1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0087P (6th C ir.) File Name: 04a00 87p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

J OSEPH G AD DIS , by

his next friend a nd guar dian, Erma Gaddis, Plaintiff-

Appellant

,

v.

R EDFORD T OWN SHIP , a municipa l corpor ation; C ITY
OF D EARBOR

N H EI GHTS , a municipal corporation; M ATTHEW B AIN , in his official and individual capaci ties; J OHN B URDICK , in his official and individual capaci ties; R ICHARD D UFFANY , in his official and individua l capac ities, join

tly

an d s ev er al ly, Defenda nts-Appe llees. X - - - -

> , - - - - - - - - - - - - - - - - - N No. 02-1483

Appeal from the United States District Court for the E astern D istrict of Michiga n at Flint

. No. 00-40375—Paul V. Gadola, District Judge.
Argued: September 17, 2003 2 Gaddis v. Redford To wnship, et a l. No. 02-1483

Decided and Filed: March 26, 2004
Before: BOGGS, Chief Judge; and KRUPANSKY and

CLAY , Circuit Jud

ges.

_________________ COUNSEL

ARGUED: Mark R. Be ndur e, BENDURE & THO MAS, Detroit
, Michigan, for Appellant. Joseph Nimako, CUMMI NGS, M CCLOREY, DAVI S & ACHO, Livonia, Michigan, Eric D. Smith, HOPKINS, CURRAN & SMITH, Southfield, Michi gan, J ohn H. Dise, Jr., DISE & ASSOCI ATES, Southfield, Michigan, for Appel le es. ON BRIE F: Mark

R. Ben dure, B ENDURE & THOMAS, Detroit, Michigan, Justin C. Ravitz, S OMMERS
, SC H WART Z, SILV

ER & SCHWARTZ, Southfield, Mic h igan, for Appe llant. Joseph Nimako, CUMMI NGS, MCCLOREY, DAVIS & ACHO, Livon ia, Michigan, Eric

D. Smith, Christine A. Fischer, HOPKINS, CURRAN & SMITH, Southfield, Michi gan, John H. Dise, Jr., DISE & ASSOCI ATES, South field, Mic

higan, for Appe llees.
BOGGS, C. J., delive

red the o pinion of t

he court , in

which KRUPANSKY, J., joi ned. CLAY, J. (pp. 25-40), delivered a separate dissenting opinion.

_________________ OPINION

_________________ B OGGS, Chief Judge. Joseph Gaddis, a mentally ill man proceeding

by his nextfriend, appeals from the district court’s grant of summar

y ju dgment t o the def endants i n his 42 U.S. C. § 1983 action. Mr. Gadd is claim s that the individual defenda nts, members of two Michigan municipal police departments, v iola ted his Fourth Amendment rights byNo. 02-1483 Gaddis v. Redford To wnship, et a l. 3

stopping his car without justification, and by using excessive force in an ensuing confrontatio n that culminated in two officers shooting Gaddis. The district courtconcluded that Gaddis had failed as a matter of law to show that the defenda nts violated his co nst itutional rights. For the following reasons , we aff

irm.

I
Summary judgme nt is proper when there is no genuine is sue of mater

ial fact and the moving pa

rty is entitle d to judgment as a matter of law

. Fed. R. Civ. P. 56(c). In our de novo review of the district court’s gran t of summary judgmen t, we mu st res olve disputes of fact in favor of the nonmoving pa rt y, Gaddis, drawing all reasonable infer ences inhis favor. Burchett v. Kiefer , 310 F.3d 937, 941-42, 945 (6th Cir. 2002) . The app lication o f this stan dard is complicated

here by the fact that Gad

dis, the on

ly w itness to the events at

issue apart

from the d

efenda nt office rs and the ir colleagues, has been stipulated incompetent to testify due to mental illness. A s disc ussed below, the record on appeal includes a videotape that captured many of the events at issue. W e hav e carefully

examined this tape along with the witnesses ’ testimony in reviewing the district court’s judgmen t.

II

Gaddis’s encounter with the police began shortly before 4:00 a.m. on April 12, 1999, in Redford Township, Michigan. Defendant

Matthew Bain, a Redford Township officer, spotted Gaddis’s car while patrolling alone on Tel egrap h Road. (The moun

te d v ideo camera on Officer B ain’s patrol

car yielded the tape

tha t is the chief visual record of the encounter. However
, because the car’s audio rec ording system was not working, the tape is sil ent.) B ain saw G addis weavingwithin the

right la ne: h is car edg ed to the l eft to touchthe dividerline twic e in a fe w hundre d feet. B ain testified that Gaddis was also driving somewhat slowly, and 4 Gaddis v. Redford To wnship, et a l. No. 02-1483

the tape ten

ds to conf irm this, as it

shows other cars passing Gaddis to the left on the sparsely trafficked road.

Bain also testified

that he saw Gaddis slumping to the right inside his car as h e held the wheel. The videotape neither reinforces nor

th ro ws do ub t o n t hi s t es ti mo ny. The interior of the car is dark o n the tape and Gaddis’s posture cannot be made out, but the resolution of the video image is no t high
, and the camera’s point of view is slightly differ ent from the vehicle driver’ s. Bain pulled up alongside Gaddis’s car a nd conf irmed to his satis faction

that Gadd

is was lea ning toth e right, towar d t he passenger’s seat. Ba in testified that he suspected Gaddis wa s driving

while into xicated, a

crime in Michigan. See Mich. Comp. L. § 257.625.

Bain pulled behind Gaddis’s car and turned on his flashers and siren. When Gaddi s failedto stop, Bain also employed his air horn. Gaddis kept driving until he reached a red lig ht. Bain then left his patrol car

and approached Gaddis’s stopped auto on foot. When the light changed to gree n, Gaddis turned right and drove away . Bai n ran back to his car and pursued Gaddis again, and

finally succe eded in pulling him over after about a block.

Bain left h is car aga in and w alked over to Gaddis’s car. The office

r had hissidearm drawn when he stepped out of the car, but holstered it as he walked up to Gadd is’s driver side window. Bain asked

Gaddis for his license and registration, to which Gaddis replied th at his license was suspended (which turned out not to be true), and handed Bain an expired Michigan driver’ s license . By

th is time a number of other uniformed

police officers had

arrived on the scene, including Dearborn Height s Off

icers John Burdick and Richard Du ff an y, who had been eating at a nea rby restaur

ant and decided to assist B ain afte

r heari ng him dr ive by in pursuit of Gaddis.

Bain told Gaddis to get out of the car. Gaddis opened the door and stepped o ut with his hands insid

e his pockets. BainNo. 02-1483 Gaddis v. Redford To wnship, et a l. 5

1 Of fice r Champo ux later t estif ied that he beli eved he could have blocked Ga ddis’s c ar with his own patrol car if Gaddis had tri ed to leav e. testified that he or dered G addis to r

emove his

hands from his pockets. The tape s hows tha t shortly after Ga ddis emerged, Bain grabbed him by

the colla r and pull ed him slig

htly away fromthe car. Gaddis then removed h is hands fr om his pockets, prompting a dram a tic reaction: Bain jumped back, visibly alar me d, and he

and the ot

her off icers dr ew their sidearms
, pointing

th e m at Gaddis. Officers Bain and Burdick later testified that Gaddis had a knife in his hand, while Duffan

y sa w somethin

g sh in y bu

t wasn’t s ure wha t it

was. ( The videotape image does not permit the viewer t o verify direct ly whethe r Gaddi s was h oldi ng a knif e, a point

we will discuss further in Part IV of this opinion.) At about this time a fourth of

f icer arrived on the scene, Off icer Champoux of

the Redford

Township department. Champoux pointed a shotgun at Gaddis , but testif

ied that h e could not tell if Gaddis had any

thing in his hand.

There ensued a

standoff of two to three minutes’ duration. The officers testified that they told Gaddis repe atedly to drop his knife, and

that Gaddis said something incoher ent to Ba in along the lines of: “Why are y ou doing this to me, Chris, like you did to me in C aliforni a ?” None o f the officers was named Ch r is or had ever encountered Gaddis in California. Bain later testified that the “Chris” r emark su gges ted to him that Gaddis was not acting rationally . Officer Burdick testified that he di d

not hear the remark. On the tape, Gaddis

can be seen apparently

speaking to the officers during the standoff. He ges tures wit h his h ands, but keeps

them fair ly low at his side.

Gaddis thenstated tha

t he wante d to leave. 1 Bain stepped forward and spraye d Gaddis in the face with pepper s pr ay. Meanwhile, Officer Burdick had been walking around to the passenger side of Gaddis’s car. Seconds after Bain used the pepper spray, B urdick clambered over the trunk of Gaddis’s 6 Gaddis v. Redford To wnship, et a l. No. 02-1483

car and tried to grab Gaddis. Gaddis reacted violently : he wheeled and stru ck at B urdick with his right, then his left hand. Gaddis’s right-handed strikewas a windmilling motion arguably suggestive of

an attempt to stab with a knif e. Bain and Duffany testified that they saw Ga ddis stab a t Of

ficer Burdick with a knife. They

both began shooting, firing a total of 16 shots at Gaddis in a single burst. Burdick first heard the shots as he was falling backward ove r the back of Gaddis’s

car. Gaddis wa s struck in the torso, right arm, buttocks, and left thigh, and fell to the ground. Champoux did not fire.

Evidence technicians recovered a knife from the stree tnear Gaddis’s car, but did not fingerprint it.

Gaddis was cha

rged w ithassault with intentto murder and with fleei ng and e ludi ng p olice . On June 8, 1999, he was found guilty in a benc

h trial of feloniou s assault ( a les ser i ncluded offense), and not guilty on the fleeing coun

t

. Pursuant to a post- trial motion, howeve r, Gaddi s w as later adjudged not guilty

of the felonious assault charge as we ll.

