RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0248p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LETICIA RUDOLPH,

Plaintiff-Appellee,

v.

DANIEL T. BABINEC and ROBERT A. ATKINSON, in their 

individual and official capacities, 

Defendants-Appellants.

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No. 18-1901

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:17-cv-00125—Janet T. Neff, District Judge.

Argued: July 31, 2019

Decided and Filed: September 20, 2019

Before: MOORE, COOK, and THAPAR, Circuit Judges.

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COUNSEL

ARGUED: G. Gus Morris, MCGRAW MORRIS P.C., Southfield, Michigan, for Appellants. 

Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, for 

Appellee. ON BRIEF: G. Gus Morris, MCGRAW MORRIS P.C., Southfield, Michigan, for 

Appellants. Amy J. DeRouin, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, 

Michigan, for Appellee.

The court delivered a PER CURIAM opinion in which THAPAR, J., joined in part. 

THAPAR, J. (pp. 15–18), delivered a separate opinion concurring in part and dissenting in part.

>
No. 18-1901 Rudolph v. Babinec, et al. Page 2

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OPINION

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PER CURIAM. There are two sides to every story. Here, the two sides read like they 

come from different books. What really happened on the night Officers Daniel Babinec and 

Robert Atkinson seized Leticia Rudolph in her home for a psychiatric evaluation depends on 

whom you ask. As Rudolph tells it, the officers violated her rights by seizing and injuring her. 

As the officers tell it, they did what any reasonable officer would have done. Because this is a 

limited appeal from summary judgment, we must accept Rudolph’s version and thus affirm the 

district court’s denial of summary judgment on three of Rudolph’s four claims. 

I. BACKGROUND

Late one night, Leticia Rudolph’s ex-husband, Kyle Rudolph, decided to pay her a visit. 

Kyle1 went to check on her after their son had texted him: “[S]he has the .22 out[,] will you go 

over there[?]” R. 53-3 (Incident Rep.) (Pg. ID 182). Rudolph, a single mother, slept with her .22 

gun out every night to feel safe. When Kyle arrived at Rudolph’s home, the two spoke for close 

to an hour about their daughters and their relationship. Kyle decided to take Rudolph’s gun with 

him as he left, which Rudolph let him do. After Kyle left, Rudolph went to sleep. But the night 

did not end there. 

Later, around 3:00 A.M., Officer James Hodges stopped Kyle for speeding. Kyle 

admitted he was carrying a gun. He explained that he took it from his ex-wife earlier that night 

because he was worried about her. And Kyle showed Officer Hodges the text message from his 

son saying Rudolph had her gun out, as well as a text message from Rudolph saying “good bye.” 

R. 53-3 (Incident Rep.) (Pg. ID 182). Meanwhile, Officer Daniel Babinec arrived at the traffic 

stop to assist and secure the gun. Ultimately, the officers let Kyle go with a warning, but they 

felt obligated to do a wellness check on Rudolph. 

 

1We mean no disrespect by the use of Kyle Rudolph’s first name. We use it here only to distinguish 

between Kyle Rudolph and Leticia Rudolph. 
No. 18-1901 Rudolph v. Babinec, et al. Page 3

Officer Babinec, accompanied by Officer Robert Atkinson, went to Rudolph’s home and 

banged on her doors and windows. She was asleep, so she did not answer. After Officers 

Babinec and Atkinson informed Officer Hodges that they could not get a response, Officer 

Hodges followed Kyle into his driveway and told him to call Rudolph. Rudolph answered and 

stated on speakerphone that she was sleeping, and Officer Hodges told her that his officers were 

at the door. Rudolph then got up and opened the door. The officers entered without her 

permission and asked her whether she felt suicidal. Rudolph replied that she was not and felt 

fine. Rudolph generally cooperated with the officers, but the officers, without much further 

inquiry, gave her the option of going voluntarily to the hospital or being taken into custody 

involuntary for a mental-health check. 

Then, according to Rudolph, things took a turn. Rudolph says that Officer Babinec 

grabbed her by the arm without warning, slammed her body and face into the wall, and 

handcuffed her. She told the officers that the handcuffs were “really tight,” and that the officers 

were hurting her. R. 54-2 (Leticia Rudolph Dep.) (Pg. ID 570). They responded that she was 

suicidal. The officers then “manhandled” her out of the house, without giving her a chance to 

put shoes on, and dragged her across her forty-foot driveway. Id. (Pg. ID 570–72). Rudolph 

could not keep up with the officers and asked them to slow down. They did not. Rudolph 

stumbled and hurt her right ankle—so badly that she would later need two surgeries to treat that 

injury. She complained repeatedly to Officers Babinec and Atkinson that the handcuffs were too 

tight, but they did not respond. 

