1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0087P (6th Cir.)

File Name: 04a0087p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOSEPH GADDIS, by his next

friend and guardian, Erma

Gaddis, 

Plaintiff-Appellant,

v.

REDFORD TOWNSHIP, a

municipal corporation; CITY

OF DEARBORN HEIGHTS, a

municipal corporation;

MATTHEW BAIN, in his

official and individual

capacities; JOHN BURDICK, in

his official and individual

capacities; RICHARD

DUFFANY, in his official and

individual capacities, jointly

and severally,

Defendants-Appellees.

X

-

-

-

-

>

,

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

N

No. 02-1483

Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

No. 00-40375—Paul V. Gadola, District Judge.

Argued: September 17, 2003

2 Gaddis v. Redford Township, et al. No. 02-1483

Decided and Filed: March 26, 2004 

Before: BOGGS, Chief Judge; and KRUPANSKY and

CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Mark R. Bendure, BENDURE & THOMAS,

Detroit, Michigan, for Appellant. Joseph Nimako,

CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia,

Michigan, Eric D. Smith, HOPKINS, CURRAN & SMITH,

Southfield, Michigan, John H. Dise, Jr., DISE &

ASSOCIATES, Southfield, Michigan, for Appellees.

ON BRIEF: Mark R. Bendure, BENDURE & THOMAS,

Detroit, Michigan, Justin C. Ravitz, SOMMERS,

SCHWARTZ, SILVER & SCHWARTZ, Southfield,

Michigan, for Appellant. Joseph Nimako, CUMMINGS,

MCCLOREY, DAVIS & ACHO, Livonia, Michigan, Eric D.

Smith, Christine A. Fischer, HOPKINS, CURRAN &

SMITH, Southfield, Michigan, John H. Dise, Jr., DISE &

ASSOCIATES, Southfield, Michigan, for Appellees.

BOGGS, C. J., delivered the opinion of the court, in which

KRUPANSKY, J., joined. CLAY, J. (pp. 25-40), delivered

a separate dissenting opinion.

_________________

OPINION

_________________

BOGGS, Chief Judge. Joseph Gaddis, a mentally ill man

proceeding by his next friend, appeals from the district court’s

grant of summary judgment to the defendants in his 42 U.S.C.

§ 1983 action. Mr. Gaddis claims that the individual

defendants, members of two Michigan municipal police

departments, violated his Fourth Amendment rights by
No. 02-1483 Gaddis v. Redford Township, et al. 3

stopping his car without justification, and by using excessive

force in an ensuing confrontation that culminated in two

officers shooting Gaddis. The district court concluded that

Gaddis had failed as a matter of law to show that the

defendants violated his constitutional rights. For the

following reasons, we affirm.

I

Summary judgment is proper when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). In our

de novo review of the district court’s grant of summary

judgment, we must resolve disputes of fact in favor of the

nonmoving party, Gaddis, drawing all reasonable inferences

in his favor. Burchett v. Kiefer, 310 F.3d 937, 941-42, 945

(6th Cir. 2002). The application of this standard is

complicated here by the fact that Gaddis, the only witness to

the events at issue apart from the defendant officers and their

colleagues, has been stipulated incompetent to testify due to

mental illness. As discussed below, the record on appeal

includes a videotape that captured many of the events at issue.

We have carefully examined this tape along with the

witnesses’ testimony in reviewing the district court’s

judgment.

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 Telegraph

Road. (The mounted video camera on Officer Bain’s patrol

car yielded the tape that is the chief visual record of the

encounter. However, because the car’s audio recording

system was not working, the tape is silent.) Bain saw Gaddis

weaving within the right lane: his car edged to the left to

touch the divider line twice in a few hundred feet. Bain

testified that Gaddis was also driving somewhat slowly, and

4 Gaddis v. Redford Township, et al. No. 02-1483

the tape tends to confirm 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 he held the wheel. The videotape neither

reinforces nor throws doubt on this testimony. The interior of

the car is dark on the tape and Gaddis’s posture cannot be

made out, but the resolution of the video image is not high,

and the camera’s point of view is slightly different from the

vehicle driver’s. Bain pulled up alongside Gaddis’s car and

confirmed to his satisfaction that Gaddis was leaning to the

right, toward the passenger’s seat. Bain testified that he

suspected Gaddis was driving while intoxicated, a crime in

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

Bain pulled behind Gaddis’s car and turned on his flashers

and siren. When Gaddis failed to stop, Bain also employed

his air horn. Gaddis kept driving until he reached a red light.

Bain then left his patrol car and approached Gaddis’s stopped

auto on foot. When the light changed to green, Gaddis turned

right and drove away. Bain ran back to his car and pursued

Gaddis again, and finally succeeded in pulling him over after

about a block. 

Bain left his car again and walked over to Gaddis’s car.

The officer had his sidearm drawn when he stepped out of the

car, but holstered it as he walked up to Gaddis’s driver side

window. Bain asked Gaddis for his license and registration,

to which Gaddis replied that his license was suspended

(which turned out not to be true), and handed Bain an expired

Michigan driver’s license. By this time a number of other

uniformed police officers had arrived on the scene, including

Dearborn Heights Officers John Burdick and Richard

Duffany, who had been eating at a nearby restaurant and

decided to assist Bain after hearing him drive by in pursuit of

Gaddis. 

Bain told Gaddis to get out of the car. Gaddis opened the

door and stepped out with his hands inside his pockets. Bain
No. 02-1483 Gaddis v. Redford Township, et al. 5

1

Officer Champoux later testified that he believed he could have

blocked Gaddis’s car with his own patrol car if Gaddis had tried to leave.

testified that he ordered Gaddis to remove his hands from his

pockets. The tape shows that shortly after Gaddis emerged,

Bain grabbed him by the collar and pulled him slightly away

from the car. Gaddis then removed his hands from his

pockets, prompting a dramatic reaction: Bain jumped back,

visibly alarmed, and he and the other officers drew their

sidearms, pointing them at Gaddis. Officers Bain and

Burdick later testified that Gaddis had a knife in his hand,

while Duffany saw something shiny but wasn’t sure what it

was. (The videotape image does not permit the viewer to

verify directly whether Gaddis was holding a knife, a point

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

this time a fourth officer arrived on the scene, Officer

Champoux of the Redford Township department. Champoux

pointed a shotgun at Gaddis, but testified that he could not tell

if Gaddis had anything in his hand.

There ensued a standoff of two to three minutes’ duration.

The officers testified that they told Gaddis repeatedly to drop

his knife, and that Gaddis said something incoherent to Bain

along the lines of: “Why are you doing this to me, Chris, like

you did to me in California?” None of the officers was

named Chris or had ever encountered Gaddis in California.

Bain later testified that the “Chris” remark suggested to him

that Gaddis was not acting rationally. Officer Burdick

testified that he did not hear the remark. On the tape, Gaddis

can be seen apparently speaking to the officers during the

standoff. He gestures with his hands, but keeps them fairly

low at his side.

Gaddis then stated that he wanted to leave.1 Bain stepped

forward and sprayed Gaddis in the face with pepper spray.

Meanwhile, Officer Burdick had been walking around to the

passenger side of Gaddis’s car. Seconds after Bain used the

pepper spray, Burdick clambered over the trunk of Gaddis’s

6 Gaddis v. Redford Township, et al. No. 02-1483

car and tried to grab Gaddis. Gaddis reacted violently: he

wheeled and struck at Burdick with his right, then his left

hand. Gaddis’s right-handed strike was a windmilling motion

arguably suggestive of an attempt to stab with a knife. Bain

and Duffany testified that they saw Gaddis stab at Officer

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 over the back of Gaddis’s

car. Gaddis was 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 street near

Gaddis’s car, but did not fingerprint it. 

Gaddis was charged with assault with intent to murder and

with fleeing and eluding police. On June 8, 1999, he was

found guilty in a bench trial of felonious assault (a lesser

included offense), and not guilty on the fleeing count.