Gaddis filed suit under 42 U.S.C. § 1983 against Of f icers Bain, Burdick, and Duf faney , alleg ing that

they illega lly d etained him and used excessive force against him i n violation of the Fo

urth Amen

dment. (He also asserted a claim of discrimination onthe basis of his race and his mental illness, which he has abandoned on appeal. ) He also

sued the municipalities of Redford Townsh ip and De arborn H eights, cla iming that they maintained unlawf ul policies that cau se d the incid ent.

Plaintif f introduced the affidavit of James Fy fe, Ph.D., a former police officer and a professor of criminal justice. Prof. Fyfe opined that the off

icer s unreasonably de

viated from proper polic e tec hniques f

or deali ng with e

motionally disturbed persons ( “EDPs” ). In particular, he testified that officers using correct p olice tec hniques would

reco gniz e that “techniques of intimidation and force” are not likely to work

onEDPs in the way they

may work on ra

tional per son s. HeNo. 02-1483 Gaddis v. Redford To wnship, et a l. 7

test ified that the p olice sho

uld instea d have pic

ked a sin gl e offic er to talk ca lmly to the EDP, and should

have re frain e d fro m unnecessary

displays of force . Fyfe

criticized Bain’s

use of pe pp er sp ra y, and desc

ribed B urdick’ s attempt t

o tackle Gaddis by surprise f

rom behind as a “terrible tactic.”

The defendan

ts m oved for summary

judgment, and the districtcourt granted summary judgment on all claims on February 2 0, 2002. Whi le the ind ividual de fendant s had all raised the defe nse of qua lified immu

nity , the distr

ict cour t did notreach the qualified immunity issue, but held that the defenda nts were e ntitled tosummary judgme nton the mer

its. Gaddisv. Redfo rd Township , 188 F. Supp. 2d 762 (E.D. Mich. 2002).

As to Gaddis’ s claim tha t the in itial stop of his car was unlawfu l, the court held that reasonable suspicion was all that

was require d to ju st if

y a n investigative stop of a car. Id. at 768. It furt

her held that Gaddis’s weaving in the lane a nd leaningover the seat

provided reasonable suspicion. Indee d, it stated that the weaving, “simpliciter,” would be enough to establish reasonable suspicion. Id. at 768-69.

As to the excessive force claim, the district court held that there was no genuine issue of material fact as to whether the office rs’ use of force was reasonable. Id. at 772. It reasoned that the threat posed by

Gaddis was quite high, a s h e had stabbed Officer Burdick. Id. at 770. The court also concluded

that the officers’ “overall handling of the inc ident” did not violate the Fourth Amendment. Id. at 7 70- 72. It noted that the “ office

rs fired only one volley at Plaintiff, and

. . . did so immediately after Plaintiff had sta bb ed a policeman.” Id. at 771. The “unconstested evidence” showed that “when the po lice shot Plaintiff, he had just stabbed Defendant

Burdick, still appeared to be holding a knife, a nd

was in close proximity to Defendant Burdick.” Id. at 772. The court al so rejected Gadd is’s e qual prot

ection c laims. Ibid

. 8 Gaddis v. Redford To wnship, et a l. No. 02-1483

Gaddis timely

appeale d to this co

urt, ap pealing only

the grant of sum ma ry judgment on his Fourth Amendment claims.

III

The first issue is whether t he i nitial stop of Gaddis’s car violated the Fourth Amendment.

A

At the outset, we must determine the legal stan dard that governs a brief stop of a car for suspected drunk dri ving in a jurisdiction where, as in Mich igan, su ch condu ct is a criminal off ense

. See Mich. Comp. L. § 257.625(9)(a) (def ining driv ing while intoxicated as a misdemeanor punishable b y imprisonment). Unfortunately, this prove s t o be a complicated

question, because d ifferent published opinions of this court have given inconsistent answers at diffe

rent time s. By c ontras t, the Supr

eme Court

has not wa

vered in this

area. It has c onsistently articulated a c lear governing rule: when officers have reas onable suspicion that occupants of a vehicle are engag ed in

criminal activity, they

may briefly

stop the vehicle

to investigate. E.g.
, United States v. Arvizu , 534 U.S. 266, 273 ( 2002); Alabama v . Whit e , 496 U.S. 325, 328- 32 (1990); Unite d St ates v. Hensley , 469 U.S. 221, 226 (1985).

This court’s

earlier case la w was con sistent wit

h this teachi ng. In United States v. Roberts , 986 F.2d 1026 (6th Cir. 1993), we held that police may perform an

investigatory

stop of a vehicle when they

have reasonable suspicion th at the occupant is com mitt ing the crime of drunk driving. Id. at 1029-30.
However, two later cases potentially departed fro m t his standard. Both arose in Tennessee, where, a s in Michigan, driving while intoxicated is a crime. In Uni t ed States v.No. 02-1483 Gaddis v. Redford To wnship, et a l. 9

2 See Tenn. Code Ann. § 55-10- 401.

3 See Te nn. Co de A nn. § 5 5-8-1 23.

4 Indeed, Whren did n ot eve n hold that all stop s prem ised o n a civil traffic violati on require probable cause – onl y tha t if police do have probabl e cause, then any claim of pretext i s irrel evant for Four t h Palomino
, 100 F.3d 4 46 (6th Cir. 1996), the court upheld the stop of a vehicle where police had g rounds to su spect bot

h drunk driving 2 and the traffic violation of failure to stay with inlanes. 3 Id. at 448-49. Palomino argued that the sto p
was pretextua

l. He claimed t

hat polic e had re ally

stopped hi s
car because he was Mexican and fit certain characteristics of

a drug courier profile. Id. at 448. The court held that even if true, this was irrelevant, becaus e t he police “ha[d] pro

bable

cause to bel ieve that a traffic violation had occurred,” justifying the stop. Ibid . Th is reasoning, wh ile other wise

u nexce ptionable, could be read to lump criminal drunk driving togethe

r with fa ilure to st

ay in lanes a s a “ traffic violation.” Ibid

. Palomino cited as autho rit y the Supreme Court’s thenrecent decision in Whren v . U nited States , 517 U.S. 806 (1996). See 100 F.3d at 448. The cautiously worde d opinion in Whren was consistent with the resu lt in Palomino , but it did not supporta ge neral requirement of probable cause for stops based on suspicion of any offense, criminal or otherwise, involving a vehicle. Whren simply held that, when

a defenda nt argu ed that hi s vehicle

was stopped for improper

reasons on t h e pretext of violating a traffic reg ulation, the officer’s improper motivations would not render t he stop a violation of

the Fourth Amendment if “the police ha[d] proba ble cau se to believe that a traffic violation had occurred.” 517 U.S. at

810. Whren did notinvolve a criminal offense. Rather, the defendants were stopped f or spee ding and fail ing t o signal a right turn, in violation of municipal regulations. Ibid

. 4 10 Gaddis v. Redford To wnship, et a l. No. 02-1483

Am end men t purp oses. H ow ever, as the dissent points out, t

his court’ s opinion in United States v. Ferguson , 8 F. 3d 385 (6th Cir. 1993) ( en banc), which r ejected a “pretextual s top” challenge like t he one in Whren
, went on t o stat e that pro bab le cau se w oul d be n eces sar y f or a st op pre mi sed on a civil traffic violati on. See i d. at 391 (“We hold tha t so l ong as the off icer h as pro bab le cause t o believe that a traf fic violation has occurred or wa s occurring, the resulting stop is not unlawful and does not viol ate the Fou rth Amendment. .

. . If anoffi cer testi fies . . . t hat he . . . did not have pro bab le cause to believe a viola tion ha d oc curre d . . . [s]uch a stop would be un reaso nab le und er the F ourth Am end men t.”).

5 See als o Unite d States v. Hu gue nin , 154 F.3d 547 , 557 (6th Cir. 1998) (“[T]he Supreme C ourt emphasized . . . i n Wh r en

. . . [that] t here is a significan t differenc e betw een a prete xtual sto p ba sed o n pro bab le

cause tha t a t

raf fi c vi olat ion h as occ urre d, and a st op tha t i s not based on probable cause or eve n reas onable s uspic ion ”) (emphasis added). Our published decisions follo wing Palomino contained no suggestion

that Palomino had abro gated t he bedro ck rule permitting an invest

i g atory vehicle stop when

there is

reasona ble sus pi cion of a crime. See Hous ton v. Clark County Sheriff Deputy John Does 1-5 , 174 F.3d 809, 813 (6th Cir. 1999) (“Police may briefly stop an individual for investigation

if th ey have a reasonable suspicion that the indiv idual has committed a crime. . . . The same Fourt h Amendment

test applies to vehicle stops.”) (p unctu ation omitted) (citing, inter alia
, Palomino , 100 F.3d at 449). 5

However, four yea

rs after Palom ino , a panel of this court decide d Unite d States v. Freeman , 209 F.3d 464 (6th Cir. 2000), which held that Tennessee police were no t justified in stopping the defendants’ mobile hom e afte r watching the vehicle veer out of its lane on a windy day

. 209 F.3d at 465- 66. The court held that this be h avior wa s insuffic ient to justify a stop, whether it was viewed as evidence of failur

e to stay in lan es, or as evide

nce of dr unk drivin

g, which was a crime, thoug h t he court’s opinion did not discuss the violation/ crimedistinction. Ibid. At one po in t, the courtNo. 02-1483 Gaddis v. Redford To wnship, et a l. 11

specific ally

stated tha t the polic e were not justifi ed in stopping Freeman for drunk driving because his weaving

path “did not g ive [t

he office rs] . . . probable cause to stop the motor home.” 209 F.3d at 467 (emph asis added). Gaddis

argues t hat Freeman is now the law of the circuit, and requires probable

cause to stop a car for suspicion of criminal drunk driving. Freeman appears to conflict with our earlier decisionin Roberts, as well as our many decisions, such as Houston
, which affirm the b edroc k rule tha t reasonable suspicion of a crime justifies a brief stop.

