NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0793n.06 No. 10-2392 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ALAN COLE, JORDAN COLE, VINCENT COLE, P laintif fs-App ellees,

v. CITY OF DEARBORN, EDWARD VILLEMAIRE, RICHARD MICHALSKI, RICHARD C ONRAD, SERG EANT & OTHE R UNK NOWN DEF ENDANTS, Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED STAT ES DIS TRICT COURT F OR THE EASTE RN DISTRICT OF MICHIG AN O P I N I O N

BEFORE: KEITH, SUTT ON, and McKEAG UE, Circuit Judges. McK EAGU E, Circuit Ju dge. I n this civil rig hts action, P laintiffs-Appe llees Alan Cole, J ordan Cole, and Vincent Cole (“the Coles”) claim that Def endant- Appel l ant Police Offic ers (“D efe ndants”) used excessive forc e in appre hending them for questioni ng reg arding an arme d robber y . Def endants appea l the district court’s denial of their motion for summary ju dg ment on qualified immunit y g rounds. For the rea sons that follow, we REVERSE in part and AFF I RM in part, and REMAND to the district c ourt for f urther pr ocee dings in c onformity with this opi nion. I. BACKG ROUND On the evening of Marc h 24, 2007, the Coles dr ove to F airlane Town Center Mall (loca ted in Dea rborn, Michig an), acc ompanied by their brother, Vincent Cole, and friend Antoine Ba dey , toNo. 10-2392

Alan Cole, et al. v. City of Dearborn, et al. watch a movie at the Star Thea ter. Vincent Cole wore a white hooded swea tshirt, while Alan Cole

wore a blue jacke t. The g roup was joined by two fema les, and afte r seeing a movi e t h ey wa l k ed

acr oss the street to a TGI Fr iday ’s restaur ant. They arr ived at the restaur ant at approximately 9:55 p.m., but wer e ref

used service beca

use some members of their g roup wer e under the ag e of twenty

o n e. W h i l e t he six of them walked from the restaur ant back to the Coles’ car , the g roup was confr onted by

the Dea rborn Police. At 10:05 p.m. on that same day , the City of Dea rborn Police Depa

rtment Dispatch rec eived

a call fr o m Of

fi ce r Kassim of the Fa irlane Town Center Security Police. Offic er Kassim was repor ting an arme d robber

y that alleg edly took place in the parking lot of the theater

. Offic er Kassim stated that the suspects wer e four black males, one wea ring a white hooded swea ter and one wea ring a blac k jacke t. Office r Ka ssim also stated that one suspect possibly had a gun. Offic er Kassim told the dispatcher that he was watching the su s p ec t s wa l k throug h the parking lot near the mall’s food court on the Fa irlane Town Center’ s closed-c ircuit secur ity came ra sy stem. Whil e still on the phone with the dispatcher , Offic er Kassim stated that he watched t h e suspects m eet with two fema les and cont inue t o walk towards the bus stop located in the Fairlane Town Center’ s parking lot near the Star Thea ter. Offic er Kassim continued t o gi v e specific direc tions to the dispatcher in order to lead responding Dea rborn police o ff

icer s direc tly to the suspects. The Dea

rborn Police Depa

rtment’s dispatch service s re l ay ed t h i s information to all Dea rborn police car s in the city

. The first responding office rs wer e Def endant- office rs Ed wa rd Vi llemaire and Richard Michalski. The office rs had rec eived information about the arme d robber y from the dispatcher on - 2 -No. 10-2392

