Question of Fact Exists Whether Officer Had Probable Cause to Arrest a Man Sleeping in a Car for DUI; Judges Grapple Over Standard of Review on Interlocutory Appeal
In Romo v. Largen, on interlocutory appeal, the Sixth Circuit affirmed the Western District of Michigan's decision that reasonable minds could differ as to whether Officer Jeff Largen had probable cause to arrest Candido Romo. Because this was an interlocutory appeal1 from the denial of qualified immunity, the majority confined its opinion to determining whether the trial court's determination that a question of fact existed was "blatantly and demonstrably false."
The arrest arose from rather peculiar circumstances. According to Romo, on the night of the arrest, Romo attended several different bars with his brother and brother-in-law and had approximately nine beers. At the end of the night, Romo's brother, who was the designated driver, dropped Romo off at his vehicle. Romo insisted on spending the night in his truck, and so his brother took his keys to ensure that Romo would not drive his car home. Approximately 45 minutes after Romo fell asleep, Romo awoke to Officer Largen tapping on his window, who then proceeded to question Romo. Officer Largen said that he just saw a similar vehicle commit a traffic violation (believing that it was Romo's vehicle that he had now found), but Romo insisted that he had not been driving his car and that he did not even have his keys. Officer Largen's search failed to turn up keys, but Officer Largen said that the engine was still warm. In the end, Officer Largen arrested Romo for a DUI. The charges were eventually dropped, and Romo turned around and sued Officer Largen.
The district court denied Officer Largen qualified immunity. The court reasoned that a jury might find that no reasonable officer could have concluded that probable cause existed to arrest Romo. In doing so, the court inferred that a jury might not believe Officer Largen's testimony that he saw a similar car commit a traffic violation. Importantly, on interlocutory appeal, the Sixth Circuit said that it did not have jurisdiction to question the district court's finding that a genuine issue of material fact existed.
Judge Sutton filed a strong concurrence, focusing his attention on a circuit court's scope of review after the denial of qualified immunity. The two-judge majority found that an interlocutory appeal can only review blatant and demonstrably false issues of fact while taking into account a district court's inferences. Judge Sutton said that the standard of review should only apply to "he said, she said" fact disputes, and a circuit court should not be required to accept the district court's inferences from those facts. Judge Sutton clearly favored more careful review of the district court's denial of qualified immunity. Notably for attorneys, Judge Sutton explained how, under the majority's standard, a good attorney is the difference between having an interlocutory appeal quickly dismissed (like here) or more carefully reviewed—i.e., by simply arguing that the district court's errors were blatant and demonstrably false or that the appeal raises solely legal issues.
1 An interlocutory appeal is an appeal taken before the case is completely over at the trial court level. Here, since the trial court denied Officer Largen's motion, the case would have proceeded toward a trial so that the jury could resolve the "issues of fact."