We have a settled procedure for re sol ving cases of intracircuit conflict. “[A] panel of this [c]ourt cannotoverrule the decisionof another panel. The pri or dec ision remains controlling authority

unless an

inconsis tent d ecision of the United States Supreme Court requi res modification of the decisionor this Court sitting en banc overrules the prior decision.” Darr

ah v. City of O

ak Park , 255 F.3d 301, 309 (6th Cir. 2001).

Roberts squarely he ld thata stop for criminal drunk driving requires only reasona

bl e sus picion. As the earliest decision

onpoint, it must control, unless the intervening Supre m e Courtdecision in Whren “requir e[d] modific atio n” of

its holding by a later pa

nel. We do notread Palomino as so hold ing. At most, Palomi no held that probable cause was sufficient to justify

a stop for drunk dri ving, no t that prob able

cause was necessary for

such a stop. See 100 F.3d at 448-49. Nor did Freeman purport t

o modify past prece dent

in light of Whren ; in de ed, Freeman did not even cite Whren or Palomino

. See 209 F.3d at 466-67.
Thus, at a minimu

m, apply ing th e Darrah rule to our preced ents yie lds grave d oubt about the current authority of Freeman

. An y l ingering questions are resolved by the Supreme Court’s intevening decision in A rvizu , which explicitly reaff irmed the traditional rule

that police may make “brief investigatory

stops of . . . vehicles . . . if the officer’s actioni s supp orted by re asonable suspicion to believe that 12 Gaddis v. Redford To wnship, et a l. No. 02-1483

6 In the ho pe o f prov iding gu idanc e to the distr ict court s in this circuit, we summari ze the s tate of our Fourt h Amendment juri sprudence

on ve hicle sto ps. Police may mak e an i nves ti gati ve st op of a vehicle when they have

reaso nab le suspi cion of an ongoing cr ime, whe ther i t be a fel ony or misdemeanor, including drunk driving in jurisdictions where that is a crimi nal offense

. Arvizu , 5 34 U.S . at 273 ; Shadoan , 340 F. 3d at 407; Ro berts
, 9 86 F.2d at 1029-30. Poli ce may al so make a st op when they have reasonable suspicion of a completed felony, though not of a mere completed misde mea nor. Hensley , 469 U.S. at 229 ; Ro berts , 986 F.2d at 103 0. Ne xt, police may

make a stop w hen the y have p rob able c ause to believ e a civi l tr aff

ic vi olati on has occurr ed, even if t he defendant

rais es a claim that the sto p wa s prete xtual. Whren , 517 U.S . at 810 ; Palomino
, 100 F.3d at 44 8; Ferguson , 8 F.3d at 39 1. Whether they may al so st op a vehicle base d on mere reaso nab le susp icion o f a traffic vio lation is the subject of another co nflict in our case law. Compare Shadoan , 340 F. 3d at 407-08 ( uphol di ng st op where polic e had “reaso nab le susp icion” of a viol ati on of ve hicl e reg ist rat ion and window tinting regul ations) with Freeman
, 209 F.3d a t 466 (i nvali dating stop wher e police l acked “pro bab le cause ” to st op vehi cle forfailure to sta y in lane); and Ferguson
, 8 F.3d at 391 (stating i n dict um that probable caus e is r equired for a st op prem ised o n traffic vio lation). Ga ddis’s case does no t require us to resolve this last iss ue. We note, th ough, th at the issue app ears to be co ntrolled by Freeman, the ear lier criminal activity

may be afoot .” 534 U.S

. at 273 (punctuation omitted); accord

Weaver v. Shadoan , 340 F.3d 398, 407 (6th Cir. 2003).

We there fore ho ld that a standard of reasonable suspicion governs the stop of Gaddis’s vehicle for suspicion of driving while intoxicate d. This conclusion i s al so consist ent with extensive authority from other c ircuits. E.g.
, United States v. Sanchez-Pena
, 336 F.3d 4 31, 436 & n.2 (5th Cir. 2003); United States v. Colin , 314 F.3d 439, 4 42, 444 (9th Cir. 2002); United States v. Wheat, 278 F.3d 722, 727-29 (8 thCir. 2001); see also United States v. Chanthasouxat , 342 F.3d 1271, 12 75 (11th

Cir. 2003)(“a [veh

icle] stop i s a constitutional detention if it is just ified by reasona ble suspicion under Terry

or probable cause to bel ieve a tr affic violation has occurred”). 6No. 02-1483 Gaddis v. Redford To wnship, et a l. 13

panel holding on point, a conclusi on reinf or ced by thi s court ’s embrace of t he p robable cause requirement for traf fic vi olations in di ct um its en banc opinion in Ferguson

. See Darrah , 255 F. 3d at 309.

7 I t is als o mo destly re levant tha t Gad dis wa s driving slowly compared to th e other t raff ic. W hil e thi s fact

is obvi ously

capable o f many innoce n t expla nation s, it neverth eless co ntribute s to the o verall picture created by the othe r evide nce o f drunk driving

. See A rvizu , 534 U.S. a t 277. B

Measured by the standard of reasonable suspicion, the stop

was constituti onal. Rea sonable s u spic ion to stop a

vehicle depends on a conte

xtual inquir

y that consid

ers, in the wel lknownphrase, “the tota

lity of the ci rcumstan ces – the whole picture.” United

States v. Cortez , 449 U.S. 411, 417 (1981). Here, Gaddis weaved twice to the left to touch the dividing line in a fairly shor

t span. Bain’s testimony that Gaddis was leaning over to the right inside his car must also be accepted for summary

judgmen

t purpose s, becau se it w as uncontradicted

by other testimony and the

videotape does not tend to contradic t it. 7

Thesefacts establish reasonab le su spici on of d runk d rivin g. Indeed, the Tenth

Circuit held an investigatory stop for drunk driving justified o n com parable facts in United States v. Ozbirn
, 189 F.3d 1194 (10th Cir. 1999), where an officer saw the defendant’s motor home “drift onto the shoulde r tw ice within a quarte r mile without any

adverse circumstances like road or weather conditions to excuse . . . the deviation.” Id. at 1199. Gaddis argues that our a naly sis should be controlled by Freeman
, discussed

above, and United Sta tes v. Gre gory , 79 F.3d 973 (10th Cir. 1996), which held that office rs did not obtain a reasonable suspicion of dru n k driving when they witnessed the de fe ndant’s truck veer once in to the right

eme rgen cy

lane of the interstate. Id. at 975-76, 978-79. However, both case s are re adily distingu ished. I n both Freeman and Gregory , the suspe ct vehic le swerv ed only 14 Gaddis v. Redford To wnship, et a l. No. 02-1483

once, and there were no other significa nt facts to s ugge st drunk driving.
Thus, summary

judgment for all defendants was proper a s to the legality of

the initial vehicle stop.

IV

The more diff

icu lt issue in this case is the legality of the various officers’ uses of forc e in their

confron tation with Gaddis. The sole constitutional standard for evaluating excessive force c laims is th e Fo urth Amendment’s criterion of reasonableness. Graham v . Co nn or , 490 U.S. 386, 395 (1989). C ourts must apply an objectiv e standa

rd, lookin g to “the facts and circumstances of eac h par tic ular case, including [1] the seve

rity of the cr ime at issue, [2] whether the suspect pose[d] an immedia

te threa t to the saf

ety of the o fficers or others, a nd [3] whether he was actively resisting arrest or attempting to ev ad e a rr es t b y f light.” Russo v. City of Cincinnati
, 953 F.2d 1036, 1044 (6th Cir. 1992) (quoting Graham
, 490 U.S

. at 396) ( bracke ts added) . At the sa

me time, they must be ar i n mind that the Fourth Amendment “prohibi ts unreasonable seizures, not un reasona

ble or illadvised conduct in general.” Dickerson v. McClellan , 101 F.3d 11 51 , 1162 (6th C ir. 19 96) (q uoti ng Cole v. Bone , 993 F.2d 1328, 1333 (8th Cir. 1993)).

Inthis circ

uit, courts faced with an excessive force case that involves several uses of force must generally

“analyze the . .

. claims separately .” Ibid. They should “identif[y ] the seizure and procee[d] to examine whether the force used to effect that seizure was reasonable in the totality of the circ umstance s, notwhether it was reasonab le for the polic e to cre ate those circumstances.” Id. at 1161 (quotation marks omitted) (emphas is adde d). However, they may consider “

the moments preceding [a] shooting” as part of the context of that shooting. Id. at 1162.No. 02-1483 Gaddis v. Redford To wnship, et a l. 15

Here, Gaddis chal le nges four different events as constituting unreasonable force: Ba in’s in i tial shoving or handling of Gaddi s as Gadd is emerg ed from h

is car; Bain’ s spraying of Gaddis as he stood in his car doorway ; Burdick’s almost simultaneous grapp ling of Gaddi s; and the ultimate volley of 16 shots

fired a t Gaddisafter he struck at Burdick. We consider these uses of force in turn.

A

The di strict court did not examine Officer Bain’s brief initial grab of Gaddis as the latter emer ged from his car. However, we ho ld tha t this act was not unc onstitutionally excessive force. Bain was dealing with a suspect who had previous ly

refused to stop for police, suggesting that he might be disoriented

or intent on avoiding arrest. Bain testified that he g rab bed Gaddis because he wanted to keep him fr om fleeingand

to perform

a pat-down search on Gaddis, who had his hands in h is p ockets. T he record cannot be const rued to cast doubt on this claim. The Supreme Court has instructed that “the right to make an a

rrest or investigatory

stop carries with it the right to use some degree of phy sical coercion or th reat thereo f to effect it.” Graham , 490 U.S. at 396. “Not every push or shove, even if it may later seem unnecessary

in the peace of a judge’s cha mbe rs . . . violat

es the Fo urth Amendment.” Ibid. We acknowledge t hat even minor uses of force a re uncon stitutiona

lly e xcessiv e if they

are “to tally gratuitous.” McDowel

l v. Roge rs , 863 F.2d 1302, 1307 (6th Cir. 1988). Here, however, Bain’s re asonable need to prevent Gad dis from fleeing and to discern whether he was armed justified his action.

