RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0062p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JAMES WARREN SCHREIBER,

Plaintiff-Appellant,

v.

OFFICER WILLIAM MOE and CITY OF GRAND

RAPIDS,

Defendants-Appellees.

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No. 09-1337

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 05-00091—Robert Holmes Bell, District Judge.

Argued: January 19, 2010

Decided and Filed: March 4, 2010 

Before: SILER, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Anthony C. Greene, LAW OFFICES, Grand Rapids, Michigan, for Appellant.

Margaret P. Bloemers, CITY ATTORNEY’S OFFICE FOR THE CITY OF GRAND

RAPIDS, Grand Rapids, Michigan, for Appellee. ON BRIEF: Anthony C. Greene, LAW

OFFICES, Grand Rapids, Michigan, for Appellant. Margaret P. Bloemers, Nadine R. Klein,

Patrick J. Lannen, CITY ATTORNEY’S OFFICE FOR THE CITY OF GRAND RAPIDS,

Grand Rapids, Michigan, for Appellee. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In this 42 U.S.C. § 1983 action,

Plaintiff-Appellant James Warren Schreiber (“Schreiber”) appeals the district court’s

decision to grant, in part, the defendants’ motion for summary judgment. In particular,

Schreiber argues that the district court erred in concluding that, as a matter of law,

1
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 2

1

Both the district court and the parties cite the actual transcript of the 911 call, which provides

some additional details. However, we have not found any evidence that Moe heard the 911 call or viewed

a transcript of it, and so we have relied only on what information was available to Moe on his computer

screen.

Defendant-Appellee William Moe (“Moe”) was not liable for his warrantless entry into

Schreiber’s home or the force he used in subsequently arresting Schreiber. For the reasons

discussed below, we AFFIRM the district court’s judgment with respect to Schreiber’s

warrantless-entry claim, but REVERSE the district court’s judgment with respect to

Schreiber’s excessive-force claim.

I. BACKGROUND

On November 1, 2002, Moe, a police officer, was on patrol on the north side of the

City of Grand Rapids. At approximately 3:45 p.m., he received a dispatch directing him to

go to Schreiber’s apartment. The dispatch was a “Priority 2,” which encompasses cases

where there is a risk of physical harm to a person at the scene. According to the computer

display in Moe’s car, someone had called 911 who claimed to have been talking to

Schreiber’s teenage daughter, Sarah, on the telephone and had heard her parents yelling.

According to the caller, the telephone call had suddenly been disconnected, and, when the

caller called Sarah back, Schreiber hung up the phone. The caller believed that Sarah was

“getting beat.” Doc. 51-4 (Ex. D at 1). The caller also asked to remain anonymous.1

Moe claims that, upon arriving at Schreiber’s apartment, he could hear an angry

male voice yelling profanities, and Schreiber admits that he was in a “heated” discussion

with Sarah. Doc. 51-15 (Schreiber Dep. at 17). Moe proceeded to knock on the door,

which was answered by a young boy around the age of ten. At this point, Moe could see

Schreiber yelling at someone within the home. The parties seem to dispute, however,

whether Sarah was visible to Moe at this point; Schreiber claims that she was, and Moe

claims that she was not. Moe asked the young boy if Sarah was okay. Shortly

thereafter, Schreiber came to the door, and according to Moe, Schreiber was shouting

phrases such as “‘what the fuck do you want’” and “‘I hate the fucking police.’” Doc.

51-22 (Moe Prelim. Exam. at 11). According to Moe, Moe responded by explaining that

he was there to check on Sarah’s welfare, only to have Schreiber reply “‘no, you fuckin’
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 3

don’t.’” Id. at 12-13. Schreiber does not deny making these statements, but does claim

that he asked for a warrant and also that he explicitly told Moe that Sarah was fine. Moe

then entered the home before Schreiber could close the door. Once through the door,

Moe claims that Schreiber’s wife invited him to come in further. Neither of the parties

dispute that Moe did not have a warrant.

