NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0715n.06 No. 12-1500 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RAL PH EL DRI DGE, Plaintiff-Appellee ,

v. CI TY OF WARR EN, Def endant, PATRI CK K. MOORE, Police Off icer , ROBERT HO RL OCKER, Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OPI NI ON

Be fore : NORRI S, MOORE, and DONA L D, Circuit J udg es. BERNICE BO UIE DONALD, Circuit Judge. What constitut es “a ctive re sistance” by a suspect that justifies a police office r’ s u s e o f forc e? I n their pursuit of qualified immunit y , two police off icer s ask us to c onclude that a lethar g ic driver who clutche d his car’ s steering whee l and provided unhelpful response s to the office rs’ querie s was eng ag ed in “ac tive resistanc e.” We decline to do so, and AF F IRM the dec ision of the district court. I

. On the morning of J une 18, 2009, the Warren Police Depa rtment rec eived a call complaining of a man err atically driving a truck on Stephens Road. Maria Tramble, the caller , suspected that the driver was drunk. She watche d as the truck drove into her condominium complex, over a curb, andNo. 12-1500

Eldridge v. City of W

arren et al. throug h patche s of gra ss. I t eventua lly came to a halt at a construction are a, with further progr ess stifled by temporar

y construction barr icade s. Under standably conce rned, Tramble called the police
ag ain. Offic ers Patrick Moore and Robert Horlocke r wer e dispatched to the scene , wher e a dashboar d came ra rec orded the events that followed. When they arr ived, the two office rs found the 1 truck pa rked be hind the barr icade s it had knocked ove r. The motor w as still running. Offic er Moore approa ched the driver’ s side window of Ralph Eldridg e’s truck, with Offic er Horlocke r placing himself on the passeng er’ s side. Moore asked, “What’s g oing on? ” El d ri dg e, sitti ng in the driver’ s seat, muttered something inaudible. Moore tried ag ain by inquiring, “What are y ou doing?” The response was incomprehe nsible. “Turn th e ca r o ff,” Moore commanded. Eldridg e’s response was, y et ag ain, inaudible. Moore attempted to open the driver’ s side door, found it locked, and repe ated his command: “Turn the car off.” He unlocked and opened the door. Having obtained ac cess to the stee ring whee l, Moore turne d off the c ar’ s ignition and re moved the key

. Wit h the truck immobiliz ed for the moment, Moore chide d Eldridg e for his erra tic driving by shouting, “What are y ou doing? You ran over the parking lot, y ou’re driving all over the lawn. What are y ou doing?” The office r beg an inspecting the immediate are a around Eldridg e. “Step on out,” Moore de manded onc e more . His partner opened the passeng er- side door. As Eldridg e was unresponsive to Moore’ s instruction, the office r repe ated h i s co m m and: “Step on out.” Eldridg e’s reply was a softly -spoken “I ’m fine, thank y ou.” “Step on out. You ain’t
Although c erta in aspec ts of the video ar e not entire ly clea r, we have dr awn a ll inferenc es 1 in favor of

Eldridg e, as w e must at this stage

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arren et al. g oing now here ,” Moore responde d. The driver’s reac tion rema ined t he same, with him m uttering the words, “ I ’m fine.” Horlocke r beg an inspecting the other side of the truck. At this point, Moore’ s commands beca me varia tions of the same ref

rain. Simi larly , there was no chang e to Eldridg e’s response . Moore tried ag ain by

say ing, “ Come on out. I ’m not g oing to tell y ou ag ain.” The response ? “I ’m fine.” Horlocke r joined his co l l eague by shouting, “Ge t out of the car !” A cac ophony of commands surrounde d Eldridg e as both off icer s demande d his compliance. Standing next to the open passeng er- side door, Horlocke r rema rked, “The re’ s not even key s in there .” Moore tried the same by adding , “The re’ s not a key in there , it’s not g oing to g o any wher e. Step out of the ca

r. Come on out.” That, too, had littl e eff

ect. Sty mied by the seeming ly uncooper ative Eldridg e, Moore asked, “You coming out, or do I have to help y ou out? ” “I ’m fine,” said the slugg ish driver. Moore beg an tugg ing at Eldridg e’s arm. He coupled this with a new form of persua sion—a threa t. “Come on out. I ’m not – I ’m g oing to tell y ou to g et out of this car one more time, if y ou don’t g et out, I ’m g oing
to shoot y ou with a Taser ,” Moore war ned. He soug ht confirma

tion by inquiring, “You g ot it? You
g onna g et out of the car ? ” Horlocke r chimed in once more by asking , “Ge t out, what’s so hard about that? ” Finding his tugs of Eldridg e’s arm and his commands unsucce ssful, Moore y elled, “I ’m not
g oing to te ll y ou ag ain. Get out of the car . Get out of the ca r or y ou’re g oing to g et Tase red. You

wanna g et Taser ed? ” Eldridg e’s resp o n s e? “I ’m fine.” By this point, Horlocke r had joined his partne r at the driver’ s side of the truck. Both office rs tugg ed at Eldridg e’s left arm to pull him out - 3 -No. 12-1500