Alan Cole, et al. v. City of Dearborn, et al. their radio. The office rs wer e informed of Offic er Kassim’s des cr iption of the suspects’ phy sical appea ranc e and location. Def

endants Villemaire and Michalski order ed the suspects to make their hands visible and to lie down on the g round, and acc ording to the Coles, they immediately complied. Def endants claim that the Coles and their companions did not immediately comply , but did so only afte r a period of 5–15 seconds, during which the office rs issued sever al more verba l commands. At that point, the Coles and their companions laid down on the g round while making thei r hands visible. Howeve r, while the office rs wer e secur ing the scene , Def endants contend that Vincent Cole beg an to slide his hands underne ath his chest, stopping only afte r sever al additional verba l commands from the office rs. Acc ording to the Coles, Vincent was moving his hands over his head in order to remove his hood, which was cover ing his head as he lay down. Def endants also state that the Coles and their companions we re not a ctively resisting and we re not phy sically ag g ressive. Villemaire and M i ch al ski beg an placing handcuf fs on the suspects and frisking them for

wea pons as they lay on the g round. Other Dea rbo rn police office rs also arr ived at the scene and assisted in this proce ss. At that point, the Coles contend that J ordan Cole was asked wher e the g un was, and he purportedly told the office rs that none of them had a g un. Alan Cole alleg es that as he lay on his stomach with his chin on the g round, one of the office rs stomped on his back and held his boot on his neck while another office r place d handcuf fs on him, which cause d a scra pe on his chin. Alan Cole also alleg es that one of the office rs drove his knee into his back while apply ing handcuf fs,

an d t h at t h e o ffice r then drag g ed him to a police car . J ordan Cole alleg es that, as he lay on th e g round, an office r stomped on his lower back and left him handcuf fed o n t he g round. Finally ,

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Alan Cole, et al. v. City of Dearborn, et al. Vincent Cole contends that one of the office rs deliberately and intentionally stepped on his hand and g round it into the cement, prompting one of the office rs to ask him if he nee ded a ba ndag e. Def endant- Appellant Serg eant Richa rd Conrad contends that, by the time he ar

rived to the

s ce n e, t h e suspects had been handcuf fed and separ ated from one another —some sitti ng on th e g round in the parking lot, and some sitti ng in the bac k s ea t s o f p o lice car s. The Coles have not contested this asser

tion, and have not identified Serg eant Conrad as one of the individuals who was

on the scene when forc e was alleg edly applied

. Upon arr iving to the scene , Serg eant Conrad instructed the office rs to sear ch the immediate are a for the handg un repor tedly involved in the arme d robber y . After no handg un was found, Serg eant Conrad reque sted that the Fa irl an e Town Center Security Police bring the victims of the arme d robber y to the scene of the stop in order to deter mine whether Plaintiffs wer e the actu al p er p et ra t ors of the robber y . The victims told the office rs that Plaintiffs w ere not the people who had robbed them. The Coles wer e then rele ased from custody

. The e ntire stop lasted betwe en fifte en and twe nty minutes. Shortly afte r the inciden t , t h e Coles returne d home and informed their mother, Adrian Dupre e, wha t had occ urre d. Acc ording to D upree , she observe d that J ordan had a footprint on his shirt and Alan’ s chin was scra ped and cut. Dupre e also states: (1) Ala n’s nec k was sore for 1 a

nd 1/2 wee ks; (2) J ordan’ s back was sore for a few day s; and (3) she trea ted Alan’s and J ordan’ s injuries with ice and moist heat. Both J ordan and Alan Cole alleg e that they experience d neck and back pain for a couple of wee ks afte r the incident, and that this cause d them to be absent from school and work, respe ctively

. The Coles further alleg e that they consulted a doctor for trea tment on Marc h 24, 2007.

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Alan Cole, et al. v. City of Dearborn, et al. Howeve r, their medical rec ords indicate that this visit may not have taken place until over two y ear s afte r the incide nt. The Coles filed suit under 4 2 U.S.C. § 1983 for unrea sonable sear ch and seizure and excessive forc e, and ag ainst Def endant City of Dea

rborn for municipal liability based on its alleg ed failure to tr ain and supervise its off icer s. The district c ourt found that De fenda nts were entitled to qualified immunit y as to the unrea sonable sear ch and seizure claim, and g rante d summary judgme nt

as to m u n i ci p al l i abil ity

. Howeve r, the district court denied summary judgme nt on the basis of qualified immunity as to the Coles’ claim of e x cessive f orce . Cole v. City of Dearborn , 2010 WL 4260109 *7 (E.D. Mich. Oct. 22, 2010). Def endants appea l the denial of summary judgme nt on the basis of qualified immunity

