F ile Nam e: 11a0705n.06 NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION No. 10-1050 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ROBERT B OZ UNG, Plaintiff-Appellant,

v. OFF I CER TRAVI S RAW SON, OFF I CER J OHN WI L SON, and THE CHA RTER TOWNSHI P OF DEWI TT Def endant- Appellee s. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Be fore : BO GGS and KETHL EDGE, Circuit Judge s; a nd COL L I ER, Chief District J udg e. *

CURTIS L. COLLIE R, Chief District Judge

. Plaintiff-Appella nt Robert Bozung (“B ozung”) appea ls an order of the district court g ranting a motion for summary judgme nt in favor of De fenda

nt-Appellee s Travis Rawson ( “Of fice r Rawson” ), John W ilson (“Off icer Wil son”) a

nd the Charter Township of DeWitt (or the “Township”) in reg ards to Bozung ’s federa l 4 2 U. S .C. § 1983 claims. As previously stipulated by the parties, all claims ag ainst Offic er Wil son on appea l have be en dismissed.

For the re asons set for

th below, we A FF I RM the district court’s judg ment.

The Honora

ble Curtis L

. Colli er, Chief United States District J udg e for the Easter n District * of Tenne ssee, sitting by

desig nation.No. 10-1050

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ilson, and T

he Charter Townshi

p of DeW itt
I. Relevant F acts / P roce dural Hi story

A. F actual Background
On J une 6, 2007, Bozung was returning from a trip to a l o ca l gro cery store in L ansing , Michig an. Bozung was fifty -four (54) y ear s old and had health issu es ar i s i n g from a stroke he suffe red at ag e twenty -eig ht (28). He had also suffe re d from a fra cture d ankle and had a hip repla ceme nt due to a bone de ficienc y .
One of Bozung ’s neig hbors had asked him t o gi v e her a ride to buy g roce ries; howeve r, Bozung explained to her that he could not drive beca use his license was suspended. As a result, the neig hbor sug g ested that Bozung allow a friend of hers to drive his truck. Subsequently , the three of them - B ozung, his neig hbor, and his neig hbor’s fr iend - drove to the g roce ry store.
As the three approa ched Bozung ’s apar tment complex upon their return, Offic er Rawson of the DeWitt Township Police Depa rtment stopped Bozung ’s vehicle b ec au s e Offic er Rawson considere d the rosar

y hang ing from Boz ung ’s rea r-view mirror to be a vision obstruction. The unknown driver of Bozung ’s vehicle stopped the vehicle in the middle of the street and fled the

scene . Offic er Raw son pursued the individual in his patrol car and called for back up, but he was unable to a

pprehe nd the individual. When he returne d to the truck, he observe d Bozung , who had moved over into the driver’s s eat, slowly driving the vehicle i n t o t h e p ar k ing lot of t he apartment

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p of DeW itt complex. Acc ording to Offic er Rawson, he order ed Bozung to stop the vehicle; Bozung , howeve r, claims Offic er Rawson did not say any thing to him nor did he motion for Bozung to stop the vehicle.

Once Offic er Rawson approa ched the truck, he made contac t with Bozung and his neig hbor. He asked them to identify the flee ing driver, but bot h cl aim ed they did not know him. I n Offic er Rawson’s opinion, Bozung was obviously in to xic a te d

. He smelled of alcohol, later reg istered a .18% blood alcohol level, and had urinated himself. Offic er Rawson confirme d with dispatch that Bozung

was the owner of the truck. He also ran a L EI N che ck for

outstanding war

rants. Bozung did ha

ve
a misdemeanor war

rant for failure to appea

r in a local court. Once Offic er Rawson advised Bozung there was a war

rant for his a

rre st, he order ed Bozung to ge t out of the truck and informed him that he was under arr est. I t is at this point that Bozung ’s and Def endant- Appellee s’s versions of events differ g rea tly

.
1. Bozung’s Version of Events
Acc ording to Bozung , he exit ed the truck and complied with Offic er Rawson’s instructions to fac e the truck. He t h en placed his hands on the bed of hi s truck. At that time, Offic er Rawson asked Bozung to sprea d his leg s. Alth o u gh Bo z u n g states he told Offic er Rawson that he was dis ab l ed and could not phy sically comply with the order s quickly , Bozung states Offic er Rawson beg an kicking the inside of Bozung ’s leg s. Bozung also asser ts he told Offic er Rawson his ag e, and he told him that he had a total rig ht hip-repla ceme nt and had plate and scre ws in his rig ht ankle. I n
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p of DeW itt Bozung ’s vi ew, becaus e h e wa s not moving quickly enoug h, Offic er Rawson told him they could handle the s i t u at ion “the easy way or the hard way .” Then, despite Bozung ’s protests, Offic er Rawson g rabbe d one of Bozung ’s arms and broug ht Bozung down on to the paveme nt or asphalt. Bozung contends “he was thrown to the g round almost immediately afte r advising the office r of his handica p.” I n addition, he states Offic er Rawson failed to advise him as to why he was b eing

arr ested, and Offic er Rawson did not ask him to place his ha nds or arms behind his back befor e he

was thrown to the g round. Acc ording to Bozung , his interac tion with Offic er Rawson, prior to being taken down to the g round, lasted a pproxi mately

two to three minutes.

