1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0133p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

S COTT R UDLAFF , Personal Representative for the Estate of Lawrence Carpenter, Plaintiff-Appellee ,

v.

B RANDON G ILLISPIE ; J ACOB B IELSKI , Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ ┘ No. 14-1712

Appeal from the United St ates District Court for the Western District of Michigan at Grand Rapids.

No. 1:12-cv-00844—Janet T. Neff, District Judge. Argued: June 16, 2015 Decided and Filed: July 1, 2015
Before: McKEAGUE and DONALD, Circ uit Judges; MATTICE, District Judge. *

_________________ COUNSEL

ARGUED: Marcelyn A. Stepanski, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills, Michigan, for Appellants. David G. Blake, ROMANO LAW, P.L.L.C., Pleasant Ridge, Michigan, for Appellee. ON BRIEF: Marcelyn A. Stepanski, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hill s, Michigan, for Appe llants. Christina D. Davis, ROMANO LAW, P.L.L.C., Pl easant Ridge, Michig an, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which MATTICE, D.J., joined, and DONALD, J., joined in the re sult. DONALD, J. (pp. 10–15), delivered a separate opinion concurring in the judgment.

* The Honorable Harry S. Mattice, Jr., United States Dist rict Judge for the Easter n District of Tennessee, sitting by designation. 

### >No. 14-1712 Rudlaff v. Gillispie, et al. Page 2

_________________ OPINION

_________________ McKEAGUE, Circuit Judge. Two county polic e officers used force (one, a knee strike; the other, a taser) to subdue Lawrence Carpenter during his arrest. Their dash-cam videos show, and Carpenter admits, that he resisted arrest and refused to be handcuffed before the officers used force. When an arrestee actively resi sts arrest like Carpenter did, the police can constitutionally use a taser or a knee strike to subdue him. Because the officers did no more than that here, they acted within the bounds of the F ourth Amendment. We accordingly reverse the district court’s denial of summary judgment to the officers.

I
Before filling in the facts, let us be clear on how we view them. Ordinarily in summaryjudgment appeals involving qualified immunity (lik e this one), we view the facts in the light most favorable to the plaintiff. Scott v. Harris , 550 U.S. 372, 378 (2007). But there is “an added
wrinkle in this case: existence in the record of [two] videotape[s] capturing the events in question.” Id. In such a case—“where the police dash-c am video[s] . . . depict[] all of the genuinely disputed facts,” Standifer v. Lacon , 587 F. App’x 919, 920 (6th Cir. 2014)—we “view[] the facts in the light de picted by the videotape[s].” Scott , 550 U.S. at 381.
Here are the facts, then, according to the two dash-cam videos and filled in by the record taken in the plaintiff’s favor. As Deputy Brandon Gillispie drove along Route 55 in Wellston, Michigan on routine afternoon patrol, he obser ved Lawrence Carpenter’s truck going the other way. Gillispie knew Carpenter from three prior encounters, all i nvolving Carpenter driving with a suspended license. In the last of these en counters, Carpenter took off running after being pulled over by Gillispie. Gillispie also knew Carpenter’s history of drunk dr iving and getting physical with police officers after being stopped. Thus, when Gillispie saw Carpenter driving on this occasion, he knew Carpenter was violating the law because he was (at least) driving with a suspended license, and he was on high alert because of Carpenter’s history with the police.No. 14-1712 Rudlaff v. Gillispie, et al. Page 3