. I. ANALYSIS We r eview the district c ourt’s denial of summar y judgme nt de novo

. Harrison v

. Ash , 539 F.3d 510, 516 (6th Cir. 2008). Summary judgme nt is appropr iate wher e there is “no g enuine dispute as t o any materia l fac t and the movant is entitled to judgment as a matter of law.” Fe d. R. Civ. P. 56(a)

. Def

endants bear the burden of showing the absenc e of a g enuine issue of materia l f act as to at least one essential element of the Coles’ claims. Celotex Corp. v. Catrett , 477 U. S

. 3 1 7 , 323 (1986). The Col es m ust then prese nt sufficie nt evidenc e from which a jury could reasonably find in their favor

. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 2 4 9 (1986). We then consider whether , draw ing all rea sonable infere nces in favor of the Coles, Def endants must preva il as a matter of law. Harrison , 539 F.3d a t 516.

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Alan Cole, et al. v. City of Dearborn, et al. An order denying summary judgme nt on the basis of qualified immunit y , to the extent it turns

on a question of law, is an immediate ly appea lable collate ral orde r. Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). Conversely , to the extent that the district court’s denial of qualified immunit y was based on a fac tual dispute, such a d en i al falls outside the narr ow jurisdiction of this Court. Harrison , 539 F.3d at 516. I t follows that our jurisdiction is limit ed to the question of whether the evidenc e, considere d in the light most favor able to the Coles, meets the leg al st an d ar d for

overc oming summary

judgme nt on the basis of qualified immunity

. I n claims of excessive forc e, we employ a two-step inquiry to decide whether a defe ndant is entitled to qualified i mmunity : “[a] defe ndant is entitled to qualified immunit y on summary 1 judgme nt unless the evidence, v i ew ed in the l ight most favor able to the pl aintiff, ‘would permit a

rea sonable juror

to find that (1) the defenda nt violated a constitutional rig ht; and (2) the rig ht was clea rly established.’” Coble v. City of W hite House, Tenn. , 634 F.3d 865, 870 (6th Cir. 2011) 2 (quoting Aldini v. Johnson , 609 F.3d 858, 863 ( 6th Cir. 2010)).

We note t hat, ordinarily , analy sis of a qualified im munity claim would entail a third step, 1 in which the Court would deter mine whether the plaintiff offe red sufficie nt evidenc e to indicate that what t h e o fficers alleg edly did was objectively unrea sonable in light of a clea rly established constitutiona l ri gh t

. E.g. , Feathers v. Aey , 319 F.3d 843, 848 (6th Cir. 2003). Howeve r, in an excessive forc e case , the Court must decide that defe ndant’s conduct was objectively unrea sonable in order to find a constitutional violation. This rende rs t he thi rd st ep redundant. “Thus, qualified immunit y in excessive forc e case s is a two-step analy sis.” Grawey v. Drury , 567 F.3d 302, 309 (6th Cir. 2009). As a result of the Supreme Court’s decision in Pearson v. Callahan , 555 U.S. 223 (2009), 2 we ar e n o longe r compelled to take up the qualified immunit y considerations in the sequence descr ibed here , i.e., considering first whether the fac ts alleg ed make out violation of a constitutional rig ht and then whether that rig ht was clea rly established at the time of defen d an t’s alleg ed misconduct. Id. at 242. - 6 -No. 10-2392