Once Bozung was on the g round, Offic er Rawson pulled Bozung ’s arms behind his back to handcuf f him. Bozung claims he asked Offic er Rawson to loosen the handcuf fs beca use they wer e too tight. Howe ver, O ffice r Rawson re fused to do so.

At some point, Offic er J ohn Wil son, a publ i c s af et y office r at the Capitol Reg ion Airport Authority , arr ived at the scene . Bozung sug g ests Offic er Wil son was involved in throwing Bozung to the g round, and he specific ally alleg es Offic er Wil son put his foot on Bozung ’s neck while he was ly ing, fac e-dow n, on the paveme nt. Stil l, Bozung admits he could not see Offic er Wil son while he

was ly ing fac e-dow n on the g round. Bozung also alleg es Offic er Rawson had his knee in the cente r of Bozung’s back. As a result of t hese interactions, Bozung suffere d from lacera tions to his fac e, a broke n thumb, and perma nent spinal cord injurie s.

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I n response to the Def

endant- Appellee s’ motions for summary judgme nt, Bozung prese nted the deposit i o n testimonies of two witnesses to corr oborate parts of his story
. J ames L eg g ions (“L eg g ions”), one of Bozung ’s neig hbors, testified he saw the events unfold as the driver fled from Bozung ’s truck. He later saw Bozung g et out of his vehicle. To him, Bozung appea red to be holding onto the back of his truck to keep his balanc e. Howeve r, he did not hear Bozung say any thing to the office rs, and he could not g ener ally understand what the office rs said to Bozung , except he thought Offic er Rawson order ed Bozung t o s t ay inside the truck. Nonethele ss, he testified it was clea r Bozung was having trouble walking , and in his opinion, Offic er Rawson “slammed” Bozung to the g round beca

use Bozung would not g ive the identity of the driver. Acc ording to L eg g ions, it was Offic er Raw son who place d his foot somewhere on Bozung ’s nec k.
Melanie Har

ris (“H arr is”), wh o wa s supposedly Bozung ’s g irlfriend at the time of the incident, testified that she saw Offic er Rawson kicking Bozung ’s leg s apar t when Bozung first g ot out of his truck. She also states she hear d Bozung asking the office r to stop beca use he was disabled. I n addition, Har

ris contends other i n d i v i d u als in the forming crow d, including herse lf, shouted at Offic er Rawson to tell him that Bozung was “handic apped.” Despite their protests, Offic er Rawson told Bozung he must “wa

nt this done the hard way ,” and he twisted Bozung ’s arm and slammed him to the ground. According to her testimony , it was the second office r, Officer Wil son, who pl ace d his foot on the upper part of Bozung ’s back. L ike L eggi o n s , she believed Offic er Rawson threw Bozung to the g round immediately afte r B ozung informe d him of his disabili ties.

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As a result of these events, Bozung claims he “suff ere d lace rations to the fac e which require d stitches[,]

. . . [h] is thumb was broken[,]

. . . [and] [t ]he ha ndcuff s cut his ha

nd, leaving perma

nent marks.” Bozung also contends he suffe red more serious injuries. I n the three wee ks following his

arr est, “he beg an to lose the use of his arms and had trouble walking

. He experience d numbness from the back of his neck, betwee n the shoulders, working down both arms, then down his leg s. An MRI reve aled c ervic al cor d contusion.”

2. Of

fi cer Rawson ’s Ver sion of Events
Acc ording to Offic er Rawson, when he order ed Bozung to g et out of h i s vehicle, Bozung “wa lked on his own volition along t he side of it.” Although he asked Bozung to sprea d his leg s, Offic er Rawson contends he did not use his foot to kick Bozun g’s l eg s apar t, and he contends Bozung never informed him of any disabiliti es. I ndeed, Offic er Rawso n as s er ts there was no indication that Bozung was phy sically unable to comply with the order s or that he was disabled. At the time, Bozung did not have a disability sticker on his license plate or a disability tag hang ing from his rear view mirror . He a lso did not park in a par king spot de signa

ted for disa

bled driver s.
Offic er Raw son then order ed Bozung to pla ce his hands behind his back to be handcuf fed, and he g ave him multipl e opportunities to comply with the order over the course of thirty seconds. Bozung alleg edly ref