Gillispie accordingly made a U-turn, turned on his lights, and pulled Carpenter over to arrest him—in an undisputed lawful stop. Gillisp ie called another officer, Deputy Jacob Bielski, for backup and informed Bielski of Carpenter’s hist ory of aggression toward the police. Bielski, who was only seconds away, pulled over behind Gillispie and Carpenter. The three cars parked on the narrow shoulder of the two-lane, 55-mile-p er-hour highway. Both officers’ dash-cam
videos recorded the events that followed.
Gillispie approached Carpenter’s truck and informed him through his open window that he was under arrest for driving with a suspende d license. R. 28-1 (Car penter Dep.) at 14. Gillispie then opened the driver’s side door and told Carpenter to get out. According to Gillispie, Carpenter appeared “highly agitated” and was “s wearing” in response to this request, but he voluntarily exited the truck. R. 28-2 (Gillispie De p.) at 7. The videos and depositions confirm that Carpenter appeared agitated, as he puffed out his chest and stared down Gillispie as he left the vehicle. Gillispie instructed Carpenter to put his hands on the truck. But Carpenter did not listen to Gillispie’s instructions. Gillispie then grabbed Carpenter’s right arm and tried to move it onto the truck. Carpenter swung (or “jerked, ” if you’d prefer, Concurring Op. at 12–13) his arm back in Gillispie’s direc tion—admittedly trying to “prevent [Gillispie] from handcuffing”
him. R. 28-1 at 15.
After the swing, Gillispie succeeded in gettin g Carpenter to put both hands on the truck and attempted to grab Carpenter’s left arm to place it in handcuffs. At this, Carpenter swung his arm in Gillispie’s direction for the second time, again trying to resist being handcuffed. See R.
28-1 at 15. The audio in one of the dash-cam vi deos picked up Gillispie at least twice telling Carpenter to “give me the hands.” R. 30 (B ielski Dash-Cam Vide o) at 13:13:46–50. But Carpenter still would not comply. He testified that he instead just “ball[ ed] up” because Gillispie had “kept tugging on me,” and that he would have complied if Gillispie would have let him go.
R. 28-1 at 19.
Yet Gillispie did not let go, and Carpenter did not comply. Gillispie performed a knee strike on Carpenter, attempting to force his comp liance. But the knee strike did not succeed in subduing Carpenter, who still appeared to be st ruggling. R. 30 (Gillispi e Dash-Cam Video) at 13:17:43–51. Deputy Bielski, who had observed a ll of this—from the puffed-up chest, to theNo. 14-1712 Rudlaff v. Gillispie, et al. Page 4

two arm swings, to Carpenter’s balling up, to the ine ffective knee strike—yelle d at Carpenter to “relax, or else you’re gonna get tasered.” R. 30 (Bielski Dash-Cam Video) at 13:13:50–51. (Bielski does not remember giving this warning, see R. 28-3 at 7, but it is clear from the video.) Carpenter testified that he didn’ t “pay [] attention” to this wa rning. R. 28-1 at 16. Moments later, Bielski tased Carpenter, who almost immediately fell to the ground. The officers handcuffed him, assisted him to hi s feet, and escorted him to the po lice cruiser. They did not use any force after they subdued Carpenter, who later pled guilty to driving with a suspended license.
Carpenter sued the officers, claiming they used excessive force in vi olation of the Fourth (and Fourteenth) Amendment. He contends that both Gillispie’s knee stri ke and Bielski’s taser shot were excessive, but his brie fing treats the two types of force alike. We do the same. (Carpenter has since passed away from causes unr elated to this case. His estate’s personal representative, Scott Rudlaff, has taken over the case, but we still refer to the plaintiff as Carpenter.) The officers, believing qualified imm unity insulates them fr om this suit, sought summary judgment before the district court. Bu t citing “disputed issues of material fact,” the district court denied the motion, even though it noted that the “case do[es] not fall neatly into” categories of clearly establishe d law. R. 32 at 1, 7, 9.
The officers appealed. We have jurisdiction to hear the app eal under the collateral-order
doctrine. Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). Contrary to Carpenter’s contention,
Johnson v. Jones , 515 U.S. 304, 319–20 (1995), does not stand in the way because the officers do not “solely contest the plaint iff’s account of the facts.” Family Serv. Ass’n ex rel. Coil v. Wells Twp ., 783 F.3d 600, 607 (6th Cir. 2015). They accept the record taken in the videos’ and plaintiff’s light and raise a pure question of la w: whether their conduct violated the Fourth Amendment and, if so, whether it viol ated clearly established law. Plumhoff v. Rickard , 134 S. Ct. 2012, 2019 (2014); see Scott , 550 U.S. at 378–81.

II
We begin with some general propositions of law. The police must act reasonably when seizing a person. See U.S. C ONST . amends. IV & XIV. Using “excessive force” during an arrest
is unreasonable and thus violat es the Fourth Amendment. Graham v. Connor , 490 U.S. 386, 394–95 (1989). But a police officer who uses excessive force can be held personally liable onlyNo. 14-1712 Rudlaff v. Gillispie, et al. Page 5

if the use of force was clearly established as excessive at the time of the arrest. Pearson v.
Callahan , 555 U.S. 223, 231 (2009). That means existi ng caselaw must clearly and specifically
hold that what the officer did—under the circ umstances the officer did it—violated the Constitution. We therefore must determine (A ) whether the officers’ conduct violated the Constitution; and (B) if so, whether it violated law that has been clearly established.