Upon entering the living room, Moe saw Sarah for what he claims was the first

time. Both parties seem to agree that she was crying and visibly upset, though there

were no obvious signs of physical injury. During this time, however, the house appears

to have been in “chaos.” Doc. 51-23 (Moe Prelim. Exam. at 17). Schreiber and Sarah

continued yelling at one another, and Schreiber continued shouting various insults at

Moe. In particular, Schreiber claims that he told Moe that Moe did not have a search

warrant and admits that he “probably” called Moe a “Neo Nazi” and a “pig.” Doc. 51-15

(Schreiber Dep. at 31). Furthermore, according to Moe, Schreiber also threatened to

have Moe killed by the “Michigan Militia,” a claim Schreiber does not deny. Doc. 51-23

(Moe Prelim. Exam. at 22). Moe decided to call for backup.

At some point during the altercation, Schreiber’s wife, Emily, handed Moe a

telephone and explained that a woman from Catholic Social Services was on the line.

According to Moe, the woman, Cyndi Musto (“Musto”), proposed that Sarah leave the

home and spend the night at a local youth shelter in order to get away from her father.

In her deposition, Musto claims that she told Moe that she was concerned about Sarah’s

safety, but Musto later admitted that she could not “remember, actually, what was said.”

Doc. 51-19 (Musto Dep. at 31).

A short while later, Officer Veldman arrived on the scene in response to Moe’s

request for backup. After Veldman arrived, Moe proceeded to do a file check on

Schreiber, during which Schreiber became agitated and asked if he could go to his room.

Moe told Schreiber he could not leave because he might have weapons elsewhere in the

home. According to Moe, Schreiber again started shouting at him, saying that Schreiber

hated the police and that he wanted them all dead, a claim that Schreiber has not denied.
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 4

2

According to Schreiber, he suffers from Irritable Bowel Syndrome, a condition that made his

need to go to the bathroom especially urgent. However, there is no evidence that Moe was aware of this.

Schreiber claims that his kids told Moe that “[w]hen dad has to go, he has to go,” Doc. 51-15 (Schreiber

Dep. at 33), but this alone gave no indication of an underlying medical condition.

3

During his prior interview with the Internal Affairs Unit, Schreiber suggested that the door was

broken and that this may have been why it did not open.

4

Nonetheless, in an earlier part of his deposition, Schreiber contradicted this assertion by

admitting that he was “probably out of control.” Doc. 51-15 (Schreiber Dep. at 42).

Schreiber then asked if he could go to the bathroom, and Moe again told him no.2

Nonetheless, Schreiber attempted to walk past Moe, who responded by putting his hand

up to block Schreiber’s path. This prompted Schreiber to turn around and hurry onto an

adjoining balcony that was about ten feet off the ground, throwing his couch to the side

in the process. While on the balcony, Schreiber behaved erratically and attempted to

find a way down.

The record is not entirely clear as to what happened next. Schreiber claimed in

his deposition that he closed the sliding glass balcony door, though in an earlier

interview with the Internal Affairs Unit, he claimed that Moe shut the door. Moe

claimed that he closed the door so that he could speak with Sarah without any

disruptions. The parties agree that Schreiber was subsequently unable to get back in the

house, though they disagree as to why. Schreiber claims that Moe locked the door,

though Schreiber admits that he never saw Moe do so.3

 Moe, however, claims that he

never touched the lock. Schreiber also claims that Moe laughed when he saw that

Schreiber could not re-enter, which caused Schreiber to get angry.

Schreiber claims that he “probably” demanded that Moe “open the F’n door,”

Doc. 51-15 (Schreiber Dep. at 36), and when Moe did not, Schreiber admits that he

picked up a chair on the porch and used it to shatter the balcony door by hitting it several

times. Schreiber then entered the apartment through the hole that he had broken in the

glass, and from this point forward the parties’ accounts of what happened differ sharply.

