NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0138n.06

Nos. 23-5387/5388

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES MYRON MITCHELL,

Plaintiff-Appellee,

LATISHA SHANA MENIFEE,

Plaintiff,

v.

HAMILTON COUNTY, TENNESSEE,

Defendant, 

DANIEL CAMERON WILKEY (23-5387) and 

BOBBY BREWER (23-5388), individually and in 

their capacities as Deputy Sheriffs for Hamilton 

County, Tennessee,

Defendants-Appellants.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF TENNESSEE

OPINION

Before: KETHLEDGE, BUSH, and READLER, Circuit Judges.

KETHLEDGE, Circuit Judge. James Mitchell claims that Deputy Sheriffs Daniel Wilkey 

and Bobby Brewer used excessive force and unreasonably strip-searched him after they detained 

him for possession of marijuana. Wilkey and Brewer appeal the district court’s partial denial of 

their motions for summary judgment. We affirm in part, reverse in part, and dismiss in part.

I.

We take the district court’s view of the facts in the light most favorable to Mitchell, unless 

video evidence clearly contradicts it. Hayden v. Green, 640 F.3d 150, 152 (6th Cir. 2011); Scott 

v. Harris, 550 U.S. 372, 380–81 (2007). Here, we have video from two dash-cams.
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One night in July 2019, James Mitchell got a ride from Latisha Menifee in Soddy Daisy, 

Tennessee. Just before 9:30 p.m., Menifee passed Deputy Sheriffs Wilkey and Brewer, who were

parked in separate patrol cars along the two-lane highway. Wilkey pulled out, with Brewer 

following, and stopped Menifee for a tinted-window violation. Wilkey and Brewer smelled 

marijuana, and Mitchell readily admitted that he had smoked some in the car.

At Brewer’s direction, Mitchell got out of the passenger seat with his hands raised, turned 

to face the car, and put his hands on the roof. Mitchell submitted to Brewer’s pat down, during 

which Brewer removed cash and a small baggie of marijuana from Mitchell’s front pants pocket.

Meanwhile, Wilkey handcuffed Menifee and left her standing between her car and his patrol car. 

Wilkey noticed Mitchell lifting a hand a few inches, but Mitchell did not resist when the deputies 

pulled his arms down and cuffed his hands behind his back. Mitchell said he was not “reaching 

for the stuff,” and Wilkey said, “if that’s all you’ve got, then I’ll write you a ticket.” Neither the 

validity of the stop nor the existence of probable cause to arrest Mitchell for possessing marijuana 

is at issue here.

The deputies walked Mitchell to the front of the patrol car, where they stood in its 

headlights. Mitchell denied having anything else on him. Wilkey patted down Mitchell’s pockets 

and pressed Mitchell’s groin area, causing him to grunt and tell them that he had a hernia. Wilkey 

asked about his hernia but continued to bunch up and pull on the front of Mitchell’s pants. Wilkey 

then moved to Mitchell’s waist area—tugging, twisting, and shaking Mitchell’s loose-fitting pants 

from behind without finding anything. When Wilkey reached between Mitchell’s legs to grab his 

crotch from behind, Mitchell grunted, and Wilkey told him to “hold still.” Wilkey then reached 

around and prodded Mitchell’s left groin area further, felt something “hard,” and asked, “what’s 

right there?” Mitchell groaned, bent forward, and protested that it was his hernia. Wilkey and 
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Brewer lifted Mitchell’s arms behind him; Brewer told Mitchell several times to “stop tensing up”; 

and Wilkey pushed Mitchell’s head down onto the patrol car. At that point, Wilkey had frisked 

Mitchell for a full minute and a half.

Mitchell, who still had his head down and his arms restrained behind him, spread his fingers 

and pressed his hands downward. The deputies warned Mitchell to “stop reaching in there” and 

to “tell us what it is.” Mitchell responded, “I’ll give it to you right now, man,” and louder, “I’ll 

give it to you.” But Wilkey suddenly pulled Mitchell’s arm, kneed Mitchell twice, and yanked

Mitchell and Brewer to the ground. There, Brewer held Mitchell down while Wilkey punched 

Mitchell’s thigh in a series of at least seven “pain compliance strikes.” Shouting back and forth, 

Wilkey accused Mitchell of “reaching for something on us,” and Mitchell denied that he would do 

anything to them, said he was about to “give it” to them, and insisted that he was not resisting. 

Wilkey and Brewer rolled Mitchell onto his side, turned him onto his back, lifted and pulled his 

legs, and searched Mitchell’s pants further. Mitchell (and Menifee) said Brewer also hit and kneed 

Mitchell during the several minutes they were on the ground; but Brewer denied that he did.