Once in the car, Officers Babinec and Atkinson drove Rudolph to the hospital about ten 

minutes away. The hospital measured her blood alcohol level at .153. The doctor had to wait a 

few hours for Rudolph’s blood alcohol level to go down so he could perform a psychiatric 

evaluation. When it did go down, the doctor performed the psychiatric evaluation and 

determined that “[Rudolph] is at extremely low risk of self harm as she does not appear to want 

to harm herself, has not tried to here and is sober and denies any sort of homicidal or suicidal 

thought or desire.” R. 54-7 (ER Record) (Pg. ID 718); see also id. (noting that Rudolph “appears 

completely sober frankly.”). Rudolph was released. She then sued Officers Babinec and 

Atkinson and Fruitport Township, alleging various constitutional violations. 
No. 18-1901 Rudolph v. Babinec, et al. Page 4

II. QUALIFIED IMMUNITY

This case comes to us after the district court denied Officers Babinec and Atkinson’s 

motion for summary judgment. In this limited appeal, we consider only whether the officers are 

entitled to qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Qualified 

immunity shields government officials from individual liability if they did not violate a clearly 

established right “of which a reasonable person” in the same situation would have known. 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). At this stage, we decide questions of law, not 

questions of fact. The parties continue to disagree over what really happened. But “we must 

ignore the defendant[s’] attempts to dispute the facts and nonetheless resolve the legal 

issue[s] . . . .” Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018) (internal quotation 

marks omitted). In doing so, we accept Rudolph’s “version of the facts” and draw all inferences 

in her favor. Scott v. Harris, 550 U.S. 372, 378 (2007). 

A. Mental-Health Seizure

Rudolph alleges that the officers violated her Fourth Amendment rights when they 

executed a mental-health seizure. In denying qualified immunity to Officers Babinec and 

Atkinson, the district court reasoned that “[t]he general level of uncertainty surrounding the 

veracity of [Kyle’s] account as well as the disparate testimony about Plaintiff’s subsequent 

interaction with the officers are questions of fact bearing on the probable cause issue . . . .” R. 57 

(Dist. Ct. Op.) (Pg. ID 1039). We agree. Although the officers had a reason to show up at 

Rudolph’s door for a wellness check, a jury could reasonably find that the officers lacked 

probable cause when they executed this mental-health seizure. 

It is clearly established law “that in the context of a mental health seizure an officer must 

have probable cause to believe that the person seized poses a danger to [her]self or others.” 

Fisher v. Harden, 398 F.3d 837, 842 (6th Cir. 2005). “A showing of probable cause in the 

mental health seizure context requires only a ‘probability or substantial chance’ of dangerous 

behavior, not an actual showing of such behavior.” Id. at 843 (quoting Monday v. Oullette, 

118 F.3d 1099, 1102 (6th Cir. 1997)). If probable cause exists, a person’s denial that they are at 

risk of suicide does not by itself eliminate that probable cause. See Ziegler v. Auckerman, 
No. 18-1901 Rudolph v. Babinec, et al. Page 5

512 F.3d 777, 779 nn.1–3, 784 (6th Cir. 2008) (granting qualified immunity even though 

plaintiff denied making any suicidal comments, and “plaintiff allegedly suffer[ed] from a mental 

illness that prevent[ed] her from realizing her own need for treatment.”). Further discussion of 

Fisher and Monday reveals another significant point in the analysis for mental-health seizures: 

whether a reasonable officer would question the veracity of a suicide report based on the facts at 

the scene of the wellness check that is done in response to the suicide report. 

The Fisher court held that the officers lacked probable cause to believe that the plaintiff 

was a danger to himself or others. 398 F.3d at 843. In that case, an unrelated third party 

reported that a man had tied himself to railroad tracks and might be attempting to commit 

suicide. Id. When the officers arrived at the scene, however, the facts “would have caused a 

reasonable officer to question the veracity of the attempted suicide report.” Id. Among these 

were the fact that the plaintiff readily complied with the officers’ commands to walk toward 

them, indicating that he was not tied to the railroad tracks; the plaintiff had a hunting rifle, and he 

complied with the officers’ command to drop the gun; the plaintiff was dressed in hunting attire; 

and the plaintiff exhibited no other suspicious or threatening behavior. See id. at 843–44. The 

officers, meanwhile, “never questioned [the plaintiff] to determine if he might be depressed and 

attempting to commit suicide.” Id. at 843. Therefore, although the officers had reason to arrive 

at the scene based on the attempted-suicide report, once they arrived the facts did not give rise to 

probable cause to execute a mental-health seizure.

By contrast, in Monday, the facts at the scene aligned with the suicide report, and the 

court held that the officer had probable cause to believe that the plaintiff would harm himself. 

118 F.3d at 1102. There, an officer responded to a report from a third-party mentalhealth professional that the plaintiff may have been at risk of injuring or killing himself. Id. at 

1101–02. The report indicated that the plaintiff “was upset over a divorce and had ingested some 

pills and was drinking alcohol in an effort to commit suicide.” Id. at 1102. Then, upon arrival, 

the officer observed that “plaintiff in fact was drinking alcohol and appeared intoxicated and 

depressed. A count of his Xanax pills by the officer[] revealed that at least twenty were 

missing.” Id. Based on these facts at the scene, the officer could reasonably conclude that “an 
No. 18-1901 Rudolph v. Babinec, et al. Page 6

unacceptable risk remained that plaintiff was deceiving him in order to attain his apparently 

declared goal of committing suicide.” Id. at 1103 (collecting cases).