Alan Cole, et al. v. City of Dearborn, et al. A. Constitutional Violation The Four th Amendment g overns law enfor ceme n t investigative seizures—eve n those that do not result in a prosec ution—and protec ts individuals fr o m ex ce s sive forc e during these encounte rs. Ciminil lo v. Streiche r , 434 F.3d 461, 466 ( 6th Cir. 2006). We review the use of f orce for rea son ab leness, from the perspe ctive of a rea sonable law-e nforc ement office r at the scene . Saucier v. Katz , 533 U.S. 194, 209 (2001), overruled in part by Pearson , 555 U.S. at 242; Graham

v. Connor , 4 9 0 U.S. 386, 396–97 (1989). We also consider the non-exhaustive list of fac tors descr ibed in Graham , which are (1) the sever ity of the crime; (2) whether the suspect poses a threa t to the office rs or others; and (3) whether the suspect is actively resisting arr est or attempting to evade

arr est by flig ht. See id. at 396. This analy sis is to be conducte d objectively , under the totality of the circ umstances. Graham , 490 U.S. at 397. Finally , our analy sis must “allow[] for the fac t that police office rs are often forc ed to make split-second judgme nts—in circ umstances that are tense, uncer tain, and rapidly

evolving—about the amount of f orce that is nece ssary

in a par ticular situation.” Id. at 396–97. We have re p ea t edly held that “the use of forc e afte r a suspect has been incapa citated or neutra liz ed is excessive as a matter of law.” Bake r v. City of Hamilton , 471 F.3d 601, 607 (6th Cir. 2006) (deny

ing qualified immunit y wher e plaintiff was struck afte r surre ndering to police); see also,

e. g . , S h r eve v. Jessmine County Fiscal Court , 453 F.3d 681, 687 (6th Cir. 2006) (finding it objectively unrea sonable for an office r to strike an d jump on a suspect who was alre ady on the g round and “out of it ” due to the of fice r’s a pplication of peppe r spra

y ). The r eason for t his is self evident: wher e a suspect is p assive and compliant with police order s, forc e is unnece ssary to - 7 -No. 10-2392

Alan Cole, et al. v. City of Dearborn, et al.

acc omplish the office r’s task, and thus is objectively rea sonable. See Phelps v. Coy , 286 F.3d 295, 301 (6th Cir. 2002) (stat i ng that there is “simply no g overnme ntal interest in continuing to beat [pl aintiff] afte r he had been neutra liz ed, nor could any rea sonable office r have thought there was” ). Construing the evidenc e in the light most favor able to the Coles, the rec ord indicates that by the time Def

endants alleg edly applied forc e ag ainst them, the Co l es an d t heir companions wer e lay ing passively on the g round. The Coles claim that Def endants applied forc e ag ainst them in the following way s: (1) stomping on Alan Cole’s back and stepping on his neck, causing scra pes on his chin; (2) driving a knee into Alan Cole’s back and dra ggi n g h i m t o a squad car ; (3) stomping on J ordan Cole’s back; and (4) stepping on Vincent Cole’s hand and g rinding it into the g round. These alleg ations all come within the protec tive rea ch of the Four th Amendment. The fac tors laid out in Graham also point to a Four th Amendment violation under these f a c ts. Although the Coles wer e believed to have committed an arme d robber y , which is a sever e crime, the violent nature of that offe nse was mitigated by the g roup’s passive, vulnera ble position at the time that forc e was alleg edly applied. Given the rapidly evolving nature of these events, Def endants may well have believed the Coles posed a threa t beca use the office rs wer e outnumbered. Def enda n t s , howeve r, failed to offe r any rea son why the amount of forc e alleg edly employ ed here was require d under these particula

r circ umstances. I t is not our role to specula te as to what might have prompted such a show of forc e. Whil e Def endants do question the sever ity of the Coles’ injuries, this g oes to the issue of damag es rather than the rea sonablene ss of Def endants’ use of for ce.