used and g ripped the bed of the truck. Nonethele ss, Offic er Rawson conce des Bozun g s t at ed , “w ai t, wait,” or “I am, I am” in response to Offic er Rawson’s commands. Stil l,
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Offic er Rawson asser

ts Bozung did not provide any explanation as to why he could not put his hands behind his back to be handcuf fed. After unsucce ssfully try ing a “mus cling technique” to rele ase Bozung ’s g rip on the truck, Offic er Rawson believed “fur ther action wa s war

rante d,” even though he would not cha

rac terize Bozung ’s non-c ompliance a s active r esistence

.
At this point, Offic er Rawson decide d to employ a technique called a “straig ht arm bar takedown.” This is a “soft empty hand control technique.” Howeve r, when Offic er Rawson g rabbe d Bozung ’s rig ht hand, it appea red to him that Bozung was pulling awa y from him. Once Bozung was
on the g round, Offic er Wil son, who Offic er R awson noticed for the first time, assisted Offic er Rawson in handcuf

fing Bozung

.
At this time, Offic er Rawson admits he may have had his knee on Bozung ’s shoulder blade, but this was done to help s ec u re the handcuf fs. After Bozung was handcuff ed, he was assisted to his fee t by the office rs and place d in Offic er Rawson’s patrol car . Be cause Offic er Rawson noticed Bozung had a small cut ab o v e his ey e and an injury to his thumb, Bozung was transporte d to the hospital for treatment. Bozung was re lease d from the hospital af ter a fewhours.

3. Of

fi cer Wilson ’s Ver sion of Events
Offic er Wil son was o n duty at the Capitol Reg ion Airport on J une 6, 2007. He hear d the transmission from Offic er Rawson stating he was in pursui t o f a fl eeing suspect and neede d assistance

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When he arr ived at the scene , Offic er Wil son observe d a crow d forming o u t s i d e of the apar tment complex. He then saw Bozung standing outside of his truck, and he hear d Offic er Rawson inform Bozung of the outstanding war rant for his arr est. Al t houg h Offic er Wil son did not hear Bozung respond to this information, he saw Bozung walking , on his own volition, to the rea r end of Bozung ’s truck. The re, B ozung g rabbe d onto and held the be d of the truc k.
When Offic er Rawson order ed Bozung to place his hands behind his back, Bozung responde d, “I am, I am.” At no point did Offic er W ilson hear Bozung explain to Offic er R aw son that he was disabled, nor did Bozung ever make such statement to Offic er Wil so n . I n s t ea d , it appea red to Offic er Wil son that Bozung was being noncompliant by continuing to hold onto the bed of the truck. Finally , afte r g iving Bozung multipl e opportunities to place his hands behind his back, Offic er Raw son g rabbe d Bozung ’s ar m to pry him away

from the truc k.

I t appea red to Of fice r Wilson that once Offic er Rawson fre ed B ozung’s a rm, Bozung tried to pull awa

y from Office r R aw s o n . Uns ure as to whether Bozung was attempting t o flee , Offic er Wil son g rabbe d Bozung ’s other arm in an eff ort to assist. As a result of Offic er Rawson’s straig htarm ba r take down, all three of the men w ent to the g round.
Whil e Bozung was on the g round, Offic er Wil son claims he crouc hed along side Bozung in order to guide one of B ozung’s a rms behind hi s back so Of fice r Rawson c ould handcuf f B ozung. At no point did he place his foot on B ozung’s ne ck.
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B. P roce dural Hi story

Boz u n g fi l ed a complaint in the Western District of Michig an on April 11, 2008. The complaint alleg ed Officer Rawson, Officer Wil son, and the Charter Township of DeWi tt violated Bozung ’s civil r ights pursuant to 42 U.S.C. § 1983. Spec ifically , Bozung alleg ed Offic er Rawson and Offic er Wil son used unrea sonable and excessive forc e in eff ectua ting his arr est. Plaintiff then contende d the Township failed to train i ts office rs i n the proper us e of forc e and failed t o t rain it s office rs to proper l y accommodate individuals with disabiliti es. Bozung ’s three rema ining counts

wer e broug ht under state la w. He a lleg ed the officer s’s conduct constitut ed gross neg lige nce. He also asser ted claims for assault and battery ag ainst the office rs. Finally , Bozung broug ht a cl ai m ag ainst all three of the defe ndants for violating the Michig an Persons with Disabilities Civil Rights Act.

I n response to Bozung ’s complaint, Offic er Wil son, Offic er Rawson, and the Township filed motions for summary judgme nt. The district c ourt g rante d in pa rt and denied without pr ejudice in part Offic er Wil son’s motion, dismiss ing the fede ral law claims ag ainst Offic er Wil son. The district court also g rante d in part and denied in part Offic er Rawson and the T o wn s h i p ’s m otion for summary judgme nt. All feder al claims wer e dismiss ed ag ainst them as well. F inally , beca use the C o u rt had dismiss ed all fede ral claims ag ainst all of the defe ndants, it declined to exe rc i s e supplemental jurisdiction over B ozung’s state law cla ims.

