RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0206p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

N ANCY R OELL , as executrix of the estate of Gary L. Roell, Sr., Plaintiff-Appellant ,

v

.

H AMILTON C OUNTY , O HIO /H AMILTON C OUNTY B OARD OF C OUNTY C OMMISSIONERS ; J IM N EIL , in his official capacity as the Hamilton County Sheriff; J OSEPH H UDDLESTON , M ATTHEW A LEXANDER , and W ILLY D ALID , individually and in their official capacities as employees of Hamilton County, Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 16-4045

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:14-cv-00637—Sandra S. B eckwith, District Judge. Argued: June 13, 2017
Decided and Filed: September 5, 2017
Before: MOORE, GILMAN, and COOK, Circuit Judges.

_________________ COUNSEL

ARGUED: Alphonse A. Gerhardstein, GERHARDS TEIN & BRANCH, CO LPA, Cincinnati, Ohio, for Appellant. Pamela Sears, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellees. ON BRIEF: Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA, Cincinnati, Ohio, for Appe llant. Pamela Sears, Jerome A. Kunkel, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohi o, George D. Jonson, Linda L. Woeber, MONTGOMERY, RENNIE & JONS ON, Cincinnati, Ohio, for Appellees.
GILMAN, J., delivered the opinion of the court in which COOK, J., joined. MOORE, J. (pp. 23–29), delivered a sepa rate dissenting opinion. 

### >No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 2

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. Gary Roell, who suffered from chronic mental illness, caused a disturbance at his neighbor ’s condominium while experiencing a condition known as excited delirium. Hamilton County sheri ff’s deputies arrived to find Roell half-naked, muttering unintelligibly, and standing next to a broken window holding a hose and the remnants of a hanging plant. While attempting to subdue Roell, the deputies physically struggled with him and unsuccessfully tased him multiple times. Ro ell stopped breathing during the encounter with the deputies and was pronounced dead shortly th ereafter. His death was documented by the coroner as natural, resulting from his excited delirium.
Roell’s wife, Nancy Roell, appeals the dist rict court’s grant of summary judgment in favor of the individual deputie s on her claim under 42 U.S.C. § 1983. She also appeals the grant of summary judgment in favor of Hamilton County on her cl aims under both § 1983 and the Americans with Disabilities Act (the ADA). For the following reasons, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background
Roell suffered from mental illness, including schizoaffective disorder and paranoid delusions, for many years. Although Roell’s sy mptoms could be successfully controlled by medication, he had a history of nonc ompliance with his drug regime n. When he did not take his medication, Roell’s mental health deteriorated and his unpredictable be havior rendered him a danger to both himself and to others.
Roell stopped taking his medication in June 2013 and began exhibiting signs of mental decompensation by early August. Sometime in th e late evening hours of August 12 or the early morning hours of August 13, Roell entered a state of excited deli rium. Nancy Roell was out of town during this time, participating in a churchmission in New Jersey. In the midst of hisNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 3

excited delirium, Roell damaged his and Nancy’ s condominium by scattering debris, clothes, and
other household items inside and around the buildi ng. Roell then went to the condominium of his neighbor, Rachana Agarwal, and thre w a flower pot through her window.
Agarwal was awakened by the no ise of shattering glass and went downstairs to find Roell standing outside of her condomin ium by the broken window. She attempted to talk to Roell, who was screaming something about “water.” Roell then pulled the screen from Agarwal’s window and threw it at her. At that point, Ag arwal became scared and ran back inside the condominium, where she told her son, Soham, to call 911. Soham dialed 911 and handed the phone to Agarwal, who told the operator that he r neighbor was “acting craz y.” Agarwal testified that, during this time, Roell appeared to be angr y, his face red and his eyes bulging, and he kept muttering unintelligible things about water. Roell was also pacing back and forth in front of Agarwal’s broken window, periodically peering into her condominium.
Deputies Matthew Alexander, Willy Dali d, and Joseph Huddleston responded to the dispatch of a “neighbor trouble” call. First to arrive at Agarwal’s condominium were Deputies Alexander and Huddleston, who were told by Agarwal that Roell was “in the back breaking things.” They entered the gated patio area a nd saw Roell standing by Ag arwal’s broken window holding a garden hose with a metal nozzle in one ha nd and a garden basket in the other. The garden basket was a hanging plant surrounded by p eat moss and held together with plastic wire. Roell was wearing a t-shirt but was otherwise nake d. According to Deputy Alexander, Roell was screaming “no” and something about water when he and Deputy Huddleston arrived.
Deputy Huddleston proceeded to ask Ro ell what he was doing. Although Deputy
Huddleston could not recall Roell’ s response, he testified thatRoell immediately turned and approached him and Deputy Alexander in an aggre ssive manner. Roell still had the hose and the garden basket in his hands. Deputy Alexander similarly recalled that he and Deputy Huddleston told Roell to “show us your hands” and that Roe ll, “immediately, withinseconds,” charged at them at a “pretty brisk walk.” Deputy Alexander also said that Roell approached them still holding the hose and the garden basket.No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 4

Soham Agarwal was watching the events unfol d from inside the condominium and heard Roell screaming about how “he didn’t have wate r and we had water.” In addition, Soham observed the deputies telling Roell to calm down, to stop resisting, to come over to them, and to drop whatever he had in his hands. Soham recalled that Roell repeatedly shouted that he did not have a weapon. But Soham also testified that, de spite Roell’s assertions that he was unarmed, Roell was facing the deputies swi nging the hose “as if he was tr ying to hit somebody.” Rachana Agarwal, also watching from the inside of he r condominium, confirmed that the deputies told
Roell to calm down and that Roell was swi nging the hose nozzle at the deputies. Agarwal observed the deputies and Roell approach each othe r, with Roell proceeding at a pace between a walk and a sprint, still holding the hose.
As Roell approached the deputies, Deputy Huddl eston told Roell to stop and to get on the ground or he would be tased. Deputy Huddleston th en unholstered his X2 Ta ser and arced it as a warning. Arcing a taser does not deploy the device ; it simply creates a sound. Roell flinched when Deputy Huddleston arced his taser but ke pt approaching. Deputy Huddleston once more arced his taser and commanded Roell to get on th e ground. Roell again flinched but continued to approach the deputies. Deputy Huddleston then hol stered his taser and reached out to grab one of Roell’s arms. At the same time, Deputy Alexander grabbed Roell’s other arm.
Roell swung the garden basket at Deputy Huddleston as they met. Deputy Huddleston, Deputy Alexander, and Roell all fell to the ground outsi de of the gated patio area during their struggle. Roell was wet and sli ppery, either from sweat or wate r, and managed to break free from the deputies’ grasp. As Roell tried to en ter back through the patio gate, Deputy Huddleston tased him. Deputy Huddleston tes tified that taser appeared to have some effect because Roell
buckled over a little bit. Roell nonetheless continued into the pa tio and closed the gate. The deputies followed him through the gate while Deput y Huddleston’s taser was still on its fivesecond deployment cycle. By that time, DeputyDalid had arrived at the scene. All three deputies tried to restrain Roe ll’s arms, but were unsuccessful because he was combative and thrashing around on the ground. Deputy Alexander te stified that he was punched in the face by Roell at some point during the struggle.No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 5