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Alan Cole, et al. v. City of Dearborn, et al. B. Clearly Establish ed For a rig ht to be clea

rly established, its contours “must be sufficie ntly clea r that a rea sonable officia l would understand what he is doing violates that rig ht.” S a u ci er , 533 U.S. at 202. As a g ener al matter, the r ight to be f ree from excessive f

orce by law-e nforc ement per sonnel is a clea rly established Fourth Amendment right. Neague v. Cynkar , 258 F.3d 504, 507 ( 6th Cir. 2001). The contours of that g ener al rig ht are dictated “in light of the specific context of the case ” based on the behavior of both the off

icer and the suspec t. Saucier , 533 U.S. at 201. Her e, the line of demar cation is well define d: once a suspect is passively comply ing with an office r’s c ommands, that suspect has a clea rly established rig ht to be fre e fr om force bey ond what is nece ssary to car

ry out the arr est. E.g. , Bake r , 471 F. 3 d at 6 0 8

. “C ases in this circ uit clea rly establish the rig ht of people who pose no safe ty risk to the police to be fre e from g ratuitous violence d u ri ng arr est.” Shreve , 453 F.3d at 688. A rea sonable office r would understand that, af t er compliance is secur ed and a threa t is no longe r posed, forc e should not be employ ed. See Bake r , 471 F.3d at 608. Under the Coles’ versi o n o f the events, Def endants had rea son to know at a particula rized level that the conduct they alleg edly eng ag ed in during this appre hension violated the Coles’ Four

th Amendment rig hts. As a g ener al matter, the Coles plead fac ts that make o ut a Four th Amendment violation beca use they wer e alleg edly subjected to forc e afte r they had passively complied with D efe ndants’ order s. Thus, a re asonable juror could f ind that the Coles ha d a clea rly established rig ht to be fre e from for ce a

t the time that excessive forc e wa s alleg edly applied to them. We now test the Coles’ claims with reg ard to e ach D efe ndant individually

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Alan Cole, et al. v. City of Dearborn, et al. C. Liabi lity of I ndi vidu al Of fi cer s Although the district court conclude d, as we have, that the Coles have alleg ed sufficie nt fac ts to overc ome qualified immunit y on summary judgme nt, that court neg lected to apply its analy sis to

eac h of the office rs involved and consi d er t h ei r i ndividual liability

. See Binay v. Bettendorf , 601 F.3d 640, 650 (6th Cir. 2010)

. Acc ording ly , we now assess eac h defe ndant’s liability in turn. “As

a g ener al rule, mere prese nce at the scene of [t he alleg ed constitutional violation] , without a showing of direc t responsibility

for the action, will not subject an office r to liability .” Id. (quoting Ghandi

v. Police Dep’ t of Detroit , 747 F.2d 338, 352 (6th Cir. 1984)). To hold an individual office r liable for the use of excessive forc e, the Coles must show that the office r “(1) actively participa ted in the

use of excessive forc e, (2) supervised the office r who used excessive forc e, or (3) owed the victim

a duty of protec tion ag ainst the use of excessive forc e.” Turner v. Scott , 119 F.3d 425, 429 (6th Cir. 1997). 1. Officers Villemaire and Mic halski Offic ers Villemaire and Michalski wer e the first respond i ng office rs from the Dea rborn Police Depa

rtment. Taking the fac ts as the Coles have plead them, the Coles have shown that both Villemaire and Michalski fit into the first prong of our analy sis. Alan Cole alleg ed that, toward the beg inning of the encounte r, one office r was stepping on his neck, a nd when his brother aler

ted the office rs that Alan could not breathe, another office r drove his knee into Alan’s back in order to handcuf f him. Although Alan could not identify whi ch office r eng ag ed in what behavior , Def endants claim that, at that point, “ Villemaire provided cover and Michalski beg an handcuf fing the suspects as they lay on the g round.” Appellant Br

