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Guilford v. Frost

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

August 18, 2017

Brian Guilford, Plaintiff,
Jonathon Frost, Defendant.


          Paul L. Maloney United States District Judge

         On a cold winter night in 2015, seventeen-year-old Deven Guilford was driving his girlfriend's 2010 Ford Focus on M-43 near Mulliken, Michigan. He had just finished playing basketball at his church with his brother. Sergeant Jonathon Frost of the Eaton County Sheriff's Department was driving in the opposite direction in a new 2015 Ford Explorer.

         The ships on M-43 should have merely “pass[ed] in the night.”[1] Tragically, as fate would have it, one would never pass.

         Guilford, believing the driver of the Explorer had his high beams on, briefly “flashed” his own high beams. Frost pulled Guilford over for the mere flash; in turn, Guilford refused to fully cooperate with Frost, at least initially.

         Much of what happened during the initial traffic stop is captured on camera; the legal questions there have straightforward answers-Frost is protected by qualified immunity up until the point he fires his taser into Guilford's back while Guilford lied prone.

         What happened when both men eventually ended up in the ditch was not captured, and far from easy to evaluate. Frost tells a tale of being straddled and pummeled, nearly losing consciousness, and fearing death at Guilford's hands; forced to make a split-second decision while pinned, Frost shoots Guilford seven times. Guilford's experts, who must stand in Guilford's stead, tell a much different tale-one where Frost kicks Guilford so hard a boot impression remains on his torso, and one where Frost shoots Guilford from angles impossible to reconcile with Frost's account, culminating in a contact round, rendered downward and “execution style, ” to Guilford's head.

         Officers who put themselves in danger to keep our communities safe “ are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). Nevertheless, “[e]ven a split-second decision, if sufficiently wrong, may not be protected by qualified immunity”; and “even when a suspect has a weapon, but the officer has no reasonable belief that the suspect poses a danger of serious physical harm to him or others, deadly force is not justified.” Bouggess v. Mattingly, 482 F.3d 886, 896 (6th Cir. 2007); see id. at 889 (“[W]hether the use of deadly force at a particular moment is reasonable depends primarily on objective assessment of the danger a suspect poses at that moment.”).

         Accordingly, while Frost is entitled to qualified immunity as to Plaintiff's Fourth Amendment claims for an unlawful stop, seizure, and force up to a point, a jury could view the videotape, forensic evidence, and the lay and expert testimony and conclude Frost violated Guilford's Fourth Amendment right to remain free from excessive force.

         I. Background

         On February 28, 2015, seventeen-year-old Deven Guilford was driving his girlfriend's car, after playing some basketball with his brother and friends. (ECF No. 61-5 at PageID.744.) At about 8:20 p.m., Guilford was returning to his girlfriend's house. (Id.) As he traveled westbound along M-43, an undivided two-lane highway, Guilford approached an oncoming vehicle that appeared to have very bright lights. (ECF No. 61 at PageID.707.) Believing that the vehicle was driving with his high-beam headlights on, Guilford briefly flashed his lights to alert the approaching driver. (Id.) The oncoming vehicle was a new police SUV, driven by Sergeant Jonathon Frost of the Eaton County Sheriff's Department. (ECF No. 53-5 at PageID.503, PageID.505; ECF No. 61-9 at PageID.754.)

         In response to being “flashed, ” Frost turned around and pulled Guilford over. (ECF No. 62-1 at PageID.846-47.) Before Frost exited his vehicle to approach Guilford's, he indicated-while speaking to his body camera-that he “did not have [his] brights on.” (ECF No. 67 at 0:02-04.) When Frost met Guilford at his driver's side window, Frost asked for Guilford's driver's license, proof of insurance, and proof of registration. (Id. at 0:24-30.) Guilford did not comply with the request, and he and Frost began arguing about whether Frost's high-beam lights were on or not. (Id. at 0:30-45.) The argument devolved; Guilford and Frost sparred about a variety of issues, including Frost's badge number. (Id.) Frost continued asking Guilford for his driver's license, proof of insurance, and proof of registration until Guilford indicated that he did not have it. (Id. at 0:045-55.) Eventually, Frost told Guilford that he was driving a brand new vehicle, had been flashed a few times, stopped a couple of other vehicles, and issued no citations to those vehicles because the headlights were brand new and brighter than those on normal cars. (Id. at 3:20-30.) Frost once again asked again for license, registration, and insurance, and Guilford responded by saying, “I do not have to give you that.” (Id. 3:35-50.) Frost responded by calling for “priority” back-up and telling Guilford that he did indeed have to produce his driver's license. (Id. at 3:56-4:05.)