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arren et al. of the car , repe ating their demands for him to exit the vehicle. I n the midst o f t h ei r s h o u ting, Eldridg e could be hear d say ing, “ I ’m try ing to . . . ”— but he wa s cut off. H orlocke r drowne d out Eldridg e’s voice by shouting, “Ge t out of the g oddamn car !” Moore y elled, “Ge t out of the car , let
g o of the steering whee l and g et out of the car !” Horlocke r war ned, “You’ re g oing to g et Taser ed!” Moore did the s ame. Horlocke r t hen commanded, “St ep out of t he t ru ck !” Moore ga ve one final caution by

exclaiming, “I ’m not telling y ou ag ain. Get out!” His partner added, “ Out, let’s g o!” Two minutes and nine seconds afte r the encounte r beg an, Offic er Moore activate d the Taser , causing Eldridg e to thrash about err atically while y elling “I ’m fine!” After Eldridg e cra shed into a temporar y construction barrica de, the office rs gra bbed him and pinned him to the s ide of h i s ca r. They repe atedly y elled, “G et o n the g round!” Eldridg e seeme d slow to comply

. “Ge t on y our knees! ” Horlocke r instructed. Eldridg e wea kly responde d, “I ’m try ing.” He slowly beg an lowering his knees. Moore g rabbe d E l d ridg e and pushed him to the g round into the prone position with his
p artner’s assistance

. Someone shouted, “Ge t on the fucking g round!” Moore place d his knee at Eldridg e’s neck, causing Eldridg e to hit his head on the paveme nt in the proce ss. I n the meantime, Horlocke r beg an handcuf fing Eldridg e, with both office rs continually demanding his c ompliance. After Eldridg e wa s secur ed, Hor locker beg an sea

rching his body . A fe w sec onds later, the of fice r found something. Moore rema rked, “What the fuck is that? ” They ultimately conclude d that it was an insulin pump. Eldridg e wa s a diabe tic. He wa s suffer ing f rom a hy pog ly cemic e pisode.

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arren et al. Seeking rec ompense for his ordea l, Eldridg e filed suit under 42 U. S

. C. § 1983, alleg ing violations of the Four

th Amendment’s prohibition ag ainst the use of excessive forc e. He later amende d his complaint to alleg e an ad d i tional Eig hth Amendment violation for the office rs’ delibera te indiffer ence to his medical condition. At the close of discovery , Moore and Horlocke r moved for summary judgme nt, asser ting that qualified immunit y shielded them from liability for the Four th Amendment claim and that there was insufficient evidenc e to support the Eig hth Amendment claim. The district court g rante d summary judgme nt on the latter issue, but declined to conclude that qualified immunit y applied for Eldridg e’s excessive forc e cla im. Moore a nd Horlocke r timely

filed an inter locutory

appea l. 2
I I

. We revie w de novo a district court’s decisio n t o d en y summary judgme nt on qualifiedimmunit y g rounds. Bishop v. Hack el , 636 F.3d 757, 765 (6th Cir. 2011). Summary judgme nt is only
appropr iate if there are no g enuine issues of materia l fac t and the movant is entitled to judgme nt as

a matter of law. F ed. R. Civ. P. 56(a). We must construe the e vidence in the light most fa vorable
to the nonmoving party , draw ing all infere nces i n the non-movant’s favor

. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). Our jurisdiction to revie w denials of q u al i fied immunit y is limit ed only to the question of “whe ther the plaintiff’s fac ts, taken at their best, show that the defe ndant violated clea rly established law.” Quigley v. Tuong Vinh Thai , 707 F.3d 675, 680 (6t h C i r. 2013). Be cause our focus is

I t did, howeve r, dismiss Eldridge’ s Fourth Ame ndment claim insofar as it challeng ed his 2 handcuf fing

