Stemler v. City of Florence
U.S. Court of Appeals, Sixth Circuit
126 F.3d 856
October 8, 1997

BOGGS, Circuit Judge.

The estate of Conni Black (hereinafter "Black") appeals the judgment entered against her on her substantive due process claim against officers of Boone County, Kentucky, and of the City of Florence arising from her death in a car accident on the night of February 18, 1994, shortly after those officers removed her from the car of Susan Stemler and placed her in the truck of her drunk and violently abusive boyfriend, Steve Kritis. Stemler appeals the judgment entered against her on her claims of false arrest, malicious prosecution, and violation of equal protection arising from her arrest at that time for driving under the influence; she alleges that the officers arrested her solely because they believed her to be a lesbian. For the reasons explained herein, with respect to both plaintiffs, we affirm the district court's award of summary judgment to the City of Florence and to the Boone County defendants in their official capacities. However, we reverse the dismissal of Black's complaint against the individual officers, and we also reverse the dismissal of Stemler's complaint against the individual officers with respect to her equal protection claim.

I. Background

A. The Assaults and Car Chase

On February 18, 1994, at about 10:45 p.m., Conni Black and her boyfriend, Steve Kritis, arrived at Willie's Saloon in the Ramada Inn in Florence, Kentucky. Both Black and Kritis had been drinking heavily. While line dancing, Black met Susan Stemler. Around 2:00 a.m., the two went to the women's restroom and discussed problems that each had with their respective boyfriends. During this conversation, Black told Stemler that she wanted to leave Kritis. According to one witness, Christine Stillwell:

Steve Kritis then burst into the restroom and slung the door to the restroom hard. He came into the restroom yelling. He stated in part: "If you don't get your fucking sister out of here, I'll kill the bitch." He yelled this at Laura Stemler.

He grabbed Conni Black on the arm as he screamed at her. He slammed her against a toilet stall. He then yanked her out of the restroom. After he left the restroom, I could still hear him screaming outside of the restroom. . . . Conni came back into the restroom. He yanked her out physically of the restroom a second time.

At this point, I wondered why nobody had called the police. When I went out of the restroom and into the lobby of the Ramada, I observed Kritis pushing Conni around in the parking lot. As I went outside into the parking lot, I observed Kritis still pushing Conni. . . .

Kritis put his forehead against Conni's and put his hands behind his back. For every step Conni took to flee Kritis, Kritis took one forward still pressing his forehead against hers. He then made a fist to hit her. He looked at me and saw that I was watching and released his fist.

According to Stemler, after Kritis removed Black from the restroom, Kritis slammed Black against a concrete wall in the hotel lobby; Black's head hit the wall and she briefly passed out. Black asked Stemler to drive her home, and Stemler agreed. As they were leaving, Kritis struck Stemler in the back of the head with a blunt object. Stemler and Black got into Stemler's car and drove away at about 2:15 a.m. Kritis pursued them in his truck. Kritis did not have his headlights on. At one point during the chase, Kritis rear-ended Stemler's car with his truck in an attempt to make her car stop. A witness, Terry Barker, was driving east on U.S. 42 in Florence at the time; he saw that Kritis was chasing the women and that the women were in obvious distress, and decided to follow the vehicles.

According to Barker, at one point the truck got ahead of the car and forced it down Woodland Avenue, which ends in a cul-de-sac. Stemler pulled her car into a driveway, and Kritis stopped his car behind her to block her access to the street. Fortunately, the driveway belonged to William Minnick, a retired Florence police officer. His wife, Nancy Minnick, heard a horn blowing at about 2:30 a.m. When she opened her door, she saw Kritis standing in her driveway on the passenger side of the car. Kritis was hitting the car window and yelling. The car backed out around the truck and drove up the street. Kritis jumped in the car and again gave chase; according to Barker, he was driving at about sixty miles per hour on the sidewalk of the residential street. By this point, Mr. Minnick was awake and dressed; he called 911, and then got in his car and followed Kritis and Stemler. Barker also continued to follow them.