A

Prong One

. Our cases firmly establish that it is not excessive force for the police to tase someone (even multiple times) when the person is actively resisting arrest. Hagans v. Franklin Cnty. Sheriff’s Office , 695 F.3d 505, 509 (6th Cir. 2012); e.g. , Williams v. Sandel , 433 F. App’x 353, 363 (6th Cir. 2011) (not excessi ve force to tase the suspect thirty-seven times (and use batons and pepper spray) because he actively re sisted arrest). Acti ve resistance includes “physically struggling with, threat ening, or disobeying officers.” Cockrell v. City of Cincinnati , 468 F. App’x 491, 495 (6th Cir. 2012) (collecting cases). And it includes refusing to move your hands for the police to handcuff you, at least if that inaction is coupled with other acts of
defiance. Caie v. W. Bloomfield Twp. , 485 F. App’x 92, 94, 96–97 (6th Cir. 2012); see Williams v. Ingham , 373 F. App’x 542, 548 (6th Cir. 2010). But active resistance does not include being “compliant or hav[ing] stopped resisting,” Hagans , 695 F.3d at 509; or ha ving “done nothing to resist arrest,” or having “already [been] detained,” Cockrell , 468 F. App’x at 496 (collecting cases). E.g. , Eldridge v. City of Warren , 533 F. App’x 529, 535 (6th Cir. 2013) (excessive force to tase someone whose “noncompliance was not pa ired with any signs of verbal hostility or physical resistance”); Griffith v. Coburn , 473 F.3d 650, 658 (6th Cir. 2007) (excessive force for an officer who, if the plaintiff was believed , “almost immediately a nd without provocation” began choking the suspect). A simple dichotomy thus emerges: When a suspect actively resists arrest, the police can use a taser (or a knee stri ke) to subdue him; but when a suspect does not resist, or has stopped re sisting, they cannot.

Based on the record and law before us, the officers did not violate Carpenter’s constitutional rights when they used force to subdue him. No matter how you cut it, Carpenter actively resisted arrest. There is no genuine disput e of fact on this point. Carpenter never denies being verbally defiant, and in fact admits that he “told [Deputy Gillispie that he] wasn’t goingNo. 14-1712 Rudlaff v. Gillispie, et al. Page 6

to” comply. R. 28-1 at 18. He puffed his chest and stared down Gillispie. He twice swung his
arms in the officer’s direction. He locked up his body (“ball[ed] up”) and admittedly refused to give Gillispie his hands. And, pivotally, he adm itted at his deposition that he tried to prevent Gillispie from handcuffing him— i.e. , he conceded that he resisted arrest . R. 28-1 at 15; see Oral Argument at 17:41–18:03. (And yes, wo rds, including Carpenter’s own words, do have power. Concurring Op. at 10.) A reasonable poli ce officer observing this scene in the heat of the moment did not need to give Carpenter any mo re time to comply before tasing him. Because Carpenter “actively resist[ed] arrest and refus[ed] to be handcuffed,” Hagans , 695 F.3d at 509, a reasonable jury applying the law of our circuit could conclude only that the officers were constitutionally able to use the force they did to subdue him. Id.
Carpenter’s version of the facts does not cha nge this conclusion. His story—that he was “jerked [] out of the truck,” R. 28-1 at 15, and that he “attempt[ ed] to comply with Gillispie’s commands when Bielski deployed the taser w ithout warning,” Appellee Br. 16—amounts to a “visible fiction” in light of the da sh-cam videos and his own admissions. Scott , 550 U.S. at 381. His purported subjective intent to comply with th e officers’ requests fares no better, for we view
his actions objectively , from the perspective of a reas onable officer at the scene. Chappell v. City Of Cleveland , 585 F.3d 901, 912 (6th Cir. 2009). From that perspective, Carpenter “strongly
indicated his intentions were not innocen t and compliant, but defiant and hostile.” Id.
The cases Carpenter cites also fail to change our conclusion. Simply, they do not involve suspects who actively resisted arrest. E.g. , Correa v. Simone , 528 F. App’x 531, 534 (6th Cir. 2013) (“[A]t the time [the officer] us ed the taser, [the suspect’s] ha nds were in the air and he was not resisting.”); Landis v. Baker , 297 F. App’x 453, 461 (6th Cir. 2008) (When the officers tased the suspect four times in a span of several seco nds, they had already pinned him down by using “at least ten strikes of a police baton,” even t hough “he was not actively resi sting arrest or posing a threat to anyone in the vicinity.”). Carpenter’s self-proclaimed best case, Parker v. Gerrish , 547 F.3d 1 (1st Cir. 2008), is no different: The suspect there “complied with [the officer’s] requests and gave himself up for ar rest” by “voluntarily releas[ing] his hands” before the officers
tased him. Id. at 9, 11. (It’s also a First, not Sixth, Ci rcuit case; the officer waived his qualifiedimmunity defense, id. at 13; the suspect did not initially know that he was under arrest; and theNo. 14-1712 Rudlaff v. Gillispie, et al. Page 7