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On Bozung ’s § 1983 claims, the district court found Bozung had not “esta blished the actions of the office rs wer e unrea sonable under the totality of the circ umstances.” Bozung v. Rawson , No. 1:08-cv-339, 2009 WL 2413624, at *6 (W.D. Mich. Aug

. 4, 2009). Although the court considere d the fac ts in a l i ght most favor able to Bozung , it found summary judgme nt was war rante d. As to Offic er Rawson, the court found he acte d rea sonably when he forc ed Bozung to comply throug h his straig ht-arm ba

r take down. To support this finding , the court cited the following fac ts: “(1) whe n [Officer Rawson] attempted to stop [Bozung’s] vehicle, the driver of the vehicle had fled the scene ; (2) [Bozung], the owner of the vehicle, [had] a war rant for his arr est; and (3) neither the vehicle nor [Bozung] had been sear ched.” Id. (interna l citations omitted). The court also cre dited Offic er Rawson’s an d Of

fi cer Wil son’s testimony that Bozung had been given a number of opportunities to place his ha

nds behind his back, a

nd he fa iled to comply . I n addition, Bozung failed to e x plain why he wa s unable to do so. Id.

As to Offic er Wil son, the district court found Bozung ’s alleg ations wer e totally contra dicted by the rec ord. Id. at *7. I ndeed, Bozung did not see who place d a foot on his neck, and none of the witnesses saw O ffice r Wilson do s o. Next, the district c ourt found that even if the office rs made a mistake, they wer e entitled to qualified immunit y . Id. Ac co rd i n g t o t hat court, any mistake made was rea sonable, and Bozung failed to demonstrate that the office rs had violated a clea rly established rig ht. Id. at *8, 9. Be cause

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the district court found no individual defe ndant violated Bozung ’s constitutional rig hts, it also dismiss ed the f

eder al claims ag ainst the Township . Id. at *9.

As a result of the district court’s ruling s, Bozung filed a motion for rec onsideration. Bozung

v. Rawson , No. 1:09-cv-3 3 9 , 2 0 0 9 W L 5149917 (W.D. Mich. Dec

. 16, 2009). That motion was denied. Bozung now appea ls the district court’s decision, and he moves this Court to reve rse t h e district court’s g rant of summar y judgme nt in favor of

Offic er Raw son and the Township.

II. Stand ard of Review

Be cause Bozung appea ls the district court’s g rant of summ ar y j u d gment, this Court must

re v i ew de novo the district court’s ruling

. Alspaugh v. McConnell , 643 F.3d 162, 168 (6th Cir. 2011). Summary judgme nt is prope r “if the movant shows that there is no ge nuine issue as to a ny materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a)

. The moving party bear s the burden of demonstrat i n g n o g enuine issue of m ater ial fac t exis ts. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Leary v. Daesc hner , 349 F.3d 888, 897 (6th Cir. 2003). The Court should view the evidenc e, including all rea sonable infere nces, in the light most favor able to the nonmoving party
. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). Her e, Bozung alleg es t he district court disreg arde d or di scre dited his version of events. Howeve r, “[ c]onstruing the fac ts on summary judgme nt in the light most fa vorable to the non-moving party usually means
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p of DeW itt adopting the plaintiff’s version of the fac ts.” Coble v. City of W hite House, Tenn. , 634 F.3d 865, 868 (6th Cir. 2011)

. On the other hand, if plaintiff’s version of events “is blatantly contra dicted by the

rec ord, so that no rea sonable jury could believe it, a court should not adopt that version of the fac ts for purposes of ruling on a motion for s u m m ar y judgme nt.” Scott v. Harris , 550 U.S. 372, 380 (2007).

I n addition, to survive a motion for summary judgme nt, “the n o n m o ving party must g o bey ond the pleadings an d come forwa rd with specific fac ts to demonstrate that there is a g enuine issue for trial.” Chao v. Hall Holding Co., Inc. , 285 F.3d 415 , 4 2 4 (6th Cir. 2002). I ndeed, a “[plaintiff] is not entitled to a trial on the basis of mere alleg ations.” Smith v. City of Chattanooga , No. 1:08-cv-63, 2009 WL 3762961, at *2, 3 (E.D. Tenn. Nov. 4, 2009) (explaining the Court must d et er mine whether “the rec ord contains sufficie nt fac ts and admissible evidenc e from whi ch a rational jury could rea sonably find in favor of [t he] plaintiff”)

. I n addition, should the non-moving party fail t o provide evidence to support an e s s enti al element of t he case, the movant can meet i ts burden by pointing out such failure to the Court. Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1479 (6th Cir. 1989).

