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 

_________________ 

SCOTT RUDLAFF, Personal Representative for the 

Estate of Lawrence Carpenter, 

Plaintiff-Appellee, 

v. 

BRANDON GILLISPIE; JACOB BIELSKI, 

Defendants-Appellants. 

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No. 14-1712 

Appeal from the United States 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, Circuit 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 Hills, Michigan, for Appellants. Christina 

D. Davis, ROMANO LAW, P.L.L.C., Pleasant Ridge, Michigan, for Appellee. 

 McKEAGUE, J., delivered the opinion of the court in which MATTICE, D.J., joined, and 

DONALD, J., joined in the result. DONALD, J. (pp. 10–15), delivered a separate opinion 

concurring in the judgment. 

 *

The Honorable Harry S. Mattice, Jr., United States District Judge for the Eastern District of Tennessee, 

sitting by designation. 

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

_________________ 

OPINION

_________________ 

 McKEAGUE, Circuit Judge. Two county police 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 resists 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 Fourth 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 (like 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-cam 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 depicted 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 observed Lawrence Carpenter’s truck going the other 

way. Gillispie knew Carpenter from three prior encounters, all involving Carpenter driving with 

a suspended license. In the last of these encounters, Carpenter took off running after being 

pulled over by Gillispie. Gillispie also knew Carpenter’s history of drunk driving 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. Gillispie called another officer, Deputy Jacob Bielski, 

for backup and informed Bielski of Carpenter’s history 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-per-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 suspended license. R. 28-1 (Carpenter 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 “swearing” in response to this request, but he 

voluntarily exited the truck. R. 28-2 (Gillispie Dep.) 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 direction—admittedly trying to “prevent [Gillispie] from handcuffing” 

him. R. 28-1 at 15. 

After the swing, Gillispie succeeded in getting 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 videos picked up Gillispie at least twice telling 

Carpenter to “give me the hands.” R. 30 (Bielski Dash-Cam Video) 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 compliance. But the knee strike did not succeed in 

subduing Carpenter, who still appeared to be struggling. R. 30 (Gillispie Dash-Cam Video) at 

13:17:43–51. Deputy Bielski, who had observed all of this—from the puffed-up chest, to the 
No. 14-1712 Rudlaff v. Gillispie, et al. Page 4 

two arm swings, to Carpenter’s balling up, to the ineffective knee strike—yelled 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 warning. R. 28-1 at 16. Moments 

later, Bielski tased Carpenter, who almost immediately fell to the ground. The officers 

handcuffed him, assisted him to his feet, and escorted him to the police 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 violation of the Fourth 

(and Fourteenth) Amendment. He contends that both Gillispie’s knee strike and Bielski’s taser 

shot were excessive, but his briefing treats the two types of force alike. We do the same. 

(Carpenter has since passed away from causes unrelated 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 immunity insulates them from this suit, sought 

summary judgment before the district court. But 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 established law. R. 32 at 1, 7, 9. 

The officers appealed. We have jurisdiction to hear the appeal 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 plaintiff’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 law: whether their conduct violated the Fourth 

Amendment and, if so, whether it violated 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. CONST. amends. IV & XIV. Using “excessive force” during an arrest 

is unreasonable and thus violates 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 only 
No. 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 existing caselaw must clearly and specifically 

hold that what the officer did—under the circumstances 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 excessive force to tase the suspect thirty-seven times (and use 

batons and pepper spray) because he actively resisted arrest). Active resistance includes 

“physically struggling with, threatening, 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 having “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 paired 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 and 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 strike) to subdue him; but when a suspect does not 

resist, or has stopped resisting, 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 dispute of fact on this point. Carpenter never denies 

being verbally defiant, and in fact admits that he “told [Deputy Gillispie that he] wasn’t going 
No. 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 admitted 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, words, including Carpenter’s own words, do have 

power. Concurring Op. at 10.) A reasonable police officer observing this scene in the heat of 

the moment did not need to give Carpenter any more 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 change 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 without warning,” Appellee Br. 16—amounts to a 

“visible fiction” in light of the dash-cam videos and his own admissions. Scott, 550 U.S. at 381. 

