Andre WATKINS, Plaintiff-Appellant, v. CITY OF SOUTHFIELD, Mark Wood, L. Porter, and Jane Doe, Defendants-Appellees, 221 F.3d 883

WELLFORD, J., delivered the opinion of the court, in which SILER, J., joined. GILMAN, J. (pp. 891 - 94), delivered a separate concurring opinion. OPINION WELLFORD, Circuit Judge. Andre Watkins appeals the district court’s decision to grant

summary judgment in favor of the defendants in this suit arising out of a stop of Watkins’ car. He alleges that Lawrence Porter and Mark Wood, both officers of the Southfield (Michigan) Police Department, violated his constitutional rights when, without a reasonable basis for doing so, they forcibly stopped Watkins’ car, pulled him out at gunpoint, handcuffed him, pushed him into the back seat of their patrol car, questioned him, and eventually released him with a ticket for disobeying a police officer’s signal to stop.

Watkins filed suit against Porter, Wood, another unidentified officer, and the City of Southfield, alleging a deprivation of his constitutional rights under 42 U.S.C. § 1983 and the intentional infliction of emotional distress under state law. The district court ruled that the defendants were entitled to

summary judgment on both claims. For the reasons below, we AFFIRM the district court. I. BACKGROUND At the time of the incident in question, Watkins was a seventeen-year-old high school senior. His friend and passenger, Jermaine Gabriel, was a few years older. Somewhere between four and five o’clock in the early morning of July 5, 1995, Watkins was driving Gabriel home after an evening spent at Watkins’ home. A marked Southfield Police Department patrol car, operated by defendants Porter and Wood, passed Watkins traveling in the opposite direction, and the officers then began to follow Watkins.

They did not, however, immediately signal for Watkins to pull over. According to Watkins, he was driving under the speed limit “at about 20 miles per hour.” The district court in this case took judicial notice that the posted speed limit on the particular road being traveled was forty miles per hour. In his brief, Watkins asserts the road had no minimum speed, and the defendants have not questioned that assertion. The record does not indicate whether there was more than one lane in each direction. Watkins turned down a street commonly referred to as 8-1/2 Mile Road, and traveled east towards Evergreen Road.

Watkins claimed that once he was on 8-1/2 Mile Road, he continued to drive very cautiously and slowly. He estimated that he was traveling only fifteen miles per hour in a twenty-five mile per hour zone. Watkins alleges that Porter and Wood began to drive in an intimidating matter, approaching him and following very closely. Watkins stopped at stop signs and when he “was going to make a turn.” Watkins eventually reached Evergreen Road, and turned right. Immediately after doing so, defendant Wood turned on the police car’s spotlight and aimed it towards the rear windshield of Watkins’ car.

Watkins, however, continued to drive for another block or two, maintaining his speed of approximately fifteen miles per hour. When asked at his deposition why he continued driving, Watkins said that “[the officer driving] only had on his side lights.” The officers then activated the police car’s red and blue flashing lights. Watkins stated that he “slowed down and [he] signaled to the officer that [he] was going to stop at the gas station, which was only a block and a half away.” The record does not indicate how or in what manner Watkins “signaled” that he was intending to stop at the nearby gas station.

Although Watkins’ deposition does not indicate why he sought to reach the gas station, he claims in his brief it was a well lit area because he was concerned about “the bizarre manner” in which the officers were driving. Other patrol cars arrived at the scene and Watkins was forced to stop.

The officers’ affidavits included the following explanation regarding the decision to initiate the stop: “Due to [Watkins]’ suspicious driving and the recent crime in the area, [we] decided to perform an investigatory stop.” Porter and Wood also asserted that, despite having activated their car’s red and blue lights, Watkins “failed to pull over or to slow down,” and that once the car was forced to stop, Watkins acted “very suspicious and was not cooperative.” The police then approached Watkins’ vehicle with their guns drawn, and several officers allegedly directed racist remarks toward Watkins and Gabriel.

They conceded that Watkins was “ordered out of his vehicle, handcuffed, patted down for weapons, and placed in a police vehicle for questioning.” According to Watkins, the officers then “forcibly” placed him into one of the patrol cars, “ram[ming] [his] head up against the top of his car.” Watkins admits that he suffered no cuts or bruises. After being placed in the police car, the officers questioned Watkins at length, primarily asking him how he knew Gabriel and where the two were going. Watkins was eventually released after being issued a ticket for disobeying a police officer’s signal.