court reviewed a jury verdict, not a motion for summary judgment.) But even granting Carpenter’s generous reading of Parker , Appellee Br. 18–22, we, no less these officers, follow the precedent from this circuit: that police officers can ta se someone who resists lawful arrest
and refuses to move his hands so the police can handcuff him. Hagans , 695 F.3d at 509 (collecting cases). That’s all the officers did here.
Nor, finally, will we read a de minimis resistance exception into the Fourth Amendment, as Carpenter and the concurrence would have us do. This exception would presumably prohibit the police from using force if a ju ry decided that the suspect only kind of resisted arrest. See Concurring Op. at 13–14. No, plain and simple: When a person resists arrest—say, by swinging his arms in the officer’s direction, balling up, and refusing to comply with verbal commands—
the officers can use the amount of for ce necessary to ensure submission. A de minimus rule— say, that the arrestee’s arm swing needs to make direct contact with the officer, see Appellee Br. 16, Oral Argument at 19:06–19:08 (Car penter’s suggestion), or that the officers need to let the suspect resist for longer than thirty seconds before taking action (one minute? Two? Three ?),
see id. at 4:09–4:30 (the concurrence’s suggestion)—does not provide the necessary guidance for the police, and it risks the safety of all involved. Plus, this de minimus rule does not align with our caselaw, which has allowed force when the arre stee resisted less than Carpenter did here. E.g. , Caie , 485 F. App’x at 96–97 (force allowed because the arrestee did not give up his hands for arrest, even though he was taken down and “arguably ‘subdued’”) . Mindful as we are that the “calculus of reasonableness must embody allowan ce for the fact that police officers are often forced to make split-second judg ments [] in circumstances that ar e tense, uncertain, and rapidly evolving,” Graham , 490 U.S. at 396–97, we hold that beca use Carpenter actively resisted arrest,
the one-time taser shot and knee strike to subdue him did not violate the Fourth Amendment.

B

Prong Two

. Now assume we got it completely wrong. On the constitutional point (prong one), assume Carpenter gets it right: The o fficers violated the Fourth Amendment because Carpenter did not resist enough to justify the knee strike or the one-time use of a taser. We
would still have to reverse. Accord Concurring Op. at 14–15.No. 14-1712 Rudlaff v. Gillispie, et al. Page 8

Remember that qualified immunity (as we’v e been reminded again and again) is an “exacting standard” that gives offi cers lots of leeway, requiring their conduct to violate clearly
established law to defeat the defense. City & Cnty. of San Francisco v. Sheehan , 135 S. Ct. 1765, 1774 (2015); see also Taylor v. Barkes , 135 S. Ct. 2042, 2044 (2015). Existing caselaw, in other words, must put the preci se question “beyond debate.” Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2083 (2011). Where’s the clearly established law here? Neithe r Carpenter nor the district
court has an answer.