While Deputies Alexander and Dalid attempte d to hold Roell’s arms, Deputy Huddleston tried to deploy his taser in drive- stun mode to the back of Roell’ s leg. This court has previously explained the use of a taser in drive-stun mode as follows:
In drive-stun mode, ‘the operator rem oves the dart cartridge and pushes two electrode contacts located on th e front of the taser directlyagainst the victim. In this mode, the taser delivers an electr ic shock . . . [,] but does not cause an override of the victim’s central nervous system as it does in dart-mode.’
Cockrell v. City of Cincinnati , 468 F. App’x 491, 492 (6th Cir. 2012) (quoting Mattos v. Agarano , 661 F.3d 433, 443 (9th Cir. 2011) (en banc)). In deploying his taser in drive-stun mode, Deputy Huddleston hoped to complete the cycle necessary to achieve Roell’s neuromuscular incapacitation, believi ng that one of the barbs from his previous attempt to tase
Roell had not connected. The taser failed to in capacitate Roell, however, and he continued to struggle with the deputies on the ground. Deputy H uddleston again holstered his taser and tried to control Roell’s legs, while Deputies Alexander and Dalid attempted to control Roell’s arms.
Roell managed to escape the grasp of all th ree deputies and stood up in a face-to-face position with Deputy Alexander, whose back was against a tree. Deputy Huddleston once more tased Roell using the device’s da rt-mode, this time deploying two barbs into his back. Although the taser still did not take effect, the deputies were able to get Roell on the ground and handcuff him. Because of Roell’s continued resistance, the deputies had to restrain Roell’s hands in front of his body by using two sets of handcuffs.
Roell appeared “somewhat under control” onc e he was handcuffed, but he continued to thrash his legs and kicked Deputy Huddleston in the groin. Deputy Huddleston then sent Deputy Alexander to get leg shackles from the one of the pa trol cars so that Roell’s feet could also be restrained. Once the deputies shackled Roell’s legs , they positioned him on his left side. Deputy Dalid was trying to control Roell’s upper body by holding on to his right shoulder. Both Deputy Huddleston and Deputy Dalid testifie d that, once restrained, Roell we nt limp and began to snore. Roell would wake up, thrash around, and then go limp and lapse back into snoring. Deputy Dalid observed Roell doing this twice before he noticed that Roell had no pulse and had stopped breathing. By that time, Corporal (now Sergean t) Mikal Steers arrived on the scene and began administering CPR to Roell unti l the life squad arrived. Although Corporal Steers detected aNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 6

faint pulse on several occasions, he was unable to revive Roell. The emergency medical
technicians were also unable to revive Roe ll, and he was pronounced dead at the hospital

emergency room.
Dr. Jennifer Schott, the deputy coroner, determ ined that the cause of Roell’s death was
“excited delirium due to schizoaffective disorder” and that the manner of hi s death was natural. Included with the Death Record was a report dr afted by Dr. Schott, stating that Roell had a history of “physical altercation with police offi cers” and that the “use of a conducted energy device against decedent” had occurred. Also noted were Roell’s various abrasions and contusions, injuries from the taser barbs, and f our broken ribs. The report, however, did not find that any of these injuries contributed to Roell’s d eath. In her affidavit, Dr. Schott stated that she performed a microscopic examination of Roell’ s barb wounds and found no evidence that the conducted energy device used on Roell caused any electrical burns. Nor did Dr. Schott find any evidence that Roell had been asphyxiated, which is consistent with the ab sence of any evidence that the deputies applied compressive for ce in attempting to restrain Roell.

B. Procedural background
In August 2014, Nancy Roell, as the executrix of Roell’s estate, filed suit in the United
States District Court for the So uthern District of Ohio agai nst both Hamilton County and the Hamilton County Board of County Commissioners (collectively, Hamilton County), as well as against Sheriff Jim Neil and Deputies Alexander, Dalid, and Huddleston. She first asserted claims pursuant to 42 U.S.C § 1983, alleging that (1) Deputies Alexander, Dalid, and Huddleston violated Roell’s Fourth Amendment right to be free from excessive force, and (2) Hamilton County and Sheriff Neil are su bject to municipal liability for the deputies’ alleged use of excessive force. Nancy Roell also bro ught intentional-discri mination and failure-toaccommodate claims against all of the defendants under Title II of the ADA. Finally, she asserted a state-law claim for the wrongful deat h of Roell against all of the defendants and a state-law claim for assault and battery agains t Deputies Alexander, Dalid, and Huddleston.
In February 2016, the defendants filed a “M otion to Dismiss and Motion for Summary Judgment” pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, which the districtNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 7

court granted in part and denied the remainder as moot. First, the court held that Deputies Alexander, Dalid, and Huddleston were entitled to qualified immunity on Nancy Roell’s § 1983 claim, with the result that Sheriff Neil and Ha milton County were also not liable under § 1983. Roell v. Hamilton Cty. Bd. of Cty. Comm’rs , No. 1:14-CV-637, 2016 WL 4363112, at *14 (S.D. Ohio Aug. 16, 2016). The court next ruled that Na ncy Roell had failed to establish a viable claim under the ADA because she did not produce a ny evidence that the defendants intentionally discriminated against Roell be cause of his disability. Id . Finally, the cour t held that Nancy Roell had abandoned her state-law claims agains t Hamilton County and Sheriff Neil. The court then declined to exercise supplemental jurisdic tion over the remaining stat e-law claims asserted against the individua l deputies and therefore denied as m oot the defendants’ motion to dismiss and/or for summary judgment as to those claims. Id

. In rendering its decision, howev er, the district court did not specify whether it resolved the defendants’ motion using the summary-judgment standard or the motion-to-dismiss standard.
Id. But the content of the defe ndants’ motion, the extensive di scovery period, and the court’s
consideration of materi als outside of the pleadings indi cate that the case was decided on summary-judgment grounds. In any event, Nancy Ro ell appeals only the district court’s grants of summary judgment in favor of (1) Deputie s Alexander, Dalid, and Huddleston on her § 1983 claim, and (2) Hamilton County on her § 1983 and her ADA claims.

II. ANALYSIS

A. Standard of review

We review de novo a district co urt’s grant of summary judgment . Watson v. Cartee , 817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is appropria te when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the ev idence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The moving party bears the burden to “demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Finally, “[i]nNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 8

making this assessment, we must view all eviden ce in the light most favorable to the nonmoving party.” Tennial v. United Parcel Serv., Inc. , 840 F.3d 292, 301 (6th Cir. 2016).
B. Nancy Roell’s § 1983 claim against Deput ies Alexander, Dalid, and Huddleston
Nancy Roell claims that Deputies Alexande r, Dalid, and Huddlest on violated Roell’s Fourth Amendment rights when they used excessi ve force to subdue him. The deputies pled the affirmative defense of qualified immunity, which “protects government officials ‘from liability for civil damages insofar as th eir conduct does not violate clea rly established statutory or constitutional rights of which a r easonable person would have known.’” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Nancy
Roell bears the “ultimate burden of proof” to show that the deputies are not en titled to qualified immunity. See Sheets v. Mullins , 287 F.3d 581, 586 (6th Cir. 2002).
“We ask two questions in evaluating whether a law-enforcement officer is entitled to qualified immunity on an excessive-force claim: ‘(1 ) whether the officer violated the plaintiff’s constitutional rights under the Fourth Amendm ent; and (2) whether that constitutional right was clearly established at the time of the incident.’” Estate of Hill v. Miracle , 853 F.3d 306, 312 (6th Cir. 2017) (quoting Kent v. Oakland County , 810 F.3d 384, 390 (6th Cir. 2016)). These questions can be answered in any order. Pearson , 555 U.S. at 236. In holding that the deputies were entitled to qualified immunity, the district court answered both questi ons in the negative. The court concluded that the deputies did not vi olate Roell’s Fourth Am endment rights and that, even if they did, no caselaw clearly establishe d that the degree of force used by the deputies violated such rights. We will address each of these conclusions in turn.