The charge was ultimately dropped. Watkins and Gabriel subsequently filed the instant suit in the court below. The district court, by stipulation of the parties, dismissed Gabriel’s claims because he could not be located. Watkins’ state law causes of action for false imprisonment, false arrest, and assault and battery were later dismissed by the district court. The defendants filed two separate motions for

summary judgment, one directed at Watkins’ remaining state law claims, and one aimed at his federal cause of action. The district court (1) dismissed with prejudice Watkins’ state constitutional claims; (2) dismissed with prejudice those claims asserted against the City of Southfield; (3) granted

summary judgment on the basis of qualified immunity in favor of the defendants with respect to Watkins’ § 1983 cause of action; and (4) granted

summary judgment in favor of the defendants with respect to Watkins’ remaining state law claim of intentional infliction of emotional distress on the grounds that the officers were protected by governmental immunity and that their alleged conduct was not “extreme and outrageous.” In substance, the district court held that Watkins’ driving so slowly at four o’clock in the morning in an area where there had been recent, violent, criminal activity, when considered in light of his subsequent conduct when the officers activated their flashing lights, were sufficient to arouse reasonable suspicion to provide justification for an investigatory stop.

The court concluded that “[d]riving at one half the speed limit at 4:00 a.m. would provide a basis for suspecting, inter alia, that the driver was drunk, high on drugs, or trying so hard to provide [sic] suspicion for a police stop as to actually establish highly suspicious behavior. Second, the police were aware of an investigation [of] recent violent criminal activity in that area; there had been a shooting and several robberies within the two days.” Furthermore, the district court rejected the Watkins’ claim that the officers used unreasonable force in executing the stop.

Finally, the district court found that the defendants were entitled to governmental immunity with respect to the intentional infliction of emotional distress claim and concluded that “[a]t four o’clock in the morning, it is not outrageous to draw a gun and handcuff a suspect who is driving strangely, and who fails to yield to police signals to pull over.” In this appeal, Watkins does not take issue with the district court’s rulings dismissing his state constitutional claims, nor does he challenge the dismissal of the City of Southfield from his suit.

Rather, he argues that genuine issues of material fact exist that preclude

summary judgment with regard to his § 1983 claim and his intentional infliction of emotional distress cause of action. II. ANALYSIS A. Standard of Review We review de novo a district court’s decision to grant or deny

summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997).

Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In deciding a motion for

summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505.

B. Qualified Immunity Analysis Government officials performing discretionary functions are entitled to qualified immunity from civil suits for damages arising out of the performance of their official duties “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v.

Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “To successfully state a claim under 42 U.S.C. § 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law.” Russo v. City of Cincinnati 953 F.2d 1036, 1042 (6th Cir.1992). “The key inquiry in analyzing a claim of qualified immunity is whether the defendant’s alleged conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.” Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994).

The plaintiff in this situation must overcome two hurdles: “First, the allegations must state a claim of the violation of clearly established law. Second, the plaintiff must present evidence sufficient to create a genuine issue as to whether the defendant in fact committed the acts that violated the law.” Id. Whether a plaintiff has met each of these two burdens is a question of law. See id.

As an initial matter, we note that “both the right to be free from unreasonable seizures and to be free from the use of excessive force under the Fourth Amendment are clearly established.” Adams, 31 F.3d at 386-87 (citations omitted). Thus, the sole qualified immunity question presented by this appeal is whether Watkins has presented evidence sufficient to create a genuine issue as to whether Porter and Wood in fact violated the law.

Assuming that the police themselves may have operated the patrol car erratically while following Watkins, the question remains whether there was basis for a reasonable suspicion and an investigatory stop under the circumstances based upon Watkins’ conduct. While the case presents a close question, we are inclined to affirm, finding that there was an appropriate basis for a Terry stop. What occurred before the police decided to follow Watkins was the subject of differing factual contentions and accounts.

We do not deem such a dispute to be one of material or genuine consequence, because at this stage in the proceedings we view the evidence in the light most favorable to Watkins. There is no substantial dispute, on the other hand, about Watkins’ conduct. Watkins, a high school student at the time, was driving in the dark of predawn, in an area of recent violent criminal activity known as such by the officers, at about half the allowable speed limit, stopping not only at stop signs but each time he made a turn. Watkins admittedly ignored the officers’ clear indications to stop for an investigation.

We find that these circumstances constitute the “minimal level of objective justification for making the stop.” Illinois v. Wardlow, — U.S. -, -, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). We agree with the reasoning of the Third Circuit in United States v.

Rickus, 737 F.2d 360 (3d Cir.1984), where that court held that the officers had the requisite reasonable suspicion to make a Terry stop of a vehicle that was traveling fifteen to twenty miles per hour below the applicable speed limit, at 3:30 a.m., in an area that had “recently been victimized by a spate of burglaries.” The court explained that “[t]he reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely [in making a Terry stop].” Rickus, 737 F.2d at 365.