Carpenter

. All Carpenter can muster are the cas es cited above—the ones where the suspect either did not resist arrest or had stopped resisting before being tased. E.g. , Parker , 547 F.3d at 9, 11. Obviously those cases do not , as they must for Carpenter to prevail, clearly establish the opposite proposition: that the police may not use force on an arrestee who resists arrest. That may be why Carpenter conced ed at oral argument that that the police can use force when someone resists arrest, and that this ca se does not fall within categories of clearly
established law. Oral Ar gument at 20:58–21:33. And even if we created the de minimus exception Carpenter wants, our holding would not overcome the officers’ qualified immunity here; it would apply against i ndividual officers only in future cases.

The district court

. The district court wrote th at “this case do[es] not fall neatly into the[] categories” of clearly established taser law. R. 32 at 7. That’s a concession that it could find no clearly established constitutional violation, and the court should have stopped there—and held for the defendants. In fact, we have done the sa me in an excessive-force case that “does not fit cleanly within” our taser case law, Cockrell , 468 F. App’x at 496–98, because qualified immunity operates in the “hazy border be tween excessive and acceptable force.” Saucier v.
Katz , 533 U.S. 194, 206 (2001); see Maciariello v. Sumner , 973 F.2d 295, 298 (4th Cir. 1992) (“Officials are not liable for ba d guesses in gray areas; they are liable for tran sgressing bright lines.”). When in such a haze—as the district c ourt said it was in here—t he proper course is to grant summary judgment to the officers, even if the court would hold the officers’ conduct unconstitutional in hindsight. al-Kidd , 131 S. Ct. at 2083; see Brosseau v. Haugen , 543 U.S. 194, 201 (2004). The court erre d in holding otherwise.No. 14-1712 Rudlaff v. Gillispie, et al. Page 9

* * *
Carpenter conceded that he resi sted arrest. The videos show the same. And the law says that when someone resists arrest, the police ma y constitutionally use force to ensure their compliance. A jury has nothing left to decide . Because the officers acted constitutionally—and because even if they didn’t, by all accounts they didn’t clearly act unconstitutionally—they are protected by qualified i mmunity. We reverse.No. 14-1712 Rudlaff v. Gillispie, et al. Page 10

________________________________________ CONCURRENCE IN THE JUDGMENT

________________________________________ BERNICE BOUIE DONALD, Circuit Judge, concu rring only in the ju dgment. I concur in the majority’s characterization of the le gal standard and the circumstances under which qualified immunity is appropriate. That determina tion is driven by the facts. The majority uses words to evoke a scenario that would satisfy th e first prong of the qualified-immunity standard. Indeed, words have power. In my view, the f acts in this case—properly construed in Lawrence Carpenter’s favor—did not justify th e level of force employed by the officers. However, in light of the Supreme Court’s recent heightening of the second prong of the qualified-immunity standard, I agree with the majority that the officers in this case are entitled to qualified immunity. Because I would hold that the officers’ nearly imme diate resort to the use of a taser constituted excessive force, I concur only in the judgment.

I.
At the summary-judgment stage, we must view the evidence in the light most favorable to the non-moving party. Shreve v. Franklin Cnty., Ohio , 743 F.3d 126, 132 (6th Cir. 2014). That principle applies with equal force to the dash- cam videos at issue in this case. The majority asserts that we must “‘view[] the facts in the light depicted by the videotape[s].’” Maj. Op. at 2 (alterations in original) (quoting Scott v. Harris , 550 U.S. 372, 381 (2007)). In my view, the majority overreads Scott , which stands only for the proposition that a court need not accept a plaintiff’s version of the facts if it is “blata ntly contradicted by [a videotape], so that no reasonable jury could believe it.” 550 U.S. at 380. In other words, only where an “unambiguous video recording” indicates that there is no triable issue, Shreve , 743 F.3d at 132, should the traditional weighing of inferences in favor of th e non-moving party give way to video evidence.
See id. at 143 (Clay, J., dissenting) (arguing that a panel must accept the non-moving party’s interpretation of a video wher e “a reasonable jury could believe [the non-moving party] after viewing the video in evidence”). With this in mind, a brief summary of the facts follows.No. 14-1712 Rudlaff v. Gillispie, et al. Page 11