Pursuant to a post-trial motion, however, Gaddis was later

adjudged not guilty of the felonious assault charge as well. 

Gaddis filed suit under 42 U.S.C. § 1983 against Officers

Bain, Burdick, and Duffaney, alleging that they illegally

detained him and used excessive force against him in

violation of the Fourth Amendment. (He also asserted a

claim of discrimination on the basis of his race and his mental

illness, which he has abandoned on appeal.) He also sued the

municipalities of Redford Township and Dearborn Heights,

claiming that they maintained unlawful policies that caused

the incident.

Plaintiff introduced the affidavit of James Fyfe, Ph.D., a

former police officer and a professor of criminal justice. Prof.

Fyfe opined that the officers unreasonably deviated from

proper police techniques for dealing with emotionally

disturbed persons (“EDPs”). In particular, he testified that

officers using correct police techniques would recognize that

“techniques of intimidation and force” are not likely to work

on EDPs in the way they may work on rational persons. He
No. 02-1483 Gaddis v. Redford Township, et al. 7

testified that the police should instead have picked a single

officer to talk calmly to the EDP, and should have refrained

from unnecessary displays of force. Fyfe criticized Bain’s

use of pepper spray, and described Burdick’s attempt to tackle

Gaddis by surprise from behind as a “terrible tactic.”

The defendants moved for summary judgment, and the

district court granted summary judgment on all claims on

February 20, 2002. While the individual defendants had all

raised the defense of qualified immunity, the district court did

not reach the qualified immunity issue, but held that the

defendants were entitled to summary judgment on the merits.

Gaddis v. Redford Township, 188 F. Supp. 2d 762 (E.D.

Mich. 2002).

As to Gaddis’s claim that the initial stop of his car was

unlawful, the court held that reasonable suspicion was all that

was required to justify an investigative stop of a car. Id. at

768. It further held that Gaddis’s weaving in the lane and

leaning over the seat provided reasonable suspicion. Indeed,

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

officers’ use of force was reasonable. Id. at 772. It reasoned

that the threat posed by Gaddis was quite high, as he had

stabbed Officer Burdick. Id. at 770. The court also

concluded that the officers’ “overall handling of the incident”

did not violate the Fourth Amendment. Id. at 770-72. It

noted that the “officers fired only one volley at Plaintiff, and

. . . did so immediately after Plaintiff had stabbed a

policeman.” Id. at 771. The “unconstested evidence” showed

that “when the police shot Plaintiff, he had just stabbed

Defendant Burdick, still appeared to be holding a knife, and

was in close proximity to Defendant Burdick.” Id. at 772.

The court also rejected Gaddis’s equal protection claims.

Ibid.

8 Gaddis v. Redford Township, et al. No. 02-1483

Gaddis timely appealed to this court, appealing only the

grant of summary judgment on his Fourth Amendment

claims. 

III

The first issue is whether the initial stop of Gaddis’s car

violated the Fourth Amendment. 

A

At the outset, we must determine the legal standard that

governs a brief stop of a car for suspected drunk driving in a

jurisdiction where, as in Michigan, such conduct is a criminal

offense. See Mich. Comp. L. § 257.625(9)(a) (defining

driving while intoxicated as a misdemeanor punishable by

imprisonment). Unfortunately, this proves to be a

complicated question, because different published opinions of

this court have given inconsistent answers at different times.

By contrast, the Supreme Court has not wavered in this

area. It has consistently articulated a clear governing rule:

when officers have reasonable suspicion that occupants of a

vehicle are engaged 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. White, 496 U.S. 325, 328-

32 (1990); United States v. Hensley, 469 U.S. 221, 226

(1985).

This court’s earlier case law was consistent with this

teaching. 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 that the

occupant is committing the crime of drunk driving. Id. at

1029-30. 

However, two later cases potentially departed from this

standard. Both arose in Tennessee, where, as in Michigan,

driving while intoxicated is a crime. In United States v.
No. 02-1483 Gaddis v. Redford Township, et al. 9

2

See Tenn. Code Ann. § 55-10-401.

3

See Tenn. Code Ann. § 55-8-123. 

4

Indeed, Whren did not even hold that all stops premised on a civil

traffic violation require probable cause – only that if police do have

probable cause, then any claim of pretext is irrelevant for Fourth

Palomino, 100 F.3d 446 (6th Cir. 1996), the court upheld the

stop of a vehicle where police had grounds to suspect both

drunk driving2 and the traffic violation of failure to stay

within lanes.3 Id. at 448-49. Palomino argued that the stop

was pretextual. He claimed that police had really stopped his

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, because the police “ha[d] probable

cause to believe that a traffic violation had occurred,”

justifying the stop. Ibid. This reasoning, while otherwise

unexceptionable, could be read to lump criminal drunk

driving together with failure to stay in lanes as a “traffic

violation.” Ibid.

Palomino cited as authority the Supreme Court’s thenrecent decision in Whren v. United States, 517 U.S. 806

(1996). See 100 F.3d at 448. The cautiously worded opinion

in Whren was consistent with the result in Palomino, but it

did not support a general requirement of probable cause for

stops based on suspicion of any offense, criminal or

otherwise, involving a vehicle. Whren simply held that, when

a defendant argued that his vehicle was stopped for improper

reasons on the pretext of violating a traffic regulation, the

officer’s improper motivations would not render the stop a

violation of the Fourth Amendment if “the police ha[d]

probable cause to believe that a traffic violation had

occurred.” 517 U.S. at 810. Whren did not involve a criminal

offense. Rather, the defendants were stopped for speeding

and failing to signal a right turn, in violation of municipal

regulations. Ibid.

4

 

10 Gaddis v. Redford Township, et al. No. 02-1483

Amendment purposes. 

However, as the dissent points out, this court’s opinion in United

States v. Ferguson, 8 F.3d 385 (6th Cir. 1993) (en banc), which rejected

a “pretextual stop” challenge like the one in Whren, went on to state that

probable cause would be necessary for a stop premised on a civil traffic

violation. See id. at 391 (“We hold that so long as the officer has

probable cause to believe that a traffic violation has occurred or was

occurring, the resulting stop is not unlawful and does not violate the

Fourth Amendment. . . . If an officer testifies . . . that he . . . did not have

probable cause to believe a violation had occurred . . . [s]uch a stop would

be unreasonable under the Fourth Amendment.”). 

5

See also United States v. Huguenin, 154 F.3d 547, 557 (6th Cir.

1998) (“[T]he Supreme Court emphasized . . . in Whren . . . [that] there

is a significant difference between a pretextual stop based on probable

cause that a traffic violation has occurred, and a stop that is not based on

probable cause or even reasonable suspicion”) (emphasis added).

Our published decisions following Palomino contained no

suggestion that Palomino had abrogated the bedrock rule

permitting an investigatory vehicle stop when there is

reasonable suspicion of a crime. See Houston 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 they have a reasonable suspicion that the

individual has committed a crime. . . . The same Fourth

Amendment test applies to vehicle stops.”) (punctuation

omitted) (citing, inter alia, Palomino, 100 F.3d at 449).5

However, four years after Palomino, a panel of this court

decided United States v. Freeman, 209 F.3d 464 (6th Cir.

2000), which held that Tennessee police were not justified in

stopping the defendants’ mobile home after watching the

vehicle veer out of its lane on a windy day. 209 F.3d at 465-

66. The court held that this behavior was insufficient to

justify a stop, whether it was viewed as evidence of failure to

stay in lanes, or as evidence of drunk driving, which was a

crime, though the court’s opinion did not discuss the

violation/crime distinction. Ibid. At one point, the court
No. 02-1483 Gaddis v. Redford Township, et al. 11

specifically stated that the police were not justified in

stopping Freeman for drunk driving because his weaving path

“did not give [the officers] . . . probable cause to stop the

motor home.” 209 F.3d at 467 (emphasis added). Gaddis

argues that 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

decision in Roberts, as well as our many decisions, such as

Houston, which affirm the bedrock rule that reasonable

suspicion of a crime justifies a brief stop. 