This case falls more on the Fisher side of the line. A review of the facts provides a basis 

for the officers to have arrived at Rudolph’s house to check on her. Upon arrival, however, the 

totality of the circumstances “would have caused a reasonable officer to question the veracity of 

the attempted suicide report.” Fisher, 398 F.3d at 843. Or at least a jury could see this case that 

way, and consequently a jury reasonably could determine that the officers lacked probable cause.

We start with the traffic stop of Rudolph’s ex-husband. Officer Hodges pulled over Kyle 

for speeding, and he then observed that Kyle exhibited some signs of intoxication. When Officer 

Hodges asked Kyle to step out of the vehicle for sobriety tests, Kyle then pulled out the .22 

caliber pistol and said he took it from his ex-wife and that she was intoxicated. Importantly, 

there is a question of fact whether Kyle stated that Rudolph was suicidal,2 and there is no 

evidence that Kyle requested the officers to check on Rudolph. See, e.g., Fisher, 398 F.3d at 843 

(a third party called the police to report a suspected suicidal person); Monday, 118 F.3d at 1101–

02 (same); Gooden v. Howard County, 954 F.2d 960, 967 (4th Cir. 1992) (en banc) (same). Kyle 

also showed Officer Hodges some ambiguous text messages. R. 53-3 (Incident Rep.) (Pg. ID 

182) (noting a 1:06 AM text stating “good bye,” and a text from Rudolph’s son stating “she has 

the .22 out will you go over there”). To be sure, a reasonable officer would have some reason to 

be concerned about Leticia Rudolph given these facts—mainly, the son’s text and her alleged 

intoxication. But a reasonable officer also would have thought that it is possible the ex-husband 

was trying to use his ex-wife to get out of his receiving a ticket. After all, in cases like Monday

and Fisher (and many others), someone affirmatively requested the police to check on the 

potentially suicidal person; here, however, an ex-husband (not a current spouse) made no such 

 

2Compare R. 53-3 (Incident Rep.) (Pg. ID 182) (noting Kyle said that Rudolph was suicidal), with R. 54-3 

(Kyle Rudolph Dep.) (Pg. ID 619) (Kyle testifying that he does not remember whether he said that Rudolph was 

suicidal), id. (Pg. ID 628–29) (“I really just wanted to go back home and go to bed, so. . . . You know, she was 

intoxicated and so I just was going to take [the gun] and go home.”), and id. (Pg. ID 644) (Q: “Do you recall ever 

recommending at any point during the conversation that you should take her to the hospital [be]cause you were 

concerned for her life?” A: “No.”). See also R. 57 (Dist. Ct. Op.) (Pg. ID 1039) (“The general level of uncertainty 

surrounding the veracity of [Kyle’s] account as well as the disparate testimony about Plaintiff’s subsequent 

interaction with the officers are questions of fact bearing on the probable cause issue, and the function of the district 

court is not to determine the truth of the matter.”).
No. 18-1901 Rudolph v. Babinec, et al. Page 7

request, and he did not reveal that his ex-wife was supposedly suicidal until only after he himself 

had a run-in with the police.

Then Officers Babinec and Atkinson drove to Rudolph’s house because of their concern 

for her wellbeing. They knocked on the door, but no one responded (and recall, it is after 3:00 

A.M. at this point). So the officers contacted Officer Hodges, who had followed Kyle back to 

his residence, to have Kyle call Rudolph. Kyle complied, and once Rudolph answered, Kyle 

handed the cellphone, which was on speaker phone, to Officer Hodges. Rudolph stated that she 

was sleeping. (Yet Officer Hodges apparently failed to mention this fact to Officers Babinec and 

Atkinson.) At this point, one begins to realize it is likely that Rudolph simply got drunk and fell 

asleep after Kyle left, and Rudolph perhaps did something dumb if she drank alcohol while 

cleaning her gun—but that is a far cry from being suicidal.

The phone call succeeded in getting Rudolph to answer the door, at which point Officers 

Babinec and Atkinson immediately entered her home without her permission. See R. 54-5 

(Babinec Dep.) (Pg. ID 693–94). The officers observed that Rudolph in fact appeared to be 

intoxicated, but she denied being suicidal and stated that she was cleaning her gun. The record 

does not indicate that the officers otherwise asked Rudolph whether she attempted to harm 

herself without the gun (perhaps with a knife or pills), why she did not answer the door, why her 

son might have been concerned about her, or whether she had kids in the house, nor did they ask 

if they could breathalyze her. Indeed, the record is devoid of any mention from the officers that 

they thought Rudolph might overdose on drugs or have drunk alcohol to the point of risking 

death. See Simon v. Cook, 261 F. App’x 873, 880 (6th Cir. 2008) (“Unlike the officers in Fisher, 

[the officer in this case] questioned and observed [plaintiff] at length.”); Monday, 118 F.3d at 

1102–03; Harris v. Pirch, 677 F.2d 681, 689 (8th Cir. 1982) (based on the fact that plaintiff had 

been recently hospitalized, was upset when the officer arrived, and showed the officer a partially 

empty bottle of pills, the court held the officer “had reasonable cause to believe that [plaintiff] 

had attempted to overdose.”).