As the deputies searched Mitchell, one of them said he felt something; Mitchell shouted 

that it was his “dick” and pleaded, “don’t do me like that, man.” Mitchell finally told them he had 

a “piece of plastic” on him and would give it to them. Wilkey told Brewer to take Mitchell’s 

clothes off, and Brewer pulled his pants off and shook them out without finding anything. The 

deputies then lifted Mitchell up and each pulled his boxers down or out to visually inspect his 

buttocks and genitals with a flashlight. Lastly, Wilkey got some gloves and, while Brewer held 

Mitchell, Wilkey pulled Mitchell’s boxers down, smacked his bare buttocks, and took a plastic 

baggie with drug residue from his backside. Wilkey set the baggie down and finished searching 

Mitchell’s buttocks and groin area before pulling his boxers up. Wilkey denies that he touched 
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Mitchell’s privates; but Mitchell says Wilkey “bumped” his anus twice. Wilkey picked up a 

syringe by the back tire of the patrol car and found some crack cocaine behind Menifee’s car. 

When they found no contraband inside her car, Wilkey issued Menifee a ticket and took Mitchell 

to jail. Mitchell later sought treatment for contusions and a possible anal tear.

Mitchell thereafter sued Deputies Wilkey and Brewer and their employer Hamilton County 

alleging claims under 42 U.S.C. § 1983 and Tennessee law. Wilkey and Brewer moved for 

summary judgment, which the district court granted in part and denied in part. These appeals 

followed. Both deputies argue that they are entitled to qualified immunity on Mitchell’s § 1983 

claims that they each used excessive force, failed to prevent the other’s use of excessive force, and 

subjected him to an unreasonable roadside strip search. They also argue that, if they prevail on 

those § 1983 claims, they are entitled to summary judgment on Mitchell’s state-law claims for 

assault, battery, and negligence.

II.

Our interlocutory jurisdiction extends only to questions of law, which we review de novo. 

Bey v. Falk, 946 F.3d 304, 311–12 (6th Cir. 2019). The legal question is whether Wilkey or Brewer 

are entitled to qualified immunity, on the facts as we must construe them here. Hayden, 640 F.3d 

at 152. “Determinations of qualified immunity require us to answer two questions: first, whether 

the officer violated a constitutional right; and second, whether that right was clearly established in 

light of the specific context of the case.” Id. at 153. We are free to answer those questions in 

whichever order we see fit. Id.

A.

“The Fourth Amendment prohibits the use of excessive force by arresting and investigating 

officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). We examine an officer’s use of force 
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from “the perspective of a reasonable officer on the scene” and with “a built-in measure of 

deference to the officer’s on-the-spot judgment about the level of force necessary” under the 

circumstances. Id. (quotations omitted). That standard requires us to “consider the amount of 

force used, on the one hand, and ‘(1) the severity of the crime at issue, (2) whether the suspect 

posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was 

actively resisting arrest or attempting to evade arrest by flight,’ on the other.” Jarvela v. 

Washtenaw Cnty., 40 F.4th 761, 764 (6th Cir. 2022) (quotation omitted).

Here, for one thing, the offense that provided probable cause to arrest Mitchell—possession 

of about a gram of marijuana—was not particularly severe: in Tennessee, simple possession is a 

Class A misdemeanor. Tenn. Code Ann. § 39-17-418(c)(1). Nor was the tinted-window violation 

that justified the stop in the first place. For another thing, the video confirms that Mitchell got out 

of the car as instructed, did not object to Brewer’s pat down, and submitted to the deputies’ 

authority without resisting being handcuffed. Mitchell denied having anything else on him; but he 

was generally compliant, submitted to Wilkey’s thorough frisking, and displayed no aggressive 

behavior toward the deputies (or anyone else).

The district court denied qualified immunity to Wilkey because, it said, a jury could 

conclude that Wilkey’s use of force against Mitchell—specifically, “kneeing [him], taking him to 

the ground, and repeatedly punching him”—was objectively unreasonable under the 

circumstances. Wilkey now argues that his force was reasonable because he felt a “hard object” 

in Mitchell’s groin and Mitchell had repeatedly attempted “to reach into his pants to, presumably, 

either wield the foreign object as a weapon or conceal or destroy it as evidence.” (Wilkey Br., p. 

21.) But the video from Wilkey’s dash-cam does not contradict the district court’s finding. 