B. The Police Stop

After the vehicles pulled back on to U.S. 42, they stopped at a light at Tanners Lane. Barker flashed his lights to alert a nearby police officer, defendant Lieutenant Thomas Dusing, an officer of the Florence Police Department, who was responding to the 911 call. When Dusing pulled up to Barker, Barker informed him that there was a "serious problem" with the two vehicles ahead of him, and that Kritis appeared to be a threat to the safety of the two women. After speaking with Barker, Dusing pulled his cruiser in front of Stemler's car and Kritis's truck at the intersection. As he left the cruiser, Stemler jumped out of her car and ran to him. Stemler told Dusing that Kritis was drunk, that he had assaulted both her and Black, that he had threatened to kill her, and that he had placed both of them in danger by chasing after them at high speed. She was obviously emotionally distraught, and cried while she related the evening's events to Dusing. While Dusing spoke with Stemler, four other officers arrived at the scene in separate cars: officers Bobby Joe Wince and John Dolan of the Florence Police Department, and officers Rob Reuthe and Chris Alsip of the Boone County Sheriff's Office. Each of the four would later be named as defendants in this litigation along with Dusing.

During Stemler's conversation with Dusing, Reuthe approached Kritis, who was seated in his truck. According to Reuthe's testimony, Kritis told him that Stemler was a lesbian [Footnote: Stemler denies that she is a lesbian.], and that she was kidnapping his girlfriend. After speaking with Stemler, Dusing approached Reuthe; Dusing would later testify that Reuthe told him at that time that Stemler was a lesbian. Reuthe also told Dusing that Kritis smelled of alcohol, but that he had not tested Kritis for intoxication. Dusing then approached Kritis, who repeated his assertion that Stemler was a lesbian. Kritis also asked Dusing to bring Black to his truck; Dusing told him that he would see what he could do. Dusing asked Kritis whether he had seen Stemler driving the car, and whether he would be willing to testify against Stemler.

Dusing would later submit a police report claiming that he did not smell alcohol on Kritis's breath at that time. This claim is contrary to his contemporaneous statements to Wince and to Mr. Minnick that Kritis smelled of alcohol. A blood test taken over two hours later would reveal that Kritis had a blood alcohol level of .115, which indicates that at the time of the police stop, his blood alcohol level was probably between .155 and .175, at least one-and-a-half times the legal limit in Kentucky of .10. Subsequent observers would also testify that, over an hour after the police stop, it was immediately apparent that Kritis was very drunk. Nevertheless, neither Dusing nor any other officer ever tested Kritis for intoxication, or even asked him to step out of the truck.

At some point, Dusing asked Wince to test Stemler for intoxication. By that time, Wince had already heard Kritis's allegation that Stemler was a lesbian. Wince did not find any of the standard DUI indicators in examining Stemler; she did not have affected speech, impaired balance, impaired walking, or impaired coordination, and she did not seem disoriented. According to Wince, Stemler failed the horizontal nystagmus gaze field test, a test in which uncontrolled movement in a suspect's eyes may indicate drunkenness. However, Stemler alleges that Wince did not know how to perform that test properly, and had to ask for assistance with the test from Dolan. Stemler alleges further that Dolan also did not know how to perform the nystagmus test. Wince testified that the breathalyzer revealed a blood alcohol level of .105. Stemler alleges that the breathalyzer was not properly calibrated.

After performing the field tests, Wince conferred with Dusing and Dolan. By this time, all three officers had heard Kritis's claim that Stemler was a lesbian. Dusing decided that they should arrest Stemler for driving under the influence, and the other officers agreed. Dusing would later concede that, in deciding to arrest Stemler and not Kritis, he relied on Kritis's version of events more than he did Stemler's. Wince approached Stemler, informed her that she was under arrest, and asked her who she would like to tow her car. Stemler broke into tears, pointed at Kritis, and asked Wince, "Aren't you going to check him? Why don't you check him?" As she was pointing, Wince grabbed her arm, pulled it behind her, and placed her in handcuffs.

At approximately the same time, two unknown officers, one each from Florence and from Boone County, approached Barker, who was parked across the street. Barker related the complete story of the chase to both officers. Barker overheard one of the officers relating his story to a third officer. The officers asked him whether he saw Stemler driving the car, and whether he would be willing to testify against Stemler in court. Upon learning that Stemler was being placed under arrest, Barker told the officers that they were arresting the wrong person and that Kritis was obviously "crazy"; the officers didn't appreciate that, became "arrogant," and told him that he didn't "know what's going on" and that he could "go on about your business." Barker was dumbfounded and angered by the officers' actions. Barker confirms that the police never asked Kritis to leave the truck, despite the fact that, as during the chase, Kritis still had not turned his headlights on. Although the officers told Barker that they would contact him to be a witness against Stemler, they never did so. Furthermore, Wince failed to list Barker as a witness at the scene in his field notes, and the card on which the officers supposedly were writing down Barker's name and telephone number was lost.