         After Guilford apparently attempted to make a phone call, Frost opened the driver's side door to Guilford's vehicle. (Id. at 4:10-12.) Then, Frost forcefully grabbed Guilford and ordered him out of the vehicle. (Id. 4:13-4:20.) Guilford recoiled, saying, “Do not touch me, Officer!” (Id.) Frost's tone from this point forward reflected frustration and anger. (Id.) After the failed attempt, Frost again ordered Guilford out of the vehicle. (Id. at 4:30.) Frost continued trying to pull Guilford from the vehicle while yelling, “You're gonna get tased!” (Id. at 4:30-41.) Then, Frost stepped back, unholstered his taser, and pointed it at Guilford. (Id.) Frost again ordered Guilford out of the vehicle or he was going to be tased. (Id.)

         Guilford began to get out of his car with his cell phone in hand, recording. (Id. at 4:43-45.) Guilford proceeded out of the car, closed the door, and kneeled facing Frost. (Id. at 4:44-47.) Meanwhile, Frost continued to command Guilford to get “down on the ground” and to face him. (Id. at 4:45-49.) Guilford responded, “What do you mean?” (Id. at 4:56.) Frost then commanded that Guilford “get on [his] belly, right now.” (Id. at 4:56-4:58.) Guilford immediately complied but continued filming with his cellphone despite Frost's insistence that he put the phone down. (See Id. at 5:00-5:10). Frost then approached Guilford and batted his phone from his hands, as Guilford informed Frost that he did not have a weapon. (Id. at 5:11-5:13.) Frost then jumped on Guilford's back to immobilize him. (Id.) Guilford reacted in alarm, stating, “You can't do that!” (Id. at 5:14-5:16.) Frost ordered Guilford to get his hands behind his back, then informed him for the first time that he was under arrest. (Id. at 8:29:56-59.) Guilford responded, “Officer, what are you doing?” (Id. at 5:16-5:17.) Frost interrupted, telling him for a second time to get his hands behind his back. (Id. at 5:18-5:20.) Almost contemporaneously with that second order, Frostf fired his taser in dart mode into Guilford's back. (Id. at 5:21-5:24.)

         Guilford reacted immediately to being hit by the taser and stood up-either in response to shock or his own volition-and he appears to approach Frost. (Id. at 5:24-5:26). Frost testifies that Guilford hit him in the left side of his head. (ECF No. 44-4 at PageID.218.) Frost also testifies that he began backpedaling to try and move the confrontation away from the road. (Id.) The video appears to show that Frost remained near the road as late as 8:30:12. (ECF. No. 67 at 5:30.)

         Approximately six seconds lapse from this point where Frost appears to remain on the road until the bodycam captures audio of Frost's shots. During this period, the facts are hotly contested. Frost's bodycam captures only blurry moments in time and muffled audio. For a discussion of the factual disputes, see infra Section III.F.2. However the events progressed, the outcome is clear: Frost fired seven shots in 3.5 seconds. (ECF No. 53-10 at PageID.607.) Guilford's body was peppered with gunshot wounds from various angles, some steeply downward-and one contact wound to the head; Guilford's body also reflected a defined boot-print impression on the right side of his torso. (ECF No. 65-11 at PageID.1075; ECF No. 65-7 at PageID.1062.)

         II. Legal Framework

         A. Legal Framework: Summary Judgment

         Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008).

         The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the non-moving party's case. Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once the moving party has carried its burden, the non-moving party must set forth specific facts, supported by record evidence, showing a genuine issue for trial exists. Fed.R.Civ.P. 56(e).

         “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The question, then, is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that [the moving] party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252; see, e.g., Resolution Trust Corp. v. Myers, 9 F.3d 1548 (6th Cir. 1993) (citing Anderson, 477 U.S. at 249) (noting the function of the district court “is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial”).

         B. Legal Framework: Qualified Immunity

         “[G]overnment officials performing discretionary functions generally are shielded 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).

         Qualified immunity is a legal question for the Court to resolve. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009) (citing Elder v. Holloway, 501 U.S. 510, 516 (1994)). When resolving an officer's assertion of qualified immunity, the court determines (1) whether the facts the plaintiff has alleged or shown establishes the violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the incident. Stoudemire v. Michigan Dep't of Corr., 705 F.3d 560, 567 (6th Cir. 2013) (citing Pearson v. Callahan 555 U.S. 223, 232 (2009)). Courts may examine the two prongs in any order, depending on the facts and circumstances of each case. Id. at 567-68.