Specifically, the video shows that, when the deputies told Mitchell to stop “reaching,” Mitchell
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stood handcuffed between them with his arms raised behind him—hardly poised to retrieve, much 

less wield or destroy, whatever Wilkey might have felt in Mitchell’s groin. Moreover, when we 

view the evidence in Mitchell’s favor, a genuine issue of fact existed whether Mitchell’s 

movements amounted to active resistance.

Nor does Wilkey’s reliance on our decision in Pennington dictate a contrary result. See 

Pennington v. Terry, 644 F. App’x 533, 543–47 (6th Cir. 2016). There, the officer used a taser to 

keep a subdued suspect from swallowing pills and to avoid a potential overdose and the imminent 

destruction of evidence. Id. at 535–36. We held that, under the relevant case law, the officer 

lacked notice that his conduct was unlawful. Id. at 544. But here no reasonable officer would 

have believed Mitchell’s “tensing” or “reaching” posed a risk of overdosing or the imminent 

destruction of evidence.

Brewer, for his part, argues that he never struck Mitchell. But the district court found that 

there was a genuine dispute whether Brewer hit or kneed Mitchell while they were on the ground. 

True, the video from Brewer’s dash-cam confirms that it was Wilkey who inflicted the half-dozen 

“pain compliance strikes.” But Mitchell says that Brewer landed some punches and kneed him in 

the back while he was on the ground. Menifee also said she saw Brewer hit Mitchell, and her 

vantage point was from the opposite direction and closer than Brewer’s dash-cam. Brewer’s dashcam produced a dark and, at times, blurry video that does not clearly contradict the district court’s 

finding. Scott, 550 U.S. at 380. We therefore lack jurisdiction to revisit the district court’s finding 

on this point. See Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018) (“[W]e may not 

decide a challenge aimed solely at the district court’s determination of the record-supported 

evidence, but we may decide a challenge with any legal aspect to it.”)
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To overcome qualified immunity, Mitchell also must show that his asserted right was 

clearly established at the time. That means the contours of the right must have been defined enough 

that “every reasonable official” in the defendant’s shoes would have understood that the conduct 

would cross the constitutional line. Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per 

curiam). In this circuit, at the time of the incident here, “a clearly established legal norm 

preclude[d] the use of violent physical force against a criminal suspect who already has been 

subdued and does not present a danger to himself or others.” Harris v. City of Circleville, 583 

F.3d 356, 366–67 (6th Cir. 2009). Specifically, we have found it was objectively unreasonable for 

officers to tackle a handcuffed and generally compliant detainee who had jumped up from a 

kneeling position after officers shot his dog. Smoak, 460 F.3d at 783–84. And, in another case,

we denied qualified immunity to officers who struck the legs of a subdued and handcuffed detainee 

who said he could not kneel. Harris, 583 F.3d at 367. We have also concluded that officers used 

excessive force when they repeatedly hit an arrestee who had been incapacitated and handcuffed. 

Shreve v. Jessamine Cnty. Fiscal Ct., 453 F.3d 681, 687 (6th Cir. 2006).

When the facts are construed in Mitchell’s favor, a reasonable officer in Wilkey or 

Brewer’s shoes would have understood that tackling and punching (Wilkey) or hitting and kneeing 

(Brewer) a handcuffed arrestee who posed no immediate threat to safety, was generally compliant, 

and was not actively resisting, would violate the Fourth Amendment.

B.

Both deputies challenge Mitchell’s claim that they are each liable for the other’s use of 

force. An officer may be liable for another officer’s use of excessive force when that officer 

“observed or had reason to know that excessive force would be or was being used” and “had both 

the opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d 425, 
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429 (6th Cir. 1997). Here, Wilkey argues only that this claim must fail because Brewer never 

struck Mitchell. But Mitchell says Brewer did strike him, and the video does not clearly show 

otherwise. Likewise, Brewer argues that he had no duty to intervene because Wilkey used 

reasonable force as a matter of law. Again, a jury could conclude otherwise. We therefore lack 

jurisdiction to review either argument.

Brewer also contends that he lacked a realistic opportunity to intervene in Wilkey’s use of 

force. Id. at 429; Smoak, 460 F.3d at 784–85. True, Wilkey might not have warned Brewer that 

he was about to take down Mitchell, but Brewer then held Mitchell against the ground while

Wilkey repeatedly punched him. A reasonable juror could therefore find that Brewer had the 

opportunity and means to intervene in Wilkey’s use of force. Turner, 119 F.3d at 429–30; see also 

Goodwin v. City of Painesville, 781 F.3d 314, 329 (6th Cir. 2015).

C.

