amendment. On the other hand, if the jury believes the officer’s  version of the facts and finds the officer’s conduct was reasonable, then he will be entitled to qualified immunity. Where, as here, the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability. Id at 902-903.(See also Smith v. Kim, 70 Fed. Appx. 818 )

In Poe v. Haydon, 853 F.2d 418, 425 (6th Cir. 1988), cert. denied, 488 U.S. 1007, 102 L. Ed. 2d 780, 109 S. Ct. 788 (1989), this Court examined the factual inquiry to be made in determining whether qualified immunity should be granted:

If the undisputed facts show that defendant’s conduct, as a matter of law, did not violate clearly established legal rights, then the district court must grant the   defendant summary judgment on the basis of qualified immunity (citation omitted). . . . On the other hand, summary judgment would not be appropriate if there is a factual dispute (i.e. a genuine issue of material fact) involving an issue on which the question of immunity turns, such that it cannot be determined before trial whether the defendant did acts that violated clearly established rights. Summary judgment should also be denied if the undisputed facts show that the defendant’s conduct did indeed violate clearly established rights.

Id. at 426.(See also In Buckner v. Kilgore, 36 F.3d 536)

 In the instant case, there is a factual dispute as to whether the defendants used excessive force, much greater than what the circumstances warranted.  Whether the force used by the defendants was in excess of reasonable force is a factual aspect which requires weighing the evidence of both sides and the relative credibility of the witnesses. This is possible only at trial. Violations of the constitutional rights of the Plaintiff will pierce the shield of qualified immunity of the defendants. The Defendants have raised the issue of qualified immunity as a question of law to be determined. The issue of qualified immunity cannot be raised as a question of law at this stage, as there is a genuine factual dispute about whether constitutional rights were violated.

Therefore, this Court cannot undertake de novo review of the District Court’s May 12, 2005 order and grant the Defendants’ motion for summary judgment. Plaintiff respectfully requests that this Honorable Court deny the Defendants’ appeal on the legal issue of the applicability of qualified immunity, as it is wholly unsustainable.

 CONCLUSION

The District Court was justified in finding that the existence of material facts with respect to Plaintiff Basim’s Count II, Count VIII and Count IX precluded a motion for summary judgment in favor of the Defendants.  The District Court correctly held that the same contradictory evidence as to the reasonableness of force used by the Defendants compelled denial of summary judgment on qualified immunity grounds as well.  Therefore, the Defendant/Appellants’ arguments requesting reversal of the District Court’s rulings on these issues must fail.

[1] Law Enforcement Information Network

[2] In the Introduction of their Appeal, defendants refer to certain residents so as to infer that they were present during the entire event and saw no improper conduct by defendants. This is misleading, as many of the residents either arrived late, or only saw part of the ordeal. Although not relevant to this motion, ExhibitC is a summary of the whereabouts of the resident and their testimony regarding the incident. (R. 91, Exhibit C, Apx.___).

[3] Defendants attempt to portray that plaintiffs were only apprehended for 38 minutes by time in the tape (R. 74, Defendants’ brief pg 1: fn2, Apx.___). What is not mentioned is that Officer Bartle arrived at the scene after two of the plaintiffs were already handcuffed and lying on the ground and after plaintiff Basim was already handcuffed in one of the police cars. The plaintiffs were retained for tat least 45 minutes, and their documents were never retained until 11 months later, as later discussed.

[4] The police tape shows a date of 6/19/02. This is an error, it should have stated 6/20/02.

conducting a search without warrant or plaintiffs’ consent.