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Gibson v. O'Donnell

United States District Court, E.D. Michigan, Southern Division

May 23, 2017



          DAVID M. LAWSON United States District Judge.

         Responding to a complaint by a neighbor of an argument in progress, defendant Saint Clair County Sheriff's Deputy Timothy O'Donnell went to plaintiff Scottie Gibson's apartment. When no one answered his loud knocks on the door, despite the obvious presence of occupants, and after waiting about 40 minutes, O'Donnell breached the apartment door, finding Gibson and his girlfriend, plaintiff Loren Jusi, naked in the shower together. Despite both plaintiffs' assurances that no domestic quarrel had occurred, O'Donnell arrested Gibson for domestic assault. Gibson spent just over two days in jail, after which he was released when the state prosecutor declined to charge him with any crime. The plaintiffs sued O'Donnell via 42 U.S.C. § 1983 for violating their Fourth Amendment rights in two respects: breaking into their dwelling without a warrant, and arresting Gibson without probable cause. O'Donnell has filed a motion for summary judgment seeking dismissal of the complaint on the basis of qualified immunity. The plaintiffs also move for partial summary judgment on liability. The parties presented oral argument on May 4, 2017.

         O'Donnell's entry into the plaintiffs' apartment without a warrant presents a close question under clearly established Fourth Amendment law, even in light of the plaintiffs' version of the facts. But the doctrine of qualified immunity protects public officials against liability in close cases. However, viewing the facts in the light most favorable to the plaintiffs, O'Donnell's arrest of Gibson without probable cause violated Gibson's clearly established constitutional rights, which a reasonably competent police officer should have known at the time. The Court will grant in part and deny in part O'Donnell's motion for summary judgment. But the plaintiffs' version of the facts is not the only version; the factual contest, therefore, precludes partial summary judgment for the plaintiffs.


         Although summary judgment presumes the absence of material questions of fact, Fed.R.Civ.P. 56(a), the parties have presented competing versions of the events.

         A. Scottie Gibson

         According to Gibson, around 12:30 a.m. on January 15, 2016, he and his live-in girlfriend, Loren Jusi, had an argument. Gibson testified that during the argument, the plaintiffs had “both raised [their] voice[s], ” but they were “[n]ot very loud, ” and “not like yelling at the top of [their] lungs.” The argument, although it went on for some time, and included “screaming” and “yelling, ” did not involve any physical contact. Gibson stated that Jusi never asked him to “stop, ” and she was not sobbing or crying before the police arrived; she did ask him to “stop” when he went to answer the door when the police knocked, and Gibson saw her crying when he later was handcuffed and arrested. Gibson stated that the argument the couple had was about Jusi's ex-boyfriend sending her text messages and trying to reestablish contact with her. Gibson believed that the downstairs neighbor called the police only because of the noise from the argument, and that he had made a false report because the neighbor did not want them to live in the building any more, since the apartment above him had been empty before they moved in.

         When Deputy O'Donnell arrived, Gibson heard him pounding on the door and calling out his and Ms. Jusi's names, asking them to come open the door. Gibson did not hear anyone say they were from the Sheriff's Department, but he “guessed it was the police” because of the late hour and the way they were banging on the door. When the officers arrived, the plaintiffs were in the hallway of their apartment, which is near the front door, and they were getting ready to get into the shower. The plaintiffs did not answer the door, and the officers continued to pound on it for some time between five and 20 minutes by Gibson's estimation.

         Gibson testified that if the officers heard anyone crying or saying “stop, ” it was Jusi crying because she was afraid that if Gibson answered the door the police falsely would arrest him for domestic violence; she told him “stop” when he was going to answer the door. When the pounding stopped for a time, Gibson and Jusi thought the officers were gone, so they went ahead and got into the shower. When the officers returned and began pounding on the door again, the couple was in the shower and could not clearly hear what was being said. After they thought the police had left and got into the shower, Gibson and Jusi started having sex, and they were still doing that when they heard the front door kicked down. The officers then came to the bathroom door and told the plaintiffs they would kick that door down too if the plaintiffs did not come out. Ms. Jusi yelled from the bathroom that she was in the shower and naked and told the officers not to enter the bathroom. O'Donnell asked who was in the bathroom with her, and Jusi said “my boyfriend.” When asked if that was Gibson, she said yes. Jusi then opened the door; both plaintiffs were wrapped in towels. The police separated them, with Gibson staying just outside the bathroom door, while Jusi was taken to the main room of the apartment.

         Gibson testified that, after he came out of the bathroom, he had “about two minutes” of conversation with O'Donnell, then the defendant told him to turn around and that he was “going to jail, ” and handcuffed him. Meanwhile the other officers “had flashlights” and “were going through all [the] rooms” and “searching everywhere.” Gibson asked if he could put some clothes on first, and O'Donnell responded, “[N]ope, you're going just like this.” When Gibson was cuffed, his towel dropped because he could not hold it up anymore, and he was left standing naked in front of the officers. Gibson could not recall denying whether he and Jusi had an argument, but he testified that if they asked him if there was an argument, he may have at first lied and said “No.” Gibson testified that at the time of the incident, Jusi had a “scar” on her left calf, which was from a motorcycle accident. However, he stated that he did not have any marks on him from any physical altercation, because there was none that night. He testified that he had never hit or shoved Jusi, and she had never hit or scratched him.