At summary judgme nt, the Court’s role is limit ed to deter mining whether the case contains sufficie nt evidenc e from which a jury could rea sonable find for the non-movant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). I f the Court conclude s a fair- minded jury could not return

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a verdic t in favor of the non-movant based on the rec ord, the Court should enter summary judgme nt. Id. at 251-52; Lansing Dairy, Inc. v. Espy , 39 F.3d 1339, 1347 ( 6th Cir. 1994). III. Analysi s
A. Of

fi cer Rawson To preva il on his 42 U.S.C. § 1983 claim ag ainst Offic er Raw son, Bozung must show that “a person acting under color of state law deprived [ h i m ] o f a rig ht secur ed by the Constit ution or laws of the United States.” Smoak v. Hall , 460 F.3d 768, 777 (6th Cir. 2006). Her e, Bozung alleg es two distinct instances of excessive forc e, which is prohibited under the Four th Amendment. Slusher

v. Carson , 540 F. 3 d 449, 454 (6th Cir. 2008). First, he alleg es either Offic er Rawson or Offic er Wil son, or both, threw him to the g round as he was standing by the truck. Second, he alleg es once he wa s on the g round, one or both of the off

icer s place d their knee or foot on his spinal cord.

“A claim of exces s i v e fo rc e under the Four th Amendment require s that a plaintiff demonstrate that a seizure occur red, and that the forc e used in eff ecting the seizure was objectively

unrea sonable.” Rodriguez v. Passinault , 63 7 F. 3 d 675, 680 (6th Cir. 2011). Whether a constitutional violation based on excessive forc e occur red “depe nds on the fac ts and circ umstances

o f ea ch case viewed from the perspe ctive of a rea sonable office r on the scene and not with 20/20 hindsight.” Fox v. DeSoto , 489 F.3d 227, 236 ( 6th Cir. 2007) (citing Graham v. Connor , 490 U.S. 386, 395-96 (1989))

. I n making its deter mination, the Court should “pay particula r attention to ‘the - 13 -No. 10-1050

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sever ity of the crime at issue, whether the suspect poses an immediate threa t to th e s af ety of the office rs or others, and whether he is actively resisting arr est or attempting to evade arr est by flig ht.’” Schreibe r v. Moe , 596 F.3d 323, 332 (6th Cir. 2010) (citing Kostrzewa v. City of Troy , 247 F.3d 633, 639 (6th Cir. 2001)). This is not an “ex haustive l ist,” and the inquiry ultimately turns on whether the seizure wa s rea sonable unde r the “ totality of the c ircumstance s.” Slusher , 540 F.3d a t 455.

I n addition, “[e]ach d efe ndant’s liability must be assessed individually based on his own actions.” Binay v. Bettendorf , 601 F.3d 640, 650 (6th Cir. 2010). Her e, Bozung must show Offic er Rawson “(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.” Id

. (citing Turner v. Scott , 119 F.3d 425, 429 ( 6th Cir. 1997)).

Acc ording to Bozung , his version of events leading to his arr est support a finding that Offic er Rawson u s ed ex cessive forc e and acte d unrea sonably under the totality of circ umstances. Specifica lly , Bozung alleg es Off icer Rawson slammed him to the ground without first g iving him any instructi o n s t o p lace his hands behind his back. Bozung contends that althoug h he was attempting t o obey Offic er Rawson and explain his limit ations, Offic er Rawson acte d without provoca tion any

way . I n addition, Bozung states Offic er Rawson place d his knee or foot on Bozung ’s b ac k , co n tributing to Bozung ’s spinal cord injuries. Although Bozung ’s version of events differ from that of Offic er Rawson, the Court finds Bozung has not established a g enuine issue of materia l fac t reg arding whether

Offic er Raw son used excessive for ce.

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I ndeed, considering the fac ts in a light most favor able to Bozung , it is clea r it was rea sonable for Offic er Rawson to employ the straig ht-arm bar takedown technique to neutra liz e Bozung and to handcuf f Bozung

. See Slusher, 540 F.3d at 455 (explaining that althoug h the Court should evalua te the decision to use forc e “fr om the perspe ctive of an objective office r,” the fac ts must still be viewed in a l i gh t m o s t fa v o rable to the plaintiff). When Offic er Rawson asked Bozung to step out of his vehicle, he had v ery limit ed knowledg e about Bozung