II.
On the afternoon of February 8, 2010, as Deputy Brandon Gillispie drove eastbound on Route 55 in Wellston, Michigan, he obser ved a person, known to him as Lawrence Carpenter, driving a truck going the opposite dire ction. Based on a prio r encounter, Gillispie surmised that Carpenter was driving on a su spended license. Gillispie made a U-turn, activated his blue lights, and pulled Carpenter over. The rele vant encounter captured by Gillispie’s dash-cam video—from the time Gillisp ie approached Carpenter’s vehicle until the time Carpenter was tasered—lasted for a total of approximately 26 seconds. See R. 30 (Gillispie Dash-Cam Video) at 13:17:25-13:17:51.
Gillispie approached the subject vehicle and to ld Carpenter that he was under arrest for driving on a suspended license. Gillispie imme diately opened the driver’s-side door of Carpenter’s truck and ordered him to exit the vehicle. Id. at 13:17:25. Carpenter complied. 1 Id. at 13:17:33. Gillispie testified that he then instructed Carpenter to place his hands on the bed of the truck, but that Carpenter refused. R. 28-1 (Gillispie Dep.) at PageID 150. According to Gillispie, Carpenter “didn’t verbally refuse[,] . . . . but he refused to comply and put both hands
on the back of the truck as I asked him to do.” Id. Carpenter’s testimony tells a slightly different story. According to Carpenter, “[Gillispie] trie d to turn me around and lean up against the truck and wanted me to put my hands behind my back . . . .” R. 28-1 (Carpenter Dep.) at PageID 137. Gillispie’s dash-cam video, which did not capture an audio recording of the exchange between Carpenter and Gillispie, does not confirm the veracity of either party’s version of this portion of the encounter. Of note, it does not confirm that Gillispie informed Carpen ter to place his hands on the bed of the truck, or, as the majority contends, that “Carpenter did not listen.” Maj. Op. at 3. Moreover, although the majority readily accepts Gillispie’s testimony on this point as true, the video does not confirm that “Carpenter appear ed ‘highly agitated’ and was ‘swearing’ in response to this request.” Id.
In any event, the video captures Gillispie grabbing Carpenter’s right arm as Carpenter gripped the bed of his truck with his left arm. R. 30 (Gillispie Dash-Cam Video) at 13:17:36-

1 Although Carpenter testified that Gillispie “jerked” him out of the truck, the video evidence contradicts that portion of his testimony. Compare R. 28-1 (Carpenter Dep.) at PageID 137, with R. 30 (Gillispie Dash-Cam Video) at 13:17:33. Accordingly, we need not accept it as true. Scott , 550 U.S. at 380.No. 14-1712 Rudlaff v. Gillispie, et al. Page 12

13:17:38. Carpenter jerked his righ t arm away from Gillispie’s grip. 2 Id. Gillispie ultimately was able to get both of Carpenter’s hands on the bed of the truck, id. at 13:17:40, to which Carpenter “hung on.” R. 28-1 (Carpenter Dep.) at PageID 141. Acco rding to Carpenter, “[Gillispie] said, Well, put your arm behind your b ack, and I told him I wasn’t going to. I said, Just let me go and I will take my time and I will do it, but he wouldn’t do it . . . .” Id. As Gillispie continued to grip Carpenter’s arms, Carpen ter jerked his left arm away and continued to grasp the bed of his truck. R. 30 (Gillispie Dash-Cam Video) at 13:17:44.
The dash-cam video of another responding o fficer, Deputy Jacob Biel ski, captured audio of this latter portion of the encounter. See R. 30 (Bielski Dash-Cam Vi deo). Gillispie twice said to Carpenter, “give me the hands now.” Id. at 13:13:46-13:13:49. When Carpenter refused to let go of the bed of his truck, Gillispie delivered a knee strike to Carpenter’s left knee. R. 30 (Gillispie Dash-Cam Video) at 13:17:49. Bielsk i said, “relax, or you’re gonna get tasered.” R. 30 (Bielski Dash-Cam Video) at 13:13:50-13: 13:52. One second later, Bielski said, “taser, taser, taser,” id. at 13:13:53, and instantaneously shot Carp enter with his taser one time. R. 28-3 (Bielski Dep.) at PageID 165; R. 30 (Gillispie Dash-Cam Video) at 13:17:50. Carpenter then slumped onto the ground, where Gillispie was able to place him in handcuffs. R. 30 (Gillispie Dash-Cam Video) at 13:17:50-13 :18:16. The officers then helped Carpenter to his feet and placed him in the back of Gillispie’s cruiser. Id. at 13:18:55-13:19:30. Again, the relevant
encounter in this case lasted less than 30 seconds.