While Wince was testing Stemler for intoxication, Mr. Minnick arrived at the scene. He spoke first with defendant Boone County Officer Chris Alsip. Alsip immediately "informed" him that Stemler was a lesbian. Minnick thought that it was odd that Alsip could state that fact with such certainty, given that Stemler had out-of-state license plates. Wince also made a point of informing Minnick that Stemler was a lesbian. Although the officers at the police stop were aware that Minnick had observed Kritis chasing Stemler, they asked him only whether they observed Stemler driving her car.

Dusing ordered Dolan to approach Black, who was still in the passenger seat of Stemler's car, and to inform her that she would be arrested for public intoxication "if she didn't want to leave with the male." At that time, Black was very intoxicated; her eyes were glassy and she slurred her words. Alsip and Dolan lifted her out of the car and assisted her to Kritis's truck. Black stumbled as she walked to the truck. Alsip physically placed her into the passenger seat in the truck. Alsip would later admit that he never heard Black say that she wanted to leave with Kritis. Dusing told Alsip only that Stemler was a lesbian and that Kritis did not want his girlfriend with her; Alsip would later concede that, if he had known of all the preceding events that evening, he would not have placed Black in the truck but instead would have arrested Kritis.

C. The Subsequent Accident

As soon as Black was in the truck, at about 3:00 a.m., Kritis drove away. Kritis drove two blocks from the police stop and then turned onto the northbound lanes of I-75. Black had passed out in the truck. According to Kritis, when she woke up, she "went haywire" and began hitting him; he hit her back and lost control of the truck. The truck swerved to the right and collided side-to-side with a guardrail. The impact threw Black partially out of the passenger side window. Black's arm was completely severed from her body and her head was severed into two parts. The truck was damaged and the front tire was blown. Kritis continued to drive slowly on I-75 and then east on I-275 until the truck could proceed no further.

A passing motorist, Kristopher Waldespuhl, was waved down by Kritis around 3:45 a.m. Kritis said, "my girlfriend is kind of hurt," and asked for help. According to Waldespuhl, Kritis spoke "very nonchalantly," and "had no emotions at all, wasn't upset." It was immediately obvious to Waldespuhl that Kritis was drunk; Kritis had alcohol on his breath, his eyes were glazed and bloodshot, and he was not acting sober. Kritis admitted to Waldespuhl that he was drunk. He also told Waldespuhl that "they were fighting at Willie's and some dyke bitch took her from me." Waldespuhl walked over to the other side of the truck. It was immediately apparent to Waldespuhl that Black was dead, although Kritis was unaware of this fact. Waldespuhl left to place a 911 call.

Officer Stephen Johnson of the Lakeside Park-Crestview Police Department arrived at the scene. It was obvious to Johnson that Kritis was drunk; he did not even need to conduct a field sobriety test to determine that he had probable cause to arrest Kritis. Another officer at the scene, Mike Mann, also immediately determined that Kritis was drunk. According to Mann, "Steve Kritis told me that he and his girlfriend were fighting and exchanging blows. He stated that he felt a large 'thud' but continued driving the truck. His truck started to quit and he pulled over." Johnson placed Kritis under arrest for driving under the influence at 4:30 a.m.

{Footnote: Kritis would subsequently plead guilty in the Boone County District Court to manslaughter in the second degree and to wanton endangerment in the first degree. He was sentenced only to probation. After violating the terms of his probation, he served a five-year prison sentence.]

An accident reconstruction specialist, Detective Jack Prindle, determined that, at the time of the impact with the guardrail, the truck was traveling at sixty-six miles per hour. The truck had traveled from the scene of the police stop to the scene of the accident in about five minutes. The accident occurred when the steering wheel turned abruptly to the right; there is no way to know what caused the wheel to turn. As the vehicle struck the guardrail, Black was partially ejected, causing her head and right arm to be severed on the guardrail. Kritis continued on for 2.5 miles before stopping.

D. Stemler's Prosecution

After arresting Stemler, Wince took her for a blood test. Stemler claims that she had had only a half-glass of beer and two Irish coffees over the course of the night. She suspects that the officers tampered with her blood sample, which allegedly revealed a .17 blood alcohol level an hour after the breathalyzer allegedly revealed a .105 blood alcohol level. Wince handled her blood sample after he learned that Black had died. Larry Dehus, a "forensic scientist," reviewed the specimens and the timing of the tests and concluded that the sample's integrity had been destroyed, given that Wince waited five days to deliver the sample and that there were no procedures to guard against tampering. When a blood sample is submitted to the detective's office of the Florence Police Department, the clerk of that office, Mary Hayes, is supposed to receive a property card and an evidence tag; Hayes never received either with respect to Stemler's blood sample. This was a violation of department policy. Stemler's sample was the only sample that Wince had ever kept in the Florence Police Department refrigerator for five days in his career, and was also the only sample that he had ever personally driven to the lab. According to Officer Chester Snow, who supervised the property room, it would be "highly irregular" to keep a sample in the refrigerator for five days.