. He knew Bozung had been drinking , he knew the driver of Bozung ’s vehicle had fled the scene , and he knew ther e was a war rant for Bo z u n g ’s arr est. Her e, the rec ord unequivoca lly shows Bozung was being arr ested on a misdemeanor offe nse. I ndeed, he was not being arr ested for a “violent or serious crime, and this fac t weig hs in favor of using less forc e in arr esting someone for such conduct.” Carpenter v. Bowling , 276 F. App’x 423, 426 (6th Cir. 2008) (citing Thacker v. Lawrence County , 182 F. App’x 464, 472 (6th Cir. 2006)) (internal brac kets and citations omitted). Howeve r, neither Bozung nor Offic er Rawson has offe red evidenc e to show at what p o i n t Of fi cer Rawson beca

me awa re of the fac t Bozung ’s ar

rest wa rra nt was for a misdemea

nor off ense ( see Appellant B rief at 50, n.13).
Next, it was not clea

r to Offic er Rawson, at the time of the incident, whether Bozung posed

an immediate threa t to him. Although there is no evidenc e to sug g est Bozung possessed a wea pon
or made verba l or phy sical threa ts to the office rs, s ee, e .g., Meirthew v. Am ore , 417 F. App’x 494, 497 (6th Cir. 2011) , the rec ord indicates the office rs did not have an opportunity to se arc h Bozung

or his vehicle prior to employ ing the straig ht-arm bar takedown technique. I n addition, it may have
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been “diffic ult for the office rs to judge [Bozung’s] intentions” g iven the fac ts mentioned above. See, e.g. , W ysong v. City of Heath , 260 F. App’x 848, 855 (6 th Cir. 2008). Although the evidenc e indicates “B ozung was cooper ative and was not boisterous, combative, or disrespec tful,” there was
a g rowing crow d forming at the scene , and Offic er Rawson neede d to be conce rned about his safe ty and the sa fety

of others. Finally , in the context of this case , the most important Graham fac tor is whether Bozung was resisting arr est by not comply ing w ith Office r Rawson’s or ders to plac e his hands behind his ba ck prior to the takedown. Although Bozung arg ues on appea l he does not rec all Offic er Rawson asking him to place h i s h ands behind his back, he conce ded befor e the district court in his response in

o p p o s i t i o n to the motions to dismiss that he had been told to place his hands behind his back. (District Court Record No. 65) (“B oth defe ndant office rs admit that Bozung responde d to Rawson’s

co m m an d t o place his hands behind his back as say ing “wa it, wait,” and “I am, I am,” which i s consistent with [Bozung’s] claim that he never ref used to place his hands behind his back, but rathe r simply neede d more time to comply ”). I n addition, during his deposition testimony , Bozung states two to three minutes passed betwee n the time he walked around from the back of his truck until the time Offic er Rawson employ ed the straig ht-arm bar technique. The Court finds, in light of Bozung ’s

conce ssion befor e the district court and the amount of time Bozung g ripped t he bed of his truck, there was a sufficie nt am o u nt of time for Bozung to comply with the office r’s reque st to put his hands behind his bac k.
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p of DeW itt Finally , reg arding whether Offic er Raw son used excessive for ce w hile Bozung was on the g round, it is clear

Bozung has not de monstrated that there is a g enuine issue of materia l fac t. See, e.g., Goodrich v. Eve rett , 193 F. App’x 551, 556 (6th Cir. 2006). Bozung alleg es Offic er Rawson put his knee on Bozung ’s back. “Ta king t h e evidence in light most favor able to [Bozung], the kneeing . . . occur

red not whe n [Bozung] w as neutra liz ed, but while the office rs wer e handcuf fing him.” Id. ; cf. Har r i s v. C i t y of Circleville , 583 F.3d 356, 367 (6th Cir. 2009) (explaining that excessive forc e on a suspect who has bee n restra ined and plac ed in handc uffs is unconstitutional). There fore , such ac tion was objectively rea sonable.

B. The Tow nsh ip
The district court proper ly found the Township was also entitled to summary judgme nt beca use “no individual defe ndant violated [Bozung’s] rig hts.” Bozung , 2009 WL 2413624, at *9. “To succee d on a muni cipal li ability cl ai m , a plainti ff must establish that his or her constitutional rig hts wer e violated and that a policy or custom of the municipality was the ‘moving forc e’ behind the depriva tion of the plaintiff’s rig hts.” Miller v. Sanilac Cnty , 606 F.3d 240, 254- 55 (6th Cir. 2010). Be cause this Court finds Offic er Rawson did not use excessive forc e in violation of Bozung ’s Four th Amendment rig hts, the Township cannot be held liable.