We have a settled procedure for resolving cases of intracircuit conflict. “[A] panel of this [c]ourt cannot overrule the

decision of another panel. The prior decision remains

controlling authority unless an inconsistent decision of the

United States Supreme Court requires modification of the

decision or this Court sitting en banc overrules the prior

decision.” Darrah v. City of Oak Park, 255 F.3d 301, 309

(6th Cir. 2001). 

Robertssquarely held that a stop for criminal drunk driving

requires only reasonable suspicion. As the earliest decision

on point, it must control, unless the intervening Supreme

Court decision in Whren “require[d] modification” of its

holding by a later panel. We do not read Palomino as so

holding. At most, Palomino held that probable cause was

sufficient to justify a stop for drunk driving, not that probable

cause was necessary for such a stop. See 100 F.3d at 448-49.

Nor did Freeman purport to modify past precedent in light of

Whren; indeed, Freeman did not even cite Whren or

Palomino. See 209 F.3d at 466-67. 

Thus, at a minimum, applying the Darrah rule to our

precedents yields grave doubt about the current authority of

Freeman. Any lingering questions are resolved by the

Supreme Court’s intevening decision in Arvizu, which

explicitly reaffirmed the traditional rule that police may make

“brief investigatory stops of . . . vehicles . . . if the officer’s

action is supported by reasonable suspicion to believe that

12 Gaddis v. Redford Township, et al. No. 02-1483

6

In the hope of providing guidance to the district courts in this

circuit, we summarize the state of our Fourth Amendment jurisprudence

on vehicle stops. 

Police may make an investigative stop of a vehicle when they have

reasonable suspicion of an ongoing crime, whether it be a felony or

misdemeanor, including drunk driving in jurisdictions where that is a

criminal offense. Arvizu, 534 U.S. at 273; Shadoan, 340 F.3d at 407;

Roberts, 986 F.2d at 1029-30. Police may also make a stop when they

have reasonable suspicion of a completed felony, though not of a mere

completed misdemeanor. Hensley, 469 U.S. at 229; Roberts, 986 F.2d at

1030. 

Next, police may make a stop when they have probable cause to

believe a civil traffic violation has occurred, even if the defendant raises

a claim that the stop was pretextual. Whren, 517 U.S. at 810; Palomino,

100 F.3d at 448; Ferguson, 8 F.3d at 391. Whether they may also stop a

vehicle based on mere reasonable suspicion of a traffic violation is the

subject of another conflict in our case law. Compare Shadoan, 340 F.3d

at 407-08 (upholding stop where police had “reasonable suspicion” of a

violation of vehicle registration and window tinting regulations) with

Freeman, 209 F.3d at 466 (invalidating stop where police lacked

“probable cause” to stop vehicle for failure to stay in lane); and Ferguson,

8 F.3d at 391 (stating in dictum that probable cause is required for a stop

premised on traffic violation). 

Gaddis’s case does not require us to resolve this last issue. We note,

though, that the issue appears to be controlled by Freeman, the earlier

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 therefore hold that a standard of reasonable suspicion

governs the stop of Gaddis’s vehicle for suspicion of driving

while intoxicated. This conclusion is also consistent with

extensive authority from other circuits. E.g., United States v.

Sanchez-Pena, 336 F.3d 431, 436 & n.2 (5th Cir. 2003);

United States v. Colin, 314 F.3d 439, 442, 444 (9th Cir.

2002); United States v. Wheat, 278 F.3d 722, 727-29 (8th Cir.

2001); see also United States v. Chanthasouxat, 342 F.3d

1271, 1275 (11th Cir. 2003) (“a [vehicle] stop is a

constitutional detention if it is justified by reasonable

suspicion under Terry or probable cause to believe a traffic

violation has occurred”).6
No. 02-1483 Gaddis v. Redford Township, et al. 13

panel holding on point, a conclusion reinforced by this court’s embrace

of the probable cause requirement for traffic violations in dictum its en

banc opinion in Ferguson. See Darrah, 255 F.3d at 309.

7

It is also modestly relevant that Gaddis was driving slowly

compared to the other traffic. While this fact is obviously capable of

many innocent explanations, it nevertheless contributes to the overall

picture created by the other evidence of drunk driving. See Arvizu, 534

U.S. at 277.

B

Measured by the standard of reasonable suspicion, the stop

was constitutional. Reasonable suspicion to stop a vehicle

depends on a contextual inquiry that considers, in the wellknown phrase, “the totality of the circumstances – 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 short span. Bain’s testimony that Gaddis was

leaning over to the right inside his car must also be accepted

for summary judgment purposes, because it was

uncontradicted by other testimony and the videotape does not

tend to contradict it.7

These facts establish reasonable suspicion of drunk driving.

Indeed, the Tenth Circuit held an investigatory stop for drunk

driving justified on comparable 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 shoulder twice

within a quarter mile without any adverse circumstances like

road or weather conditions to excuse . . . the deviation.” Id.

at 1199. Gaddis argues that our analysis should be controlled

by Freeman, discussed above, and United States v. Gregory,

79 F.3d 973 (10th Cir. 1996), which held that officers did not

obtain a reasonable suspicion of drunk driving when they

witnessed the defendant’s truck veer once in to the right

emergency lane of the interstate. Id. at 975-76, 978-79.

However, both cases are readily distinguished. In both

Freeman and Gregory, the suspect vehicle swerved only

14 Gaddis v. Redford Township, et al. No. 02-1483

once, and there were no other significant facts to suggest

drunk driving. 

Thus, summary judgment for all defendants was proper as

to the legality of the initial vehicle stop.

IV

The more difficult issue in this case is the legality of the

various officers’ uses of force in their confrontation with

Gaddis. The sole constitutional standard for evaluating

excessive force claims is the Fourth Amendment’s criterion

of reasonableness. Graham v. Connor, 490 U.S. 386, 395

(1989). Courts must apply an objective standard, looking to

“the facts and circumstances of each particular case, including

[1] the severity of the crime at issue, [2] whether the suspect

pose[d] an immediate threat to the safety of the officers or

others, and [3] whether he was actively resisting arrest or

attempting to evade arrest by flight.” Russo v. City of

Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992) (quoting

Graham, 490 U.S. at 396) (brackets added). At the same

time, they must bear in mind that the Fourth Amendment

“prohibits unreasonable seizures, not unreasonable or illadvised conduct in general.” Dickerson v. McClellan, 101

F.3d 1151, 1162 (6th Cir. 1996) (quoting Cole v. Bone, 993

F.2d 1328, 1333 (8th Cir. 1993)).

In this circuit, 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 circumstances,

not whether it was reasonable for the police to create those

circumstances.” Id. at 1161 (quotation marks omitted)

(emphasis added). 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 Township, et al. 15

Here, Gaddis challenges four different events as

constituting unreasonable force: Bain’s initial shoving or

handling of Gaddis as Gaddis emerged from his car; Bain’s

spraying of Gaddis as he stood in his car doorway; Burdick’s

almost simultaneous grappling of Gaddis; and the ultimate

volley of 16 shots fired at Gaddis after he struck at Burdick.

We consider these uses of force in turn.

A

The district court did not examine Officer Bain’s brief

initial grab of Gaddis as the latter emerged from his car.

However, we hold that this act was not unconstitutionally

excessive force. Bain was dealing with a suspect who had

previously refused to stop for police, suggesting that he might

be disoriented or intent on avoiding arrest. Bain testified that

he grabbed Gaddis because he wanted to keep him from

fleeing and to perform a pat-down search on Gaddis, who had

his hands in his pockets. The record cannot be construed to

cast doubt on this claim. The Supreme Court has instructed

that “the right to make an arrest or investigatory stop carries

with it the right to use some degree of physical coercion or

threat thereof 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 chambers . . . violates the Fourth

Amendment.” Ibid. We acknowledge that even minor uses

of force are unconstitutionally excessive if they are “totally

gratuitous.” McDowell v. Rogers, 863 F.2d 1302, 1307 (6th

Cir. 1988). Here, however, Bain’s reasonable need to prevent

Gaddis from fleeing and to discern whether he was armed

justified his action.