The officers thus apparently executed this mental-health seizure because they determined 

that Rudolph’s intoxication alone provided support for her ex-husband’s alleged assertion that 

she was suicidal. See, e.g., R. 54-4 (Atkinson Dep.) (Pg. ID 674). That is an unreasonable 
No. 18-1901 Rudolph v. Babinec, et al. Page 8

logical leap. Cf. People v. Triplett, 192 Cal. Rptr. 537, 541 (Cal. Ct. App. 1983) (defendant’s 

“intoxication and weeping standing alone would not justify detention under [a California 

statute],” but the officer had probable cause to detain a woman because of “these symptoms 

coupled with obvious physical signs of a recent suicide attempt”), accord Gooden, 954 F.2d at 

967 (holding that officers were entitled to qualified immunity when a woman was screaming and 

whose condition had caused another person to twice call the officers to the scene). Given the 

totality of the circumstances, Rudolph’s intoxication standing alone cannot provide a basis to 

support her ex-husband’s supposed statement that she was suicidal.

Without any further evidence at the scene of the wellness check or inquiry into whether

Rudolph tried to harm herself, the officers therefore lacked probable cause to execute this 

mental-health seizure. It is undoubtedly dangerous for a person to clean her gun while drinking 

an excessive amount of alcohol, and if Rudolph had been doing that when the officers arrived, 

then they would have probable cause to believe that Rudolph was a danger to herself. But 

everyone in this case was concerned only about the gun, which had been taken away from 

Rudolph.3 Once the danger—i.e., the gun—was removed from the equation, there was no longer 

an unacceptable risk of Rudolph harming herself. Unless, of course, she exhibited suicidal 

behavior. But without the gun, what is left to support probable cause at the scene of the wellness 

check that Rudolph was suicidal? Based on this record and in the light most favorable to the 

plaintiff, we do not see much of anything.

Critically, the “touchstone of the Fourth Amendment is reasonableness. But this standard 

does not become more forgiving as the quality of evidence (or of police work) decreases.” King 

v. United States, 917 F.3d 409, 426 (6th Cir. 2019) (internal quotation marks and citation 

omitted). “Rather, as the” alleged assertion by an ex-husband that his ex-wife is suicidal 

“becomes less reliable . . . an officer’s reliance on that [assertion] becomes objectively less

reasonable and less likely to support a” mental-health seizure. See id. That was the case here, as 

 

3

See R. 54-3 (Kyle Rudolph Dep.) (Pg. ID 628–29); id. (Pg. ID 619); id. (Pg. ID 644); R. 54-4 (Atkinson 

Dep.) (Pg. ID 673–74) (stating that “given the time of the . . . night . . . it seemed a little out of the ordinary [to be 

cleaning a gun],” and that there were no other statements on the scene that would indicate Rudolph needed to be 

taken in for a mental-health exam); id. (Pg. ID 674) (Q: “Other than that, any other statements?” A: “Just the odor 

of intoxicants that I got from her during her statement.”); R. 54-5 (Babinec Dep.) (Pg. ID 693) (Q: “Were you 

concerned that she had other weapons?” A: “Wasn’t really a thought.”).
No. 18-1901 Rudolph v. Babinec, et al. Page 9

it was similarly the case in Fisher: As the events unfolded, the officers’ reliance on the initial 

attempted-suicide report became less reasonable—so much so that a jury could reasonably 

conclude that a reasonable officer lacked probable cause to support the mental-health seizure. 

See Jacobs v. Alam, 915 F.3d 1028, 1041 (6th Cir. 2019) (explaining that “just because we must 

look at the circumstances through the eyes of a reasonable officer does not mean . . . that we 

must accept the officers’ subjective view of the facts when making this assessment. Given the 

interlocutory nature of this appeal, rather, we must conduct the reasonable officer analysis using 

the facts in the light most favorable to plaintiff.”).

The district court questioned Kyle’s credibility in this case, and a reasonable officer 

would certainly have reason to be at least a little suspicious of his assertions. Moreover, 

Rudolph did not otherwise exhibit any signs during the wellness check that would provide an 

arguable basis to confirm the alleged assertion that she was suicidal. Individuals become 

intoxicated late at night in their own homes all the time. Put simply, that alone cannot provide a 

basis for a mental-health seizure. All that remains are Rudolph’s ex-husband’s statements and a 

text from her son that he is concerned about a gun (which had been removed). Once the officers 

arrived, however, they were apparently there for the sole purpose of executing a mental-health 

seizure (not to determine whether she was going to harm herself), and there are no circumstances 

that could have changed their decision to seize Rudolph. Based on the circumstances at least, a 

jury could see it that way.

Finally, the officers were under no legal duty to intervene, DeShaney v. Winnebago Cty. 