IV. Conclusion

For these re asons, we A FF I RM the decision of the district cour t. - 17 -No. 10-1050

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BO GGS, Circuit J udg e, dissenting. Be cause I believe there are fac tual disputes that go to the hear t of whether the forc e employ ed by Offic er Rawson in handcuf fing Bozung was rea sonable, I cannot join the majority opinion. Viewing the fac ts in the light most favor able to Bozung , Offic er Rawson’s conduct was objectively unrea sonable and violated a clea rly established const itutional rig ht. I would there fore reve rse the g rant of summary judgme nt for Rawson and rema nd for further proce eding s.
Rawson is entitled to summary judgme nt if he did not violate Bozung ’s constitutional rig ht to be fre e from excessive forc e. As the majority corr ectly explains, the rea sonablene ss of arr esting office rs’ use of forc e depends o n t h e sever ity of the crime at issue, whether the suspect poses an immediate threa t to the safe ty of the office rs, and whether he is actively resisting arr est or attempting
t o ev ade arr est by flig ht. Graham v. Connor , 490 U.S. 386, 394 (1989). “Authorities mu s t b e allowed ‘t o gradua te their response to the demands of any particula r situation.’” United States v. Montoya de Hernande

z , 473 U.S. 531, 542 (1985) (q u o t i n g United St ates v. Place , 462 U.S. 696, 709 n.10 (1983))

. L aw enfor ceme nt s u re l y h as an interest in secur ing a suspect. I f an individual suspected of

a minor crime puts up even a low level of resistanc e to arre st, he may be subjec ted to some forc e. W

ysong v. City of Heath , 260 F. App’ x 848, 854–55 (6th Cir. 2008).

Our case law makes it clea r, howeve r, that there is no g overnme nt interest in tackling

someone who is compliant and not attempting to flee

. See Pershell v. Cook , 2011 WL 2728137, at *5 (6th Cir. J uly 13, 2011) (knocking suspect t o the groun d was unreasona ble when suspect “did - 18 -No. 10-1050

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not r esist a

rre st or pose an immediate dang er to off icer s”); Kijow ski v. City of Niles , 372 F. App’x 595, 600 (6th Cir. 2010) (use of Taser ag ainst suspect prese nting n o ri sk of harm unrea sonable); Lawl er v. City of Taylor , 268 F. App’x 384, 386–87 (6th Cir

. 2 0 0 8 ) (o fficer’s “use of forc e in throwing [sus pect] to the floor was disproportionate to any threa t he fac ed,” g iven that suspect had

mere ly insulted office r and “ra ised his left arm slightly ”); Smoak v. Hall , 460 F.3d 768, 784 (6th Cir. 2006) (unre asonable to tackle cuff ed and compliant suspect); Solomon v. Auburn Hills Police Dep’ t , 389 F.3d 167, 1 7 4 (6th Cir. 2004) (attempting leg swee p and shoving plaintiff ag ainst wall

unrea sonable when plaintiff was comply ing with the office rs’ demands); McD owell v. Rogers , 863 F.2d 1302, 1307 ( 6th Cir. 1988) (unre asonable to strike unresisting suspect). Although the true version of what happene d betwee n Bozung and the office rs i s certainly disputed, on summary judgme nt the fac ts must be viewed in the light most favor able to Bozung

. I n

m y v i ew , Bozung has allege d fac ts and provided evidenc e sufficient to justify the conclusion that there is a g enuine issue of materia l fac t as to whether Rawson violated his Four th-Amendment rig hts by using the straig ht-arm bar takedown technique when Bozung was not resisting arr est, and when Rawson could not re asonably have c oncluded that he was doing so.
Rawson stopped Bozung ’s vehicle for a trivial infrac tion. Although t h e d ri v er fled, and Bozung had an outstanding war rant, Rawson had no rea son to be lieve that Bozung had committed

a serious crime. Bo z u n g d i d n o t attempt to flee

. I nstead, afte r parking , he exit ed the truck and moved to the back of the vehicle as direc ted. Bozung did not threa ten Rawson, and there was no - 19 -No. 10-1050

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evidenc e that he ha d a we apon. Ac cording to Rawson’s deposition testimony , Bozung was “ calm and collecte d” and was not “boisterous or combative in any way .” Bozung exit ed the vehicle slowly , holding onto the truck bed for balanc e. Neig hbor J ames L eg g ions testified in his deposi t i o n t hat Bozung was “off balanc e” and “wa lked like he had a problem with his leg s.” Bozung advised Rawson that he had had a total hip repla ceme nt and had a plat e an d s cr ew s i n his rig ht ankle. Onlookers a lso shouted that Bozung was ha ndicappe d.

I ag ree with the majority that we must a ssume that Rawson told B ozung to pla ce his ha nds behind his back, even though Bozung arg ues on appea l that he never rec eived such an order

. Bozung stated in his deposition that he did not rec all rec eiving an order from Rawson to put his hands behind his back. By standers L eg g ions and Melonie Har ris did not repor

t hear ing such an order

. Bozung ’s lawy er, howeve r, arg ued to the district court that Bozung was order ed to place his hands behind his back but, g iven his disability , neede d more time to comply with the order

. Bozung ’s response to the defe ndants’ motions for summary judgme nt states that Rawson order ed him “to walk to the rea r of the vehicle and to place his hands behind his b ac k to be cuff ed.” Bozung cannot prese nt a new arg ument on appea l. See Harve y v. Great Senec a Fin. Cor p . , 4 5 3 F.3d 324, 329 (6th Cir. 2006) (“A llowing [pl aintiff] to prese nt a new theory of her case on appea l that was not alleg ed below would permit her two bites at the appl e, a p ra ct i ce that would be very disruptive of order ly trial proce dure.” ).