1. The deputies likely did not violate Roell’s Fourth Amendment rights.
The Fourth Amendment “gua rantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham v. Connor , 490 U.S. 386, 394 (1989). In determining whether an officer ha s used excessive force in violation of the Fourth Amendment, “we employ anobjective-reasonablenes s test, asking ‘whe ther the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlyi ng intent or motivation.’” Hill , 853 F.3d at 312 (quotingNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 9

Graham , 490 U.S. at 397). This test “requires a careful balancing of ‘the nature and quality of
the intrusion on the individual’ s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham , 490 U.S. at 396 (quoting Tennessee v. Garner , 471 U.S. 1, 7 (1985)).
The Supreme Court has articulated three factor s for us to consider in determining the objective reasonableness of a particular use of force. These f actors are (1) “the severity of the crime at issue,” (2) “whether the su spect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham , 490 U.S. at 396. In evaluating these fact ors, we must keep in mind that “[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.” Id. Finally, although the
Graham factors are instructive, they “are not an exhaustive list, as the ultimate inquiry is ‘whether the totality of the circumstances ju stifies a particular sort of seizure.’” Livermore ex
rel. Rohm v. Lubelan , 476 F.3d 397, 404 (6th Cir. 2007) (quoting St. John v. Hickey , 411 F.3d 762, 771 (6th Cir. 2005)).

The first Graham factor—“the severity of the crim e at issue”—supports a finding that some degree of force was justified in order to re strain and arrest Roell. Deputies Alexander, Dalid, and Huddleston responded to a “neighbor trouble” call and were quickly informed by a frightened Agarwal that Roell was “breaking th ings” in her backyard. They found Roell halfnaked, muttering unintelligibly, and standing next to a broken window, which they reasonably
inferred was shattered as a result of Roell’s ac tions. In other words, Roell had committed a series of property crimes that a reasonable officer could infer might escalate . The fact that Roell had not yet committed a more serious felony did not preclude the deputies from using force to
restrain him. See Cockrell v. City of Cincinnati , 468 F. App’x 491, 495 (6th Cir. 2012) (recognizing numerous cases holding that an offi cer’s use of a taser agai nst a plaintiff who is “actively resisting arrest by physical ly struggling with, threatening, or disobeying officers” is not a violation of the plaintiff’s clearly established F ourth Amendment rights, even if the plaintiff is suspected of committing only a misdemeanor).No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 10

Application of the second Graham factor—whether Roell posed an immediate threat to the deputies or to ot hers—also indicates that the deputies’ use of force was warranted. When the deputies first encountered Roell, he was holding objects that could have been used as weapons amid a scene of property destruction. See In re Fortney , 832 N.E.2d 1257, 1268–69 (Ohio Ct. App. 2005) (noting that Ohio law “defines a dead ly weapon as ‘any instrument, device, or thing capable of inflicting death, and designed or specially adaptable fo r use as a weapon, or possessed, carried, or used as a weapon” and recognizing that a stick, when used as a club, can constitute a deadly weapon). The deputies therefore had a reasona ble basis to believe that Roell presented an immediate threat to the Agarwals and to the deputies themselves “in light of the facts and circumstances confronting” them. See Graham , 490 U.S. at 397.
First, Roell posed a potential threat to the Agarwals, who were still inside the condominium. Because Roell had already th rown a potted plant through the Agarwal’s condominium window, the deputies were reasonably concerned that he might break into their
residence and cause further destru ction. Roell also posed an immediate threat to the deputies themselves. Rahana Agarwal, Soham Agarwal, Deputy Alexander, a nd Deputy Huddleston all testified that Roell quickly approached the depu ties while waving the metal nozzle of a hose in a threatening manner. Deputy Huddleston testified that the hose and the metal nozzle could have been used as a weapon to hit or to choke him.
Although Soham Agarwal heard Roell say that he had no weapon and heard the deputies tell Roell to come over to them, these observati ons do not create a genuin e dispute of material fact as to whether Roell approached the deputies in a manner that posed an immediate threat to their safety. Even if Roell asserted that he was unarmed and moved towards the deputies in response to their commands, the undisputed eviden ce regarding the aggre ssive nature of his approach remains unchanged.
Finally, we turn to the third Graham factor and analyze whether Roell was actively resisting arrest. Undisputed reco rd evidence shows that Roell resi sted the deputies’ attempts to restrain and handcuff him by kicking, flailing, and wriggling away from their grasp. Nancy Roell responds that the deputies “foreseeably cause d any resistance or escalated the encounter by failing to use verbal and tactical de-escalation.” But even if we assume that the deputiesNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 11

escalated the encounter with Roell—an a ssertion that we find dubious—law-enforcement officers cannot be held liable solely because they created the circumstances requiring the application of force. See Livermore ex rel. Rohm v. Lubelan , 476 F.3d 397, 406 (6th Cir. 2007) (rejecting the notion that a “Fourth Amendment claim against police officers who used deadly force may survive summary judgment, even where the particular seizure is reasonable, if the defendant police officers acted recklessly in creating the circumstances which required the use of deadly force”). Analysis of the third Graham factor therefore supports our conclusion that the deputies were justified in usi ng some degree of force in atte mpting to restrain Roell.
Our analysis of the Graham factors, however, is not the end of the excessive-force inquiry. We must also assess whet her the “totality of the circumst ances justified” the “particular sort of . . . seizure” imposed upon Roell. See Tennessee v. Garner , 471 U.S. 1, 8–9 (1985). The totality of the circumstances includes “the fact that at the time of the . . . struggle, the defendant
officers had reason to believe that [Roell] was either on dr ugs or mentally unstable.” See Landis
v. Baker , 297 F. App’x 453, 465 (6th Cir. 2008). Although the officers were unaware that Roell was experiencing an episode of excited delirium, Deputy Huddl eston testified that Roell’s behavior indicated that he was suffering from some sort of mental illness.
The deputies were therefore required to take into account Roell’s diminished capacity before using force to restrain him. See Champion v. Outlook Nashville, Inc. , 380 F.3d 893, 904 (6th Cir. 2004) (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”). But no caselaw supports Nancy Roell’s assertion the deputies were prohibited from using any physical force against Roell before first attempting
alternative de-escal ation techniques. See Cook v. Bastin , 590 F. App’x 523, 530 (6th Cir. 2014) (holding that no excessive force was used in handcuffing and physica lly restraining a man suffering from excited delirium who posed a thr eat to the law-enforcem ent officers and who was resisting arrest). In sum, we agree with the dist rict court’s observation that“the fact that Roell’s resistance was probably caused by his excited delirium did not pr eclude the deputies from using
a reasonable amount of force to bring him under control.” Roell , 2016 WL 4363112, at *8.
Despite Roell’s apparent diminished capacity, he had committed a series of property crimes, was a threat to the Agarwals and to the deputies, and was actively resisting arrest.No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 12

“[A] reasonable officer on the scene” could have concluded the use of force was necessary based on the totality of these circumstances. See Graham , 490 U.S. at 396. “[T]he question is not whether any force was justified” but, instea d, whether the deputies “could reasonably use the degree of force employed against” Roell. See Martin v. City of Broadview Heights , 712 F.3d 951, 958 (6th Cir. 2013) (emphasis in original). The type of force employed by the deputies against Roell—physically restraining his limbs, wres tling with him, attempting to tase him, and shackling his arms and legs—was likely not excessive. But we need not definitively answer this question because, at the time of the alleged violation, no caselaw clearly established that the degree of force used by the deputies violated Roell’s Fo urth Amendment rights.