Dep’t of Soc. Servs., 489 U.S. 189, 196–97 (1989), though the law surrounding mental-health 

seizures encourages them to do so. Once officers decide to intervene, however, certain 

constitutional requirements kick in—in this case, the officers needed probable cause to believe a 

person was suicidal. Although qualified immunity grants officers leeway for mistakes on 

probable-cause determinations, based on the facts of this case, the probable-cause question is 

better left to the jury. 

Officers Babinec and Atkinson are not entitled to qualified immunity on this claim. 
No. 18-1901 Rudolph v. Babinec, et al. Page 10

B. Handcuffing

Rudolph alleges that the officers used excessive force when they handcuffed her too 

tightly. The Fourth Amendment prohibits excessive force when arresting someone, which 

includes “unduly tight handcuffing.” Lyons v. City of Xenia, 417 F.3d 565, 575 (6th Cir. 2005); 

Walton v. City of Southfield, 995 F.2d 1331, 1342–44 (6th Cir. 1993), superseded by statute on 

other grounds as recognized in Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th 

Cir. 2007). Rudolph demonstrated the three elements needed to make out an excessivehandcuffing claim: (1) she complained that the handcuffs were too tight, (2) the officers ignored 

her complaints, and (3) she suffered “some physical injury” from the handcuffing. Miller v. 

Sanilac County, 606 F.3d 240, 252 (6th Cir. 2010) (citation omitted). And a reasonable officer 

would have known that Rudolph had a clearly established right not to be subject to excessive 

handcuffing. See, e.g., Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401–04 (6th Cir. 

2009). So Officers Babinec and Atkinson are not entitled to qualified immunity from this claim. 

The officers, however, argue that Miller demonstrates that even under Rudolph’s version 

of the facts, they did not violate clearly established law. But Miller is inapposite. There, the 

plaintiff did not complain about the tightness of the handcuffs until he arrived at the jail, at which 

point the handcuffs were removed. Miller, 606 F.3d at 252. Here, Rudolph alleges that she 

complained when Officers Babinec and Atkinson first put on the handcuffs, continued to 

complain on the way to the hospital, and stopped complaining only when the officers finally 

removed the handcuffs. At this stage, we must accept Rudolph’s testimony, so Miller is 

distinguishable. 

Officers Babinec and Atkinson also argue that the handcuffs were on Rudolph for too 

little time to constitute excessive force—in other words, as a matter of law, Rudolph has nothing 

to complain about. The officers propose a bright line rule: ten minutes of handcuffing is not 

long enough for excessive force. And in a prior case, albeit unpublished, we noted that simply 

complaining during a ten-minute car ride was not enough to state a claim. Fettes v. Hendershot, 

375 F. App’x 528, 533–34 (6th Cir. 2010). But Fettes did not set a bright-line rule. Instead, it 

noted that during a short trip, where officers adhere to police protocol and act reasonably, they 

cannot be held liable. Id. Conduct, not time, is the measurement of a violation. To see why, 
No. 18-1901 Rudolph v. Babinec, et al. Page 11

imagine that someone was handcuffed so tightly that she was bleeding from her wrists and 

screaming in pain while an officer ignored the complaint. The law would not require us to 

ignore that excessive force claim because the bleeding went on for ten minutes instead of eleven. 

Rather than specific time limits, what matters in an excessive force claim is whether the Miller 

requirements—complaint, ignoring of complaint, and injury—are met, and whether the officers 

acted reasonably in the circumstances. 606 F.3d at 252; see also Graham v. Connor, 490 U.S. 

386, 388 (1989) (noting that all excessive force claims must be considered under an “objective 

reasonableness” standard). 

In any case, Rudolph says she was handcuffed for longer than ten minutes. The officers 

say Rudolph “acknowledged that she was only handcuffed for 10 minutes.” Appellant Br. at 18. 

Not so. Rudolph acknowledges that the drive to the hospital lasted ten minutes. But she alleges 

she was handcuffed before the ride to the hospital, and the handcuffs were not removed until 

after she got there—she says the total time was thirty minutes. To back up this claim, she notes 

that the officers arrived at her house at 3:24 A.M., and she was seen at the hospital at 3:54 A.M. 

So even if Officers Babinec and Atkinson were right that ten minutes in handcuffs is too short as 

a matter of law, Rudolph alleges that she was handcuffed for longer. And at this stage of the 

proceedings, we accept her version of the facts as true. See Scott, 550 U.S. at 378. Under that 

version of the facts, Rudolph told the officers the handcuffs were too tight and that they were 

hurting her, and the officers “[d]idn’t say anything at all[.]” R. 54-2 (Leticia Rudolph Dep.) (Pg. 

ID 571). In fact, no one ever adjusted the handcuffs. So the officers violated Rudolph’s clearly 

established right to be free from too-tight handcuffing by unreasonably ignoring her repeated 

complaints. 

Finally, Officers Babinec and Atkinson say that Rudolph has failed to provide enough 

evidence to prove that they violated her right against excessive handcuffing. According to them, 

Rudolph provided only a “subjective assessment” of her injury. Appellant Br. at 16–18. They 

are incorrect. True, a subjective recounting of pain without some corroboration is not enough. 