B

Before we consi der the o fficers’ later actio ns, we must decide whether

the distri ct court

rightly held that there was no material di sput e of fact on the critical question of whether Gaddis dre w a k ni fe f

rom hi s po cke t. If a reasonable jury could find that Gaddis di d not hav e a knife , then it c ould 16 Gaddis v. Redford To wnship, et a l. No. 02-1483

8 As the Fo urth C ircuit ob serve d ab out a similar ev identia ry con flict:

In a rapi dly evol vin g sce nari o suchas t his on e , a witness’s account of the event wi ll rarel y, if ever, coinc ide p erfectly with the officers’ perceptions b ecause the witness is typically viewing the event fr om a dif

fer ent angl e th an t hat of the of fice r. For t

hat
reason, minor

dis crepan cies in t est imony do not create a materi al is sue of fa ct i n an exces sive f orce clai m, parti cularly when, as here, the witnes s views the event from a w orse vantag e point t hat of the officers. . . . Thus, the di screpanci es between the officers’ testi mony and Wil li ams’ s t estimo ny about the positioning and speed at whi ch Anderson was lower ing his hands do not rai se an issue o f triable fac t.

An derso n v. R ussell , 247 F.3d 12 5, 130-31 (4th Cir. 2001). unquestionably

go on t o find that shooting him was unconstit utionally excessive force, see Tennessee v. Garner
, 471 U.S. 1, 11 (198 5) (holdi ng that “ [a] police o fficer may notseize anunarmed, nondangerous suspect by shooting hi m dead”), and

the grant of summary

judgment would have to be reversed. The presence or absence of a knife also affects our analy sis of the off

ic ers’ uses of nonlethal force – Bain’ s decisionto mace Ga ddis and B urdick’ s attempt t o grap ple Gaddis from behind. We review de novo the district court’s holding that no factual dispute existed. Burchett v. Kiefer
, 310 F.3d 937, 941-42 (6th Cir. 2002).

Since Gaddis c ould not te stify , th e o nly relevant e vidence is the videotape and the te stimony of the fo ur offic ers. Ba

in and Burdick both testified that they sawa knife in Gaddis’s han d; Officer Duffany

testified that he saw something shiny inGaddis’s hand; an d Officer Champoux, who was further fromthe scene, c ould not tell whether or not Gaddis had a kn ife. Bain saw a fairly small knife in Gaddis’s hand ; Burdick described it as a “large” knife. On ly B ain’s and Burdick’s testimony

could be s aid to conflict. This so rt of minor conflict of perception

is common, and is not sufficient by itself to c reate a materia l dispute o f fact a s to the of ficers’

cr ed ib il it y. 8No. 02-1483 Gaddis v. Redford To wnship, et a l. 17

Gaddis argues, however, that the inability to see a knife on the videotap e does cr

eate suc h a mater

ial d ispute of

fact. Becau se this arg

ument has

some for ce, we w ill expla in ou r
reasons for rejecting it in some detail. The videotape image is of l ow quality . It r

eadily disclose s the move

ments an d postures of Gaddis and

the officers, but

not the de tails of their appearances. Gaddis’s hand is a vag ue blur. While the tape would not enable a juror to verify the presence of a knife by direct observation of Gaddis’s hand , it equally would not permit the juror to conclude that there was no knife there. (If it did, summary judgment would obviously be inappropriate.) Instead, the viewer’s sole clue is the body lang uage of the actors during t

he enco unter. A nd in this re spect, the office rs’ reactions powerf

ully corroborate the ir testimon y that Gaddis produced a knife. On the tape, when Gaddis removes his han ds from his pockets, Bain jumps back in obvious al arm

. He pulls out his service pistol and covers G addis with

it, and the other of

ficers f ollow suit. The rea

ction is ine

xplicable unless som ethin g th rea ten in g wa s i n Ga ddi s’s han ds. In addition, Gaddis la

ter uses a windmilling motion to strike at Burdick, which is suggestive of a knife stab. Thus the tape as

a whole tends to reinforce the officers’ te s tim ony that there was a kni fe, not to

contrad ict it.

All admissible

evidenc e in

the case points to the conclusion that the k ni fe was present. At most, the poor quality of the tape might be

said to raise a “scintilla of evidence” in support of Gaddis’s position, but that is not enough to withstand summary judgment. Anders on v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). We c onc lude that there was no material dispute as to whether Gaddis had a knife.

C

We turn next to Bain’s decision to use pepper spray to try t o incapacitate Gaddis. As noted before, af ter Gaddis drew his kni fe, the re followed a stan doff of a bout two min

utes, during which Gaddis stood in the doorway of his car and the office rs repe atedly

ordered him to drop his weapon. During 18 Gaddis v. Redford To wnship, et a l. No. 02-1483

9 See also Russo , 953 F. 2d at 1044- 45 (holdi ng off icerent itled to qualif ied immu nity desp ite his using T aser gu n multip le times o n knife

wielding suspect who was no longer an immediate thr ea t; n oting that officer’s “actions were intended to avoid having to resort to lethal force”); Singl eton v. City of Newbur gh , 1 F. Supp. 2d 306, 315 ( S.D.N. Y. 1998) (dismissi ng excessive force claim aga inst offi cer who use d a sing le st ream of pepper spray t o prevent unarmed sus pect from de str oyi ng evi dence of a crime). this time Gaddis made an incoherent remark to Bain, calling him “Chris” and

referring to a nonexistent

prior confrontation with him in Californi a. Gaddis then announced that he want edto leave. It was at this point that Bain stepped forward and spray

ed him. Gaddis argues that on the facts of this encounter, the use of pepper spray was unconstitutiona

lly excessive.

One of the ma

in purpose s of nonle

thal, temp orarily incapacitating

devices such as pepper

spray is to give police effective options short of lethal force that can be used to take

c us tody of an ar med suspe ct who re fuses to b e lawful ly arrested or detained. As a genera l matter, this court has expressed doubt “that the use of non-lethal force ag ainst an armed and volat

ile suspe ct constit

utes e xcess ive force.” Ewolski v. City of Brunswick , 287 F. 3d 492, 508 (6th Cir. 2002). 9 Gaddis’s

casefal ls in or near this category : he was armed w it h a knife and his conduct was at least somewhat “volatile,” as he was refusing to submit to a

rrest. Moreover,

we have also held

that in suf

ficientl y pr essing c ircumsta

nces, officers ma y us e p ep pe r s pr ay to take custody of una rmed suspects

. In M

onda y v. Oulle tte , 118 F.3d 1099 (6th Cir. 1997), we upheld j udgmen t as a matter of law for police officers who used

spray to subdue an una

rmed individual they feared would injure himself or

commit suicide by overdosing

onpills if not

taken int o custody. Id. at 1104-05. Of course, there must exist an objective justification for the use o f pepper sp ray. In Adams v. Metiva , 31 F.3d 375 (6th Cir. 1994), we held that police who repe ate dl y spray

ed mace in the face of

an unarmed plaintiff who was not resisting andNo. 02-1483 Gaddis v. Redford To wnship, et a l. 19

10 T he offi ce rs al so knew t hat Gaddis was drivi ng wit h an expir ed lice nse. was not subject

to lawful arrest would be liable for excessive force as a matter of law. Id. at 384-87.

Measured by this case law a

nd the three factors outlined by the Supreme Court i n Graham , we cannot say that Officer Bain’s decision to use pepper s p ray could be found to be objectiv ely

unreasonable. The amount of forc e Bain used, thou gh not trivial, was moderate. At the time he act ed, th e officers had

probable cause to suspect Gaddis of two crimes that were a lso moder ate in se ve ri ty: driving while intoxicated,

a misdemeanor for first offenders under Michig an l aw, and fleeingan officer. 10 While Gadd is argu ably did not pose an immediate

threat to the offi cers ’ saf

ety as he stood next to his

car brandishing a knife (since the office rs were able to keep their dist ance) , Bain could have reasonably concluded from Gaddis’s erratic driving and behavior that he would p o se a danger to other motorists if allowed to flee. Gaddis had announced

his desire

to leave th e scen e, and this statement prompted Bain to sp

ray him. That f

act is als o releva

nt to the final Graham f

act or, namely whe

ther the suspect was resisting arrest. Gaddis’s remark s indica ted an int ent to continue evading

arrest , and his brandishing of a knife was

reasona bly i nterp reted as a sign of intent to resist, perhaps violently.

Insum, Bain used an

intermediate degree of

nonlethal force to s ubdue a suspect who had previously attempted to evade arrest, was br andis hing a knife, showed signs of intoxication

or other impairment, a

nd p osed a clear risk of leaving the

scene behind the

wheel of a car. I t c annot be said that t

his action was unconstitutionally excessive.

Gaddis disp utes t his re asoni ng, arguing that his incoherent remark a b out “Chris” put Bain on notice that Gaddis was disturbed, and that this made special tactics appropriate. 20 Gaddis v. Redford To wnship, et a l. No. 02-1483

11 However, we note that t he weight of such e xpert testimo ny is dimini shed to the extent that t he expert draws near t o op in ing on the ultimate legal questi on of whet her th e offi cer s’ chall enged conduct w as reasonabl e. See Samples v. Ci ty of At lanta , 916 F.2d 154 8, 15 51 ( 11th Cir. 19 90) ; Burger v. Mays , 176 F.R.D. 153 , 157 (E.D. Pa. 19 97). Gaddis argues that

a reasonable officer, suspecting Gaddis’s disability , would not have responded to the brandishing of a kn ife by poi nting a gun at Gaddis. Nor would he have “provoked” Gaddis by

using an ir ri tating and disorienting device such as pepper spray against him, as Bain did. Instead,

a reas on able officer would have used a nonconf rontational

manner that would

ensure t hat Gadd is was not provoked

to vio lence. To suppor

t this arg ument, Ga

ddis offe red th e affida vit of Prof. James Fyfe, a

law enforcement expert. Fy fe t estified that in his opinion, the officers’ tactics in t h e encounter with Ga ddis were

“terrib le” and were not i n keepingwith optim al p olice pr ocedure s for dea

ling with mentally or emotion

ally disturbe d persons

. We acknowledge that a suspect’s appa rent ment al state i s
one of the “facts and circumstances of [the] particular ca se,” Graham
, 490 U.S. a

t 396, th at sh ould be considere d in weighing an exces s ive force claim. Moreover, the opinions of properly qua

lified experts such as Mr. Fyfe are o fte n entitled “to be given . . . weight” in this determination. Russo
, 953 F.2d at

1047. 11 In Russo , we drew partially upon suchte st im on y in concluding that the inadequate training procedures of the Cinc innati police department may have contribut edto the shoo ting dea th of the p laintiff

’s suicida l, mentally ill decedent. See id. at 1046-47.

