Cheryl D. Lyons v. City of Xenia, Christine Keith, Officer Matthew Foubert, Officer

I must respectfully dissent from the majority’s opinion. Having reconsidered my position on the excessive force claim in light of Brosseau v. Haugen, — U.S. -, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), I remain convinced that a jury should decide whether Officer Foubert is entitled to qualified immunity.

I. Officer Keith and the Claim of False Arrest

In focusing its analysis only upon whether Officer Keith had probable cause to arrest Lyons, the majority - ignores two critical aspects of this case: the situs of the arrest and the absence of a warrant. “The Fourth Amendment ‘has drawn a firm line…