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arren et al. restric ted to this discrete question of law, “‘a defe ndant must conce de the most favor able view of the fac ts to the plaintiff for purposes of the appea l.’” Id. (quoting Estate of Carter v. City of Detroit , 408 F.3d 305, 309- 10 (6th Cir. 2005)). I n deter mining whether the doctrine of q u a li f ie d im mu n it y s hields a g overnme nt officia l from § 1983 liability , we look to two oft-discussed fac tors: (1) whether the action violated a constitutional ri ght; and (2) “whe ther that constitutional rig ht was clea rly established such that a ‘re asonabl e officia l would understand that what he is doing violates that rig ht.’” Simmonds v. Ge nesee Cnty. , 682 F.3d 438, 443-44 (6th Cir. 2012) (quoting Saucier v. Katz , 533 U.S. 194, 202 (2001))

. We have the discretion to conduct this analy sis in any order

. Pearson v. Callahan , 555 U.S. 223, 236 (2009). A. To deter mine whether the use of forc e was excessive for purposes of the Four th Amendment, “we employ an ‘o b

j ec t i ve rea sonablene ss’ test, which require s consideration of the totality of the circ umstances.” See Kijow ski v. City of Niles , 3 7 2 F. App’x 595, 598 (6th Cir. 2010). This reasonablene ss inquiry prese nts the overa rching question of “whe ther the office rs’ actions are ‘objec tively rea sonable’ in light of the fac ts and circ umstances confr onting them, without reg ard to their underly ing intent or m otivation.” Gr a h a m v. C o n nor , 490 U.S. 386, 397 (1989). Whil e the “ultimate question is whether the totality of the circ umstances justifies a particula r sort of seizure,” Ciminil lo v. Streicher , 434 F.3d 461, 467 (6th Cir. 2006) (citation and int er n al quotation marks omitted), we are aided by three g uideposts that fac ilitate our deter mination of whether a particula r encounte r nece ssitated the use of forc e. T h es e fa ct ors are : “the sever ity of the crime at issue,

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arren et al. whether the suspect poses an immediate threa t to the safe ty of the office rs or others, and whether he is actively

resisting arr est or attempting to evade arr est by flig ht.” Graham , 490 U.S. at 396. Fr om the outset, we note tha t the first two fac tors are not at issue here

. The sever ity of the crime at issue could not justify the ty pe and deg ree of forc e used in this incident. E ldridg e was suspected of driving under the influence

. Such a crime is undoubtedly serious, but not cate g orica lly “s evere” nor “seve re” on this particula r occa sion. See Begay v. United States , 553 U.S. 137, 1 4 5 (2008) (“[S] tatutes that forbid driving under the influence

. . . ty pically do not insist on purposef ul, violent, and ag g ressive conduct

. . . .”); see also Martin v. City of Broadview Heights , 712 F.3d 951, 958-59 (6th Cir. 2013) (ex amining the specific fac tual circ umstances in evalua ting the sever ity of the crime); Grawey v. Drury , 567 F.3d 302, 311 ( 6th Cir. 2009) (looking t o the categ orica l nature of the crime of appre hension in assessing its sever ity ). Twenty seconds had elapse d betwee n Offic er Moore’ s initial approa ch to the driver’ s side wi n dow and his act of turning off the ignition to Eldridg e’s truck. Taking the facts in the l ight most favor able to Eldridge, a rea sonable jury could conclude that Eldridg e wa s g oing now here

. The fac ts also belie the notion that Eldridg e posed “an immediate threa t to the safe ty of the office rs or other s.” Once Offic er Moore t urned the car off, Eldridge posed l ittle risk to the public at-lar g e. As for the safe ty of the office rs, the fac t s t ak en i n t he light most favor able to Eldridg e require rea ching the conclusion that Eldridg e prese nted no risk—he was not threa tening either verba lly or phy sically , as demonstrated by his polit e re sponses to the offic ers’ questions about hi s phy sical incapa city to move from his stationary vehicle. I nsofar as the office rs arg ue that Eldridg e’s

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arren et al.
stature wa s phy sically

imposing to the off

icer s, a re view of the video re veals that Eldridg e was no taller or la

rg er tha n either of

the two offic ers dispatc hed to the sce ne.