Ho wever, Ga dd is ’s ar gu me nt s h er e a re we ak en ed by t h e fact that Bain had only f

ragmentary

evidence that

Gaddis was mentally disturbed. This distinguishes the case from Russo
, where office

rs knew f

rom the ou

ts e t that the suspect was mentally disturbe d becau se the initia l call tothe polic e came from the mental institution the suspect had left. Id. at 1039. Here, Gaddis’s

incoher ent condu ct was ar guably as consistentNo. 02-1483 Gaddis v. Redford To wnship, et a l. 21

with Bain’s initial hypothesis that Gaddis wasdriving while intoxicatedas it was w

ith mental disturba nce. The Supreme Courthas instructed that we are to judge offic ers’ conduct fromthe “perspective of a reasonable officer on the scene, rather thanwith the 20/20 vision of hindsight.” Graham , 490 U.S. at 396. There may be more than on e r easonab le response to a give n situation , and whe

n this is so, t

he Four th Amen dme ntdoes not require officers to use “the most prudent

course of action” to hand

le it. See Cole , 993 F.2 d at 133 4. In light of the ci

rcums tanc es and our reasoning above, we conclude Fyfe ’s affidavit is not sufficient to create a material issue of fact as to the reasonableness of Bain’s use of pepper sp ra y.

D

Similar rea soning leads us to conclude that Officer Burdick’s decision

to grap ple with G addis in

order to subdue him was not unconstitutionally excessive force. Burdick did

n otstrike Gaddis or employ a ny weapons; his action s involved a degre e of for

ce compa rable to Bain’s use of pepper sp ra y. Moreover, Gaddis’s argument that a differe nt respon se
was required because of his emotional disturbance does no t apply to Burdick. It was uncontrove rted that Burdick did

not hear the “Chri s” remark

that most st

rongly tended to sugge st Gaddis’s incoherence or emotional disturbance. As we have noted, the reasonableness of his response must

be gau ged in terms of the inf

ormation a

vailable to him, not w

ithhindsigh

t. And “reas onablen ess” does not require that an action be “pruden t” or the “best suited” to the situation, only that it not be uncon stit utio nally di sprop ortio nate i n degr ee to the circumst ances. Giv en that Bain’s use of nonlethal force againstGaddis was reasonabl e, as w e held at pp. 17-21, supra , it follows that Bur d ick’s de cision to g rapple w ith Gaddis wa s reasonable as well. 22 Gaddis v. Redford To wnship, et a l. No. 02-1483

12 That concl usi on does n ot ch ange w hen we tak e in to con side rat ion the “mom ents preced ing the shooting,” as pre cedent req uires. Dicker son , 101 F.3d at 1162. We have previ ously held t hat Bai n’s and Bur dick’s

uses of non let

hal forc e to a

pprehen d Gaddis di d not rai se a jur y is sue as to exc essiven ess und er the F ourth Am end men t. E

Gaddis reacted to Burdick’s attempt to gra pple with him by stabbing at Burd

ick with his knife. Our last issue for consideration

is the constitutionality of Officers Bain and Duffany ’s decision

to respon d to this attack w

ithlethal force, by shooting Gaddis seve

ral times.

Lethal forc e is justif

ied in order to protect a fellow officer

ora civilian from a threat of serious physical harm

. Brandenb urg

v. Cureton , 882 F.2d 211, 215 (6th Cir. 1989). Anattack with a knife certainly meets this criterion. 12 See Pirsein v. Village of Berrien Springs , No. 92-1 258, 1 992 WL 348944 (6th Cir. Nov. 24, 1992) (unpublished opinion). Bain and Duffan y sa w Gaddisstrike at Burd

ick with a knife in h

is right hand. It wasreasona

ble for them to respond with lethal force.

Gaddis relies upon Samples v. City of Atla nta , cited supra , and Zuchel v. City of Denver
, 997 F.2d 730 (10th Cir. 1993), to argue that his use of a knife did not necessarily render the office rs’ actions justified. In S a mples , the Elev enth Circ uit denied qualified immunity to an officer who fat ally shot Samples as Samples appr oached him w ith a three-inch folding knife. 846 F.2d at

1331-33. Zuchel

involved a suspect who

was believe d to have a

knife, and who was fatally shot by an officer shortly after he

turned to face the officer. 997 F.2d at 735- 36. The Tenth Circuit held that these facts were sufficient to support a verdict for the plaintiff against the officer’s municipal employ er. Ibid

. Both cases are distinguishable from Gaddis’s. In Samples
, the officer shot a suspect who was, a t most, m erely ope

ningNo. 02-1483 Gaddis v. Redford To wnship, et a l. 23

a knife, and had not ye

t attacked any

one with it. 846 F.2d at 1332. Moreover, Sampl es was s hot once in the back – a detail that was highly sa

lient to his case, because there was only one officer confronting Samples . T he back wound suggested that the officer might

have use d lethal f

orce against Samples at a time w

hen he c learly

did not pose a threat to the officer. Ibid. Here, G addis had not only extended the blade of his knife but had attacked Offi ce r Burdic k with it. Moreover, while Gaddis, li ke Sample s, also received a wound fromthe back from the sho ts fired at him, the fact was that multiple officers were firing

at Gad dis fr om di fferen t vant age points after his attempt to stab Burdick. Thus Gaddis’s back wound doe s not t end to undercut the officers’ testimony (c orroborated

by t he videot

ape) tha t they fired on

ly in response to the knife attack.

In Zuchel , the facts s u ggested that Zuche l was not threaten i ng any

one or br andishing a weapon agg

ressive ly when police shot him. Indeed, the only evidence that Zuchel

even had a knife came from

one bystander ’s shouted warning to the police. 997 F.3d at 735-36. Here, again, Gaddis had a knife an d used it.

Gaddis finally suggests that even if his actions justified a lethal response, the officers crossed the constitutional line by firing sixteen sho ts at h im. We disagree. While the two officers fired a total of sixteen shots at him, i t was a sin

gle

vo ll ey. That distin

guishes Gaddis’s case fr om prec edents suchas Russo , where police went on to fire a second and third volley at the suspect

even t hough there wa s a fact ual disput e as to whether he still posed a serious threat. See 953 F.2d at 1045. Bain’s a

nd Duffa ny’ s decisions to use

their we apons to respond to Gaddis’s attack were individually justifiable, and the fact that the re were two of them responding si mu lt an eo us ly, thereby pr od ucin g a larger volley

, does not change the reasonablene ss of their conduct. 24 Gaddis v. Redford To wnship, et a l. No. 02-1483

V

For the foregoing reasons, the district c ourt’s grant of

sum m ary judgmen t to the off

icers is A FFI RMED. Be cause there was no un derly

ing constitutional violation by the of ficers, the municipal defendants cannot be held liabl e t o Gaddis. Monday
, 118 F.3d at 1105 . The grant of summary judgment to the municipal def

endan ts is there fore al so AFFIRMED.No. 02-1483 Gaddis v. Redford To wnship, et a l. 25

_________________ DISSENT

_________________ C LAY, Circuit Judge, dissenting. Because the major ity
, like the district court below, usurps the role of the jury and violates the plain

dictates of Fede

ral Rule o f Civil Procedu re 56, I dissent.

I.
My disagreement beginswi th the majority’s holding that Officer Matthew B ain’s init

i al traf fic stop o f Joseph Ga

ddis complied with the Fourth Amendment as a matter of l a w. Most appell ate review of a district court’s determination about the propr iety of a tra ffic stop arises on direct criminal appeal after a

district c ou rt has de

nied a mot

ion to suppr

ess evidence discovered after the stop. In that procedural posture, the Court upho l ds the district court’s findings of fact reg ard ing the existen

ce of pr obable c ause “un

less clea rly erroneous,” and

the district court’s legal conclusion as to the existence of probable cause is review ed de n ovo. United States v. Hill, 1 95 F.3d 258, 264 (6th Cir . 1999); see also Ornelas v. United States

, 517 U.S. 690, 699 (1996). By contras t, in a § 1983 action on appeal f rom th e gr ant of a summary judgment against the plaintiff, the Court reviews bo th the district court’s factual assessments (i.e., whether there are genuine issues of material fact) and the legal conclusions under

a de novo standard. See Pyles v. Raisor, 60 F.3d 1211, 1215 (6th

Cir. 1995) (“In ge

neral, the existence of probable cause in a § 1983 action presents a jury question
, unless there is only one re asonable determination possible.”) (citing Yancey v. Carroll County, 876 F.2d 1238, 1 243 (6th Cir.1989)). Although the m ajo rity opinion states that “we must resolve disputes of fact in favor of the no nm ov in g p ar ty, Gaddis, drawing

all infer ences in his favor,” Op. at 3 (citing Burchett v. Kiefe r, 310 F.2d 937, 941-42, 945 (6th Cir. 2002)), the remainder of the opinion reveals that the major ity 26 Gaddis v. Redford To wnship, et a l. No. 02-1483

has simply

paid lip se

rvice to this b edroc k principle of summary judgme

nt law.