Schreiber claims that he never made “any moves towards” Moe, never “lift[ed his] hands

toward” Moe, Doc. 51-16 (Schreiber Dep. at 88), never tried to strike Moe, and was

generally in control of his own behavior.4

 Id. at 89. Schreiber claims that he just walked
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 5

back inside the apartment and then Moe “ threw [him] down,” id. at 43, rubbed his face

in the glass, turned him around so he was face up, punched him in the face at least

twenty times, and also squeezed his groin. Id. at 45-46, 60. Schreiber does admit,

however, to calling Moe names throughout the incident. Moe, by contrast, claims that

Schreiber charged at him when Schreiber came through the glass and that Moe “end[ed]

up taking [Schreiber] to the ground.” Doc. 51-23 (Moe Prelim. Exam. at 26). Moe

further claims that Schreiber struck him about seven or eight times and that Moe struck

back at Schreiber about six times and only in self-defense. Meanwhile, Officer Veldman

was busy trying to prevent the other family members from entering the fray.

Once Schreiber was in custody, he was placed in a patrol car where he claims he

suffered additional abuse that is outside the scope of this appeal. While in the car,

Schreiber claims that Moe tried to “create a new version” of the events that occurred by

telling him that it was Schreiber who struck first. Doc. 51-16 (Schreiber Dep. at 91).

The hospital report indicates that, shortly after the incident, Schreiber’s left eye was

swollen shut, that he had “three major lacerations” on his face, and that he had facial

bone fractures. Doc. 51-9 (Ex. I at 1-2). Schreiber also claims that, as a result of Moe’s

actions, he suffered headaches for three months and continues to have anxiety problems.

On December 16, 2003, Schreiber pleaded no contest in Michigan state court to

attempting to “assault, batter, wound, resist, obstruct, oppose, or endanger” a police

officer under Michigan Compiled Laws § 750.81d(1) and § 750.92. Doc. 51-1 (Ex. A

at 1-3). On February 4, 2005, Schreiber brought this § 1983 action against Moe and

Grand Rapids in the United States District Court for the Western District of Michigan.

In the complaint, Schreiber alleged that Moe was liable for false arrest, illegal

imprisonment, entering his home without a warrant, unlawful seizure, and the use of

excessive force. Schreiber further claimed that Grand Rapids was vicariously liable due

to its failure to train its officers adequately and its policy of tolerating officer

misconduct.

The defendants moved for summary judgment, and the district court granted this

motion in part. In particular, the district court found that exigent circumstances justified
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 6

Moe’s warrantless entry into Schreiber’s home and, in any event, that Moe was entitled

to qualified immunity. Furthermore, the district court determined that Heck v.

Humphrey, 512 U.S. 477 (1994), barred Schreiber’s false-arrest and illegalimprisonment claims because Schreiber had already been convicted under Michigan’s

resisting-arrest statute. The district court divided Schreiber’s excessive-force claim into

two segments: the force Moe used in Schreiber’s home while arresting him and the force

Moe used once Schreiber was in the police car. With respect to the force used before

Schreiber was placed in the police car, the district court found that the Heck doctrine

barred this claim and that, in any event, Schreiber was again entitled to qualified

immunity. The district court allowed the claim regarding the force Moe used after

Schreiber was in the police car to proceed to trial. Finally, the district court dismissed

Schreiber’s claim against Grand Rapids due to Schreiber’s failure to offer any evidence

regarding the city’s training regime or its policies regarding officer misconduct.

Despite the fact that some portions of Schreiber’s excessive-force claim escaped

dismissal, the district court subsequently dismissed the entire case for failure to

prosecute. This Court, however, reversed that decision. Schreiber v. Moe, 320 F. App’x

312 (6th Cir. 2008). On remand, Schreiber voluntarily dismissed his remaining claim,

but preserved the right to appeal the district court’s previous adverse summary-judgment

ruling. The district court subsequently entered final judgment.