Stemler was prosecuted in the Boone County District Court for driving under the influence of alcohol. She defended the charge on the ground that the evidence against her had been fabricated. Dr. Gordon James testified at her trial that the handling of the blood sample was "arbitrary" and that the chain of custody had not been established. Her first trial resulted in a hung jury. She was retried. Although Wince claimed at Stemler's first DUI trial that he had not completed an evidence card, at the retrial he produced a completed card which neither Hayes nor Snow had ever seen. He claimed that he completed the card on February 19, at the time of the arrest; Hayes testified that if that were true, she should have seen the card. The second jury acquitted Stemler.

E. Related State Court Proceedings

On March 7, 1994, Black's estate filed a wrongful death action under Kentucky law against each of the defendants in this case in the Boone County Circuit Court. Stemler also brought suit against the defendants herein in the Boone County Circuit Court, raising state-law claims of malicious prosecution, false arrest, abuse of process, assault and battery, false imprisonment and negligent or intentional infliction of emotional distress. The state court consolidated the two suits, and in separate orders on April 2 and April 26, 1996, it awarded the defendants summary judgment on all claims except Stemler's assault and battery claim against Wince. Stemler voluntarily dismissed that claim. Both Black and Stemler have appealed the judgments against them, and their appeals are pending in the Kentucky Court of Appeals.

F. Proceedings Below

On March 31, 1994, William Chipman, the administrator of the estate of Conni Black, filed a complaint in the United States District Court for the Eastern District of Kentucky against Dusing, Dolan, Wince, Reuthe, and Alsip. The complaint also named the City of Florence and Ron Kenner, the Boone County Sheriff. The complaint alleged that the defendants were liable under 42 U.S.C. Section 1983 for Black's wrongful death, insofar as the defendants had displayed deliberate indifference in placing her in the car in which she was later killed. On August 2, 1994, the district court granted the individual officers' motions to dismiss on the ground of qualified immunity. On July 3, 1996, the district court granted the City of Florence's and Boone County's motions for summary judgment. Black now appeals.

On January 24, 1995, Susan Stemler filed a complaint under 42 U.S.C. Section 1983 in the United States District Court for the Eastern District of Kentucky against Wince, Dusing, Dolan, and the City of Florence. The complaint alleged claims of excessive force, wrongful arrest, malicious prosecution, and violation of equal protection on the bases of sex and sexual orientation. On October 6, 1995, the district court granted the individual officers' motion to dismiss on grounds of qualified immunity. On July 3, 1996, after consolidating Stemler's case with Black's, the district court awarded summary judgment to the City of Florence. Stemler now appeals both orders. We have consolidated the two appeals for consideration.

IV. Stemler's Claims against the Individual Officers

We turn now to the merits of Stemler's claims against the individual officers. She has raised claims of false arrest and malicious prosecution against the officers. She also asserts that her arrest violated the Equal Protection Clause insofar as it was based either on her sex or on her supposed sexual orientation. We again review the law to determine whether the officers should have known in February 1994 that their actions were in violation of applicable federal constitutional or statutory guarantees.

C. Equal Protection

In order to state a claim of selective prosecution, a plaintiff must demonstrate three elements:

First, [the state actor] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to. United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991).

With regard to the first element, it is an absolute requirement that the plaintiff make at least a prima facie showing that similarly situated persons outside her category were not prosecuted. See United States v. Armstrong, 517 U.S. 456 (1996). Furthermore, there is a strong presumption that the state actors have properly discharged their official duties, and to overcome that presumption the plaintiff must present clear evidence to the contrary; "the standard is a demanding one."

We believe that this is the rare case in which a plaintiff has successfully stated a claim of selective prosecution. Stemler's complaint adequately alleges, and the record evidence supports a finding, that the defendant officers chose to arrest and prosecute her for driving under the influence because they perceived her to be a lesbian, and out of a desire to effectuate an animus against homosexuals. Each of the defendants was aware of Kritis's assertion that Stemler was a lesbian, and Dusing admitted that he relied on Kritis's version of the facts in deciding to arrest Stemler. Furthermore, the record supports a finding that Kritis was similarly situated to Stemler (or, indeed, far drunker than she), that the defendant officers perceived Kritis to be heterosexual, and that consequently they chose not to arrest him at the same time that they arrested Stemler.