The failings of

th e majorit

y op inion begin with its descriptiono f

the allegedly

undisputed facts that preceded Officer Bain’s initial traffic s top of Ga ddis. This m

uch is undisputed: Gaddis was driving his ca rshortly before

4:00

a.m. on April 12, 1999, in Redford Township, when Officer Bain spotted Ga

ddis’ car while patrolling

alone on Telegraph Road. It is a

lso undispu

ted that O fficer

Bain ’s patr ol car created a video, but not an a

udio, rec ord of Bain’s counter with Gaddis. It is not undisputed, however, that Bain saw Gaddi s “weavi

ng” wit hin his traffic lane. Op. at 3

. According

to the Oxford English Dictionary, “ weave” means to “ move rep eatedly

from side

to side; to t

oss to and fro ; to sway the body alterna tely to one side and the other; to pursue

a devious c ourse, th

rea d one’s way

amid obstructions.” Oxford English Dictionary On line Edition (ta ken from second print edi tion 1989) (emphasis in original). Webster’s Dictionary

defines “weave” to mean “to direc t (as the bo dy) ina winding or zigzag course esp. t o avo id obstacles.” Webster’s Third New In t’l Dictio nary 25 91 (199 3). The vi deotape evidenc e does no t show – or at least a reasona ble jury would not be compelled to conclude – that Gaddis moved repeat edly side to side or that he was driving his car on a zigzag course. Rather, t he tape shows Gad

dis gr adually veering within his lane on two occasions, barely touching (but notcrossing

) the whit e line separating his lane from the lane travelingin the s ame d irection. Thus, there is a significant dissonance betw een Bain’s c haract erization of Gaddi s’ driving (weaving) and what the videotape actually

reveals (a gradual drifting to the lane marke r on two occasions).

Bain’s cr ed ib il it y reg arding Gaddis’ a

lleged weaving is undermined

not only by t he videot ape, but also by his 1999 convictionfor third degree criminal sexual conduct for w hich Bain current ly is serv ing a prison term of 42 months to 15 ye ars. See F ed. R. Evid. 609(a)(1) (providing that evidence that a witness has been convicted of a crim e punishable byNo. 02-1483 Gaddis v. Redford To wnship, et a l. 27

imprisonmentin excess o f one y ear sh a ll be admit

ted if its pro bative value outweighs its prejudicial effect). Althou g h ultimately it is w ithin the di strict co urt’s disc retion to a

dmit evidence of a prior crimina l convic t ion for impeachment purposes , Bain’s c onviction argua bly tends to undermine the testimony of the mos t signifi cant def ense witness in this c ase as to all ma

terial is sues.
The majority

next acce

pts a s undisputed fact Bain’s testimony that Gaddis had

been “driving

somewhat slowly,”

a fact the majority de clares to be suppo rted by the ca rs passing Gaddis i

n th e other lane. Op. at 3-4. There is no evidence, however, that

Gaddis was traveling under the speed limit
, nor is it und

isputed that his spe ed was so slow as to sugge st that he may have

been under the influence of alcohol. Cf. United

States v. Little, No. 97-6200, 1999 WL 196515, at *1 (6th Cir. M ar. 24, 1 999) (not ing th at troop er suspected defendant was a drun k driver “[

b ]ecaus e intoxicated drivers commonly

travel at e

xcessiv ely high or low speeds”) (emphas is added). In fac t, Bain testified that

he has no recollection

of what the other cars were do ing on the night in question, suggesting that the relative speed of

Gaddis’ c ar did not inform Bain’s decision to stop Gaddis at all. See United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) ( en banc ) (“We note that this proba

ble caus e dete rmination , like all probable ca use determin

ati ons, is fact-dependent and will turn

onwhat the officer knew at the time he made the stop. ”) (emphas is in origin al). Further, it reasonably could be inferred from the v

ideotape that cars were p assing G addis becau se he was traveling at or near the speed limit and the other drivers were exceeding

the spee d limit. Consistent with this inference, Officer B ain admits that he never saw Gaddis violate any provision

of the Mic

higan Motor Vehic le Code. Thus, there is a genuine i ssue of material fact as to whether Gaddis was traveling at an excessively slow speed th at
reasona bly would hav e su gg ested dr unk and/or care less drivi ng. 28 Gaddis v. Redford To wnship, et a l. No. 02-1483

The ma jo ri ty n ext st ates that Bain testified that he “saw Gaddis slumping to the right inside hi s car as he held the wheel.” Op. at 4. T

he Oxford

English D ictio nary def

ines “slump” to mean to “slide off heavily ; to plump down; to fal l

or collapse clumsily or heavily.” Oxford En

glish Dict ionary Online Ed. (emphasis in original). However, Ba in did not testify that Gaddis was slumping or that he appeared to be in

a state of fall or collapse. He actually testified that he saw Gaddis “leaning over to the right,” but that he “ couldn’t see into the car to see what

he was d oing. ” (J. A. 567 .) Alt hough “leani ng” and “ slum ping” a rguab ly f all along the same continuum
, there is a world of difference between the two physical states. Drivers fre qu en tl y lean in their cars when adjusting the radio or reaching for a c igarette lighter or a cellular telephone. Some dr

ivers ar e just more comfortable or may even enjoy dr

iving with a leaning po s ture. Alth ough suchleaning is not

inconsistent with intoxication, it also is not inconsistentwith a host of othe r innocent cau ses. By transformingGadd is ’ lean in to a “slump ,” the ma

jority continues its in cre mental sta cking o f the “un

disputed” facts againstGaddis. Moreover, as acknowledge d by the major

ity and the district court below, the tape does not show Gad

dis’ posture at all, another fact that bears directly on the credibi lity of B ain, who testified not only that he saw G addis lean ing
, butthat the tape “could pick that up.” I t is inexplicable, then, why the majority not only igno res th e absen ce of “l eanin g” evidence on the vide otape but also embe ll is hes Bain’s te st im on y. The far

more judic ious tact would be to ackno wledge that

a reasonable inference f

rom the absence of “leanin g” evid ence is t hat Gadd is was not l eaning

at all.
According

to the majority, Ba

in’s purported observation of Gaddis’ “w e aving,” slow driving speed and “slumping ” led Bain to suspect that

Gaddis had been driving drunk. Op. at 3- 4. This is only partially

true. Bain testified that he thought Gadd is “was driving carelessly
, and [he] thoug

ht [Gaddis] might be intoxicated.” (J.A. 568.) (emphas is added). Thus, Bain suspecte d that Gad

dis might be violating two provisions of the Michigan Motor V eh icle Code – Mich. Comp. LawsNo. 02-1483 Gaddis v. Redford To wnship, et a l. 29

§ 257.625 (prohibiting operation of v ehicl e while under the influence of alcoholic liquor) and § 257.6 26b (prohibiting careless or neglige

nt driving).

In Whre n v. Unite

d States, 51 7 U.S. 806 (1996), the S u preme Court held , “As a g eneral matter, t he decis ion to stop an automobile is reasonab le wher e the police have probable cause to

belie ve that a traffic violation has occurred.” Id. at 810 (c itati ons omitted). The Court further characterized

the proba ble caus e sta

ndard for suspe cted traffic lawviolations as “the normal one,” the “traditional justification” and “the usual rule.” Id. at 810, 817 ( emphasis omitted), 818. Our

Court , sit ting en banc , similarly held that “so long as t

he offic er has pr

obable c ause to be lieve tha t a traffic violation has occurred or was occurring, the resulting stop is not unlawful.” Fe rguson, 8 F.3d at 3 91; accord United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (following Ferguson ); H ill, 1 95 F.3d at 264 (“[A]n officer may stop a vehicle for a traffic violation ...as long as the of ficer had probable cause to initially stop the vehicle. ” ) (citing Whren ). Despit e these c lear sta

te ments by the Supreme Court and our own en banc Court, the majority opines that it is unsettled in this circuit as to whether the police need probable cause to stop a vehicle for a s uspected traffic law violation. Op. at 12 n.6. The majority appears to base its reasoning on the ground that the Whren opinion fa ils to state explicitly that the decision to stop an a ut omobile is

reasona ble only when the

police ha

ve proba ble caus e to believe that a

traffic violation has occurred. See Op. at 9 n.4 (“Indeed, Whren did not evenhold that all stops premised on

a civil traffic violation require pr obable cause .... ”). This reading of Whren , howeve

r, ignor es the conte xt of t he S upr eme Court’s a

bove-qu oted state

ment, whic

h was a response to the petitioner’s argument that “‘in the unique context of civil traffic regulations’ probable c ause is not enough.” Whren, 517 U.S . at 81 0. Although the Court refused to adopt a more stringent constitutional standard than probable cause f or suspec ted traf fic law v iolations, the Court gave no indicationthat in

fact a lesser constitutional standard 30 Gaddis v. Redford To wnship, et a l. No. 02-1483

applies. To the contrary , at the conclusion of its opinion, the Court stated:

For the run-of-the-mine case, which this surely is, we think there is n o realistic alternative to the traditional common-lawrule that probable cause justifies a search

an d seiz ure. Here the District Court found that the officers had probable cause to believe that petitioners had violated the t raf

fic code. That rendered the stop reasonable under the Fourth Amendment....

