United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
L. Maloney United States District Judge
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.
ships on M-43 should have merely “pass[ed] in the
night.” Tragically, as fate would have it, one
would never pass.
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.
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.
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.
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
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.
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.)
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.)
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
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.)
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
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.)
Legal Framework: Summary Judgment
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).
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.
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”).
Legal Framework: Qualified Immunity
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,
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.
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,
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
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).
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).
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
Count I (Fourth Amendment: Unreasonable Stop &
Sergeant Frost had at least arguable probable cause for the
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.
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).
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)).
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 §
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. . . .
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).
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
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).
Minnesota Court of Appeals has interpreted a nearly
identically worded statute in a similar manner by referencing
the latter definition.
Sarber v. Comm'r of Public Safety,
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.
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)).
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.
Court finds the reasoning in Sarber
cogent. 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.
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).
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.
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, ...