Burnett v. Kelly , 274 F. App'x 427 ( 2008 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 08a0199n.06
    Filed: April 16, 2008
    No. 07-1515
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    KARL BURNETT,                                   )
    )
    Plaintiff-Appellant,                     )
    )
    v.                                              )   ON APPEAL FROM THE UNITED
    )   STATES DISTRICT COURT FOR THE
    PAUL KELLEY, in his individual and              )   EASTERN DISTRICT OF MICHIGAN
    official capacities,                            )
    )
    Defendant-Appellee.                      )
    )
    )
    Before: DAUGHTREY and SUTTON, Circuit Judges; POLSTER,* District Judge.
    PER CURIAM. The plaintiff, Karl Burnett, was charged in Michigan state court with
    impersonating an officer and forging a license plate after defendant police officer Paul
    Kelley observed, but did not stop, a speeding automobile that looked like an official police
    vehicle. The car was a black Crown Victoria, a model commonly used by police, and it
    appeared to have a license plate with the same color as and numbers similar to those on
    a police car, a state seal identical to the design on Michigan police cars, and the words
    “State Owned” at the bottom. There was also a large antenna on the back of the vehicle
    *
    The Hon. Dan A. Polster, United States District Judge for the Northern District of Ohio,
    sitting by designation.
    Burnett v. City of Warren, et. al.
    07-1515
    similar to those on police cars. After the car had sped away, Kelley ran the license plate
    number through the appropriate databases, found that it was assigned to a private citizen
    named Karl Burnett, and called Burnett to verify his ownership of the vehicle and to inquire
    whether he was a police officer.
    Burnett told Kelley that he was a reserve deputy sheriff for Wayne County. He
    conceded that the vehicle Kelley had seen was his but denied that he had changed the
    color of the license plate or that it bore the notation “State Owned.” He did admit, however,
    that his car generally resembled a police car and that he had ordered the vanity plate
    number and had the decal bearing the state seal affixed to the license plate. Investigating
    further, Kelley placed calls to two police departments where Burnett had reported serving
    as a reserve deputy sheriff. An official at one of them indicated that Burnett had been
    reprimanded for having red and blue police lights on his personal motorcycle, and a
    spokesman at the other indicated that Burnett had been terminated.
    Following Officer Kelley’s investigation, Burnett was arrested and charged with
    forgery of a license plate and impersonating an officer. At the end of his preliminary
    examination, the state judge dismissed the charges, but sternly warned Burnett that he had
    “escaped by a hair from facing a felony.”
    Thereafter, Burnett brought suit against Kelley and others, alleging that his arrest
    and prosecution violated his Fourth and Fourteenth Amendment rights under the United
    States Constitution and claiming false arrest, malicious prosecution, abuse of process,
    -2-
    Burnett v. City of Warren, et. al.
    07-1515
    intentional infliction of emotional distress, and gross negligence. After the defendants
    jointly moved for summary judgment, Burnett abandoned his claims against all defendants
    except Officer Kelley.
    In a cogent and thorough opinion, the district judge granted the defendants’ motion
    for summary judgment on all claims, and Burnett now appeals that decision. We affirm the
    judgment of the district court based upon the reasoning in its order and opinion dated
    February 27, 2007, with one exception. In granting Kelly’s motion for qualified immunity,
    the district court was incorrect to “assume[] that” a constitutional violation occurred. See
    Saucier v. Katz, 
    533 U.S. 194
    , 200. As Saucier tells us, a court required to make a
    qualified immunity ruling must first decide the “threshold question” of whether, “[t]aken in
    the light most favorable to the party asserting the injury, . . . the facts alleged show the
    officer’s conduct violated a constitutional right.” 
    Id. at 201.
    Because, on the facts alleged,
    Kelly acted based on probable cause, he did not violate Burnett’s constitutional rights. We
    thus uphold the district court’s grant of qualified immunity by resolving the question at step
    one of the Saucier inquiry.
    AFFIRMED.
    -3-
    

Document Info

Docket Number: 07-1515

Citation Numbers: 274 F. App'x 427

Filed Date: 4/16/2008

Precedential Status: Non-Precedential

Modified Date: 1/12/2023