B

Before we consider the officers’ later actions, we must

decide whether the district court rightly held that there was no

material dispute of fact on the critical question of whether

Gaddis drew a knife from his pocket. If a reasonable jury

could find that Gaddis did not have a knife, then it could

16 Gaddis v. Redford Township, et al. No. 02-1483

8

As the Fourth Circuit observed about a similar evidentiary conflict:

In a rapidly evolving scenario such as this one, a witness’s

account of the event will rarely, if ever, coincide perfectly with

the officers’ perceptions because the witness is typically viewing

the event from a different angle than that of the officer. For that

reason, minor discrepancies in testimony do not create a material

issue of fact in an excessive force claim, particularly when, as

here, the witness views the event from a worse vantage point that

of the officers. . . . Thus, the discrepancies between the officers’

testimony and Williams’s testimony about the positioning and

speed at which Anderson was lowering his hands do not raise an

issue of triable fact.

Anderson v. Russell, 247 F.3d 125, 130-31 (4th Cir. 2001).

unquestionably go on to find that shooting him was

unconstitutionally excessive force, see Tennessee v. Garner,

471 U.S. 1, 11 (1985) (holding that “[a] police officer may

not seize an unarmed, nondangerous suspect by shooting him

dead”), and the grant of summary judgment would have to be

reversed. The presence or absence of a knife also affects our

analysis of the officers’ uses of nonlethal force – Bain’s

decision to mace Gaddis and Burdick’s attempt to grapple

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 could not testify, the only relevant evidence

is the videotape and the testimony of the four officers. Bain

and Burdick both testified that they saw a knife in Gaddis’s

hand; Officer Duffany testified that he saw something shiny

in Gaddis’s hand; and Officer Champoux, who was further

from the scene, could not tell whether or not Gaddis had a

knife. Bain saw a fairly small knife in Gaddis’s hand;

Burdick described it as a “large” knife. Only Bain’s and

Burdick’s testimony could be said to conflict. This sort of

minor conflict of perception is common, and is not sufficient

by itself to create a material dispute of fact as to the officers’

credibility.

8

 
No. 02-1483 Gaddis v. Redford Township, et al. 17

Gaddis argues, however, that the inability to see a knife on

the videotape does create such a material dispute of fact.

Because this argument has some force, we will explain our

reasons for rejecting it in some detail. The videotape image

is of low quality. It readily discloses the movements and

postures of Gaddis and the officers, but not the details of their

appearances. Gaddis’s hand is a vague 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 language of the

actors during the encounter. And in this respect, the officers’

reactions powerfully corroborate their testimony that Gaddis

produced a knife. On the tape, when Gaddis removes his

hands from his pockets, Bain jumps back in obvious alarm.

He pulls out his service pistol and covers Gaddis with it, and

the other officers follow suit. The reaction is inexplicable

unless something threatening was in Gaddis’s hands. In

addition, Gaddis later 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’ testimony that there

was a knife, not to contradict it.

All admissible evidence in the case points to the conclusion

that the knife 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. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986). We conclude 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

to incapacitate Gaddis. As noted before, after Gaddis drew

his knife, there followed a standoff of about two minutes,

during which Gaddis stood in the doorway of his car and the

officers repeatedly ordered him to drop his weapon. During

18 Gaddis v. Redford Township, et al. No. 02-1483

9

See also Russo, 953 F.2d at 1044-45 (holding officer entitled to

qualified immunity despite his using Taser gun multiple times on knifewielding suspect who was no longer an immediate threat; noting that

officer’s “actions were intended to avoid having to resort to lethal force”);

Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 315 (S.D.N.Y. 1998)

(dismissing excessive force claim against officer who used a single stream

of pepper spray to prevent unarmed suspect from destroying evidence 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 California. Gaddis then announced that he

wanted to leave. It was at this point that Bain stepped

forward and sprayed him. Gaddis argues that on the facts of

this encounter, the use of pepper spray was unconstitutionally

excessive.

One of the main purposes of nonlethal, temporarily

incapacitating devices such as pepper spray is to give police

effective options short of lethal force that can be used to take

custody of an armed suspect who refuses to be lawfully

arrested or detained. As a general matter, this court has

expressed doubt “that the use of non-lethal force against an

armed and volatile suspect constitutes excessive force.”

Ewolski v. City of Brunswick, 287 F.3d 492, 508 (6th Cir.

2002).9 Gaddis’s case falls in or near this category: he was

armed with a knife and his conduct was at least somewhat

“volatile,” as he was refusing to submit to arrest. Moreover,

we have also held that in sufficiently pressing circumstances,

officers may use pepper spray to take custody of unarmed

suspects. In Monday v. Oullette, 118 F.3d 1099 (6th Cir.

1997), we upheld judgment as a matter of law for police

officers who used spray to subdue an unarmed individual they

feared would injure himself or commit suicide by overdosing

on pills if not taken into custody. Id. at 1104-05. Of course,

there must exist an objective justification for the use of

pepper spray. In Adams v. Metiva, 31 F.3d 375 (6th Cir.

1994), we held that police who repeatedly sprayed mace in

the face of an unarmed plaintiff who was not resisting and
No. 02-1483 Gaddis v. Redford Township, et al. 19

10The officers also knew that Gaddis was driving with an expired

license.

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 and the three factors outlined by

the Supreme Court in Graham, we cannot say that Officer

Bain’s decision to use pepper spray could be found to be

objectively unreasonable. The amount of force Bain used,

though not trivial, was moderate. At the time he acted, the

officers had probable cause to suspect Gaddis of two crimes

that were also moderate in severity: driving while intoxicated,

a misdemeanor for first offenders under Michigan law, and

fleeing an officer.10 While Gaddis arguably did not pose an

immediate threat to the officers’ safety as he stood next to his

car brandishing a knife (since the officers were able to keep

their distance), Bain could have reasonably concluded from

Gaddis’s erratic driving and behavior that he would pose a

danger to other motorists if allowed to flee. Gaddis had

announced his desire to leave the scene, and this statement

prompted Bain to spray him. That fact is also relevant to the

final Graham factor, namely whether the suspect was

resisting arrest. Gaddis’s remarks indicated an intent to

continue evading arrest, and his brandishing of a knife was

reasonably interpreted as a sign of intent to resist, perhaps

violently. 

In sum, Bain used an intermediate degree of nonlethal force

to subdue a suspect who had previously attempted to evade

arrest, was brandishing a knife, showed signs of intoxication

or other impairment, and posed a clear risk of leaving the

scene behind the wheel of a car. It cannot be said that this

action was unconstitutionally excessive.

Gaddis disputes this reasoning, arguing that his incoherent

remark about “Chris” put Bain on notice that Gaddis was

disturbed, and that this made special tactics appropriate.

20 Gaddis v. Redford Township, et al. No. 02-1483

11However, we note that the weight of such expert testimony is

diminished to the extent that the expert draws near to opining on the

ultimate legal question of whether the officers’ challenged conduct was

reasonable. See Samples v. City of Atlanta, 916 F.2d 1548, 1551 (11th

Cir. 1990); Burger v. Mays, 176 F.R.D. 153, 157 (E.D. Pa. 1997).

Gaddis argues that a reasonable officer, suspecting Gaddis’s

disability, would not have responded to the brandishing of a

knife by pointing a gun at Gaddis. Nor would he have

“provoked” Gaddis by using an irritating and disorienting

device such as pepper spray against him, as Bain did. Instead,

a reasonable officer would have used a nonconfrontational

manner that would ensure that Gaddis was not provoked to

violence. To support this argument, Gaddis offered the

affidavit of Prof. James Fyfe, a law enforcement expert. Fyfe

testified that in his opinion, the officers’ tactics in the

encounter with Gaddis were “terrible” and were not in

keeping with optimal police procedures for dealing with

mentally or emotionally disturbed persons.