The deputies challenge the denial of qualified immunity on Mitchell’s claim that his strip 

search violated the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches, 

but “what is reasonable depends on the context within which a search takes place.” Maryland v. 

King, 569 U.S. 435, 461–62 (2013) (quotation omitted). Here, Mitchell’s custodial arrest, based 

on probable cause, authorized a full warrantless search of his person and the property in his 

immediate possession for weapons or contraband. United States v. Robinson, 414 U.S. 218, 227 

(1973); see also Riley v. California, 573 U.S. 373, 386 (2014). And when officers book a detainee 

into custody, they may conduct “a relatively extensive exploration” of the detainee’s person and 

require “at least some detainees to lift their genitals or cough in a squatting position.” King, 569 

U.S. at 462 (citations omitted).
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Even so, a search incident to arrest also “must be reasonable in its scope and manner of 

execution.” Id. at 448. As in other Fourth Amendment contexts, reasonableness “requires a 

balancing of the need for the particular search against the invasion of personal rights that the search 

entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In doing so, we “consider the scope of the 

particular intrusion, the manner in which it is conducted, the justification for initiating it, and the 

place in which it is conducted.” Id.

Here, the district court denied qualified immunity on Mitchell’s claim about the scope and 

manner of the search incident to arrest—specifically, taking Mitchell’s pants off, pulling his boxers 

down, and exposing and reaching into his anal area on the side of the road and in view of Menifee. 

The deputies argued the search was reasonable because it was a dark night, exposure was not 

prolonged, and Mitchell gave them probable cause to believe he was hiding evidence or contraband 

in his boxers. Wilkey and Brewer are entitled to qualified immunity unless Mitchell shows both 

(1) that the deputies violated a constitutional right and (2) that the right was clearly established at 

the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). We only address the 

second requirement here.

“A right is clearly established when it is ‘sufficiently clear that every reasonable official 

would have understood that what he is doing violates that right.’” Rivas-Villegas, 595 U.S. at 5

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). A case “directly on point” is not 

required, but “existing precedent must have placed the statutory or constitutional question beyond 

debate.” Id. (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). “Specificity is especially important 

in the Fourth Amendment context” because “it is sometimes difficult for an officer to determine 

how the relevant legal doctrine” applies “to the factual situation the officer confronts.” Id. at 6

(cleaned up) (quotation omitted). That means, except in an “obvious” case where the standard 
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provides the answer, the plaintiff must point to pre-existing Supreme Court or Sixth Circuit 

precedent that would have put a reasonable officer on notice that his specific conduct was unlawful. 

Id.; see also Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 992–93 (6th Cir. 2017). 

Mitchell has not done that.

The district court likewise acknowledged the absence of materially similar Supreme Court 

or Sixth Circuit cases that would have put Wilkey or Brewer on notice that their search of Mitchell

would have violated the Fourth Amendment. Instead, the district court relied on Timberlake v. 

Benton, 786 F. Supp. 676, 691 (M.D. Tenn. 1992). That reliance was misplaced: among other 

reasons, Timberlake involved a strip search without probable cause of a minor who was never 

placed under arrest. Nor is this an “obvious” case in which the general rule from Bell would give 

“fair and clear” warning that that the specific conduct would violate that right. See Kisela v. 

Hughes, 584 U.S. 100, 105 (2018) (per curiam). Here, the deputies asserted a legitimate interest 

in the search incident to arrest and had probable cause to believe Mitchell was still concealing 

evidence or contraband. “[W]hen the constitutional test is one of interest-balancing, the point at 

which the constitutional shades into the unconstitutional will necessarily be gray.” Sumpter v. 

Wayne Cnty., 868 F.3d 473, 488 (6th Cir. 2017). Such is the case here.

D.

Finally, Wilkey and Brewer appeal from the denial of summary judgment on Mitchell’s 

state-law assault, battery, and negligence claims. But our pendent jurisdiction reaches only those 

issues that are “inextricably intertwined” with the issues properly before us. Browning v. 

Edmonson Cnty., 18 F.4th 516, 529–30 (6th Cir. 2021). And here our analysis of qualified 

immunity does not necessarily determine the merits of those state-law claims. We therefore lack 

pendent jurisdiction to consider that argument.
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* * *

The district court’s denial of qualified immunity on Mitchell’s claims of excessive force 

and failure to intervene in the use of excessive force is affirmed; the court’s denial of qualified 

immunity on Mitchell’s claims of unreasonable search incident to arrest is reversed; and the 

defendants’ appeals from the denial of summary judgment on the state-law claims are dismissed 

for lack of jurisdiction.