B. The true flashpo i nt of this controve rsy is the third Graham fac tor—whethe r Eldridg e “ac tively resisted” in a manner that war rante d the use of a Taser

. To Offic ers Moore and Horlocke r, Eldridg e was noncompliant and there fore actively resisting

. They arg ue that their act i o n s are protec ted under our prec edent establishing that when an off icer employ s a Tase r on a suspe ct who is actively resisting , such action does not constitute excessive forc e. We disag ree . Take n in the light
most favor able to E ldridg e, a rea sonable office r fac ed with the same circ umstances could not have deter mined t h at Eldridg e’s actions bore the hallmarks of active resistanc e. Rather, these fac ts demonstrate that Eldridg e was not a ctively resisting , and under our prec edent it is unrea sonable to
tase a nonresisting suspect. See Hagans v. Franklin Cnty. Sheriff’s Office , 695 F.3d 505, 509 (6th Cir. 2012). I n ma k in g their arg ument that Eldridg e was actively resisting , the office rs point to three fa c ts : (1) Eldridg e was in c ontrol of a running vehicle, (2) Eldridg e was g ripping the steering whee l, a nd (3) Eldridg e failed to comply with the office rs’ repe ated demands for him to g et out of the car . The first two arg uments are easily disposed of. A revie w of the fac ts in th e light most favor able to Eldridg e indicate s that the offic ers turne d off the c ar a nd remove d the key s from the ig nition. For

our purposes, then, Eldridg e was not in control of a runnin g vehicle at the time of the purported excessive forc e. Simi larly , it rema ins disputed whether Eldridg e was g ripping the steering whee l. Under Eldridg e’s version of the fac ts, as explained by the district court, he was mere ly sitti ng behind - 8 -No. 12-1500

Eldridge v. City of W

arren et al. the steering whee l, a fac t w e must c onsider to be true on interlocutory appea l. B eca use these fac ts

are in dispute, neither can serve as a basis to reve rse the distric t co u rt o n i t s qualified-immunity deter mination. Whether the office rs rec eive qualified immunit y thus turns on whether failing to comply with

an office r’s commands, with nothing more, constitutes active resistanc e. What makes the office rs’
arg ument difficult to acc ept on this issue, howeve r, is the meaning of “ac tive resistanc e” under our prec edent. I n case s wher e we conclude d that an office r’s use of forc e was justifiable beca use it was in response to active resistanc e, some outward manifestation—either verba l or phy sical—on the part of the suspec t had sug g ested volitional and consc ious defianc e, neither of which is pre sent here

. Take , for example, our decision in Caie v. W est Bloomfield Townshi

p , 485 F. App’x 92 (6th Cir. 2012). Ther e, we conclude d that a suspect was actively resisting arr est beca use he ref used t o

move his a

rms from underne ath his body so as to f acilitate handcuf

fing

. Id. at 94, 96-97. But this
act of noncompliance was not evalua ted in isolation; ra t h er , i t was the final straw in a series of consciously -re sistive acts, one of which incl u d ed a statement that the suspect would “fig ht the office rs so that they would have a rea son to kill him.” Id. at 94. That statement, along with a lack of phy sical coope ration, demonstra ted a de liberate choice to be def iant. Conside r, too, the circ umstances in Hagans

. I n that case , the suspect had been phy sically active—he resisted arr est by lay ing down on the paveme nt and delibera tely locking his arms tightly under his body while kicking and scre aming so as to avoid arr est. Hagans , 695 F.3d at 507. We noted that these actions indicated that the suspect was “out of control” and “f o rce fully ” resisting

arr est. Id. at 511. This justified an offic er’ s use of a Taser

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arren et al. Perhaps the best case for compar ison is our deci s i o n i n Foos v. City of Delaware , 492 F. App’x 582 (6th Cir. 2012). There , a police office r parke d his car behind a For d F- 150 truck that had

cra shed into a concr ete pillar. Id. at 584. The office r stay ed in his patrol car and attempted to catc h the way war d driver’ s attention with h i s cr u i s er lights. Id. I nstead of responding , the suspect

acc eler ated his car while keeping it stationary , cre ating a plume of smoke with his tires. Id. Concerne d by

the er ratic be havior, the of

fice r ca lled for ba ckup. Id. at 584-85. Onc e b ac k

u p arr ived in Foos , the suspect rea ched into the backse at, g iving office rs the impression that he was rea ching for a wea pon. Id. at 585. Finding it nece ssary to disable the vehicle, the office rs used an axe to brea k the driver’ s side window. Id. I n response , the suspect intentionally

revve d up the vehicle “to the point [t hat] the tires wer e spinning at a very high rate of speed and the