We acknowledge that a suspect’s apparent mental state is

one of the “facts and circumstances of [the] particular case,”

Graham, 490 U.S. at 396, that should be considered in

weighing an excessive force claim. Moreover, the opinions

of properly qualified experts such as Mr. Fyfe are often

entitled “to be given . . . weight” in this determination.

Russo, 953 F.2d at 1047.11 In Russo, we drew partially upon

such testimony in concluding that the inadequate training

procedures of the Cincinnati police department may have

contributed to the shooting death of the plaintiff’s suicidal,

mentally ill decedent. See id. at 1046-47. 

However, Gaddis’s arguments here are weakened by the

fact that Bain had only fragmentary evidence that Gaddis was

mentally disturbed. This distinguishes the case from Russo,

where officers knew from the outset that the suspect was

mentally disturbed because the initial call to the police came

from the mental institution the suspect had left. Id. at 1039.

Here, Gaddis’s incoherent conduct was arguably as consistent
No. 02-1483 Gaddis v. Redford Township, et al. 21

with Bain’s initial hypothesis that Gaddis was driving while

intoxicated as it was with mental disturbance. The Supreme

Court has instructed that we are to judge officers’ conduct

from the “perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham, 490

U.S. at 396. There may be more than one reasonable

response to a given situation, and when this is so, the Fourth

Amendment does not require officers to use “the most prudent

course of action” to handle it. See Cole, 993 F.2d at 1334. In

light of the circumstances 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

spray.

D

Similar reasoning leads us to conclude that Officer

Burdick’s decision to grapple with Gaddis in order to subdue

him was not unconstitutionally excessive force. Burdick did

not strike Gaddis or employ any weapons; his actions

involved a degree of force comparable to Bain’s use of pepper

spray. Moreover, Gaddis’s argument that a different response

was required because of his emotional disturbance does not

apply to Burdick. It was uncontroverted that Burdick did not

hear the “Chris” remark that most strongly tended to suggest

Gaddis’s incoherence or emotional disturbance. As we have

noted, the reasonableness of his response must be gauged in

terms of the information available to him, not with hindsight.

And “reasonableness” does not require that an action be

“prudent” or the “best suited” to the situation, only that it not

be unconstitutionally disproportionate in degree to the

circumstances. Given that Bain’s use of nonlethal force

against Gaddis was reasonable, as we held at pp. 17-21,

supra, it follows that Burdick’s decision to grapple with

Gaddis was reasonable as well.

22 Gaddis v. Redford Township, et al. No. 02-1483

12That conclusion does not change when we take into consideration

the “moments preceding the shooting,” as precedent requires. Dickerson,

101 F.3d at 1162. We have previously held that Bain’s and Burdick’s

uses of nonlethal force to apprehend Gaddis did not raise a jury issue as

to excessiveness under the Fourth Amendment.

E

Gaddis reacted to Burdick’s attempt to grapple with him by

stabbing at Burdick with his knife. Our last issue for

consideration is the constitutionality of Officers Bain and

Duffany’s decision to respond to this attack with lethal force,

by shooting Gaddis several times. 

Lethal force is justified in order to protect a fellow officer

or a civilian from a threat of serious physical harm.

Brandenburg v. Cureton, 882 F.2d 211, 215 (6th Cir. 1989).

An attack with a knife certainly meets this criterion.12 See

Pirsein v. Village of Berrien Springs, No. 92-1258, 1992 WL

348944 (6th Cir. Nov. 24, 1992) (unpublished opinion). Bain

and Duffany saw Gaddis strike at Burdick with a knife in his

right hand. It was reasonable for them to respond with lethal

force. 

Gaddis relies upon Samples v. City of Atlanta, 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

officers’ actions justified. In Samples, the Eleventh Circuit

denied qualified immunity to an officer who fatally shot

Samples as Samples approached himwith a three-inch folding

knife. 846 F.2d at 1331-33. Zuchel involved a suspect who

was believed 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 employer. Ibid.

Both cases are distinguishable from Gaddis’s. In Samples,

the officer shot a suspect who was, at most, merely opening
No. 02-1483 Gaddis v. Redford Township, et al. 23

a knife, and had not yet attacked anyone with it. 846 F.2d at

1332. Moreover, Samples was shot once in the back – a

detail that was highly salient to his case, because there was

only one officer confronting Samples. The back wound

suggested that the officer might have used lethal force against

Samples at a time when he clearly did not pose a threat to the

officer. Ibid. Here, Gaddis had not only extended the blade

of his knife but had attacked Officer Burdick with it.

Moreover, while Gaddis, like Samples, also received a wound

from the back from the shots fired at him, the fact was that

multiple officers were firing at Gaddis from different vantage

points after his attempt to stab Burdick. Thus Gaddis’s back

wound does not tend to undercut the officers’ testimony

(corroborated by the videotape) that they fired only in

response to the knife attack.

In Zuchel, the facts suggested that Zuchel was not

threatening anyone or brandishing a weapon aggressively

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 and used it.

Gaddis finally suggests that even if his actions justified a

lethal response, the officers crossed the constitutional line by

firing sixteen shots at him. We disagree. While the two

officers fired a total of sixteen shots at him, it was a single

volley. That distinguishes Gaddis’s case from precedents

such as Russo, where police went on to fire a second and third

volley at the suspect even though there was a factual dispute

as to whether he still posed a serious threat. See 953 F.2d at

1045. Bain’s and Duffany’s decisions to use their weapons to

respond to Gaddis’s attack were individually justifiable, and

the fact that there were two of them responding

simultaneously, thereby producing a larger volley, does not

change the reasonableness of their conduct. 

24 Gaddis v. Redford Township, et al. No. 02-1483

V

For the foregoing reasons, the district court’s grant of

summary judgment to the officers is AFFIRMED. Because

there was no underlying constitutional violation by the

officers, the municipal defendants cannot be held liable to

Gaddis. Monday, 118 F.3d at 1105. The grant of summary

judgment to the municipal defendants is therefore also

AFFIRMED.
No. 02-1483 Gaddis v. Redford Township, et al. 25

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. Because the majority,

like the district court below, usurps the role of the jury and

violates the plain dictates of Federal Rule of Civil

Procedure 56, I dissent.

I.

My disagreement begins with the majority’s holding that

Officer Matthew Bain’s initial traffic stop of Joseph Gaddis

complied with the Fourth Amendment as a matter of law.

Most appellate review of a district court’s determination

about the propriety of a traffic stop arises on direct criminal

appeal after a district court has denied a motion to suppress

evidence discovered after the stop. In that procedural posture,

the Court upholds the district court’s findings of fact

regarding the existence of probable cause “unless clearly

erroneous,” and the district court’s legal conclusion as to the

existence of probable cause is reviewed de novo. United

States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999); see also

Ornelas v. United States, 517 U.S. 690, 699 (1996). By

contrast, in a § 1983 action on appeal from the grant of a

summary judgment against the plaintiff, the Court reviews

both 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 general, the existence of

probable cause in a § 1983 action presents a jury question,

unless there is only one reasonable determination possible.”)

(citing Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th

Cir.1989)). Although the majority opinion states that “we

must resolve disputes of fact in favor of the nonmoving party,

Gaddis, drawing all inferences in his favor,” Op. at 3 (citing

Burchett v. Kiefer, 310 F.2d 937, 941-42, 945 (6th Cir.

2002)), the remainder of the opinion reveals that the majority

26 Gaddis v. Redford Township, et al. No. 02-1483

has simply paid lip service to this bedrock principle of

summary judgment law. 

The failings of the majority opinion begin with its

description of the allegedly undisputed facts that preceded

Officer Bain’s initial traffic stop of Gaddis. This much is

undisputed: Gaddis was driving his car shortly before 4:00

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

Bain spotted Gaddis’ car while patrolling alone on Telegraph

Road. It is also undisputed that Officer Bain’s patrol car

created a video, but not an audio, record of Bain’s counter

with Gaddis. It is not undisputed, however, that Bain saw

Gaddis “weaving” within his traffic lane. Op. at 3.