2. The constitutional right alleged by Ro ell was not clearly established.
“In order for a right to be clearly establ ished for the purposes of qualified immunity, ‘[t]he contours of the right must be sufficientlyclear that a reasonable official would understand that what he is doing violates that right.’” Estate of Hill v. Miracle , 853 F.3d 306, 316 (6th Cir. 2017) (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)). “The relevant, dispositive inquiry . . . is whether it woul d be clear to a reasonable office r that his conduct was unlawful in
the situation he confronted.” Saucier v. Katz , 533 U.S. 194, 202 (2001), abrogated on other grounds by Pearson v. Callahan , 555 U.S. 223, 236 (2009). We must therefore determine whether a right was clearly established “in light of the specific context of the case, not as a broad general proposition.” Id. at 201.
Requiring this “particularized” showing “is not to say that an official action is protected by qualified immunity unless the very action in que stion has previously been held unlawful, but it is to say that in the light of pre-existin g law the unlawfulness mu st be apparent.” Anderson , 483 U.S. at 640 (internal citations omitted). The content of this pre-existing law is determined by looking “first to deci sions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finallyto decisions of other circuits.” Champion , 380 F.3d at 902 (quoting Higgason v. Stephens , 288 F.3d 868, 876 (6th Cir. 2002)). “An action’s unlawfulness may be plain ‘from direct holdings, from specific examples described as prohibited, or from the general reasoning that a court employs’” in these cases. Martin , 712 F.3d at 961 (quoting Champion , 380 F.3d at 902).No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 13

With these general principles in mind, we turn to the question at hand: whether Nancy Roell has demonstrated “the prior articulation of a prohibition against the type of excess force exerted” against Roell, sufficient to defeat the deputies’ affirmative defense of qualified immunity. See Champion , 380 F.3d at 902. We must determine, in other words, whether a
reasonable officer would have known that the forcible physical rest raint employed in this case against an individual who appeared mentally impaired, yet posed a potential threat to the officers and to others, violated that pers on’s Fourth Amendment rights.
Nancy Roell argues that Martin v. City of Broadview Heights , 712 F.3d 951 (6th Cir. 2013), demonstrates that the deputie s violated Roell’s clearly establ ished rights. The decedent in
Martin broke into an apartment while naked and high on LSD. Id. at 954–55. Four police
officers arrived on the scene to find Mart in speaking quickly and nonsensically. Id. Martin calmed down momentarily to ask for help and to be arrested, but then “jogged away” when the
officers tried to handcuff him. Id. The officers caught up with Martin and fell on top of him. In addition, they delivered “compliance body shots” to Martin’s side, struck him in the face with two “hammer punches,” kneeled on his calves, struck his face, back, and ribs at least five times,
and held Martin in a face-down position. Id. at 954–55. Two of the offi cers heard Martin emit a “gurgling sound” during this struggle and, when they rolled him over, he was unresponsive. Id. at 955. Although the coroner determined that Martin died from an acute psychotic episode with
excited delirium due to intoxi cation, a forensic pathologist w ho conducted Martin’s autopsy concluded that asphyxia was the likely cause of his death.

The Martin court held that “[a] reasonable offi cer should have known that subduing an unarmed, minimally dangerous, and mentally unsta ble individual with compressive body weight, head and body strikes, neck or chin restraints, an d torso locks would violate that person’s clearly established right to be free from excessive force.” Id. at 693. In doing s o, the court observed that the officers were obligated to “de-escalate th e situation and adjust the application of force
downward” when confronted with an unarmed individual who “exhibited conspicuous signs that he was mentally unstable.” Id. at 962. We agree with the district court, however, that this
statement must be viewed in the context of the officers’ applied use of force, which was characterized by the Martin court as “severe.” Id. at 958; see also Roell , 2016 WL 4363112 atNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 14

*9 (“More reasonably, Martin stands for the proposition that officers should try to de-escalate the situation with a mentally disturbed suspect be fore resorting immediatel y to severe force to subdue him.”).

Unlike the officers in Martin , Deputies Alexander, Dali d, and Huddleston did not repeatedly beat Roell or apply compressive body pressure to his back. They instead “grappled with Roell’s arms and legs to try to control him, which they eventually did.” Roell , 2016 WL 4363112 at *9. Deputy Huddleston did attempt to ta se Roell, but no electricity was conducted into his body. And although this co urt has observed that use of a taser entails a higher level of force “than simply knocking someone back to the ground,” Wells v. City of Dearborn Heights , 538 F. App’x 631, 639 (6th Cir. 2013) , a “growing national judicial consensus” exists that the
use of a taser in dart mo de constitutes only an inte rmediate use of force. Bryan v. MacPherson , 630 F.3d 805, 810 (9th Cir. 2010) (Wardlaw, J., conc urring). Martin, moreover, was “unarmed and minimally dangerous,” whereas Roell was th reateningly waving a hose with a metal nozzle that could be used as a weapon.

Because of these factual differences, Martin did not put the deputies on notice that their actions violated Roell’s clearly established righ t to be free from excessive force. Nor do the other cases cited by Nancy Roell, which hold that police use excessive force when they deploy gratuitous force or a taser against an individual who is already restrained or is doing nothing to resist arrest, provide such notice. See, e.g. , Eldridge v. City of Warren , 533 F. App’x 529, 535 (6th Cir. 2013) (holding that the police used ex cessive force when they tased an individual who was suffering from a hypoglycemic episode and whose “noncomplia nce was not paired with any signs of verbal hostility or physical resistance”); Landis v. Baker , 297 F. App’x 453, 461, 464 (6th Cir. 2008) (holding that the police used ex cessive force against an individual suffering from a mental health crisis who “was not actively re sisting arrest or posing a threat to anyone” when they struck him ten times with a baton, held hi m face down into two feet of mud and water and repeatedly tased him); Champion v. Outlook Nashville, Inc ., 380 F.3d 893, 901 (6th Cir. 2004) (holding that the police used excessive force against a severely autistic man who “stopped resisting arrest and posed no flight risk” when th ey “sprayed him with pe pper spray even after he was immobilized by handcuffs and a hobbling device”). But see Rudlaff v. Gillispie , 791 F.3dNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 15

638, 641 (6th Cir. 2015) (collecting cas es and concluding that [o]ur cas es firmly establish that it
is not excessive force for the police to tase someone (even multiple times) when the person is actively resisting arrest.” (emphasis in original)).