The defendants concede that Stemler's complaint alleges, and the record evidence could support a finding, that they decided to arrest and prosecute her because they perceived her to be a lesbian. They do not attempt to assert any justification whatsoever for this decision; instead they argue that as a blanket matter it is always constitutional to discriminate on the basis of sexual orientation, citing Bowers v. Hardwick, 478 U.S. 186 (1986). However, Bowers held only that there is no substantive due process right to engage in homosexual sodomy, and expressly declined to consider an equal protection claim. It is inconceivable that Bowers stands for the proposition that the state may discriminate against individuals on the basis of their sexual orientation solely out of animus to that orientation: "'If the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" Romer v. Evans, 517 U.S. 620 (1996) (quoting United States Dep't of Agric. v. Moreno, 413 U.S. 528 (1973)). Stated differently, since governmental action "must bear a rational relationship to a legitimate governmental purpose," and the desire to effectuate one's animus against homosexuals can never be a legitimate governmental purpose, a state action based on that animus alone violates the Equal Protection Clause.

While this case, and Romer, involved animus related to sexual orientation, the principle involved in our case really has nothing to do with that controversial area. Moreno, the case quoted in Romer, involved commune residents; the principle would be the same if Stemler had been arrested discriminatorily based on her hair color, her college bumper sticker (perhaps supporting an out-of-state rival) or her affiliation with a disfavored sorority or company.

It may be objected that Romer was not decided until after the defendants arrested and sought to prosecute Stemler allegedly for the sole reason of animus against her perceived sexual orientation. But it didn't take Romer to tell us that such arbitrary state action is contrary to the principle of equal protection of the laws. It is a venerable rule under the Equal Protection Clause that the state may not choose to enforce even facially neutral laws differently against different portions of the citizenry solely out of an arbitrary desire to discriminate against one group. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Furthermore, while a plaintiff in a selective-prosecution case must demonstrate that she was prosecuted because she was the member of some group, and not merely because the state actor prosecuted her out of purely personal animosity, see Futernick v. Sumpter Twp., 78 F.3d 1051, 1057 (6th Cir.), the availability of such a claim has never been limited only to those groups accorded heightened scrutiny under equal protection jurisprudence. Instead, a plaintiff makes out a selective-enforcement claim if she shows that the state based its enforcement decision on an "arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456 (1962), that is to say, a classification that gives rise to an inference that the state "intended to accomplish some forbidden aim" against that group through selective application of the laws. A selective-enforcement claim such as this one is thus conceptually different from a claim that a statute violates equal protection; while almost every statute can be shown to have some conceivable rational basis, thereby surviving an equal protection challenge unless it is shown to discriminate against a group accorded heightened scrutiny, it will often be difficult to find a rational basis for a truly discriminatory application of a neutral law.

It is beyond cavil that Stemler has adequately alleged a selective-enforcement claim here. The record supports a finding that she was perceived to be a member of "an identifiable group," and that defendants sought to implement their animus against that group by arresting and seeking to prosecute her. The defendant officers are unable, and indeed have not even attempted, to demonstrate that there is any conceivable rational basis for a decision to enforce the drunk-driving laws against homosexuals but not against heterosexuals. The defendants can rely only on their assertion that discrimination on the basis of sexual orientation should be accorded no scrutiny whatsoever. We emphatically reject this assertion; the proposition that the state may constitutionally discriminate by enforcing laws only against homosexuals (or Centre College graduates or SAE members) is not now, and never has been, the law. Under the facts as we are obligated to construe them, the defendants violated the core principle of the Equal Protection Clause by choosing to exercise the power of the state against Stemler solely for the reason that they disapproved of her perceived sexual orientation. Thus, the dismissal of her complaint must be reversed.

HARRY W. WELLFORD, Circuit Judge, concurring.

I cannot equate an alleged animus against Stemler because of a perception about her sexual proclivities with discrimination based upon race, sex, national origin, or the like. There may be enough basis in Stemler's claim that some individual defendants based their law enforcement actions on some arbitrary and capricious classification or selectively enforced the laws on drunken driving, public intoxication, or public endangerment to warrant our reversing the dismissal of this claim. However, I do not reach the categorical decision of Judge Boggs that disapproval of Stemler's perceived sexual orientation was the sole, or even a significant, basis for her arrest by the defendants, and that this action therefore violated the equal protection clause.