II. ANALYSIS

A. Scope and Standard of Review

This court reviews de novo a district court’s decision to grant summary

judgment. Dillon v. Cobra Power Corp., 560 F.3d 591, 595 (6th Cir. 2009). “Summary

judgment is proper if the evidence, taken in the light most favorable to the nonmoving

party, shows that there are no genuine issues of material fact and that the moving party

is entitled to a judgment as a matter of law.” Hartman v. Great Seneca Fin. Corp., 569

F.3d 606, 611 (6th Cir. 2009) (internal quotation marks omitted).
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 7

In his brief, Schreiber did not address his claim against Grand Rapids, nor did he

address his claims of false arrest and illegal imprisonment. Therefore, he has waived

these claims. Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005). Thus, we

will focus solely on Schreiber’s claims of warrantless entry and excessive force.

B. Qualified Immunity

Both Schreiber’s warrantless-entry and excessive-force claims must be analyzed

under the framework of the qualified-immunity doctrine. Under that doctrine,

“[g]overnment officials, including police officers, are immune from civil liability unless,

in the course of performing their discretionary functions, they violate the plaintiff’s

clearly established constitutional rights.” Jones v. Byrnes, 585 F.3d 971, 974 (6th Cir.

2009). In order to recover under 42 U.S.C. § 1983, Schreiber must show that: (1) Moe

violated one of Schreiber’s constitutional rights and (2) that right was “clearly

established” at the time of the violation. Id. at 975 (internal quotation marks omitted).

“A right is ‘clearly established’ if ‘the contours of the right are sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’”

Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (brackets omitted).

C. Warrantless Entry

Schreiber first argues that Moe violated Schreiber’s clearly established Fourth

Amendment rights when Moe entered Schreiber’s home without a warrant. “[S]earches

and seizures inside a home without a warrant are presumptively unreasonable.”

Michigan v. Fisher, 130 S. Ct. 546, 548 (2009) (internal quotation marks omitted).

“[T]hat presumption can be overcome,” however, if “the exigencies of the situation . . .

make the needs of law enforcement so compelling that the warrantless search is

objectively reasonable.” Id. (internal quotation marks omitted). Exigency exists “where

there are real immediate and serious consequences that would certainly occur were a

police officer to postpone action to get a warrant.” Ewolski v. City of Brunswick, 287

F.3d 492, 501 (6th Cir. 2002) (internal quotation marks omitted). In particular, as the
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 8

Supreme Court has recently reiterated, “officers may enter a home without a warrant to

render emergency assistance to an injured occupant or to protect an occupant from

imminent injury.” Fisher, 130 S. Ct. at 548 (internal quotation marks omitted).

However, there must be “an objectively reasonable basis for believing . . . that a person

within the house is in need of immediate aid.” Id. (internal quotation marks omitted).

In civil cases, this question is normally left to the jury, but only if “there is room for a

difference of opinion.” See Ingram v. City of Columbus, 185 F.3d 579, 587 (6th Cir.

1999) (internal quotation marks omitted).

It is undisputed that Moe entered Schreiber’s apartment without a warrant. Moe

argues, however, that there was exigency because Schreiber may have been physically

abusing Sarah. Preventing imminent or ongoing physical abuse within a home qualifies

as an exigent circumstance, Fisher, 130 S. Ct. at 548, so the question becomes whether

a reasonable jury could conclude that Moe did not have an “objectively reasonable basis

for believing” that Sarah was in imminent danger. Id. We do not think a reasonable jury

could reach such a conclusion, and so we conclude, as a matter of law, that Moe did not

violate Schreiber’s Fourth Amendment rights with respect to the warrantless entry.

Moe learned from the 911 dispatcher that a caller claimed to have heard

screaming and believed that Sarah was being beaten by her parents. The caller claimed

to have heard on the telephone the altercation as it was occurring. The caller asked to

remain anonymous, which made it impossible for Moe or the dispatcher to assess the

caller’s credibility. See Kerman v. City of New York, 261 F.3d 229, 235-36 (2d Cir.