Id. at 818-19 . Beca

use it is settled that proba ble caus e is required for su spected

civil viola

tions of the

traffic laws, Officer Bain cle arly

needed probable cause to stop Gaddis on suspicion of careles s dr iving. Cf. United States v. Ervin, 59 Fed. Appx. 631, 635 (6th C ir . 2003) (holding that officer needed proba ble cau se to s top d river for vi olati ng F lo rida’s careless driving statute).
Ignoring Officer B a in’s careless driving justification for the stop, the major ity hol ds that Ba in neede d only

a reasonable suspicion that crim

inal acti vity was afo ot befor

e he cou ld stop Gaddis on suspicion of

drunk driving because drunk driving is a criminal offense in Michigan. Op. at 8-9. See alsoMich. Comp. Law s § 257.625 (9)(a)(provid ing th at a person who operates a veh icle wh ile intoxicated “is guilty of a misdemeanor”). As support, the major ity op inion cites United States v. Arvizu, 534 U.S. 266 (2002)
, Alabama v. White, 496 U.S. 325 (1990) and United States v. Hensley, 469 U.S. 221, (1985). Op. at 8. None of these cases is releva nt, however, because none of the suspected crimes in those cases bore an inher

ent conne ctio n to th e operation of a motor vehicle, and none involved a suspecte d violation

of the tra ffic laws. See Arvizu, 534 U.S. at 272, 273 (minivan stopped on

sus picionthat nar

cotics we re being smugg led); White, 49 6 U.S. at 327 (ve

hicle stop ped due to

anonymous tip that driver had been t ransp ortin g drugs ); Hensley, 469 U.S. at 677-78 (vehicle stopped on suspicion that the driver was wanted for armed robbery ). By contras t, drunk dr

iving ne cessar

ilyNo. 02-1483 Gaddis v. Redford To wnship, et a l. 31

involves the operation of a motor veh icle and cons titutes a violation of the traffic laws. Under Michigan law, the drunk driving pro hibition, like the civil prohibition agains t speeding
, is located within Chapter VI of the Michiga n Motor Vehicle Code, entitled i

nconspicuous type, “OBEDIEN CE TO AND EFFECT OF TRAFFI C LAWS.” Subj ectingcareless driving and drunk driving to diff erent constitutional standar

ds mak es no sense legally and practic al ly. Stops for both types of violations gene rally are premised on an officer’s observa tions , “which afford the ‘quantumof individualized suspicion’ necessary to ensure that police discretion

is sufficiently constraine d.” Whren, 517 U.S. at 817 -18 (quot ing Delaware v. Prouse, 440 U.S. 648, 654-55 (1979); i

nternal quotation m arks and citation omitted). The mere fact that

the respective penalties for care less driving

versus drunk

driving deem the former a civil violation and the latter a crime has no bea

ring whatsoeve

r on the ma

nner in whi ch po lice officers detect these violations. Moreover, different standards for these two traffic violation s might

encou rage police officers to avoid the higher consti tutional standard appli cable t o sto ps for carele ss dri ving, speed ing, failing to signa

l, e tc. by “tac

king on” a drunk driving suspicion. In ma

ny i nstance s, the majority ’s reas onable suspicion st andard

for drunk driving could swallow the probable cause standard applicable to all other traff ic law violations

. Because theSupreme C ourt (in Whren ) and this

Court ( en banc decision in Ferguson ) clearly have held that a stop for suspecte d tr affic violations m ust be pre

mised on pr

obable

cau se and because there is no legal or practical bas is t o subject drunk dri

ving to a differe nt constitu

tio nal standard than oth er suspe cted traffic viol ations, th is Court sho

uld follow the panel decisions of our Court that relied on Whren and/or Ferguson in applying a p robable

cause st andard t o suspected drunk driving. See Freeman, 209 F.3d at 467 (applying Ferguson ’s proba ble caus e standa

rd in holding that officer lacked prob able cause to stop vehicle for suspected 32 Gaddis v. Redford To wnship, et a l. No. 02-1483

drunk driving); United States v. Palomino, 100 F.3d 446, 448 n.1 (6th C ir. 19 96) (ap plying Whren ’s prob ab le cause standard to challenge to traffic stop for suspe cted drunk drivi ng; affirming district court’s holding that the officer had probable cause to believe that the traffic violation of driving while intoxicate d had occ urred) ; accor

d United States v. Carlton, 44 Fed. Appx. 720, 722 (6th Cir. 2002) (holding that officer had probable cause to suspect drunk driving based on “erra tic driving ”); United

States v. Little, No. 97-6200, 1999 WL 196515, at *4 (6th

Cir. Mar. 24. 1999) (holding that the totality of the circ umstance s creat

ed proba ble caus e to believe th at the defendant had been driving drunk). To the extent United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir. 1993) adopted a reason ab le suspicion standard for drunk driving stops, Whren and Ferguson have abrogated that case

. As previously discussed, there is a genuine issue of material f actas to whether Gad

dis had be en leani

ng in his c ar and, i f so, to what extent. There also is a genuine issue of material fact as to whether Gad

dis had be en drivin

g at a speed s o excessive ly

slow as to b e in d icati ve of i mpair ed dri ving. Thus, the only

undispute d fact is t

hat Ga ddis’ ca

r grad ually drifted toward and

eventually touche d the painted hashes on two occasions. This fact alone does not crea te proba ble cause to suspect, or even a reasonable suspicion of, drunk driving as

a matter of law. Cf. Freeman, 209 F.3d at 466 (“If failure to follow a perfect vector down the highwa y or keeping

one’s eye on the road were sufficient reasons to suspect a person of driving while impa ired, a substan tial porti on of the p

ublic

w ould be subject each day

to an invasion of their priva cy.” ) (internal quotation marks and ci tat ions omitted). Cases finding probable

cause to

arrest f or drunk d

riv in g have required more indicia

of impaired driving than two instances of a gradual drifting

onto a lane marker. See, e.g., Palomino, 10 0 F.3d at 448 (holding drunk driving stop to be constitutional where d

river ha d been tr aveling signific antly under the speed limit, had crossed two lanes of traffic at once, had straddled the right

lane, and had been weaving ba ck and forth between the right lane and the emer gency lane);No. 02-1483 Gaddis v. Redford To wnship, et a l. 33

Carlton, 44 Fed. Appx. at 722 (holding drunk driving stop to be constitutional where driver had “weave d from side

to side at least three times on” two diffe rent stre ets); Little, 1999 WL 196515, at

*4 (holding drunk driving stop to be constitutional where driver

had been traveling at “an unusually slow speed,” had allowed her speed to fluctuate, and had wea ved on the highway ’s shoulder). Ido not for eclose t he possibi lity

that a jury might fin d probab le cause if it were to find tha t Gaddis

was not in cont

rol o f his v ehicl e, as ev idenc ed by leani ng, slouching and/or a

n excessiv ely

slow speed. It simp ly is

my position that this Court lacks the authority to usurp the jury’s role in finding the facts that may support such a legal conclusion.

II.

Gaddis’ excessive force claim centers around the batteries h e suffered after Office r Bain had pulled him over fo r suspected traffic violations , most

signific antly

the 16 bull ets that Officers Bain and Duffany fire d at Gadd is. The key circumstance that precipitated the s hooting was the alleged belief of at leas t t wo of the officers that Gaddis had had a kn i fe in his hand. As the majority opinion notes, “I f a

reasona ble jury could fin d that Gad

dis di d not

have a knife, thenit cou ld un quest ionab ly go on to find t hat shooti ng him

was unconstit

uti onall y excessive forc e ... and the grant of summary judgmen t would have to be reversed.”

Op. at 15-16 (citationomitted; emphasis in original). As discussed below,

a reasona ble jury should be p ermit

te d to make just such a finding and, therefor e , the summary judg ment should be reversed.

After Gaddis fi nally stopped hi s car, O fficer

Bain drew his gun and approach ed. Bain then re-holstered his gun a nd pulled out his flashlight. After a delay , Gaddis passed a piece of paper to Bain who looked

at it and st

uffed it i n his pocke

t. Soon, Officers Burdick and Duffa ny arrive d in their car. Ga ddis th en exited h

is car a nd put his ha

nds in his po ckets. Bain br iefly grabb ed Gaddi s by t

he colla r and pull ed Gaddi s 34 Gaddis v. Redford To wnship, et a l. No. 02-1483

1 Cha mpo ux is no lo ng era p ol ic e of fi ce r. He res ign ed al lege dly for personal reasons after pleading guilt y to impaired driving. toward him. S hortly

thereafter, Gaddis removed his hands fromhis pockets. According to Bain and Burdick, they saw

a knife in Gadd is’ h and. Burdick described the knife as “large,”“long,” and

“th e biggest knife [he] had ever seen.” Bain’s testimony conflicts with Burdick’ s in thatBain saw only a small knife. Duffany

sawsomething

shine, but

he did notknow what it was. Bain then pulled his gun on Gaddis, as did Burdic k. Duffany

pulled his gun in response to Bain’s reaction in pulling his gun. Officer Paul Champoux, who had arrived on the sce

ne aroun d this t ime, testi fied tha

t he could nottell if Gaddis had anything in his hand. Nevertheless, he “racked”a shell int

o the chamber of his shotgun and leveled it at Gaddi s in order

to “start le” Gad dis. 1 The knife that Defend ants claimed t

o have re covere d from Ga ddis was less than t hree in ches l ong.
If all of the offi ce rs had seen Gaddis with a knife, but happened to disagree about the knife’s leng th, there would be

no genuine dispute as to whether Gad dis had been brandishing a knife. Here, however, two of the offic ers coul d notdetermine what Gaddis had been h oldin g, even thou gh another office r testifie d that Gad

dis h a d wielded a large and long knife. Thus, the officers’ credibility is opento question, particu larly that of Bain, a convicted criminal. Moreover, as d iscussed below, there are several additional piec es of evidence that further undermine th e officers’ claim that Gaddis had been holding a knife.
First, there is no physical e vidence of the stab wound Gad dis allegedly

inflicted on Officer Burdick. Offic er Burdick t estified that Gaddis had stabbed him in the back while Burdick had been attempting to place G addis in a headlock. Burdick, who had been wearing a flak jacket at the time, claims to have suffered a cut on his back that resulted in a circle

of blood so iling his w

hite t-shi rt. The bl o od y t

-No. 02-1483 Gaddis v. Redford To wnship, et a l. 35

2 It is unclea r wheth er th e shir t bears any evi dence of hav ing been pierced or cut. The part ies have not di scuss ed the i ssue.