His purported subjective intent to comply with the officers’ requests fares no better, for we view 

his actions objectively, from the perspective of a reasonable 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 innocent 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] used the taser, [the suspect’s] hands 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 seconds, they had already pinned him down by using 

“at least ten strikes of a police baton,” even though “he was not actively resisting 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 arrest” by “voluntarily releas[ing] his hands” before the officers 

tased him. Id. at 9, 11. (It’s also a First, not Sixth, Circuit case; the officer waived his qualifiedimmunity defense, id. at 13; the suspect did not initially know that he was under arrest; and the 
No. 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 tase 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 jury 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 force 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 (Carpenter’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 arrestee 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 allowance for the fact that police officers are often 

forced to make split-second judgments [] in circumstances that are tense, uncertain, and rapidly 

evolving,” Graham, 490 U.S. at 396–97, we hold that because 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 officers 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’ve been reminded again and again) is an 

“exacting standard” that gives officers 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 precise question “beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 

2074, 2083 (2011). Where’s the clearly established law here? Neither Carpenter nor the district 

court has an answer.

Carpenter. All Carpenter can muster are the cases 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 conceded at oral argument that that the police can use force 

when someone resists arrest, and that this case does not fall within categories of clearly 

established law. Oral Argument 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 individual officers only in future cases. 

The district court. The district court wrote that “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 same 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 between 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 bad guesses in gray areas; they are liable for transgressing bright 

lines.”). When in such a haze—as the district court said it was in here—the 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 erred in holding otherwise. 
No. 14-1712 Rudlaff v. Gillispie, et al. Page 9 

* * * 

Carpenter conceded that he resisted arrest. The videos show the same. And the law says 

that when someone resists arrest, the police may 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 immunity. We reverse. 

 
No. 14-1712 Rudlaff v. Gillispie, et al. Page 10 

________________________________________ 

CONCURRENCE IN THE JUDGMENT

________________________________________ 

BERNICE BOUIE DONALD, Circuit Judge, concurring only in the judgment. I concur 

in the majority’s characterization of the legal standard and the circumstances under which 

qualified immunity is appropriate. That determination is driven by the facts. The majority uses 

words to evoke a scenario that would satisfy the first prong of the qualified-immunity standard. 

Indeed, words have power. In my view, the facts in this case—properly construed in Lawrence 

Carpenter’s favor—did not justify the 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 immediate 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 “blatantly 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 the 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 where “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 observed a person, known to him as Lawrence 

Carpenter, driving a truck going the opposite direction. Based on a prior encounter, Gillispie 

surmised that Carpenter was driving on a suspended license. Gillispie made a U-turn, 

activated his blue lights, and pulled Carpenter over. The relevant encounter captured by 

Gillispie’s dash-cam video—from the time Gillispie 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 told Carpenter that he was under arrest for 

driving on a suspended license. Gillispie immediately 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] tried 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 Carpenter 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 appeared ‘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 right 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. According to Carpenter, 

“[Gillispie] said, Well, put your arm behind your back, 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, Carpenter 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 officer, Deputy Jacob Bielski, captured audio 

of this latter portion of the encounter. See R. 30 (Bielski Dash-Cam Video). 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. Bielski 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 Carpenter 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-force 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 attempting 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 resists arrest and refuses to be handcuffed, officers do not violate the 

 2

The majority characterizes Carpenter’s motion as a “sw[i]ng . . . in Gillispie’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 arrest “[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 confirmed 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’ interpretation 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 circuit could conclude only” that Carpenter actively resisted 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 that premise rests on factual inferences impermissibly drawn 

from the opposing party’s testimony and against the non-moving party, I would affirm the 

judgment of the district court. 

A brief survey of our case law upholding taser stuns on resisting suspects—much of 

which the majority cites for support—demonstrates that Carpenter’s case is distinguishable. Put 

simply, a jury could reasonably find that Carpenter’s resistance to Gillispie 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-side 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 would 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 officers’ 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 continuing to scream.” 695 F.3d at 507. In Caie v. West 

Bloomfield Township, officers encountered a highly intoxicated, 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 tased 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 sprayed and repeatedly 

tased—to little effect—a suspect who was high on ecstasy, jogging naked along an interstate, and 

struggling to escape from officers after they had 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 through 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 these circumstances constituted excessive force. 

IV. 

The second prong of the qualified-immunity inquiry, however, shields officers from trial 

unless they “violated a statutory or constitutional right 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 heightened 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 required 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 [Gillispie’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 novel 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 similar 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 question “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 disagreement 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 the use of a taser in this 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 the 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 and 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).