See Miller, 606 F.3d at 252. But Rudolph provided photos she took one day after the incident, 

showing the injuries on her hands, wrists, and arms. And a picture is often worth a thousand 
No. 18-1901 Rudolph v. Babinec, et al. Page 12

words. The pictures coupled with her testimony suffice at this stage to withstand a qualified 

immunity challenge. 

C. Other Excessive Force

Rudolph also alleges that the officers used excessive force when they pushed her against 

the wall and dragged her to the police car. The right to be free from excessive force during an 

arrest is clearly established. Kostrzewa v. City of Troy, 247 F.3d 633, 641–42 (6th Cir. 2001). 

But not every use of force violates the Constitution. Police officers may “use some degree of 

physical coercion or threat thereof to effect [an arrest].” Id. at 639 (citation omitted). That force 

must be objectively reasonable, judged “from the perspective of a reasonable officer on the 

scene.” See Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008) (citation omitted); see also 

Kostrzewa, 247 F.3d at 639 (explaining that the force should be considered in the context of the 

arrest scene, not “the peace of a judge’s chambers” (citation omitted)). The Supreme Court has 

urged “careful attention to the facts and circumstances of each particular case” but noted two 

factors to guide our inquiry: (1) “whether the suspect poses an immediate threat to the safety of 

the officers or others,” and (2) “whether [she] is actively resisting arrest or attempting to evade 

arrest by flight.” Graham, 490 U.S. at 396.

Officers Babinec and Atkinson argue that, even taking the facts as Rudolph alleges them, 

their use of force was objectively reasonable. They provide four reasons why that is so: (1) they 

believed Rudolph was intoxicated; (2) she did not answer the door when they first knocked 

between 3:00 A.M. and 4:00 A.M.; (3) she denied being suicidal; and (4) she moved away from 

Officer Babinec when he first tried to handcuff her.

Those reasons are not enough. The officers are asking us to weigh their evidence over 

Rudolph’s. This we cannot do. Construing the facts in Rudolph’s favor, the officers slammed 

her face and body into a wall, pulled her out of her house, and dragged her down a long driveway 

so roughly that she needed multiple surgeries. And all this even though she alleges that she 

complied with their orders, was not attempting to flee, and in that moment posed no apparent 

threat to herself or others. Our court has found excessive force in analogous cases. Solomon v. 

Auburn Hills Police Dep’t, 389 F.3d 167, 173–75 (6th Cir. 2004) (denying qualified immunity 
No. 18-1901 Rudolph v. Babinec, et al. Page 13

for excessive force claim where officers tried to knock a woman down with a leg sweep, shoved 

her against a display case, and yanked her arm so hard it fractured—even though she was 

compliant). In Solomon, the plaintiff even “admitted that she pulled her arms together as the 

officers seized her to avoid the officers’ attempt to handcuff her,” id. at 176 (Rogers, J., 

dissenting), while Rudolph denies anything of the sort. The officers are not entitled to qualified 

immunity. 

III. STATE-LAW CLAIMS & MICHIGAN GOVERNMENTAL IMMUNITY

Rudolph alleges that the officers violated Michigan state law when they seized her and 

took her involuntarily to the hospital. The district court denied the officers immunity under 

Michigan law. Our court has held that a denial of Michigan governmental immunity may be 

immediately appealed. Kindl v. City of Berkley, 798 F.3d 391, 403 (6th Cir. 2015); Smith v. 

County of Lenawee, 600 F.3d 686, 689 (6th Cir. 2010) (“[T]his court has consistently . . .

allowed interlocutory appeals to be taken from orders granting or denying governmental 

immunity under [Mich. Comp. Laws] § 691.1407.”). So we review the denial de novo and, as 

above, draw reasonable inferences in favor of Rudolph. Kindl, 798 F.3d at 403.

The district court applied the wrong legal standard when it analyzed this claim. The 

district court resolved this claim based on the lack of objective probable cause for Rudolph’s 

mental-health seizure. But since Rudolph brought these claims under Michigan law, the usual 

objective reasonableness standard is not relevant here. Though federal law usually examines 

whether the officers had probable cause or reasonably could have believed that they did, 

Michigan law asks a different question: whether the arrest was “undertaken in good faith, or 

w[as] not undertaken with malice . . . .” Odom v. Wayne County, 760 N.W.2d 217, 228 (Mich. 

2008). Thus, the question is whether the officers showed “malicious intent, capricious action or 

corrupt conduct” or “conduct or a failure to act that was intended to harm the plaintiff [or] . . . 

that shows such indifference to whether harm will result as to be equal to a willingness that harm 

will result.” Id. at 225 (citation and internal quotation marks omitted). 

Rudolph has not alleged such malice. Instead, she rests her argument on the lack of 

probable cause, further arguing that the officers were “blatantly indifferent” to that fact. 
No. 18-1901 Rudolph v. Babinec, et al. Page 14

Appellee Br. at 41–42; id. at 41 (“Defendants-Appellants still unlawfully and falsely arrested 

Plaintiff-Appellee and transported her to a hospital for an unnecessary medical evaluation against 

her will though she had committed no crimes and did not pose an immediate threat of danger to 

herself or others.”). But the absence of probable cause does not automatically lead to malice, 

and Rudolph alleged no facts to support her bare conclusion that the officers acted with malice. 