         B. Loren Jusi

         Jusi testified that Gibson did not assault her on the night in question, and that if the downstairs neighbor heard anything “physical” or “banging around” before police arrived, it must have been when she and Gibson were having sex. She stated that their sex may have been “loud” and could have been “misconstrued” by the neighbor. Jusi testified that if she was crying before the police arrived, it was because she and Gibson “were having a conversation about some pretty deep things, ” that she was “crying to him, ” and “he was consoling me.” Jusi stated that the “emotional” discussion that they had was about her having worked as an exotic dancer before she met Gibson. She admitted that at first she told the officers that there was “nothing going on” and there had been no argument. Jusi testified that she did not remember going out on her apartment balcony to make any phone call that night. She stated that if the downstairs neighbor had any audio recording of sounds from the apartment that involved “banging” or a woman's voice “crying, ” it would have just been from “wild sex.” Jusi testified that the “emotional” discussion was not what she “would deem an argument, ” and she “didn't recall . . . shouting [or] screaming.” Jusi stated that her ex-boyfriend had contacted her earlier, but she did not “recall . . . that it sparked anything.” Jusi did not remember if she heard the police pounding on the door when she was in the shower, but when she did hear someone knocking, she did not want to answer the door because she was not expecting anyone. Jusi confirmed that when she heard the police call for Gibson to open the door, she told him not to because she was afraid he would be arrested. Jusi believed the police were there because the downstairs neighbor had made a false complaint of domestic abuse, and she thought the police would arrest Gibson because they also had arrested him when they came to the house in 2015. She had told the police then that Gibson did not abuse her, but the police “didn't want to hear anything I had to say.”

         Jusi testified that she has an “abrasion” on her left calf which is permanent, and it is a mark from an old motorcycle accident. Any such mark that may be present is difficult to discern from the photograph submitted as an exhibit to the plaintiffs' motion, even though the photo itself is clear and in full color. However, Jusi testified that she told O'Donnell that “there's no way that's from Scottie because I've had it before I've been with him.”

         Jusi also told O'Donnell that she was never physically assaulted by Gibson, either on the night of January 15, 2016, or in November 2015, when Gibson previously was arrested for domestic assault. She testified that the charges from November 2015 were dismissed on the morning of trial because she did not show up for the scheduled court date.

         C. Deputy O'Donnell

         O'Donnell admitted that before January 15, 2016, he did not know either of the plaintiffs and had never had any prior contact with them. O'Donnell also confirmed that he did not know any of the details of the November 2015 domestic violence complaint that originated at what turned out to be the plaintiffs' residence. He testified:

Q. [Before you arrived], had you been given any type of information about either the people at the unit or the unit itself?
A. I had. I asked our dispatcher after I was dispatched to the run, that there was a report of a domestic in progress there - I asked if there was any prior contacts at the residence, at which time I was advised that we had responded there in November of 2015. At that time, I asked what the nature of that was, and there was a domestic arrest made. However, at that point, I did not know who was arrested, nor did I know who the complainant or victim or the suspect was.
Q. And prior to forcing entry into the unit on the [15th] . . . had you learned, subsequent to your initial dispatch and prior to forcing entry, who the prior participants were in the prior domestic call?
A. No, I did not know that.

         Plfs.' Mot. for Summ. J., Ex. A, Timothy O'Donnell dep. at 8-9 (Pg ID 349-50). O'Donnell estimated that he arrived at the plaintiffs' apartment complex less than 10 minutes after he was dispatched.

         When O'Donnell arrived, he saw the plaintiffs' downstairs neighbor, Aaron Boyd, standing on the balcony outside his apartment. O'Donnell asked Boyd if they could go inside Boyd's apartment to talk, which they did. Boyd and his fiancé then told O'Donnell that Boyd had called the police because they had “heard . . . what sounded to be a domestic assault in progress.” Boyd stated in conclusory terms that the couple could “hear her being beaten by him, ” and he “used the term ‘whipping her ass.'” Boyd stated that they “could hear what appeared to be a struggle upstairs, ” that “they could hear bumping noises and the sounds of an assault taking place, ” and they “could hear her crying for him to stop.” Boyd also identified his upstairs neighbors by name as Loren Jusi and Scottie Gibson. Boyd's fiancé interjected that she had overhead Jusi come out onto the upstairs balcony and make a phone call, and that during the call Jusi said “He beat me up again.” Boyd's fiancé did not say when that call had occurred.

         Boyd offered to play an audio recording from his cell phone, stating, “I even recorded what was going on.” Boyd told O'Donnell that he had “recorded [it] just before and during the time that he called the police to report it.” O'Donnell listened to around 10 seconds of the recording and “did hear muffled sounds of what I interpreted to be signs of a struggle based on what I was actually hearing and what Mr. Boyd [was] explaining to me that he was believing [he was] hearing at the same time.” O'Donnell testified that he also “heard an inaudible female voice that sounded to be in distress.” O'Donnell testified that most of the recording of the female voice he heard was “inaudible, ” but he believed the voice had a note of distress because it was “elevated” or “excitable.” O'Donnell also conceded that the noises, so far as he could discern them from the recording, could have been caused by many things, including “playful wrestling, ” and that he relied on Boyd's narrative commentary interpreting the sounds, such as “This is where I'm hearing her being thrown around.”

         When he arrived and while he was talking to Boyd, O'Donnell had “not heard anything” himself from the plaintiffs' apartment unit. After he talked to Boyd, O'Donnell went upstairs and “listen[ed] for a minute, ” and he heard “what sounded to be water running.” O'Donnell had been inside units in the complex before, and from his familiarity with the layout of the units, he assumed that the sound was from water running through the pipes in the bathroom, which is close to the outside wall near the unit's entry door. U.S. Border Patrol Agent Brian Peebles was on scene with O'Donnell, and Peebles also could hear water running. O'Donnell knocked again at the door, and he then thought that he heard “footsteps” that sounded like someone walked past “right ...

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