III.
The majority’s statement of the law regarding excessive force in the context of the use of
tasers is accurate. Courts review excessive-for ce claims on a case-by-case basis and consider the totality of the circumstances in each particular case , including “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 at tempting to evade arrest by flight.” Graham v. Connor , 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner , 471 U.S. 1, 8-9 (1985)). We have held that “[i]f a suspect actively resi sts arrest and refuses to be ha ndcuffed, officers do not violate the

2 The majority characterizes Carpenter’s motion as a “sw[i]ng . . . in Gillispi e’s direction.” Maj. Op. at 3. A jury watching the video could reasonably conclude that the motion was far more benign.No. 14-1712 Rudlaff v. Gillispie, et al. Page 13

Fourth Amendment by using a taser to subdue him.” Hagans v. Franklin Cnty. Sheriff’s Office , 695 F.3d 505, 509 (6th Cir. 2012). We also have held that non-compliance does not constitute active resistance unless it is paired with other active signs of resistance, such as verbal hostility. Eldridge v. City of Warren , 533 F. App’x 529, 535 (6th Cir. 2013); Harris v. City of Circleville , 583 F.3d 356, 366 (6th Cir. 2009).
The problem here is the majority’s application of the correct legal standard, which relies on factual inferences impermissibly drawn in the officers’ favor. For example, in concluding that Carpenter actively resisted ar rest “[n]o matter how you cut it, ” the majority asserts that Carpenter was “verbally defiant.” Maj. Op. at 5. But that fact is plucked straight out of Gillispie’s deposition testimony and is not c onfirmed anywhere else in the record. See id. at 3 (citing R. 28-2 (Gillispie Dep.) at PageID 149) . Similarly, the majority emphasizes that Carpenter “twice swung his arms in the officer’s direction.” Id. at 6. But this is merely two appellate judges’ interpreta tion of the video; it would not be unreasonable for a jury to conclude that Carpenter simply jerked his arm away from Gillispie, rather than full-on “swinging” it in his
direction. See supra at 12 n.2. The majority’s conclusion that “a reasonable jury applying
the law of our circ uit could conclude only ” that Carpenter actively re sisted arrest, Maj. Op. at 6 (emphasis added), depends on the premise that Carpenter’s “noncompliance was ‘paired with [] signs of verbal hostility or physical resistance[.]’” Id. at 5 (quoting Eldridge , 533 F. App’x at 535). Because th at premise rests on factual inferences impermissibly drawn from the opposing party’s testimony and agai nst the non-moving party, I would affirm the judgment of the district court.
A brief survey of our case law upholding ta ser stuns on resisting suspects—much of which the majority cites for suppor t—demonstrates that Carpenter’s case is distinguishable. Put simply, a jury could reasonably find that Carpente r’s resistance to Gillis pie was too de minimis to justify the level of force used. 3 In Hagans , officers confronted and tased a suspect who fled on foot, attempted to open the locked driver’s-s ide door of a police cruiser, and, after officers

3 Despite the majority’s insistence to the contrary, Maj. Op. at 7, this panel’s recognition that excessive force may be actionable where resistance is de minimis wo uld not be a novel concept. Recent, published case law demonstrates as much. See, e.g. , Goodwin v. City of Painesville , 781 F.3d 314, 328 (6th Cir. 2015) (recognizing with approval a prior Sixth Circuit case holding “that the o fficers’ force was far in excess of what the [plaintiff’s] minimal resistance . . . justified” (citing Shreve v. Jessamine Cnty. Fiscal Court , 453 F.3d 681, 686-88 (6th Cir. 2006)) (emphasis added)).No. 14-1712 Rudlaff v. Gillispie, et al. Page 14