According to the Oxford English Dictionary, “weave” means

to “move repeatedly from side to side; to toss to and fro; to

sway the body alternately to one side and the other; to pursue

a devious course, thread one’s way amid obstructions.”

Oxford English Dictionary OnlineEdition (taken from second

print edition 1989) (emphasis in original). Webster’s

Dictionary defines “weave” to mean “to direct (as the body)

in a winding or zigzag course esp. to avoid obstacles.”

Webster’s Third New Int’l Dictionary 2591 (1993). The

videotape evidence does not show – or at least a reasonable

jury would not be compelled to conclude – that Gaddis moved

repeatedly side to side or that he was driving his car on a

zigzag course. Rather, the tape shows Gaddis gradually

veering within his lane on two occasions, barely touching (but

not crossing) the white line separating his lane from the lane

traveling in the same direction. Thus, there is a significant

dissonance between Bain’s characterization of Gaddis’

driving (weaving) and what the videotape actually reveals (a

gradual drifting to the lane marker on two occasions). 

Bain’s credibility regarding Gaddis’ alleged weaving is

undermined not only by the videotape, but also by his 1999

conviction for third degree criminal sexual conduct for which

Bain currently is serving a prison term of 42 months to 15

years. See Fed. R. Evid. 609(a)(1) (providing that evidence

that a witness has been convicted of a crime punishable by
No. 02-1483 Gaddis v. Redford Township, et al. 27

imprisonment in excess of one year shall be admitted if its

probative value outweighs its prejudicial effect). Although

ultimately it is within the district court’s discretion to admit

evidence of a prior criminal conviction for impeachment

purposes, Bain’s conviction arguably tends to undermine the

testimony of the most significant defense witness in this case

as to all material issues.

The majority next accepts as undisputed fact Bain’s

testimony that Gaddis had been “driving somewhat slowly,”

a fact the majority declares to be supported by the cars

passing Gaddis in the other lane. Op. at 3-4. There is no

evidence, however, that Gaddis was traveling under the speed

limit, nor is it undisputed that his speed was so slow as to

suggest 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. Mar. 24, 1999) (noting that trooper suspected

defendant was a drunk driver “[b]ecause intoxicated drivers

commonly travel at excessively high or low speeds”)

(emphasis added). In fact, Bain testified that he has no

recollection of what the other cars were doing on the night in

question, suggesting that the relative speed of Gaddis’ car 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 probable cause determination, like all

probable cause determinations, is fact-dependent and will turn

on what the officer knew at the time he made the stop.”)

(emphasis in original). Further, it reasonably could be

inferred from the videotape that cars were passing Gaddis

because he was traveling at or near the speed limit and the

other drivers were exceeding the speed limit. Consistent with

this inference, Officer Bain admits that he never saw Gaddis

violate any provision of the Michigan Motor Vehicle Code.

Thus, there is a genuine issue of material fact as to whether

Gaddis was traveling at an excessively slow speed that

reasonably would have suggested drunk and/or careless

driving.

28 Gaddis v. Redford Township, et al. No. 02-1483

The majority next states that Bain testified that he “saw

Gaddis slumping to the right inside his car as he held the

wheel.” Op. at 4. The Oxford English Dictionary defines

“slump” to mean to “slide off heavily; to plump down; to fall

or collapse clumsily or heavily.” Oxford English Dictionary

Online Ed. (emphasis in original). However, Bain 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 doing.” (J.A. 567.) Although

“leaning” and “slumping” arguably fall along the same

continuum, there is a world of difference between the two

physical states. Drivers frequently lean in their cars when

adjusting the radio or reaching for a cigarette lighter or a

cellular telephone. Some drivers are just more comfortable or

may even enjoy driving with a leaning posture. Although

such leaning is not inconsistent with intoxication, it also is not

inconsistent with a host of other innocent causes. By

transforming Gaddis’ lean into a “slump,” the majority

continues its incremental stacking of the “undisputed” facts

against Gaddis. Moreover, as acknowledged by the majority

and the district court below, the tape does not show Gaddis’

posture at all, another fact that bears directly on the credibility

of Bain, who testified not only that he saw Gaddis leaning,

but that the tape “could pick that up.” It is inexplicable, then,

why the majority not only ignores the absence of “leaning”

evidence on the videotape but also embellishes Bain’s

testimony. The far more judicious tact would be to

acknowledge that a reasonable inference from the absence of

“leaning” evidence is that Gaddis was not leaning at all.

According to the majority, Bain’s purported observation of

Gaddis’ “weaving,” 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

Gaddis “was driving carelessly, and [he] thought [Gaddis]

might be intoxicated.” (J.A. 568.) (emphasis added). Thus,

Bain suspected that Gaddis might be violating two provisions

of the Michigan Motor Vehicle Code – Mich. Comp. Laws
No. 02-1483 Gaddis v. Redford Township, et al. 29

§ 257.625 (prohibiting operation of vehicle while under the

influence of alcoholic liquor) and § 257.626b (prohibiting

careless or negligent driving). 

In Whren v. United States, 517 U.S. 806 (1996), the

Supreme Court held, “As a general matter, the decision to

stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has

occurred.” Id. at 810 (citations omitted). The Court further

characterized the probable cause standard forsuspected traffic

law violations as “the normal one,” the “traditional

justification” and “the usual rule.” Id. at 810, 817 (emphasis

omitted), 818. Our Court, sitting en banc, similarly held that

“so long as the officer has probable cause to believe that a

traffic violation has occurred or was occurring, the resulting

stop is not unlawful.” Ferguson, 8 F.3d at 391; accord

United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000)

(following Ferguson); Hill, 195 F.3d at 264 (“[A]n officer

may stop a vehicle for a traffic violation ...as long as the

officer had probable cause to initially stop the vehicle.”)

(citing Whren). Despite these clear statements 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 suspected

traffic law violation. Op. at 12 n.6. The majority appears to

base its reasoning on the ground that the Whren opinion fails

to state explicitly that the decision to stop an automobile is

reasonable only when the police have probable cause to

believe that a traffic violation has occurred. See Op. at 9 n.4

(“Indeed, Whren did not even hold that all stops premised on

a civil traffic violation require probable cause ....”). This

reading of Whren, however, ignores the context of the

Supreme Court’s above-quoted statement, which was a

response to the petitioner’s argument that “‘in the unique

context of civil traffic regulations’ probable cause is not

enough.” Whren, 517 U.S. at 810. Although the Court

refused to adopt a more stringent constitutional standard than

probable cause for suspected traffic law violations, the Court

gave no indication that in fact a lesser constitutional standard

30 Gaddis v. Redford Township, et al. 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 no realistic alternative to the traditional

common-law rule that probable cause justifies a search

and seizure. Here the District Court found that the

officers had probable cause to believe that petitioners had

violated the traffic code. That rendered the stop

reasonable under the Fourth Amendment....

Id. at 818-19. Because it is settled that probable cause is

required for suspected civil violations of the traffic laws,

Officer Bain clearly needed probable cause to stop Gaddis on

suspicion of careless driving. Cf. United States v. Ervin, 59

Fed. Appx. 631, 635 (6th Cir. 2003) (holding that officer

needed probable cause to stop driver for violating Florida’s

careless driving statute). 

Ignoring Officer Bain’s careless driving justification for the

stop, the majority holds that Bain needed only a reasonable

suspicion that criminal activity was afoot before he could stop

Gaddis on suspicion of drunk driving because drunk driving

is a criminal offense in Michigan. Op. at 8-9. See also Mich.