We believe that this case is instead more analogous to Cook v. Bastin , 590 F. App’x 523 (6th Cir. 2014). In that case, a severely au tistic man became agitated, stripped naked, caused extensive property damage to his room in an a dult daycare center, and ripped the shirt of the daycare center’s Cr isis Manager. Id. at 525. The police arrive d to find the man, Roland Campbell, digging his lacerated fingers into an electrical socket. They observed the Crisis Manager’s torn and bloody shirt, which they inte rpreted as an indication that physical violence
had occurred. The officers were told that Campbell was out-of-control, suffered from mental disabilities, and needed to be taken to a mental facility.
Campbell was handcuffed without incident an d placed in a sitting position. While the police waited for the medical tr ansport unit, however, Campbell “b egan thrashing and kicking, making grunting sounds as he tried to free hims elf from the handcuffs,” rolled onto a prone position, and began scooting on his stomach towards the doorway. Id. at 526. The officers attempted to gain control of Campbell by restrain ing his arms and legs, wh ile the Crisis Manager
held his torso. During the struggle, Campbell pulled the men into the hallway, freed one of his hands from the cuffs, and “pick[ed] himself a nd everybody up off the ground with the one hand
about three or four inches.” Id. Campbell then collapsed, fell unconscious, and died as a result of acute cardiorespiratory failure. The Cook court held that the degree of force used by the officers was reasonable because Campbell had co mmitted significant property destruction and a physical assault, posed an immediat e threat to himself, the officers, and to others, and attempted
to free himself from the officers’ restraint. Id. at 530–31.
Like Campbell, Roell caused significant propert y damage, was a threat to the officers and to others, and resisted arrest during an ep isode of excited deliri um. Although Deputies Alexander, Dalid and Huddleston did not observe any “signs of physical violence,” they did observe that Roell was holding objects that could be used as weapons. True enough, the deputies’ wrestled with and attempted to tase Roell, arguably deploying a higher level of force
than the officers in Campbell. But this court has previously held that an officer’s “single use ofNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 16

the taser in drive-stun m ode” against a mentally unstable plai ntiff who was a threat to officer safety and his own safety, and who was resisting po lice attempts to transport him to the hospital,
did not constitute excessive force. See Caie v. West Bloomfield Township , 485 F. App’x 92, 94– 96 (6th Cir. 2012). And there is no question th at the degree of force employed by Deputies Alexander, Dalid, and Huddleston wa s far less than the unconstituti onally severe force used by
the officers in Martin . In sum, the relevant caselaw does not clearly establish that the deputies
violated Roell’s Fourth Amendmen t rights because their actions fe ll in the “hazy border between excessive and acceptable force.” See Brosseau v. Haugen , 543 U.S. 194, 201 (2004) (quoting
Saucier , 533 U.S. at 206).
Finally, Nancy Roell relies on the procedures ar ticulated in the training materials of the Ohio Peace Officer Training Commission (OPTC) and in proffered expert testimony in an effort to prove that Roell’s right to be free from ex cessive force was clearly established. She first argues that the deputies did not follow the OPTC procedures when they neglected to recognize that Roell was exhibiting the common symptoms of excited delirium, proceeded to engage Roell before staging the scen e with multiple officers and medical personnel, and failed to use verbal de-escalation techniqu es before attempting to physically rest rain him. Nancy Roell also points to the expert testimony of Dr. Michael Lyman, who stated that de-escalat ion was the “standard technique” recommended for crime-related encount ers with excited-delirium subjects and who opined that, had the deputies used verbal de-escalation, Roell would have likely been talked into surrendering without an alterca tion. Based on this evidence, Nancy Roell argues that the deputies had a “clearly established duty” to use de-escalation techniques prior to using force against Roell.
In considering her argument, we must “evaluate the officers’ use of certain tactics ‘in light of testimony regarding the traini ng that [the officers] received.’” Martin , 712 F.3d at 960 (quoting Griffith v. Coburn , 473 F.3d 650, 657 (6th Cir. 2007)). But we also must judge the reasonableness of a particular use of force “fro m the perspective of a reasonable officer on the scene, rather than with th e 20/20 vision of hindsight.” Graham , 490 U.S. at 396. A finding of qualified immunity is therefore not precluded simply because the deputies acted contrary to their training. City of San Francisco v. Sheehan , 135 S. Ct. 1765, 1777 (2015) (“Even if an officerNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 17

acts contrary to her training, however, . . . that doe s not itself negate qua lified immunity where it would otherwise be warranted.”) . In addition, although the depu ties did not follow every OPTC protocol, we note that the trai ning materials acknowledge that the use of a taser might be effective in controlling an indivi dual suffering from excited delir ium, that a physical struggle might ensue, and that force might be appropriate ornecessary in order to restrain the individual.
Dr. Lyman’s expert testimony, which essentiall y opines on the best approach that the deputies could have taken in ideal circumstances, similarly does not establish th at the deputies violated Roell’s clearly established rights. As an initial matter,“[t]he Fourth Amendment . . . does not require police officers to take the better a pproach[,] . . . only that they take a reasonable approach.” Cook v. Bastin , 590 F. App’x 523, 528 (6th Cir. 2014). And “so long as ‘a
reasonable officer could ha ve believed that his conduct was jus tified,’ a plainti ff cannot ‘avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.’” Sheehan , 135 S. Ct. at 1777 (quoting Billington v. Smith , 292 F.3d 1177, 1189 (9th Cir. 2002)).
In sum, Nancy Roell points to no caselaw clearly establishing that the deputies violated Roell’s Fourth Amendment rights in effectua ting his arrest. Even assuming that lawenforcement officers must “adjust the applicatio n of force downward” when confronted with a conspicuously mentally unstable arrestee, Martin , 712 F.3d at 962, no precedent establishes that the level of force used by the deputies in this case was excessive or that the deputies were required to use only verbal de-esc alation techniques. The content of the OPTC training material and Nancy Roell’s proffered expert testimon y do not change our conclusion. Deputies Alexander, Dalid, and Huddleston are therefore entitled to qualified immunity, meaning that the
district court did not err in granting summary judgment to the them on Nancy Roell’s § 1983
claim.

C. Nancy Roell’s § 1983 claim against Hamilton County
Nancy Roell also challenges the district cour t’s grant of summary judgment in favor of Hamilton County on her claim for municipal liabil ity under § 1983. She put forth three theories as to why Hamilton County is subject to muni cipal liability: (1) Hamilton County’s policy andNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 18

custom for handling mentally-ill individuals was the driving force behind the deputies’ use of excessive force, (2) Hamilton County failed to adequately train the deputies, and (3) Hamilton County ratified the deputies’ use of excessive force.
We recognize that “[a] muni cipality or county cannot be liable under § 1983 absent an underlying constitutional violation by its officers.” Blackmore v. Kalamazoo County , 390 F.3d 890, 900 (6th Cir. 2004). The district court held that Deputies Alexander, Dalid, and Huddleston did not violate Roell’s Fourth Amendment rights under the first prong of the qualified-immunity analysis. It therefore grante d summary judgment in favor of Hamilton County based on that ground and did not address any of Nancy Ro ell’s theories for municipal liability.