had wrestled him to the ground, “locked his arms tightly under his body [to resist being handcuffed], kicking his feet and conti nuing to scream.” 695 F.3d at 507. In Caie v. West Bloomfield Township , officers encountered a highly intoxica ted, suicidal suspect who threatened the officers and, upon their approach, “began to run while flailing his arms violently.” 485 F. App’x 92, 94 (6th Cir. 2012). Officers tase d the suspect only after wrestling him to the ground and after repeated requests for him to remove his hands from underneath his body in
order to be handcuffed. Id. In Williams v. Sandel , officers pepper spra yed and repeatedly tased—to little effect—a susp ect who was high on ecstasy, jogging naked along an interstate, and struggling to escape from officers after they ha d successfully handcuffed only one of his arms. 433 F. App’x 353, 354-56 (6th Cir. 2011). In Williams v. Ingham , officers tased a suspect who led them on a high-speed chase thro ugh a residential area, struggled with an officer attempting to remove him from his vehicle (breaking the officer’s finger in the process), and refused to remove his hands from underneath his body after being wrestled to the ground. 373 F. App’x 542, 548 (6th Cir. 2010). None of these cases is on all fours with Carpenter’s far-less-dramatic behavior. 4 The officers’ use of a taser on Carpenter in th ese circumstances constituted excessive force.

IV.
The second prong of the qualified-immunity inqui ry, however, shields officers from trial unless they “violated a statutory or constitutional ri ght that was clearly established at the time of the challenged conduct.” Reichle v. Howards , 132 S. Ct. 2088, 2093 (2012). In its recent pronouncements on qualified immunity, the Supreme Court arguably has hei ghtened the standard to clarify that a right is clearly established if it is “sufficiently clear ‘that every reasonable official would [have understood] that what he is doing violates that right.’” Id. (alteration in original) (emphasis added) (quoting Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2078 (2011)) (internal quotation marks omitted). Prior case law merely require d a right to be “sufficiently clear that a reasonable
official would understand that what he is doing violates that right”—not every reasonable
official. Anderson v. Creighton , 483 U.S. 635, 640 (1987) (emphasis added). Nor was any identical case required to be on point: “officials can still be on notice that their conduct violates

4 As Carpenter argues, a jury could reasonably conclude that, given the short duration of the encounter, “[Carpenter] did not have time to comply with [Gillis pie’s] order before [Bielski] used his Taser.” See Austin v. Redford Twp. Police Dep’t , 690 F.3d 490, 498 (6th Cir. 2012).No. 14-1712 Rudlaff v. Gillispie, et al. Page 15

established law even in nove l factual circumstances.” Hope v. Pelzer , 536 U.S. 730, 741 (2002);
see also Goodwin , 781 F.3d at 325 (“[T]here need not be a case with the exact same fact pattern or even fundamentally similar or materially si milar facts; rather, the question is whether the defendants had fair warning that their actions were unconstitutional.” (alteration in original) (quoting Cummings v. City of Akron , 418 F.3d 676, 687 (6th Cir. 2005)) (internal quotation marks omitted)). Now, however, the law at the time of the officers’ conduct must have placed the constitutional quest ion “beyond debate.” 5 Stanton v. Sims , 134 S. Ct. 3, 5 (2013) (per curiam) (quoting al-Kidd , 131 S. Ct. at 2083) (internal quotation marks omitted).
Here, as demonstrated by my disagreem ent with the majority regarding the constitutionality of the officers’ use of a taser in this scenario, the constitutional question is not— as it must be—“beyond debate.” al-Kidd , 131 S. Ct. at 2083. I would hold that the officers’ practically immediate resort to th e use of a taser in th is 26-second encounter violated Carpenter’s Fourth Amendment right to be free from the use of excessive force. But because the question is debatable, it cannot be said that the officers’ mistaken belief in th e justification of their actions signals that they are “plainly incompetent” or “knowing[] violat[ors of] the law.” Id. at 2085 (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)) (internal quotation marks omitted).
Accordingly, I concur only in the judgment.

5 While the Supreme Court may have “virtually ignored” the “fair warning” standard set forth in Hope in its al-Kidd decision, see Karen Blum, Erwin Chemerinsky, & Martin A. Schwartz, Qualified Immunity Developments: Not Much Hope Left for Plaintiffs , 29 Touro L. Rev. 633, 654 (2013), it did not expressly overrule (or even mention) it. See al-Kidd , 131 S. Ct. at 2086-87 (Kennedy, J., concurring) (noting that the qualified-immunity standard “ensure[s] the officer has ‘fair an d clear warning’ of what the Constitution requires.” (quoting United States v. Lanier , 520 U.S. 259, 271 (1997))). Lower courts have recognized this “puzzling” silence. Morgan v. Swanson , 659 F.3d 359, 373 (5th Cir. 2011) (en banc).