Comp. Laws § 257.625(9)(a) (providing that a person who

operates a vehicle while intoxicated “is guilty of a

misdemeanor”). As support, the majority opinion 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 relevant,

however, because none of the suspected crimes in those cases

bore an inherent connection to the operation of a motor

vehicle, and none involved a suspected violation of the traffic

laws. See Arvizu, 534 U.S. at 272, 273 (minivan stopped on

suspicion that narcotics were being smuggled); White, 496

U.S. at 327 (vehicle stopped due to anonymous tip that driver

had been transporting drugs); Hensley, 469 U.S. at 677-78

(vehicle stopped on suspicion that the driver was wanted for

armed robbery). By contrast, drunk driving necessarily
No. 02-1483 Gaddis v. Redford Township, et al. 31

involves the operation of a motor vehicle and constitutes a

violation of the traffic laws. Under Michigan law, the drunk

driving prohibition, like the civil prohibition againstspeeding,

is located within Chapter VI of the Michigan Motor Vehicle

Code, entitled in conspicuous type, “OBEDIENCE TO AND

EFFECT OF TRAFFIC LAWS.” 

Subjecting careless driving and drunk driving to different

constitutional standards makes no sense legally and

practically. Stops for both types of violations generally are

premised on an officer’s observations, “which afford the

‘quantum of individualized suspicion’ necessary to ensure

that police discretion is sufficiently constrained.” Whren, 517

U.S. at 817-18 (quoting Delaware v. Prouse, 440 U.S. 648,

654-55 (1979); internal quotationmarks and citation omitted).

The mere fact that the respective penalties for careless driving

versus drunk driving deem the former a civil violation and the

latter a crime has no bearing whatsoever on the manner in

which police officers detect these violations. Moreover,

different standards for these two traffic violations might

encourage police officers to avoid the higher constitutional

standard applicable to stops for careless driving, speeding,

failing to signal, etc. by “tacking on” a drunk driving

suspicion. In many instances, the majority’s reasonable

suspicion standard for drunk driving could swallow the

probable cause standard applicable to all other traffic law

violations.

Because the Supreme Court (in Whren) and this Court (en

banc decision in Ferguson) clearly have held that a stop for

suspected traffic violations must be premised on probable

cause and because there is no legal or practical basis to

subject drunk driving to a different constitutional standard

than other suspected traffic violations, this Court should

follow the panel decisions of our Court that relied on Whren

and/or Ferguson in applying a probable cause standard to

suspected drunk driving. See Freeman, 209 F.3d at 467

(applyingFerguson’s probable cause standard in holding that

officer lacked probable cause to stop vehicle for suspected

32 Gaddis v. Redford Township, et al. No. 02-1483

drunk driving); United States v. Palomino, 100 F.3d 446, 448

n.1 (6th Cir. 1996) (applying Whren’s probable cause

standard to challenge to traffic stop for suspected drunk

driving; affirming district court’s holding that the officer had

probable cause to believe that the traffic violation of driving

while intoxicated had occurred); accord United States v.

Carlton, 44 Fed. Appx. 720, 722 (6th Cir. 2002) (holding that

officer had probable cause to suspect drunk driving based on

“erratic driving”); United States v. Little, No. 97-6200, 1999

WL 196515, at *4 (6th Cir. Mar. 24. 1999) (holding that the

totality of the circumstances created probable cause to believe

that the defendant had been driving drunk). To the extent

United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir. 1993)

adopted a reasonable suspicion standard for drunk driving

stops, Whren and Ferguson have abrogated that case. 

As previously discussed, there is a genuine issue of material

fact as to whether Gaddis had been leaning in his car and, if

so, to what extent. There also is a genuine issue of material

fact as to whether Gaddis had been driving at a speed so

excessively slow as to be indicative of impaired driving.

Thus, the only undisputed fact is that Gaddis’ car gradually

drifted toward and eventually touched the painted hashes on

two occasions. This fact alone does not create probable 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 highway or keeping one’s

eye on the road were sufficient reasons to suspect a person of

driving while impaired, a substantial portion of the public

would be subject each day to an invasion of their privacy.”)

(internal quotation marks and citations omitted). Cases

finding probable cause to arrest for drunk driving have

required more indicia of impaired driving than two instances

of a gradual drifting onto a lane marker. See, e.g., Palomino,

100 F.3d at 448 (holding drunk driving stop to be

constitutional where driver had been traveling significantly

under the speed limit, had crossed two lanes of traffic at once,

had straddled the right lane, and had been weaving back and

forth between the right lane and the emergency lane);
No. 02-1483 Gaddis v. Redford Township, et al. 33

Carlton, 44 Fed. Appx. at 722 (holding drunk driving stop to

be constitutional where driver had “weaved from side to side

at least three times on” two different streets); 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 weaved on the

highway’s shoulder). I do not foreclose the possibility that a

jury might find probable cause if it were to find that Gaddis

was not in control of his vehicle, as evidenced by leaning,

slouching and/or an excessively slow speed. It simply 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

he suffered after Officer Bain had pulled him over for

suspected traffic violations, most significantly the 16 bullets

that Officers Bain and Duffany fired at Gaddis. The key

circumstance that precipitated the shooting was the alleged

belief of at least two of the officers that Gaddis had had a

knife in his hand. As the majority opinion notes, “If a

reasonable jury could find that Gaddis did not have a knife,

then it could unquestionably go on to find that shooting him

was unconstitutionally excessive force ... and the grant of

summary judgment would have to be reversed.” Op. at 15-16

(citation omitted; emphasis in original). As discussed below,

a reasonable jury should be permitted to make just such a

finding and, therefore, the summary judgment should be

reversed.

After Gaddis finally stopped his car, Officer Bain drew his

gun and approached. Bain then re-holstered his gun and

pulled out his flashlight. After a delay, Gaddis passed a piece

of paper to Bain who looked at it and stuffed it in his pocket.

Soon, Officers Burdick and Duffany arrived in their car.

Gaddis then exited his car and put his hands in his pockets.

Bain briefly grabbed Gaddis by the collar and pulled Gaddis

34 Gaddis v. Redford Township, et al. No. 02-1483

1

Champoux is no longer a police officer. He resigned allegedly for

personal reasons after pleading guilty to impaired driving.

toward him. Shortly thereafter, Gaddis removed his hands

from his pockets. According to Bain and Burdick, they saw

a knife in Gaddis’ hand. Burdick described the knife as

“large,” “long,” and “the biggest knife [he] had ever seen.”

Bain’s testimony conflicts with Burdick’s in that Bain saw

only a small knife. Duffany saw something shine, but he did

not know what it was. Bain then pulled his gun on Gaddis, as

did Burdick. Duffany pulled his gun in response to Bain’s

reaction in pulling his gun. Officer Paul Champoux, who had

arrived on the scene around this time, testified that he could

not tell if Gaddis had anything in his hand. Nevertheless, he

“racked” a shell into the chamber of his shotgun and leveled

it at Gaddis in order to “startle” Gaddis.1 The knife that

Defendants claimed to have recovered from Gaddis was less

than three inches long.

If all of the officers had seen Gaddis with a knife, but

happened to disagree about the knife’s length, there would be

no genuine dispute as to whether Gaddis had been

brandishing a knife. Here, however, two of the officers could

not determine what Gaddis had been holding, even though

another officer testified that Gaddis had wielded a large and

long knife. Thus, the officers’ credibility is open to question,

particularly that of Bain, a convicted criminal. Moreover, as

discussed below, there are several additional pieces of

evidence that further undermine the officers’ claim that

Gaddis had been holding a knife.

First, there is no physical evidence of the stab wound

Gaddis allegedly inflicted on Officer Burdick. Officer

Burdick testified that Gaddis had stabbed him in the back

while Burdick had been attempting to place Gaddis 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 soiling his white t-shirt. The bloody t-
No. 02-1483 Gaddis v. Redford Township, et al. 35

2

It is unclear whether the shirt bears any evidence of having been

pierced or cut. The parties have not discussed the issue.

3

At deposition, Burdick testified that he had been trained to preserve

evidence of blood-soiled clothing. 

shirt, however, was not preserved as evidence at the crime

scene, and its whereabouts are unknown. The police shirt that

Burdick wore over the t-shirt was preserved in evidence, but

had no blood on it.2 The back of the flak jacket, where

Burdick allegedly had been stabbed bore only a “speck”-sized

hole, and Burdick has no scar from the alleged knife attack.