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p of DeW itt The majority ’s reliance on Scott v. Harris is misplaced. T h e record shows that“ opposi ng parties [have told] two differ ent stories,” and a “g enuine” dispute as to the sequenc e of events exis ts. Scott v. Harris , 550 U.S. 372, 380 (2007) (citing Fe d. R. Civ. P. 56(c) ). Even if we assume Bozung

rec eived an o rd er t o p lace his hands behind his back, whether Rawson’s actions wer e rea sonable turns on disputed issues of fac t. We do not know how clea r and forc eful the order was, nor how long Rawson g ave Bozung to comply with the order before t ak i n g h im to the g round. The majority emphasizes Bozung ’s “conc ession” in his deposition that he stood outside the truck for “may be .

.

. two t o three minutes” befor e he was taken to the g round, construing this delay as evidenc e that Bozung resisted Rawson’s order

. But we must view the fac ts as a whole in the light most favor able to Bozung , not simply pounce on any detail that could wea ken his case . Offic er Wil son’s testimony sug g ests that the delay was shorter: he estimated that “at least 30 seconds passed” betwee n the time that Rawson g ave Bozung the instruction and when he perf ormed the takedown maneuve r. L eg g ions testified that “af

ter [Bozung] g ot almost around his truck, [R awson] ran over and thr[ew] him to the g round.” Even if Bozung was out of the truck for two minutes, moreove r, we do not know how long afte r he exit ed the truck the order to place his hands behind his back was g iven. There is also a fac tual dispute as to whether Bozung strug g led when Rawson attempted t o handcuf f him. The plaintiff’s version of events is not “blatantly contra dicted by the rec ord,” and a “re asonable jury could believe it.” Ibid. Wit h so much uncer tainty as to w hat actua lly happene d, the “fa cts must be viewed in the lig ht most favorable to the nonmoving pa rty .” Ibid.

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More importantly , there are d i s puted fac ts reg arding whether Bozung ’s handica p and his inability to comply at once with Rawson’s order should have been appar ent to Rawson. Bozung , Offic er Wil son, and Ms. Har ris all testified that Bozung indicated to Rawson that he was attempting to comply with the order

. Bozung stated in his deposition that he told Rawson he was disabled and said, “it’s g oing to take me a few minutes.” Har ris stated that Bozung y elled, “wa it and minute, wait

a minute,” but that Rawson responde d, “we ll, I g uess y ou want this done the hard way ” and g rabbe d him. Offic er Wil son testified that Bozung responde d to Rawson’s command t o p l ac e his hands behind his back by say ing “I am, I am.” Acc ording to B ozung, Rawson ignor ed these protests and slammed him to g round with sufficie nt forc e to lac er at e his fore head and fra cture his hand. Construing t he facts i n the l ight most favor able to Bozung , a jury could find, in light of Bozung ’s handica p and lack of resistanc e, that it was unrea sonable for R aw son to perf orm the takedown

maneuve r t o h andcuff Bozung , and that Rawson’s conduct thus violated Bozung ’s FourthAmendment rig hts.

Fur thermore , Rawson is not e ntitled to qualified immunit y . A “de fenda nt enjoy s qualified immunit y on summary judgme nt unless the fac ts alleg ed and the evidenc e produce d, when viewed in the light most favor able to the plaintiff, would permit a rea sonable juror to find that (1) the defe ndant violated a constitutional rig ht; and (2) the rig ht was clea rly established.” Morrison v. Bd. of Trs. of Gree n Twp ., 583 F.3d 394, 400 (6th Cir. 2009). A ri gh t i s clea rly established if “the contours of the rig ht [are] sufficie ntly clea r that a rea sonable officia l would understand that what he

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is doing violates that rig ht.” Binay v. Bettendorf , 601 F.3d 640, 646–47 (6th Cir. 2010). The fac ts, taken in the light most favor able to Bozung , would permit a finding that the forc e Rawson used was not only unnec es s ary , but would have been rec og nized as such “by a rea sonable office r in his positio n . ” P h el

p s v. Coy , 286 F.3d 295, 302 (6th Cir. 2002). The right to be free from ex cessive forc e is clea

rly established, see Graham , 490 U.S. at 394–95, as is “the rig ht to be fre e from phy sical forc e when one is not resisting the police,” W ysong , 260 F. App’x a t 856. Her e, there is a g enuine issue of materia l fac t as to whether Bozung resisted arr est. I f he did not resist, a rea sonable office r would have know n that it was unnec essar y to force him to the gr ound to handcuf f him. The gra

nt of summary

judgme nt for Rawson wa s theref ore imprope r.

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