The court also found the vehicle’s inordinately slow rate of speed could have legitimately aroused suspicions of an experienced police officer. Id. (citing United States v. Holland, 510 F.2d 453, 456 (9th Cir.1975) (holding that car making inordinately slow progress at small hours of the morning could have aroused the suspicions of a local officer who is alert to the unusual within his beat); and Carpenter v. Sigler, 419 F.2d 169 (8th Cir.1969) (holding that stop of a car traveling slowly in recently burglarized area was valid)).

Under very similar circumstances, one state court (applying a “probable cause” standard) found that “appellant’s driving at an extremely slow rate of speed during the early morning hours on residential streets constituted unusual or suspicious behavior which was probable sufficient cause for [the defendant officer] to stop appellant’s automobile.” Leaper v. State of Oklahoma, 753 P.2d 914, 915 (Okla.Cr.Ct.App.1988). That court noted that a police officer “need not actually observe the violation of any law to have probable cause to stop that automobile.” Id.; see also West Virginia v.

Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994) (officer’s stop of vehicle upheld for unusual slow speed in early morning hours based upon this “detection clue” of behavior of drunk drivers). Similarly, we do not believe that the district court was in error in concluding, in effect, that an officer “in the defendant’s position, measured objectively, would [not] have clearly understood that he was under an affirmative duty to have refrained from such conduct.” Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987); see also Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir.1995) (citing Adams v.

Metiva, 31 F.3d 375, 386 (6th Cir.1994)). Supreme Court precedent is consistent with our conclusion here. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court emphasized the duties of a suspicious officer: The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response....

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Adams, 407 U.S. at 145-46, 92 S.Ct. 1921 (citations omitted). Recently, the Court upheld the stop and seizure of a pedestrian who was present in a high crime area because he fled from the police officers when he saw them. Wardlow, 120 S.Ct. at 675-76.

The Court determined that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.... But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Id. at 676 (citations omitted). The Court considered the pedestrian’s flight as a pertinent factor in determining whether reasonable suspicion existed.

It reasoned that “[h]eadlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. In this case, the officers knew that the area had recently been victimized by violent crimes. Watkins’ car was proceeding in the dark morning hours at half the speed limit of the streets in the residential area. The officers may have suspected that the driver of the car was intoxicated or that he was “casing” the area. See United States v.

Basey, 816 F.2d 980, 989 n. 14 (5th Cir.1987) (noting that slow-moving cars in the early morning hours may suggest that the area is being “cased”); see also United States v. Pineiro, No. 95-3928, 1997 WL 413656 (6th Cir. July 17, 1997) (upholding stop of vehicle that slowed down upon seeing the officers, and slow speed was impeding traffic); United States v. Ramos, No. 93-6196, 1994 WL 560870 (6th Cir. Oct. 12, 1994) (upholding stop of vehicle that was traveling 40 miles per hour on interstate where minimum speed limit was 45 miles per hour and officer suspected that driver was falling asleep).

In addition, the fact that Watkins refused to stop when he was directed to do so contributed to the officers’ suspicion that criminal activity may have been afoot. In light of these circumstances, we find that the officers had a reasonable suspicion to conduct a Terry stop of Watkins’ car. We deem the ignoring of orders to pull over the vehicle to be equivalent for these purposes to attempting to flee from police upon a signal to stop. Moreover, “if officers of reasonable competence could disagree on this issue, immunity should be recognized.” Malley v.

Briggs, 475 U.S. 335, 349, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). We cannot find the district court to have erred in concluding that the circumstances here indicated no knowing violation of civil or constitutional law by the defendant officers. See id. C. The district court did not err when it ruled that Porter and Wood were entitled to

summary judgment as to Watkins’ claim of excessive force We also agree with the district court’s determination that the defendants are entitled to

summary judgment regarding Watkins’ excessive force cause of action. Even when viewed in the light most favorable to Watkins, the facts do not support this claim. The officers got out of their vehicles and ordered Watkins to get out of the car. As he reached to undo his seatbelt, Watkins contends that the officer in front of him said, “Go ahead and do it, as if I was going for a gun.” An officer reached in and undid Watkins’ seatbelt and pulled him out of the car. After being handcuffed and patted-down for weapons, Watkins was placed in the back of the squad car.

As he was attempting to get in the squad car with the handcuffs on, Watkins hit his head once on the frame of the door but it cause no cuts or bruises. Watkins was briefly questioned and then released after receiving a ticket for disobeying a police officer’s signal. Watkins took Gabriel home and then went home himself. There is no substantial evidence that defendants used unreasonable force against Watkins. “[P]olice officers are often forced to make split-second judgments^ — in circumstances that are tense, uncertain, and rapidly evolving.” Graham v.

Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Therefore, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with %o vision of hindsight.” Id. at 396, 109 S.Ct. 1865 (citation omitted). As previously indicated, Watkins was driving suspiciously in an area where several crimes had recently occurred, and defendants had to force him to the side of the road before he would stop. As defendants approached Watkins, they had no idea whether he was armed or dangerous.

Furthermore, the record does not reflect that Watkins suffered any serious or permanent physical damage. The police had difficulty in getting Watkins into the back of the squad car with handcuffs on. We do not deem this force, even when viewed in a light most favorable to Watkins, to have been excessive under the circumstances. Thus, the defendants were entitled to qualified immunity in this claim as well. Accordingly, we conclude that the district court did not err in granting

summary judgment in favor of the defendants on the § 1983 claim. D. Intentional infliction of emotional distress Watkins also submits the district court erred in granting

summary judgment as to his claim for intentional infliction of emotional distress because he claims that defendants’ conduct was extreme and outrageous. To establish a pri-ma facie case of intentional infliction of emotional distress, a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation and (4) severe emotional distress.” Roberts v. Auto-Owners Insurance Co., 422 Mich. 594, 374 N.W.2d 905, 908 (1985) (internal quotes omitted).

Liability will only be imposed “where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.... [Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. at 908-09 (quoting Restatement, Torts, 2d § 46, comment d). Hence, a plaintiff will only be able to recover for intentional infliction of emotional distress “in the most egregious of cases.” Bonelli v.

Volkswagen of America, Inc., 166 Mich.App. 483, 421 N.W.2d 213, 228 (1988). Here, Watkins contends he was harassed, intimidated and verbally assaulted by defendants when they tried to “ram” him from behind and then forced him off the road. He also claims that he was physically abused when defendants pulled him from his car and put him in the back of their squad car, and a racial epithet was addressed to him. As we have noted, the stop of Watkins’ vehicle was justified under the circumstances.

Considering the fact that Watkins ignored the officers’ command for him to stop, the force they used to effectuate the stop was necessary. Hence, those actions could not be deemed to have been so unreasonable or excessive as is required to maintain this claim of intentional infliction of emotional distress. The alleged use of a racial epithet gives us some pause, but we are satisfied that the district court did not err in granting

summary judgment in favor of defendants on this claim. For the reasons stated, we AFFIRM the decision of the district court. . Our assertion that the speed limit on 8-1/2 Mile Road is 25 miles per hour is taken from the district court’s November 6, 1998 order and opinion partially dismissing plaintiff's complaint and granting

summary judgment to the defendants. See Order at p. 3. Though the court gave no basis for its finding in that regard, we will assume that the speed limit on 8-1/2 Mile Road is 25 miles per hour in light of the fact that Watkins has not contested the district court’s finding. . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . In California v.

Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court held that when a suspect flees at the sight of an officer, a “seizure” within the meaning of the Fourth Amendment does not occur until the suspect is physically apprehended or he actually submits to the authority of the officer. Hodari D., 499 U.S. at 625-26, 111 S.Ct. 1547; see also United States v. Taylor, 956 F.2d 572, 576 n. 2 (6th Cir.1992) (citing Hodari D. and stating that seizure does not occur during the time leading up to physical apprehension).

Therefore, any evidence discovered during the hot pursuit of the suspect could be properly admissible at trial. See Hodari D., 499 U.S. at 629, 111 S.Ct. 1547 (holding that no "seizure” had occurred during pursuit of defendant and, thus, the cocaine abandoned while defendant was running was not the fruit of the seizure). This rule applies not only to encounters on foot, but also to stops of automobiles. See United States v. Washington, 12 F.3d 1128, 1132 (D.C.Cir.1994).

The impact of Hodari D. is significant because “[t]he determination [of] whether [officers] have founded suspicion to justify a stop may take into account all of the events that occur up to the time of physical apprehension of a suspect who flees.” United States v. Santamaria-Hemandez, 968 F.2d 980, 983 (9th Cir.1992). Wardlow makes clear that the "events” that may be considered include flight of the suspect. See Wardlow, 120 S.Ct. at 676. .

The Court in Wardlow noted that “state courts have differed on whether unprovoked flight is sufficient grounds to constitute reasonable suspicion.” Wardlow, 120 S.Ct. at 675 n. 1. While we do not address that particular issue in the present case, we hold that the flight of a suspect should be considered as a factor in determining whether reasonable suspicion exists.