3 At deposition, Burdick testi fied that he had been trained to preserve evide nce o f bloo d-soile d clo thing. shi rt, however , was not preserv ed as evi dence a t the crime scene, and its whereabouts are unknown. The police shirt that Burdick wore over the t-shirt was preserved inevidence, but had no b lood on it. 2 The back of the flak jacket, where Burdick allegedly had been stabbed bore only a “spec k”-sized hole, and Bur

dick has n

o scar f rom the a ll eged knife attack. This utter lack of physi cal e vidence of a stab wound, particu larly when co m bined with the fact that no officer preserved Burdick’s purport edblood-soa ked t-shi rt, in derogation

of proper

in vestigative practice, 3 tends to unde rmine Burdick’s testimony that he had suffered a stab wound from Gad

dis. A rea sonable

inference from thelack of

a stab woun

d is that Ga ddis had not been holding a knife when he struck Burdick.
Second, there is no r el iable physical evide nce linking Gaddis to the knif

e th at De fendant s attribut e to Gadd

is. Jeffrey Wanbaugh , the evidence technician who arrived on the scene after Gaddis had been shot, was a pprised by an offi cer that Gaddis allegedly

had been wielding a knife a n d had stabbed Burdick. Wanbaugh testified that he discovered

a set of car key s and a leather sheath ly ing on the front driver ’s se at of Gaddis’ car, but that he did not know when eithe r of those items had been placed on the seat, n or b y whom. He also testified that he had wanted to see what was inside of the sheath and discovered a knife insi de. Al thou gh Wanb augh phot og raphed t his knife , he did no t take it in to evid ence. Wanbaugh further testified that he collected a second knife on the ground

and abou t four fe et from G addis’

car. An officer on

the scene told Wanb augh th at Gaddis had used this knife to strike Burdick. 36 Gaddis v. Redford To wnship, et a l. No. 02-1483

Despite the manif

est importance of this second knife, Wanb augh did not col lect it unt il he had been on the scene for

a half an hour. And although Wanbaugh took the second knife into evidence, he made no attempt to determine whether it bore the fingerprint s of Gaddis or the police officers. He simply took the w ord of an office r on the sc ene that

Gaddis had used the knife to strike B urdick. Wa nbaugh ’s failur

e to fingerprint

and establis h a relia

ble chai n of custo dy f

or this second knife, c ombin ed with the fact that he never took the first knife into evi de nce, ca n support t

he reas onable inferences that (1) Gaddis actually had possessed only one knife, the one recovered from inside of his car
, and (2) t he second knife, w hich was neith er fing erprinted nor tested for blood, may have be en planted at the scene by one of the office rs. Third, a reasona ble jury could conclude

that the videotape does not show Ga

ddis holding a knife. The majority opinion concedes that, when viewing the videotape, a knife cannot be discerned in Gaddis’ hand. Op. at 17 (“While the tape w ould notenable a

juror dir ectly to verify the pres ence of

a knife, it equally would n ot perm it him or her to conclude that there

was no knife.”). Combined with the other evidence that undermines the officers’ credibility , one reasonable inference is that Gaddis did not have a knife in his hand at the time. The majority

explains a

way this infer ence as

well. Employing

colorfu l descriptions tha t could be more appropr iately presented in Defendants’ cl os ing arg ument to the jury, the majority

zeroes in on “the body

language of the

a ctors during the encounter,” concluding that “the offi cers ’ reactions powerf

ully corroborate” the conclu sion that G addis had a knife. Id. The major

ity first points to the fact tha t Bain jumped back “in obvious alarm” after G addi s had removed his hands from h is pocket and arg ues that th

is reac tion is “inexplica

ble unless something t

hreate ning wa s in Gaddis ’ hands.” Id. I agre e that the tape arguably suppo rts such a n inference, but it

is not the only inference

that explains Bain’s body language. The

tape also supports the inf

erence that Bai n
was concer

ned that G addis wa s going to strike h

im w ith hisNo. 02-1483 Gaddis v. Redford To wnship, et a l. 37

empty fist or wit

h his car keys or with a stick of f

oil-wrapped chewinggum or

any other harmless object that might glisten inthe dark . Bain’ s movemen ts also wou

ld support the inference that Bain was not alarmed at all, b u t that he had become an gry or frustra

ted with G addis and

wanted to escalate the confrontation by drawing his gun.

As additional “body lang uage” evidence, t

h e majorit

y opinion points to the “windmilling motion” that Gaddis used to strike at

Burdick after

Burdick had atte

mpte d to jump Gaddis from behind. Op. at 17. Without citation and without the benefit of any

expertte st im on y, the majority concludes a s
a matter of law that this motion is “sug ges tive of a knife stab.” Id. This windmi lling moti o n, h owever , also is suggestive of strik

ing so meone with a fist or of an in vo lu nt ar y, reflexive

attempt to

pr otect one self from a surprise att ack . It is wholly inconsistent with Rule 5 6 for my colleagues to ad

judi cate this

issue ag ainst Gad

dis simply because he did not swing his arm in a manner consistent with their imaginations. The inference that Gaddis had threatened the office rs with a k

nife is notthe only reasona ble inference fromthe officers’ body

la nguage depicted on the videota pe. Cf. Headwate

rs Forest D ef. v. County of Humboldt, 211 F.3d 1121, 1132 n.5 (9th Cir. 2000) (“The videotape evidence here appears to raise more questions than it answers, which in the context of a motion for

judgmen t as a matt

er of la w must be resolved in favor of the plaintiffs as the nonmoving parties.”), vacated on other grounds, 534 U.S. 801 (2002).

III.

Even assuming, arguendo, that Gaddis had been wielding

a knife, there is a genuine issue of mat erial fact as to the

reas onable ness of the officers’ use of force . Gaddis’ expert witnesson law enforcement matters, D r. Jame s Fyfe, point s outseveral deviations from accepted police pr actice that resulted in the officers’ unnecessar y es calation of the

co nfront ationwith Gaddis. For example, Bain testified that he blasted Gaddis with pe pper spray because he was 38 Gaddis v. Redford To wnship, et a l. No. 02-1483

concerned

th at Ga dd is wo ul d t ry t o get in his car and drive

aw ay. The videotape, however, does not evidence any “body language” on Gaddis’ p ar t that is consistent with a desir e to l e ave the scene. Moreover, as Dr. Fy fe notes , the tactically

more appropriate de cis ion would have been to position the police vehicles around

Gaddis’ c ar so tha

t it would have been impossible

for him to e scape. O fficer Champoux te stifi ed that he could have blocked Gadd is’ car w ith his patrol car

if Gaddis had tried to leave.

The pepper spray

blast was only the prel ude to the

most egregious examples of improper police tactics. Accord ing to Dr. Fyfe , the confrontation with Gaddis “unfolded as a series of surprises ” because “nobody was in charge, there wa s no central plan, and there was no attempt to assure that officers knewwhat each other was doing and what it was expe cted to accomplish.” (J.A. 745.) Most notably, without any warning to his colleagues, Officer

Burdick scrambled over the back of Gaddis’ car

in an attempt to ambush Gaddis. Dr. Fyfe points outthat officers are instructed to keep their distance from people who are ar

med with knives, un

less ther e is absol utely

no way to prote ct an individua

l from an i

mminent thr

eat to life. It is c lear tha

t, prior to

Burdick enga

ging inhis illadvised tactic, no one’s life was in danger. As th e tape shows, Gaddis became aware of B urdick’s presence on his car and reacte d predictably

by swin ging his hand at Burdick, allege dly stabbing Burdick with a kni fe. Thus, Burdick

unreasonably

created a foreseeable circumstance in which the other of ficers were for

ced to take action to protect him from Gaddis.
According

to Defendants, the officers had no choice

but to openfire on Gaddis. Burdick’s testimony and the videotape, however, strongly indica

te that the officers shot Gaddis after he no longer posed a danger to Burdick. Burdick

testified that he was on th e gr ound at the back of G addis’ c ar at the time the other of

ficer s bega

n shooting

Gaddis. B ased on th

is evidence, Dr. Fyf

e opines that Burdick was well out of Gaddis’ range at the time Gaddis was being shot, and,No. 02-1483 Gaddis v. Redford To wnship, et a l. 39

therefore, Gaddis presented no danger to Burdic k or anybody else at that time . Ind

eed, it would have be en extreme ly reckle ss for the officers to have shot at Gadd is while Burdick

was near Ga

ddis. Acc ordingl

y, e ven assum

ing that Gaddis h ad been wielding a knife and that it was rea sonable fo r Burdick to jump him from behind, there is a genuine issue of material fact as

to whether it was reasonable for Office rs Bain and Duffany

to have shot at Gaddis 16 times.

IV.

It appears that at every

turn my colleag

ues have taken great pains to constr

ue each factua l dispute a s immaterial and/or drawinfer ences from the e vidence that fav or only Defend ants. This approach

is inconsistent with both the letter andthe spirit of Rule 56. It is disputed whether Bain ha d probable cause, or even

reasona ble suspicion , to stop Ga

ddis f orcarel ess drivin

g or dru nk driving , since a

ll that is undis p uted

is that Gaddis’ car gradually veered and touched the painted hashes on the road on t wo occasions. I

t is disputed whether Office rs Bain and Duff any acted r easonab ly infiring 16 gun shots at Gaddis because it ca nnot be concluded

as a matter of law that Gaddis had been bra ndishing a knife or any other dangerous object. Th e office rs’ testimony

is inconsiste

nt as to the p rese

nce a nd size

o f the p urported knife; there remain serious questions about the authenticity of the knife the offic ers’ attribute

to Gaddis; the of fi ce rs fa il ed to pr es er ve an y p hys ic al evidence that would have proven

that Gaddis had wounded Officer Burdic k with the knife ; and the v

ideotape is consi stent with the inferenc e that Gaddis had not wielded a knife. Moreover,

even assuming that Gaddis had been holding a knife, the purported need to shoot him was precipitated by O fficer Burdick’s bumbling attempt to subdue him. And

although the officers just ified their shooting as necessary to protect Burdick, the evidence strongl y indicates that Burdick was out of harm’s way

at the time the shooting

had beg un. From these facts, it rea so na bl y could be inferred that the officers who fired at Gad di s did not inte

nd to prote ct Burd

ick, but to

kill 40 Gaddis v. Redford To wnship, et a l. No. 02-1483

Gaddis. The resp onsible

thing to d

o would be to reverse the district c ourt’s g

rant of s ummary judgmen t.