. at 7. This allows the infere nce that Villemaire - 10 -No. 10-2392

Alan Cole, et al. v. City of Dearborn, et al. could have stepped on Alan’s neck while Michals ki drove his knee into Alan’s back to handcuf f him. Fur ther, Vincent Cole cla i m s t h at o ne of these two office rs intentionally stepped on his hand and g round it into the ceme nt. I t can be rea sonably inferr ed that this alleg ed display of forc e could have been c ommitt ed by

either V illemaire or Mic halski. Construing the fac ts in the l ight most favor able to the C oles, i t co u l d be inferre d that both the handcuf

fing office r and the cover office r wer e direc tly involved in the excessive forc e that was alleg edly applied to them. I n Binay , we held that plaintiffs had raised a g enuine issue of materia l fac t

as to whether a defe ndant office r—who could not be id en t i fi ed by plaintiffs but was prese nt and could have been involved in the application of excessive forc e—wa s persona lly i n v olved in the Four th Amendment violation. 601 F.3d at 651. Be cause the evidenc e indicates that the handcuf fing and cover officer s wer e Vill emaire and Mi chalski, respectively , a reason able juror could find that both Villemaire a

nd Michalski wer e per sonally involved in the alleg ed excessive f orce . At a minimum , even if Offic er Michalski was only involved in handcuf fing and all alleg edly excessive forc e could be attributed to Offic er Villemaire, then Michalski would still have a duty to intervene to protec t the Coles from excessive forc e under these fac ts. Gene rally , a police office r may be held liable for failure to intervene in the fac e of e x cessive f orce when “ (1) the of

fice r obser

ved

or had rea son to know that excessive forc e would be or was being used; and (2) the office r had both the opportunity and the means to preve nt the harm from occur ring .” Turner , 119 F.3d at 429 (citing Anderson v. Branen , 17 F.3d 552, 557 (2d Cir. 1994)). Her e, even if the rec ord provided sufficie nt information to differ entiate betwee n th e ac t i o ns of the cover office r and the handcuf fing office r, Michalski had rea son to know that forc e wa s being applied, and ha d the opportunity and means to - 11 -No. 10-2392

Alan Cole, et al. v. City of Dearborn, et al. stop his partne r from eng ag ing in further forc e. Thus, even if Michalski did not actively participa te in the application of forc e, he at least acquie sced to the alleg ed forc e, and is not entitled to summary judgme nt. 2. Sergeant Conrad The fac ts set forth by the Coles la ck any alleg ation that Serg eant Conrad was prese nt at the t i m e o f t h e all eg ed application of excessive forc e. The Coles claim that a number of additional , unidentified Dea

rborn Police Depa

rtment car s arr ived to the scene at some point during their stop. But the Coles do not specify the prec ise time at which they alleg e that Conrad arr ived. Fur ther, the Coles do not challeng e Sergea n t C o n ra d ’s asser tion that, by the time he arr ived on the scene , all alleg ed application of forc e had concluded. I n fac t, the C oles’ brief concedes that Conrad arrived af t er office rs Michalski and Villemaire. The rec ord shows that Conrad did supervise o ff i ce rs Villemaire and Michalski, but only by (1) order ing a sear ch of the premises for the g un that was used in the arme d robber

y ; and (2) having the victims of the arme d robber y come over and try to identify t h e s u s p ects. None of these activities happene d during the alleg ed application of forc e. T h u s , Conrad was neither persona lly involved in, nor did he supervise the application of, the all eged excessive forc e. Once ag ain, in order to be liable for failing to protec t the Coles, Serg eant Conrad must have either observe d or had rea son to know o f t h e fo rc e, and have had the opportunity to intervene

. Turner , 119 F.3d at 429. Her e, the fac t s , ev en co n s t rued in the l ight most favor able to the C oles, show neither that Serg eant Conrad knew of the forc e nor that he had the ability to stop it. I t follows that Conrad ca

nnot be held liable on these fac ts, and is entitled to summ ary judgme nt. - 12 -No. 10-2392

Alan Cole, et al. v. City of Dearborn, et al. III. CONCLUSION Fo r the fore g oing rea sons, the decision of the district court is AF F IRMED in part and REVERSED in part. We REMAND to the district court for further proce eding s in confor mity with this opini on.

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