2001) (concluding that an anonymous 911 call, by itself, provides an insufficient basis

for a finding of exigency); cf. Florida v. J.L., 529 U.S. 266, 274 (2000) (holding that “an

anonymous tip lacking indicia of reliability” that an individual is carrying a gun is not

enough to justify a Terry stop). Even assuming that an anonymous 911 call by itself

cannot supply the requisite indicia of exigency, however, we must consider in evaluating

whether exigency exists any evidence observed by the police in the course of

investigating the call. See Thacker v. City of Columbus, 328 F.3d 244, 254 (6th Cir.

2003).
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 9

As Moe arrived, he made several observations that corroborated the 911 caller’s

conclusion that Sarah was at risk of physical danger. Even before knocking on the door,

Moe heard a male voice shouting from within the home. This by itself verified the 911

caller’s observation that there had been shouting and suggested that, at the very least,

some kind of altercation was occurring inside Schreiber’s home. After Moe knocked on

the door and told Schreiber that Moe was concerned about Sarah’s welfare, Schreiber

abruptly told Moe to leave and bombarded him with a slew of profanities. Under such

circumstances, a reasonable officer would naturally question why a father, who had just

been told that the police suspected his daughter was in danger, would be so hostile and

uncooperative. Cf. Thacker, 328 F.3d at 254 (finding exigency based, in part, on the fact

that a police officer was responding to a 911 call reporting a stabbing and was met by

a belligerent occupant shouting profanities and providing no explanation). Furthermore,

a reasonable jury would have to accept either Moe’s testimony that he could not see

Sarah before entering the home, or Schreiber’s testimony that Moe could see her, but

that she was crying, that her face was red, and that she was “hurt.” Doc. 51-15

(Schreiber Dep. at 29). Under Moe’s version, Moe’s inability to see Sarah would have

made it reasonable for him to investigate so that he could confirm that Sarah was okay.

Under Schreiber’s version, Sarah’s visibly distraught demeanor would have led a

reasonable police officer to believe that the girl was in distress and was consistent with

the 911 caller’s conclusion that Sarah was “getting beat.”

Considering the evidence, even in the light most favorable to Schreiber, we

conclude that no reasonable jury would dispute that Moe had an “objectively reasonable

basis for believing” that Sarah was at risk of imminent injury. Moe knew that a 911

caller who had recently spoken with Sarah thought she was being beaten, and, upon

investigating, Moe discovered an irate father so lacking in self-control that he shouted

profanities at an officer who was simply checking on her welfare. It is true that this case

lacks some of the more outward manifestations of violence that often support a finding

of exigency. In particular, there were no signs of blood, Thacker, 328 F.3d 254, broken

objects, Fisher, 130 S. Ct. at 547, or gunfire, United States v. Huffman, 461 F.3d 777,

784 (6th Cir. 2006); Dickerson v. McClellan, 101 F.3d 1151, 1159 (6th Cir. 1996). But
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 10

5

Schreiber also argues that Moe unlawfully seized him when Moe allegedly “pushed [Schreiber]

back down onto the couch” after Schreiber tried to stand up. Appellant Br. at 5-6, 10. We have identified

nothing in the record that substantiates this claim. Schreiber’s brief cites “Tr.” pages sixty-one and sixtytwo, yet there are no documents in the record which have any relevant information on those pages.

Schreiber appears to be referring to portions of Moe’s preliminary examination that were never made part

of the record.

these are not prerequisites to a finding of exigency. As the Supreme Court has noted,

“[o]fficers do not need ironclad proof of a likely serious, life-threatening injury to invoke

the emergency aid exception.” Fisher, 130 S. Ct. at 549 (internal quotation marks

omitted). As in Fisher, here “[i]t sufficed to invoke the emergency aid exception that

it was reasonable to believe that . . . [Schreiber] was about to hurt, or had already hurt,

[Sarah].” Id.