         Once the qualified immunity defense is raised, the plaintiff bears the burden of demonstrating both that the challenged conduct violates a constitutional or statutory right and that the right was so clearly established at the time that “‘every reasonable official would have understood that what he [was] doing violate[d] that right.'” T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.'” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         In determining whether a law is clearly established, ordinarily this Court looks to decisions of the Supreme Court and the Sixth Circuit. Carver v. City of Cincinnati, 474 F.3d 283, 287 (6th Cir. 2007); see Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 853 (6th Cir. 2012) (“When determining whether a constitutional right is clearly established, we look first to the decisions of the Supreme Court, then to our own decisions and those of other courts within the circuit, and then to decisions of other Courts of Appeals.”); see also Wilson v. Layne, 526 U.S. 603, 617 (1999). “[E]xisting precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

         The clearly established prong will depend “substantially” on the level of generality at which the legal rule is identified. Anderson v. Creighton, 483 U.S. 635, 639 (1987). Ordinarily, the right must be clearly established in a particularized sense, and not in a general or abstract sense, id. at 640-“[t]his standard requires the courts to examine the asserted right at a relatively high level of specificity and on a fact-specific, case-by-case basis.” Cope v. Heltsley, 128 F.3d 452, 458-59 (6th Cir. 1997).

         However, on the other hand, the Sixth Circuit recently affirmed that “reading the[] cases together, the Supreme Court has made clear that the sine qua non of the ‘clearly established' inquiry is ‘fair warning.'” Baynes v. Cleland, 799 F.3d 600, 612-13 (6th Cir. 2015). Thus, “[w]hile it is apparent that courts should not define clearly established law at a high level of generality, it is equally apparent that this does not mean that ‘a case directly on point' is required”; the question is, again, whether “precedent [has] placed the statutory or constitutional question beyond debate.” Id. (citing al-Kidd, 563 U.S. at 741).

         III. Analysis

         Plaintiff has asserted various Fourth Amendment claims that fit neatly into chronological segments. Thus, the Court will analyze each claim in that fashion. See, e.g., Gaddis v. Redford Twp., 364 F.3d 763, 772 (6th Cir. 2004) (quoting Dickerson v. McClellan, 101 F.3d 1151, 1162 (6th Cir. 1996)) (“In this circuit, courts faced with an excessive force case that involves several uses of force must generally ‘analyze the . . . claims separately.'”).

         A. Count I (Fourth Amendment: Unreasonable Stop & Seizure)

         1. Sergeant Frost had at least arguable probable cause for the traffic stop.

         Count I of Plaintiff's Complaint asserts a claim against Sergeant Frost based upon his allegedly unreasonable stop and seizure. Plaintiff argues that briefly flashing high beams under the circumstances did not violate Michigan traffic laws.

         “Stopping and detaining a motorist ‘constitute[s] a ‘seizure'' within the meaning of the Fourth Amendment.” United States v. Bell, 555 F.3d 535, 539 (6th Cir. 2009) (alteration in original) (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)). “An officer may stop and detain a motorist so long as the officer has probable cause to believe that the motorist has violated a traffic law.” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008).

         “When a defendant's claim of probable cause rests on a state . . . statute, as it does here, ‘the precise scope of [the federal constitutional right] uniquely depends on the contours of a state's substantive . . . law.'” Youbyoung Park v. Gaitan, 680 F. App'x 724, 731 (10th Cir. 2017) (quoting Kaufman v. Higgs, 697 F.3d 1297, 1300-01 (10th Cir. 2012)).

         Sergeant Frost indisputably initiated the traffic stop solely because he believed he had probable cause that Guilford-who momentarily flashed his high beams at Frost-violated Mich. Comp. Laws § 257.700(b). Mich. Comp. Laws § 257.700(b) states:

Whenever the driver of a vehicle approaches an oncoming vehicle within 500 feet, such driver shall use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the oncoming driver. . . .

         The Michigan Supreme Court has not interpreted this statute's application to a momentary flash. Thus, this Court “must predict how the state's highest court would interpret the statute.” United States v. Simpson, 520 F.3d 531, 535 (6th Cir. 2008).

         “Courts must give effect to every word, phrase, and clause in a statute, and must avoid an interpretation that would render any part of the statute surplusage or nugatory.” Koontz v. Ameritech Servs., 645 N.W.2d 34, 39 (Mich. 2002). “Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions.” Halloran v. Bhan, 683 N.W.2d 129, 132 (Mich. 2004); accord Koontz, 645 N.W.2d at 39 (“In those situations, we may consult dictionary definitions.”).