We, on the other hand, have utilized the second prong of the qualified-immunity analysis to conclude that the deputies are entitled to summary judgment because no caselaw clearly established that the degree of force used by the deputies violated Roell’s Fourth Amendment rights. In doing so, we have reached no conclusion with respect to whether Roell’s rights were actually violated. We must therefore address Nancy Roell’s three theories for Hamilton County’s liability by assuming, w ithout deciding, that Roell’s Fourth Amendment rights were violated by the deputies’ excessive use of force.
Hamilton County is subject to liability unde r § 1983 for its policy on handling mentally ill individuals only if Nancy Roell can “demonstrate ‘a direct causal link between the policy and the alleged constitutional violation.’” See Brown v. Chapman , 814 F.3d 447, 463 (6th Cir. 2016) (quoting Graham ex rel. Estate of Graham v. County of Washtenaw , 358 F.3d 377, 383 (6th Cir. 2004)). But Nancy Roell does not point to any policy that is the “moving force” behind the deputies’ actions. See id. She instead argues that Hamilton County’s lack of adequate policies and training caused the deputies’ use of excessive force.
Inadequate training can serve as the basi s for municipal liability under § 1983 where it
“amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” City of Canton v. Harris , 489 U.S. 378, 388 (1989). To succeed on this claim, Nancy Roell “must show ‘(1) that a training program is inadequate to the tasks that the officers must perform; (2) that the inadequacy is the result of the [County’s] delibe rate indifference; andNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 19

(3) that the inadequacy is closely related to or actually caused the plaintiff’s injury.’” Brown , 814 F.3d at 463 (quoting Plinton v. County of Summit , 540 F.3d 459, 464 (6th Cir. 2008)). Nancy Roell cannot meet the first prong of this test, however, because Hamilton County had a satisfactory training program in place regarding o fficer interactions with individuals suffering
from mental illness and excited delirium.
The record shows that the deputies received training on topics that included the use of force and tasers, crisis interven tion techniques, interacting with the special-needs population and mentally ill suspects, and recogni zing the symptoms of excited delirium. Finally, we note that Nancy Roell’s argument that Hamilton County fa iled to train its deputies is completely inconsistent with her § 1983 claim that the deputie s’ use of excessive force was evidenced by the fact that they failed to follow Hamilton County’s procedures rega rding officer inte ractions with individuals suffering from excited delirium.
This leaves Nancy Roell with her argumen t that Hamilton County ratified the use of excessive force by Deputies Alexander, Dalid, an d Huddleston when it conducted an inadequate investigation of the events. Specifically, she asse rts that the investigatio n merely rubber-stamped the deputies’ unconstitutional condu ct, neglected to discover what actually took place, and failed to review whether the deputies’ actions violated Hamilton Count y’s policies and procedures. Once again, however, the record demonstrates otherwise.
The internal investigation included intervie ws of multiple witnesses, detailed factfinding, and incorporates additional investigations by the Criminal Investigations Unit of the Sheriff’s Office and the Hamilton County Coroner. In addition, Nancy Roell’s own expert, Dr. Lyman, testified that he could not think of a ny additional interviews that should have been conducted during the investigation, could not poi nt to any physical evidence that was not preserved or test results that were not considered, and c ould not identify any specific inadequacies in the collection of testimonial or tangible evidence. We therefore disagree with Nancy Roell’s argument that “no serious investig ation” occurred regardi ng the deputies’ use of
force. See Marchese v. Lucas , 758 F.2d 181, 188 (6th Cir. 1985). Because Hamilton County is not subject to municipal liabilit y under any of her theories, the district court did not err in granting summary judgment to the county on her § 1983 claim.No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 20

D. Nancy Roell’s ADA claim against Hamilton County
Finally, Nancy Roell appeals th e district court’s grant of summary judgment in favor of Hamilton County based on her claim under Title II of the ADA. Title II provides that “no qualified individual with a disability shall, by reason of such disabi lity, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such en tity.” 42 U.S.C. § 12132. Two types of claims are cognizable under Title II: claims for intent ional discrimination and claims for a reasonable
accommodation. Ability Ctr. of Greater Toledo v. City of Sandusky , 385 F.3d 901, 907 (6th Cir. 2004).

The district court dismissed Nancy Roell’s ADA claim becaus e it found no ev idence that the defendants intentionally discriminated against Roell based on his disability. In so holding, however, the court failed to consider Nancy Roel l’s failure-to-accommodate theory. Under this theory, Nancy Roell asserted that Hamilton County had a duty to accommoda te Roell’s disability by “having its officers take st eps to calm the situation, conve rse with Mr. Roell in a nonthreatening manner, pause to gather informa tion from Rachana Agarwal, refrain from the application of force, and summon EMS to th e scene at the earliest moment possible.”
Neither the Supreme Court nor this circuit ha s squarely addressed whether Title II of the ADA applies in the context of an arrest. Nancy Roell urges us, however, to adopt the reasoning
of several of our sister circuits that have found Title II applicab le to law-enforcement activities, including arrests.
A few opinions have indeed indicated that ar restees might be able to bring cognizable claims under Title II. But, in doing so, they have also noted that the exigent circumstances inherent in an arrest inform the reasonable-accommodation analysis. See, e.g. , Sheehan v. City of
San Francisco , 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part, cert. dismissed in part , 135 S. Ct. 1765 (2015) (holding that “the ADA . . . applies to arrests, though we agree with the Eleventh and Fourth Circuits that exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasona bleness analysis under the Fourth Amendment”); Bahl v. County of Ramsey , 695 F.3d 778, 784 (8th Cir. 2012) ( noting that “[e]ven if the ADANo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 21

applied to [a] traffic stop,” the defendant polic e officer was not required to accommodate the plaintiff’s disability “under the exigencies of the traffic stop”). But see Hainze v. Richards , 207 F.3d 795, 801 (5th Cir. 2000) ( “Title II does not apply to an officer’s on-the-street responses to reported disturbances or othe r similar incidents, whether or not those calls i nvolve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.”).
We need not decide whether Title II applies in the context of arrests because, even if Nancy Roell’s failure-to-accommodate claim is cognizable, Hamilton County is entitled to summary judgment based on the facts of this case. This circuit has previously held that “the
‘determination of what constitutes reasonable modi fication is highly fact-specific, requiring caseby-case inquiry.’” Anderson v. City of Blue Ash , 798 F.3d 338, 356 (6th Cir. 2015) (quoting Lentini v. Cal. Ctr. for the Arts , 370 F.3d 837, 844 (9th Cir. 2004)). Deputies Alexander, Dalid, and Huddleston unquestionably faced exigent circ umstances while attempting to restrain and arrest Roell. As detailed above, they responded to an unsecured scene to find an individual who had committed, at the very least, a series of property crimes and who posed a continuing threat to the deputies and to others. In fact, almost imme diately after the deputies arrived, Roell swiftly approached them brandishing a hose with a metal nozzle and a garden basket. The deputies, in other words, were required to make a series of quick, on-the-spot judgments in a continuously evolving environment.
Nancy Roell’s proposed accommodations—that the deputies use verbal de-escalation techniques, gather information from the witnesse s, and call EMS services before engaging with Roell—were therefore “unreasonable . . . in light of the overriding public safety concerns.” See
Tucker v. Tennessee , 539 F.3d 526, 536 (6th Cir. 2008), abrogated on other grounds by Anderson v. City of Blue Ash , 798 F.3d 338 (6th Cir. 2015); cf. Hainze , 207 F.3d at 802 (recognizing that “[o]nce the area was secure and there was no threat to human safety, the . . . Sheriff’s deputies would have been under a duty to reasonably accommodate [plaintiff’s] disability in handling and transporting him to a mental health facility”).
In the context of the exigent circumstan ces surrounding Roell’s arrest, Nancy Roell
cannot make out a viable ADA claim under her fa ilure-to-accommodate theory. Nor has sheNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 22

presented any evidence that Hamilton County inte ntionally discriminated against Roell based on his disability. The district co urt therefore did not err in gran ting summary judgment in favor of Hamilton County on Nancy Roell’s ADA claim.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 23