The closest Rudolph comes to showing bad faith is pointing to Officer Babinec’s testimony that 

he never inquired if there were any other weapons in Rudolph’s home, and he admitted that it 

was not a concern to him at the time. This failure to inquire further does not rise to the level of 

“wantonness or a reckless indifference to the common dictates of humanity.” Odom, 

760 N.W.2d at 225 (emphasis omitted) (quoting Firestone v. Rice, 38 N.W. 885, 888 (Mich. 

1888)). Thus, we reverse the district court’s denial of Michigan governmental immunity. 

IV. CONCLUSION

We AFFIRM the district court’s denial of summary judgment on Rudolph’s claims of an 

unlawful mental-health seizure, excessive force for too-tight handcuffing, and excessive force 

during the seizure. We REVERSE the district court’s denial of summary judgment on 

Rudolph’s state-law claim of false arrest and imprisonment.
No. 18-1901 Rudolph v. Babinec, et al. Page 15

__________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

__________________________________________________________

THAPAR, Circuit Judge, concurring in part and dissenting in part. To get the right 

answer, we must ask the right question. For qualified immunity, the right question is not 

whether Officers Babinec and Atkinson took the best possible course of action when they 

brought Leticia Rudolph to the hospital for a mental health evaluation. The right question is not 

even whether they were correct to fear that Rudolph might harm herself. Instead, the right 

question is whether the officers were “plainly incompetent” in fearing that Rudolph might harm 

herself. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). They were not. 

Though the parties tell different stories, the core facts underlying the seizure are 

uncontested. The officers pulled Kyle Rudolph over for speeding. He admitted to carrying a gun 

and told the officers that he took the gun from Rudolph “so she wouldn’t harm herself.” R. 53-4, 

Pg. ID 204. The officers also recall him saying that Rudolph was suicidal.1 Kyle Rudolph then 

showed Officer Hodges text messages from both Rudolph’s son and Rudolph herself suggesting 

she might be at risk. Finally, the officers found Rudolph intoxicated. So the officers knew that 

(1) close family members were worried that Rudolph might harm herself, (2) one family member 

was so worried that he had taken away Rudolph’s registered weapon at the request of another 

concerned family member, and (3) Rudolph was intoxicated. Given these facts, an officer in the 

field could have reasonably concluded that Rudolph might harm herself. 

The law is also clear. First, we must view these facts in totality, not in isolation. See 

Wesby, 138 S. Ct. at 588–89. It is all too easy to “identif[y] innocent explanations” for specific 

facts. Id. at 589. But this kind of “divide-and-conquer approach is improper.” Id. Second, 

when it comes to probable cause, we deal in “probabilities,” not certainties. Id. at 586 

 

1Although Kyle Rudolph does not recall saying that Rudolph was suicidal, that is of no moment for 

summary judgment purposes. A mere memory lapse does not discredit the officers’ testimony; Rudolph cannot 

“beat something with nothing.” Wysong v. City of Heath, 260 F. App’x 848, 858 (6th Cir. 2008). And even if Kyle’s 

forgetfulness cast doubt on the officers’ story, it would not matter because “discredited testimony is not [normally] 

considered a sufficient basis for drawing a contrary conclusion.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

256–57 (1986) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984)).
No. 18-1901 Rudolph v. Babinec, et al. Page 16

(“Probable cause is not a high bar.” (internal quotation marks omitted)). And third, we are 

ultimately trying to determine whether, given the undisputed facts, the officers were “plainly 

incompetent” when they concluded that Rudolph might harm herself. Id. at 589. They were not. 

The majority missteps because it takes undisputed facts—the texts—and construes them 

in isolation and in a particular light. But if facts are undisputed, the question is not whether we

can think of an alternative, innocent explanation. The question is whether any reasonable officer

could draw a different inference without crossing into plain incompetence. See id. at 587 (asking 

whether “[a] reasonable officer could infer” a conclusion from the undisputed facts). Take 

Rudolph’s text “Good bye.” No one disputes the officers saw it. Rather, the dispute is how a 

reasonable officer could understand those words given the circumstances. Could they construe it 

as good riddance? Sure. But was it unreasonable for the officers to worry the text meant 

goodbye forever? No. Given the information known to the officers—that Rudolph’s gun had 

been confiscated, that her own son was concerned, and that her ex-husband told the officers that 

Rudolph might harm herself—the officers were not plainly incompetent to err on the side of 

caution.

In addition, while intoxication alone means little, it means much more given the 

surrounding facts. Id. at 588 (“Our precedents recognize that the whole is often greater than the 

sum of its parts—especially when the parts are viewed in isolation.”). No one can dispute that 

intoxicated people make detrimental choices they otherwise would not make if they were sober. 

So the officers were surely reasonable in concluding that Rudolph’s intoxication heightened the 

risk of harm.