Schreiber also argues that even if Moe is not liable for his warrantless entry into

the apartment, Moe is liable for remaining there after he was able to confirm that Sarah

was safe. We have observed that a warrantless intrusion into a home must not exceed

the exigency that permits it. See United States v. Johnson, 22 F.3d 674, 680 (6th Cir.

1994). Once Moe entered Schreiber’s apartment, however, the situation continued to

deteriorate. Schreiber does not dispute Moe’s testimony that Schreiber’s home was

chaotic and that there was a considerable amount of shouting. Furthermore, Schreiber

continued to hurl obscenities at Moe while Moe was in the home and at some point

Schreiber even threatened to have the “militia” kill Moe. Finally, while in the home,

Moe spoke with a social worker on the telephone who advised that Sarah should leave

the home and spend the night at a shelter. In light of these undisputed facts, we conclude

that Moe could have reasonably believed that Schreiber was on the brink of violence and

that, even if Moe had determined that Sarah was at that point unharmed, a continued

police presence was required for a time to prevent any future harm. Therefore, we

conclude that no reasonable jury could find that Moe violated the Fourth Amendment

either by entering Schreiber’s home or by remaining inside as long as he did.5
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 11

D. Excessive Force

Schreiber also argues that Moe used excessive force against him after Schreiber

shattered the balcony door and re-entered the apartment. “‘[A]ll claims that law

enforcement officers have used excessive force . . . in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard . . . .” Graham v. Connor, 490

U.S. 386, 395 (1989). In determining whether an officer’s use of force was reasonable,

we must balance “the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at stake.” Id. at

396 (internal quotation marks omitted). In doing so, we “pay particular attention to ‘the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.’” Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (quoting

Graham, 490 U.S. at 396). Furthermore, “[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 the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

In assessing Schreiber’s excessive-force claim, we must construe all of the facts

in the record “in the light most favorable” to Schreiber. Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 901 (6th Cir. 2004), cert. denied, 544 U.S. 975 (2005). Once we

have done so, “the question whether [Moe’s] actions were objectively unreasonable is

‘a pure question of law.’” Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir.

2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)).

Schreiber asserts that he was in control of his behavior and walked back into the

apartment from the balcony with his hands down. According to his deposition, Schreiber

attests that he never assaulted Moe or threatened to do so. Schreiber further contends

that Moe knocked him down, pushed his face into broken glass, turned him over, and

then punched him over twenty times. A reasonable jury could accept this account as true

despite Moe’s contrary testimony, and under these facts Moe used excessive force.

Accepting as true Schreiber’s claim that he did not try to strike Moe, as we must for
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 12

6

Moe argues that Schreiber effectively waived the qualified-immunity issue on appeal because

his brief offered so little analysis of this issue. Although we agree that the quality and thoroughness of

Schreiber’s brief was far from ideal, we do not think it amounted to a waiver. Schreiber does set forth the

general rules that govern qualified immunity. Appellant Br. 16-17. He also points out, albeit in a different

section, that “[t]he right to be free from excessive force is a clearly established right,” and notes that there

is a factual dispute as to whether Moe threw him to the ground despite lack of provocation. Appellant Br.

at 18. Unfortunately, in dismissing the qualified immunity issue as waived, Moe’s brief also fails to offer

any meaningful analysis with respect to this issue.

summary judgment purposes notwithstanding Moe’s fervent denials of any use of force

beyond self-defense, it is difficult to conceive of a law-enforcement interest that would

have been served by punching Schreiber in the face over twenty times with enough force

to fracture his facial bones. See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681,

687 (6th Cir. 2006) (finding that police officers “could not have justified striking [the

plaintiff] in the eye with a stick ten to twelve times while she was on the ground and ‘out

of it’” even if some force was required to place handcuffs upon her). Indeed, the

decision to punch repeatedly an unarmed suspect who asserts that he never so much as

lifted his hands amounts to little more than the wanton infliction of pain. Moreover,

Schreiber testified that Moe “turned me around and whatever and put handcuffs on me

and he kept on beating me up.” Doc. 51-16 (Schreiber Dep. at 46) (emphasis added).