_________________ DISSENT

_________________ KAREN NELSON MOORE, Ci rcuit Judge, dissenting. Our circuit law clearly states that when an individual “exhibit[s] conspicuous signs that he [is] mentally unstable” and is “unarmed,” “ Champion require[s] the officers to de-escal ate the situation and adjust the application of force downward.” Martin v. City of Broadview Heights , 712 F.3d 951, 962 (6th Cir. 2013) (quoting Champion v. Outlook Nashville, Inc. , 380 F.3d 893, 904 (6th Cir. 2004)). There are disputed facts as to whether Roell wa s unarmed and as to how aggressively Roell was acting, which determine how much force was ap propriate. Although the law governing this case is clear, the facts surrounding Roell’s death are not. The district court erred by granting summary judgment on Nancy Roell’s § 1983 cl aim against Deputies Al exander, Dalid, and Huddleston. I would reverse summary judgment on this claim, and I respectfully dissent.

I. GOVERNING LAW
Because the law governing this case is clearly established and straightforward, I begin by setting out the basic legal principles that govern this case. First, I ag ree with the majority’s recitation of the familiar summary-judgment sta ndard, although not with its application of the
standard to this case. See Maj. Op. at 7–8. Second, I ag ree with its summary of the Graham
factors. See Maj. Op. at 8–9 (citing Graham v. Connor , 490 U.S. 386, 396 (1989)).

As for the law at the heart of this ma tter, I cannot agree with the majority’s characterization. Sixth Circuit cases clearly estab lish that officers must “take into account ‘the diminished capacity of an unarmed detainee . . . when assessing the amount of force exerted.’”
Martin , 712 F.3d 962 (quoting Champion , 380 F.3d at 904). Martin states the rule very simply: When an individual “exhibit[s] conspicuous signs that he [i s] mentally uns table” and is “unarmed,” “ Champion require[s] the officers to de-escal ate the situation and adjust the application of force downward.” Id. ; see also Landis v. Baker , 297 F. App’x 453, 465 (6th Cir. 2008) (“A determination of the reasonableness of the defendant officers’ conduct must take into
account the fact that at the time of the fatal stru ggle, the defendant officers had reason to believeNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 24

that [the arrestee] was either on drugs or mentally unstabl e and they knew that he was unarmed.”). If it is apparent to officers that an individual is unarmed and mentally unstable, then the officers must de-escalate and may not use as much force as would be permissible when
confronted with an individual who wa s either mentally stable or armed.
While the majority acknowledges that Champion mandates that “[t]he deputies were . . . required to take into account Roel l’s diminished capacity before using force to restrain him,” it essentially brushes this requirement aside by a sserting that “no caselaw supports Nancy Roell’s assertion the deputies were prohibited from using any physical force against Roell before first attempting alternative de-escalati on techniques.” Maj. Op. at 11. I agree that the deputies were not necessarily prohibited from using any physi cal force on Gary Roell, but that point is irrelevant to this case. The question in this case is whether the officers complied with their obligation, under Champion and Martin , to adjust their use of force downward. Even if the officers were permitted to use some physical force, they could have violated Champion and
Martin by failing to adjust the level of force downward.

II. APPLICATION OF THE CLEARLY ESTABLISHED LAW TO THE FACTS OF THIS CASE There are several unresolved questions of fact relevant to whether the officers had, and, if so, whether they complied with, an obligation to adjust the level of fo rce downward. There are some basic facts that I agree are not in dispute. No one disputes that Roell had long lived with chronic, severe mental illness, including schizo affective disorder and delusional disorder, nor does anyone dispute that when he went off hi s medication he could become unpredictable, dangerous, and violent. R. 98 (N. Roell De p. at 72, 97, 167) (Page ID #4513, 4538, 4608). No one disputes that at 2:30 a.m. on August 13, th e Roells’ neighbor, Rachana Agarwal, woke up to a loud noise and found Roell standing at Agarwal’ s window wearing only a t-shirt, nude from the waist down. R. 90 (Agarwal Dep. at 10) (Pag e ID #3765); R. 77 (Huddleston Dep. at 66) (Page ID #493). Scared, Agarwal called 911 and said that her neighbor was “acting crazy.” R. 90 (Agarwal Dep. at 27) (Page ID #3782). There is no dispute that when the officers arrived on the scene, they wrestled with Roell and tased him multiple times before eventually subduing him and handcuffing him with two sets of handcuffs and shackles. R. 77 (Huddleston Dep. at 98–100,No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 25

117–19) (Page ID #525–27, 544–46). There is also no dispute that Roell stopped breathing while he was shackled, that he never regained consciousness, a nd that he was pronounced dead at the hospital. See R. 96-1 (Death Record) (Page ID #4286).
Beyond these basic facts, there are many disputes over importa nt details of the events leading to Roell’s death. First, there is a factquestion as to whether Roell was armed, given that he was holding a hose and a hanging planter but may not have been using these items as weapons. Second, there is a fact question as to how aggressively Roell acted when he approached the officers. Without resolving thes e factual disputes, it is impossible to know whether the amount of force was ap propriate under the circumstances.
A. We do not know whether Gary Roell was unarmed
There is a fact question as to whether Roell was unarmed under Ohio law. Determining whether Roell was unarmed is crucial, because if Roell was unarmed, the Champion / Martin rule would apply and require the officers to adjust th e level of force downward. If Roell was armed,
the Champion / Martin rule would not apply.
The majority correctly notes that Ohio law “defines a deadly wea pon as ‘any instrument, device, or thing capable of inflicting death, a nd designed or specially adaptable for use as a weapon, or possessed, carried, or used as a weapon.’” Maj. Op. at 10 (quoting In re Fortney , 832 N.E.2d 1257, 1268 (Ohio Ct. App. 2005)). The hos e and peat-moss hanging planter are not instruments “designed or specially adaptable for use as a weapon” but at least the hose, which had a metal tip, is an instrument that could be “used as a weapon.” In re Fortney , 832 N.E.2d at
1268.