Nor does it matter that the officers relied on family members rather than a medical 

professional to determine that Rudolph was at risk. Officers do not have the luxury of consulting 

a mental health professional when they are deciding whether to take someone to a mental health 

professional. See, e.g., Simon v. Cook, 261 F. App’x 873, 874, 877, 881 n.4 (6th Cir. 2008). 

After all, the officers took Rudolph to see a medical professional, not to jail. 

Qualified immunity grants police officers leeway to exercise reasonable judgment. 

Sometimes that judgment will mean the difference between life and death. For this reason, the 
No. 18-1901 Rudolph v. Babinec, et al. Page 17

Supreme Court has “stressed that the specificity of the [clearly established] rule is especially 

important in the Fourth Amendment context.” Wesby, 138 S. Ct. at 590 (internal quotation 

marks omitted). In Fourth Amendment cases, it is especially difficult for an officer to apply the 

relevant legal doctrine to the ongoing situation in front of him. Kisela v. Hughes, 138 S. Ct. 

1148, 1152 (2018). Thus, the Supreme Court has repeatedly “stressed the need to identify a case

where an officer act[ed] under similar circumstances” and was found to violate the Fourth 

Amendment. Wesby, 138 S. Ct. at 590 (emphasis added) (internal quotation marks omitted).

The Majority Opinion has not identified such a case. It notes instead that this case “falls 

more on the Fisher side of the line.” Majority Op. at 6 (citing Fisher v. Harden, 398 F.3d 837 

(6th Cir. 2005)). That is a far cry from identifying a specific case with similar circumstances that 

would give an officer fair notice. Wesby, 138 S. Ct. at 590; see also Ashcroft v. al-Kidd, 563 

U.S. 731, 742 (2011) (warning courts “not to define clearly established law at a high level of 

generality”; what matters is “whether the violative nature of particular conduct is clearly 

established” (emphasis added)). But even if falling more on one side of a line were enough, 

I respectfully disagree that this case is like Fisher. In Fisher, an unrelated passerby called the 

police because they thought a man 250 yards in the distance might be attempting suicide by tying 

himself to the railroad tracks. Fisher v. Harden, 398 F.3d 837, 840 (6th Cir. 2005). Because the 

tip lacked veracity, this circuit held the officers did not have probable cause for a mental health 

seizure. Id. at 843. Here, by contrast, the concern came not from a random passerby far in the 

distance, but from two family members who knew Rudolph very well, including her own son. 

A reasonable officer would not have read Fisher to prohibit reliance on concern from family 

members. See Wesby, 138 S. Ct. at 590; al-Kidd, 563 U.S. at 742. So it did not provide fair 

notice to the officers here.

Courts must remember that law enforcement officers must protect the public in an 

uncertain and dangerous world, not the cold crucible of the courtroom. See City & Cty. of San 

Francisco v. Sheehan, 135 S. Ct. 1765, 1775 (2015); Cole v. Carson, No. 14-10228, 2019 WL 

3928715, at *22 (5th Cir. Aug. 21, 2019) (en banc) (Ho, Oldham, JJ., dissenting) (noting that 

most judges have not experienced the real-world difficulties of policing). In that world, officers 

don’t have time to debate whether the emergency in front of them falls “more on [one] side of 
No. 18-1901 Rudolph v. Babinec, et al. Page 18

the line” of precedent than another. Majority Op. at 6. Indeed, the specificity requirement of 

qualified immunity protects officers from this very paralysis by analysis. As the Supreme Court 

repeatedly reminds us, “[a] rule is too general if the unlawfulness of the officer’s conduct does 

not follow immediately.” Wesby, 138 S. Ct. at 590 (emphasis added) (quotation marks and 

citations omitted). In short, the rule must “obviously resolve whether the circumstances

. . . constitute[d] probable cause.” Id. The majority’s “which side of the line rule” simply does 

not. 

One need only consider some examples to see the importance of this point. Imagine the 

police receive a tip from a man’s ex-wife and daughter saying they confiscated his weapons 

because they feared he would commit a mass shooting. His family members were worried about 

his mental state and believed him to be at risk of violence. Surely the police should not refrain 

from taking the man in for a mental health evaluation just because the concern came from family 

members alone. Or imagine that a man’s children tell police officers on the street that they are 

worried their father might hurt their mother because he is having flashbacks that cause him to 

lash out violently. When the officers arrive at the home, they find the man intoxicated, though 

he denies that there is any problem. Should the officers really take a chance in that situation? 

Qualified immunity exists to insulate these difficult judgment calls. We would all be ill-served if 

it did not. 

I fear we have placed officers in an untenable catch-22. No doubt, if the officers here had 

failed to act and were wrong, they would have faced significant criticism and personal guilt. 

Maybe even legal consequences. Qualified immunity does not enforce a regime of “damned if 

they do, damned if they don’t.” Just the opposite. It protects reasonable but mistaken judgment 

calls made in extremely difficult situations. Because the officers could have reasonably believed 

that they had probable cause for a mental health seizure under these facts, they should receive 

qualified immunity. Thus, I respectfully dissent from the denial of qualified immunity for the 

mental health seizure and concur on all other issues.