This utter lack of physical evidence of a stab wound,

particularly when combined with the fact that no officer

preserved Burdick’s purported blood-soaked t-shirt, in

derogation of proper investigative practice,3 tends to

undermine Burdick’s testimony that he had suffered a stab

wound from Gaddis. A reasonable inference from the lack of

a stab wound is that Gaddis had not been holding a knife

when he struck Burdick.

Second, there is no reliable physical evidence linking

Gaddis to the knife that Defendants attribute to Gaddis.

Jeffrey Wanbaugh, the evidence technician who arrived on

the scene after Gaddis had been shot, was apprised by an

officer that Gaddis allegedly had been wielding a knife and

had stabbed Burdick. Wanbaugh testified that he discovered

a set of car keys and a leather sheath lying on the front

driver’s seat of Gaddis’ car, but that he did not know when

either of those items had been placed on the seat, nor by

whom. He also testified that he had wanted to see what was

inside of the sheath and discovered a knife inside. Although

Wanbaugh photographed this knife, he did not take it into

evidence. Wanbaugh further testified that he collected a

second knife on the ground and about four feet from Gaddis’

car. An officer on the scene told Wanbaugh that Gaddis had

used this knife to strike Burdick. 

36 Gaddis v. Redford Township, et al. No. 02-1483

Despite the manifest importance of this second knife,

Wanbaugh did not collect it until 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 fingerprints of Gaddis or the police officers. He

simply took the word of an officer on the scene that Gaddis

had used the knife to strike Burdick. Wanbaugh’s failure to

fingerprint and establish a reliable chain of custody for this

second knife, combined with the fact that he never took the

first knife into evidence, can support the reasonable

inferences that (1) Gaddis actually had possessed only one

knife, the one recovered from inside of his car, and (2) the

second knife, which was neither fingerprinted nor tested for

blood, may have been planted at the scene by one of the

officers.

Third, a reasonable jury could conclude that the videotape

does not show Gaddis 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 would

not enable a juror directly to verify the presence of a knife, it

equally would not permit 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 away this inference as well.

Employing colorful descriptions that could be more

appropriately presented in Defendants’ closing argument to

the jury, the majority zeroes in on “the body language of the

actors during the encounter,” concluding that “the officers’

reactions powerfully corroborate” the conclusion that Gaddis

had a knife. Id. The majority first points to the fact that Bain

jumped back “in obvious alarm” after Gaddis had removed

his hands from his pocket and argues that this reaction is

“inexplicable unless something threatening was in Gaddis’

hands.” Id. I agree that the tape arguably supports such an

inference, but it is not the only inference that explains Bain’s

body language. The tape also supports the inference that Bain

was concerned that Gaddis was going to strike him with his
No. 02-1483 Gaddis v. Redford Township, et al. 37

empty fist or with his car keys or with a stick of foil-wrapped

chewing gum or any other harmless object that might glisten

in the dark. Bain’s movements also would support the

inference that Bain was not alarmed at all, but that he had

become angry or frustrated with Gaddis and wanted to

escalate the confrontation by drawing his gun.

As additional “body language” evidence, the majority

opinion points to the “windmilling motion” that Gaddis used

to strike at Burdick after Burdick had attempted to jump

Gaddis from behind. Op. at 17. Without citation and without

the benefit of any expert testimony, the majority concludes as

a matter of law that this motion is “suggestive of a knife

stab.” Id. This windmilling motion, however, also is

suggestive of striking someone with a fist or of an

involuntary, reflexive attempt to protect oneself from a

surprise attack. It is wholly inconsistent with Rule 56 for my

colleagues to adjudicate this issue against Gaddis simply

because he did not swing his arm in a manner consistent with

their imaginations. The inference that Gaddis had threatened

the officers with a knife is not the only reasonable inference

from the officers’ body language depicted on the videotape.

Cf. Headwaters Forest Def. 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 judgment as a matter of law 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 material fact as to the

reasonableness of the officers’ use of force. Gaddis’ expert

witness on law enforcement matters, Dr. James Fyfe, points

out several deviations from accepted police practice that

resulted in the officers’ unnecessary escalation of the

confrontation with Gaddis. For example, Bain testified that

he blasted Gaddis with pepper spray because he was

38 Gaddis v. Redford Township, et al. No. 02-1483

concerned that Gaddis would try to get in his car and drive

away. The videotape, however, does not evidence any “body

language” on Gaddis’ part that is consistent with a desire to

leave the scene. Moreover, as Dr. Fyfe notes, the tactically

more appropriate decision would have been to position the

police vehicles around Gaddis’ car so that it would have been

impossible for him to escape. Officer Champoux testified

that he could have blocked Gaddis’ car with his patrol car if

Gaddis had tried to leave.

The pepper spray blast was only the prelude to the most

egregious examples of improper police tactics. According to

Dr. Fyfe, the confrontation with Gaddis “unfolded as a series

of surprises” because “nobody was in charge, there was no

central plan, and there was no attempt to assure that officers

knew what each other was doing and what it was expected 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

out that officers are instructed to keep their distance from

people who are armed with knives, unless there is absolutely

no way to protect an individual from an imminent threat to

life. It is clear that, prior to Burdick engaging in his illadvised tactic, no one’s life was in danger. As the tape

shows, Gaddis became aware of Burdick’s presence on his car

and reacted predictably by swinging his hand at Burdick,

allegedly stabbing Burdick with a knife. Thus, Burdick

unreasonably created a foreseeable circumstance in which the

other officers were forced to take action to protect him from

Gaddis. 

According to Defendants, the officers had no choice but to

open fire on Gaddis. Burdick’s testimony and the videotape,

however, strongly indicate that the officers shot Gaddis after

he no longer posed a danger to Burdick. Burdick testified that

he was on the ground at the back of Gaddis’ car at the time

the other officers began shooting Gaddis. Based on this

evidence, Dr. Fyfe opines that Burdick was well out of

Gaddis’ range at the time Gaddis was being shot, and,
No. 02-1483 Gaddis v. Redford Township, et al. 39

therefore, Gaddis presented no danger to Burdick or anybody

else at that time. Indeed, it would have been extremely

reckless for the officers to have shot at Gaddis while Burdick

was near Gaddis. Accordingly, even assuming that Gaddis

had been wielding a knife and that it was reasonable for

Burdick to jump him from behind, there is a genuine issue of

material fact as to whether it was reasonable for Officers Bain

and Duffany to have shot at Gaddis 16 times. 

IV.

It appears that at every turn my colleagues have taken great

pains to construe each factual dispute as immaterial and/or

draw inferences from the evidence that favor only

Defendants. This approach is inconsistent with both the letter

and the spirit of Rule 56. It is disputed whether Bain had

probable cause, or even reasonable suspicion, to stop Gaddis

for careless driving or drunk driving, since all that is

undisputed is that Gaddis’ car gradually veered and touched

the painted hashes on the road on two occasions. It is

disputed whether Officers Bain and Duffany acted reasonably

in firing 16 gun shots at Gaddis because it cannot be

concluded as a matter of law that Gaddis had been

brandishing a knife or any other dangerous object. The

officers’ testimony is inconsistent as to the presence and size

of the purported knife; there remain serious questions about

the authenticity of the knife the officers’ attribute to Gaddis;

the officers failed to preserve any physical evidence that

would have proven that Gaddis had wounded Officer Burdick

with the knife; and the videotape is consistent with the

inference 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 Officer

Burdick’s bumbling attempt to subdue him. And although the

officers justified their shooting as necessary to protect

Burdick, the evidence strongly indicates that Burdick was out

of harm’s way at the time the shooting had begun. From these

facts, it reasonably could be inferred that the officers who

fired at Gaddis did not intend to protect Burdick, but to kill

40 Gaddis v. Redford Township, et al. No. 02-1483

Gaddis. The responsible thing to do would be to reverse the

district court’s grant of summary judgment.