Construing this statement in the light most favorable to Schreiber, we understand

Schreiber to be claiming that Moe continued to punch him even after the handcuffs were

in place. Furthermore, as we have previously held, striking a neutralized suspect who

is secured by handcuffs is objectively unreasonable. See McDowell v. Rogers, 863 F.2d

1302, 1307 (6th Cir. 1988); Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002), cert.

denied, 537 U.S. 1104 (2003). Therefore, under this view of the facts, Moe violated

Schreiber’s right to be free from excessive force.

We also conclude that Schreiber’s right to be free from excessive force was

clearly established, so that Moe is not entitled to qualified immunity.6

 The relevant

question here is “whether it would be clear to a reasonable officer that [Moe’s] conduct

was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001),

overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). Here, cases

like McDowell and Phelps provide examples of factually similar cases decided before

the incident in question where we have found an officer’s alleged use of force to be
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 13

excessive. Similarly, even if this case presented a novel factual situation, we still

conclude that Schreiber’s right to not be punched in the face twenty times as he lay on

the floor was sufficiently “‘obvious’” to put Moe on notice. See Sample v. Bailey, 409

F.3d 689, 699 (6th Cir. 2005) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).

Nonetheless, the district court reasoned that Moe was entitled to qualified immunity

given Schreiber’s aggressive behavior and the “rapidly developing circumstances” with

which Moe was faced. Doc. 61 (Dist. Ct. Op. at 32). The district court, however,

provided no explanation as to how the need to control or restrain Schreiber justified

repeatedly punching him in the face, especially when Schreiber attests that he never tried

to strike Moe. Similarly, the district court failed to take into account Schreiber’s

testimony that Moe’s punches continued even after Schreiber was in handcuffs. When

the evidence is viewed in the light most favorable to Schreiber, this is not a situation on

“the sometimes hazy border between excessive and acceptable force.” Saucier, 533 U.S.

at 206 (internal quotation marks omitted). Therefore, we conclude that the qualifiedimmunity doctrine does not prevent Schreiber from proceeding on his excessive-force

claim.

In reaching this conclusion that Schreiber may go forward with his excessiveforce claim, we acknowledge that Schreiber’s deposition testimony is at times

inconsistent both with itself and with his prior statements. We emphasize, however, that

“[i]n reviewing a summary judgment motion, credibility judgments and weighing of the

evidence are prohibited.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.

2009) (internal quotation marks omitted). “[W]hen the non-moving party presents direct

evidence refuting the moving party’s motion for summary judgment, the court must

accept that evidence as true.” Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994). This

is the case even when the nonmovant’s account is contradictory. See Shreve, 453 F.3d

at 688 (crediting plaintiff’s testimony of instances of excessive force for summaryjudgment purposes despite contradictions in her deposition); see also Hawkins v.

Anheuser-Busch, Inc., 517 F.3d 321, 340 (6th Cir. 2008) (noting that, for summaryjudgment purposes, inconsistencies in plaintiff’s allegations “go to the weight of her

testimony, not its admissibility”).
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 14

The district court also found Schreiber’s § 1983 claim of excessive force to be

barred by Heck v. Humphrey, 512 U.S. 477 (1994), because Schreiber had already been

convicted in state court for attempting to resist his arrest. We disagree.

In Heck, the Supreme Court held that

in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.

Id. at 486-87. Schreiber’s conviction has not been reversed, so the question is whether

his § 1983 suit is an attempt to invalidate that conviction. The district court reasoned

that because “the altercation between Schreiber and Officer Moe gave rise to both the

conviction and the excessive force claim,” Doc. 61-1 ( Dist. Ct. Op. at 25), the § 1983

suit constituted an effort to invalidate the conviction. Our case law, however, requires

a more precise inquiry whereby “the court must look both to the claims raised under

§ 1983 and to the specific offenses for which the § 1983 claimant was convicted.”

Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006), abrogated on other grounds

by Wallace v. Kato, 549 U.S. 384 (2007). The mere fact that the conviction and the

§ 1983 claim arise from the same set of facts is irrelevant if the two are consistent with

one another.

Generally speaking, “a claim of excessive force does not necessarily relate to the

validity of the underlying conviction and therefore may be immediately cognizable.”

Swiecicki, 463 F.3d at 493. Indeed, in Michigan, one can be convicted under

§ 750.81d(1) simply for a “knowing failure to comply with a lawful command,”

Michigan Compiled Laws § 750.81d(7)(a), and the mere failure of Schreiber to obey a

police order would not have made the force Moe allegedly used reasonable. There are

two circumstances, however, in which an excessive-force claim might conflict with a

conviction. The first is when the criminal provision makes the lack of excessive force

an element of the crime. Cf. Heck, 512 U.S. at 486 n.6. The second is when excessive
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 15

force is an affirmative defense to the crime, as was true in the case upon which the

district court relied, Cummings v. City of Akron, 418 F.3d 676, 684 (6th Cir. 2005)

(noting that an assault conviction barred an excessive-force claim because the plaintiff

did not raise excessive force as a defense). In both of these circumstances, the § 1983

suit seeks a determination of a fact that, if true, would have precluded the conviction.

Nothing in the text of Michigan Compiled Laws § 750.81d(1) or § 750.92

suggests that the state must prove as an element of the crime that the police did not use

excessive force. Indeed, the Court of Appeals of Michigan has found that a lawful arrest

is not one of the elements of § 750.81d(1). People v. Ventura, 686 N.W.2d 748, 752

(Mich. Ct. App. 2004). Furthermore, one recent Michigan case has strongly suggested

that excessive force by the police is not a defense to a resisting-arrest conviction, People

v. Hill, No. 283951, 2009 WL 1830750, at *3 (Mich. Ct. App. June 25, 2009) (stating

that there is no authority for the proposition that the “use of excessive force by police is

a valid defense to resisting and obstructing”), and several others have left unresolved the

question of whether excessive force is a defense. See, e.g., People v. Burks, No. 284467,

2009 WL 1693743, at *2 (Mich. Ct. App. June 16, 2009); People v. Rauch, No. 263185,

2006 WL 3682754, *3-4 (Mich. Ct. App. Dec.14, 2006). In light of these state court of

appeals decisions, we cannot conclude that any excessive force used by Moe would have

provided Schreiber with an affirmative defense to the charge of resisting an arrest.

We conclude that under these circumstances, Schreiber’s § 1983 excessive-force

claim does not challenge his conviction for attempting to resist his arrest. See Rogers

v. Detroit Police Dep’t, 595 F. Supp. 2d 757, 768-70 (E.D. Mich. 2009) (reaching a

similar conclusion). The Heck doctrine applies only where a § 1983 claim would

“necessarily” imply the invalidity of a conviction. Nelson v. Campbell, 541 U.S. 637,

647 (2004) (internal quotation marks omitted). “To hold otherwise [would be to] cut off

[a] potentially valid damages action[] as to which [Schreiber] might never obtain

favorable termination — [a] suit[] that could otherwise have gone forward had

[Schreiber] not been convicted.” Id. Therefore, Schreiber should be permitted to

proceed on his claim that Moe used excessive force during the course of the arrest.
No. 09-1337 Schreiber v. City of Grand Rapids et al. Page 16

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s judgment with

respect to Schreiber’s warrantless-entry claim, and REVERSE the district court’s

judgment with respect to Schreiber’s excessive-force claim. We REMAND for further

consideration consistent with this opinion.