         The relevant statute provides “that the glaring rays” must “not [be] projected into the eyes of the oncoming driver.” Mich. Comp. Laws § 257.700(b) (emphasis added). The word “glaring” means “shining with or reflecting an uncomfortably bright, ” or “brilliant, ” “light.” Webster's New Collegiate Dictionary 484 (1st ed. 1979). Put another way, “glaring” means shining “dazzlingly or harshly bright, ” The Random House College Dictionary 559 (Rev. ed. 1982), or “intensely and blindingly, ” The American Heritage Dictionary 770 (3d ed. 1992).

         The Minnesota Court of Appeals has interpreted a nearly identically worded statute in a similar manner by referencing the latter definition.

         In Sarber v. Comm'r of Public Safety, [2] the trial court held that an officer lawfully stopped a motorist who had briefly flashed his high beams at the approaching officer two times. 819 N.W.2d 465, 467 (Minn.Ct.App. 2012). The trial court held it sufficient that the defendant's headlights had been “directly [and] frontally visible to oncoming traffic” when he flashed his high beams. Id. at 467. The court concluded the term “glaring” did not mean the State was required to show “that the light was distracting or impairing the oncoming vehicle.” Id. at 467-68.

         The court of appeals reversed the trial court's finding. Since the statute did not define “glaring rays, ” it held the trial court should have referenced the dictionary. Id. at 468. The court of appeals interpreted “glaring” in Minn. Stat. § 169.61(b) to mean shining “intensely and blindingly.” Id. at 469 (citing The American Heritage Dictionary 770 (3d ed. 1992)).

         There was no evidence in the record to support that the high beams “were glaring or projecting into [the officer's] eyes.” Id. at 470. Thus, “appellant's behavior did not violate the statute, ” and the officer lacked probable cause to effect the stop. Id. at 472.

Briefly flashing one's high beams at another driver does not, standing alone, amount to use of a light “intensely and blindingly.” A bright light of extremely short duration does not amount to “glaring rays.” Accordingly, it is a common practice for drivers to flash their high beams to warn other drivers of hazards, or to signal others to adjust their own headlights.

Id. at 469.

         This Court finds the reasoning in Sarber cogent.[3] In this case, Sergeant Frost has never asserted that Guilford's brief flash was shining uncomfortably or harshly bright, or brilliantly, dazzlingly, or intensely and blindingly, let alone “into [Frost's] eyes.” Compare Webster's New Collegiate Dictionary 484 (1st ed. 1979); The Random House College Dictionary 559 (Rev. ed. 1982); The American Heritage Dictionary 770 (3d ed. 1992); see Halloran, 683 N.W.2d at 132. Rather, Frost has baldly asserted from the outset that since Guilford “flashed” his high beams, he was (strictly) liable for the offense under § 257.700(b). (See, e.g., ECF No. 53-5 at PageID.503.) Indeed, ironically-as Sergeant Frost admitted (see ECF No. 67 at 3:20)-his own headlights on his new vehicle that night shined “uncomfortably or harshly bright” to multiple drivers. This traffic stop was not authorized by the referenced traffic code provision.

         Nevertheless, the Court concludes that Sergeant Frost's error of law was not objectively unreasonable under the Fourth Amendment. See Heien v. North Carolina, 135 S.Ct. 530, 539 (2014) (holding an “officer's error of law was reasonable” to justify the stop).

         As Sergeant Frost notes, the statute at issue makes no exceptions for temporary or intermittent flashes, as do other states' statutes. See, e.g., Wis.Stat. § 347.12(1)(b). While Sergeant Frost's interpretation of the statute was in error, it was not irredeemably so.

         From this point forward, an officer in Michigan may not effect a stop solely for a mere flash pursuant to § 257.700(b), absent any truly “glaring rays” shining into his or her eyes; however, at the time in question, Sergeant Frost had at least “arguable probable cause, ” and thus is not liable for a constitutional violation. See, e.g., White v. Jackson, __ F.3d __, 2017 WL 3254496, at *5 (8th Cir. 2017) (quoting Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011)) (“‘[A]n officer is entitled to qualified immunity if there is at least arguable probable cause.' . . . There is arguable probable cause ‘even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is ‘objectively reasonable.'”); Redd v. City of Enterprise, 140 F.3d 1378, 1384 (11th Cir. 1998) (“[W]hen an officer has arguable probable cause to believe that a person is committing a particular public offense, he is entitled to qualified immunity from suit.”); accord Greene v. Barber, 310 F.3d 889, 898 n.2 (6th Cir. 2002); see also Heien, ...

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