The evidence is not clear as to whether Roe ll was using the peat-moss planter or hose as weapons. Soham Agarwal testified that he defin itely remembered Roell saying that he did not have a weapon. Soham Agarwal testified that Roell “kept saying he didn’t have a weapon. I remember him saying that.” R. 91 (S. Agarwal Dep. at 20) (Page ID #3 858). “He kept shouting -- he just kept shouting, I don’t have a wea pon. That’s all I could hear him saying.” Id. at 37–38 (Page ID #3875–76). Rachana Agarwa l testified that she thinks sh e heard Roell tell the officers that he did not have a weapon. R. 90 (Agarwal Dep. at 75) (Page ID #3830) . Huddleston did notNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 26

recall Roell saying that he did not have a weapon. R. 77 (Huddleston Dep. at 68–69) (Page ID #495–96).
If Roell repeatedly shouted that he did not have a weapon, that indi cates that he was not using the hose and peat-moss planter as weapons. Roell’s incoherent mumbling about water also indicates that he was holding the hose because he was fixated on the Agarwals’ water, not because he planned to use the hose as a weapon. R. 90 (Agarwal Dep. at 60) (Page ID #3815). Of course, neither Roell’s repeatedly shouting that he did not have a weapon, nor his mumbling about water conclusively prove th at he was unarmed. But the i nnocuous nature of a soft, peatmoss planter, the fact that Roell was mumbling about water while holdin g the hose, and witness testimony that Roell repeatedly shouted that he was unarmed at least create a question of material fact as to whether Roell was using the planter and hose as weapons.
B. We do not know how aggressively Gary Roell was acting
The majority attempts to justify the level of force the officers used by arguing that the situation may have been on the brink of es calating and arguing th at Roell was acting aggressively. In fact, it is not clear how aggre ssively Roell was acting, meaning that it is not clear how much force might have been appropri ate under the circumstances. Moreover, neither of these arguments takes into account the obliga tion to adjust the level of force downward when confronted with an apparently ment ally unstable and unarmed individual.
The majority states that there is undisputed evidence of the aggressive nature of the way Roell approached the officers. Maj. Op. at 10. In fact, the testimony does not make clear how aggressively Roell was acting wh en he approached the officers. At least three different
witnesses testified in three diffe rent ways about why and how Gary Roell approached the officers when he arrived at the Agarwals’ house. H uddleston’s testimony largely mirrored the testimony
of the other officers. He testified that Ro ell, unprompted, “turned around and started coming toward myself and Deputy Alexander in an ag gressive manner.” R. 77 (Huddleston Dep. at 67) (Page ID #494). Huddleston also testified that he did not tell Roell to walk toward him, but rather “told [Roell] to drop what he ha d in his hands and get on the ground.” Id. at 68 (Page ID #495).No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 27

Agarwal was more equivocal. At one point sh e testified that “I saw the hose and him, you know, running with it towards the officers.” R. 90 (Agarwal Dep. at 38) (Page ID #3793). Later, she testified that she “cannot say thatfor sure now” whether Roell was running or walking, id. at 44 (Page ID #3799), a nd “I don’t want to say r unning, but I saw him going towards the officer with that thing [the hose] in his hand,” id. at 50 (Page ID #3805); see also id. at 56 (Page ID #3811). Agarwal also testified that it was not as if Roell was approaching the officers and they were standing still, but rather that Roell and the officers “were both moving
towards each other.” Id. at 42 (Page ID #3796).

In starker contrast to H uddleston’s testimony, Agarwal’s son, Soham Agarwal, recalled that Gary Roell approached the officers because th ey instructed him to do so. R. 91 (S. Agarwal Dep. at 20) (Page ID #3858). He said:
Q. So after the police officers arrive d, what was the first thing you heard either Gary or the offi cers say to each other? A. I think the first thing I heard was the officers telling him to like cooperate or to come over there, to stop doing what he was doing when they came into the backyard. Q. So they said come over to them? Is that what you heard? A. Something like that, yes.

Id. at 37–38 (Page ID #3875–76).
In support of its contention that there is undisputed evidence of the aggressive nature of the way Roell approached the officers, the major ity states that Soham Agarwal testified that “Roell was facing the deputies swinging the hose ‘a s if he was trying to hit somebody.’” Maj. Op. at 4 (quoting R. 91 (S. Agarwal Dep. at 32) (Page ID #3870)). This statement slightly mischaracterizes Soham Agarwal’s testimony, and, although slight, th e difference between Soham Agarwal’s testimony and th e majority’s characterization of Soham Agarwa l’s testimony is important. Soham Agarwal actu ally testified that Roell had something in his hand, and that while “it was a little dark still, so it was hard to tell what it was. . . . it seemed lik e it was the hose that he had held previously -- and that he was kind of like swinging it ar ound, as if he was trying to hit somebody.” R. 91 (S. Agarwal Dep. at 32) (Page ID #3870). Obviously, Soham Agarwal’s testimony does not unequivocally state that Roell was acting in a calm, unaggressiveNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 28

manner, but it also does not unequivocally state th at Roell was swinging the hose as if he was trying to hit someone. Instead, Soham Agarwal statedthat it was dark enough that it was hard to tell what was happening, that Ro ell was holding something that “ seemed like it was the hose,”
and that Roell was “ kind of like swinging” whatever he was holdi ng “as if he was trying to hit somebody.” Id. This distinction is important because , along with Rachana Agarwal’s testimony,
it underscores that it was not at all clear to the disinterested witnesse s how aggressively (or unaggressively) Roell was acting. It was Huddleston, rather than Soham or Rachana Agarwal, who characterized Roell as aggressive.
The majority also states that although Roell committed only property crimes, it was
reasonable for the officers to infer that his cr imes might escalate and therefore reasonable for them to tase him. Maj. Op. at 9. First of a ll, this point is debatable. The only support the majority offers is an unpublishe d case that is distinguishable be cause it held that tasing the suspect did not clearly constitute excessive force because the suspect was fleeing. See Cockrell v. City of Cincinnati , 468 F. App’x 491, 498 (6th Cir. 2012) (“ [I]t is not clear whether tasing a suspect who fled from the scene of a nonviolent mi sdemeanor constituted ex cessive force, as of July 2008.”); see also id. (Cole, C.J., concurring) (“I am persuaded that Cockrell, as of July 3, 2008, did not have a clearly established right no t to be tased for fleeing from a non-violent misdemeanor. I write separately because, given th e totality of the circumstances, I believe that Officer Hall’s use of force was excessive.”). S econd, even if tasing an unarmed individual is not generally a constitutional violati on, that does not change the fact that officers have an obligation to adjust the level of force downward if the i ndividual is apparently mentally unstable and unarmed. Even if an officer generally is perm itted to tase an individual who is suspected of committing only misdemeanors, that does not mean that that the officers in this case were permitted to tase Roell, given that he was ap parently mentally unstable and may have been
unarmed.
The majority also attempts to analogize this case to Cook v. Bastin , 590 F. App’x 523 (6th Cir. 2014), but in doing so notes that in Cook the officers observed Campbell “digging his lacerated fingers into an electrical socket” and “observed the Crisis Ma nager’s torn and bloody shirt, which they interpre ted as an indication that physical violence had o ccurred.” Maj. Op. atNo. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 29

15. This case is dissimilar to Cook because the officers observed no signs that violence had occurred, only signs that property damage occurred. In addition, as the majority acknowledges,
the officers in Cook used less force than the officers in this case used against Roell. Id.
C. There are disputed facts, maki ng summary judgment inappropriate
Because we do not know whether Gary Roell was unarmed according to Ohio law, we do
not know whether the Champion / Martin rule applies to the officers’ confrontation with Roell.
See Martin , 712 F.3d at 962 (quoting Champion , 380 F.3d at 904) (officers must “take into account ‘the diminished capacity of an unarmed de tainee . . . when assessing the amount of force exerted’”). Because we do not know how ag gressively Roell was acting, we do not know
whether the level of force the officers used was a ppropriate under the circum stances. As a result, summary judgment is not an appropriate resolu tion of this case. A jury should resolve the disputed, material facts and ultimately determ ine whether the officers complied with their obligation to adjust the level of force downward. Therefore, as to the majority’s resolution of Nancy Roell’s § 1983 claim against Deputies Alex ander, Dalid, and Huddl eston, I respectfully
dissent.