are a wa s filling up with smoke ag ain.” Id. Fe eling threa tened by the bre aking of the window, the suspect also beg an violently thrashing about. Id. At that point, the office rs deeme d it nece ssary to use a Ta ser. Id. 585-86. I n Foos , we de termined that the officers’ use of the Taser was rea sonable. S ever al fa ctors indicated that the suspect had actively resisted arr est. One consideration was the suspect’s repe ated ref usal to comply with the officers’ demands. Id. at 590. But ag ain, this noncompliance was not viewed in isolation—inst ead, it was viewed in conjunction with the fac t that the suspect was hostile, bellige rent, and had thrashed about in an ag itated state. See id. The suspect’s stationary acc eler ation of the ve hicle wa s the ca

pstone that ac centua ted his active r esistance

. See id. As in Foos , this case prese nts a circ umstance wher e police office rs confr onted a driver whose truck had cra shed into a temporar y barr icade

. That is wher e the simil arities betwee n the two case s

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arren et al. end. Unlike the office rs in Foos , Officers Moore and Horlocke r had encounte red no problems in
approa ching Eldridg e’s truck. When Offic er Moore rea ched in throug h the driver’ s side window to
turn off the ignition, E l d ri d ge d id not thrash about or attempt to acc eler ate the car to g et awa y . I nstead, he was without rea ction, exhibi ting ne ither hostility nor bellig ere nce. I f there is a common threa d to be found in our case law on this issue, it is that noncompliance alone does not indicate active resistanc e; there must be something more. I t can be a verba l showing of hostili ty , as was the case in Caie. I t can also be a delibera te act of defia nce using one’s own body ,

as in Hagans , or some other mecha nism, such as the truck in Foos

. Take n in the light most favor able
to Eldridg e, his noncomp l i an ce wa s not paire d with any signs of verba l hostili ty or phy sical resistanc e, and there fore cannot be deeme d active resistanc e. See also Coles v. Eagle , 704 F.3d 624, 6 2 9-30 (9th Cir. 2012) (“We have draw n a distinction betwee n passive and active resistanc e, and failing to exit a vehicle is not active resistan ce an d d o es not justify the office rs’ actions.” (modifications and quota tion marks omitted)). When the totality

of t he circumstance s is considered, it is clea r that the intera ction at issue here does not follow the t y pical co u rs e o f active resistance

. Gene rally , a confrontation l eading to an excessive- forc e suit unfolds in a manner wher e the suspec t cause s the offic ers to be e x posed to volatility , hostili ty , and dang er in a way that incre ases with the passag e of time, thus justify ing (and often requiring ) the use of forc e. See, e.g. , Lawrence v. Bloomfield Twp. , 313 F. App’x 743 (6th Cir. 2008). Her e, we have the opposite—Offic ers Moore and Horlocke r approa ched Eldridg e’s vehicle and disabled it without incident. During the sequenc e of events that followed, the only individuals

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arren et al. convey ing any sense of ag g ression wer e the two office rs. Eldridg e play ed no role in esca lating the
ag g ression. Unde r our pr ece dent, such a scena rio does not justify

the use of a

Taser

. C. We f urther note that the two office rs’ actions violated a clea rly -established rig ht: the rig ht of a suspect to be fre e from the use of phy sical force wh en h e i s n o t resisting police eff orts to
appre hend him. See Hagans , 695 F.3d at 509 (summarizing case s from 2004 onwar ds in which “the suspects wer e compliant or had stopped resisting ” and noting that excessive forc e was found in such

case s); Kijow ski , 372 F. App’ x at 601 (“[T]he r ight to be f ree from phy sical for ce w hen one is not resisting the police is a cl ea rl y established rig ht.” (interna l quotation mark omitted)). We are mindful of t h e S u p re m e C ourt’s caution to not define rig hts “at a high level of g ener ality ,” see Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2084 (2011), but draw ing the line at a suspect’s ac t i v e resistanc e sufficie ntly narr ows the rig ht to achie ve an adequa te level of particula

rity

. See Hagans , 695 F.3d a t 509. I n addition, the law wa s clea r at the time of the alleg ed violation. See ge nerally Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) (“I f the law at that time was not clea rly established, an officia l could not rea sonably

be expected to a

nticipate subseque nt leg al deve lopments, nor could he fairly be said to ‘know’ that the law forba de conduct not previously identified as unlawful.” ). Our decision in Hagans clar ified that this particula r rig ht was “cle arly est ablished” befor e and afte r May 2007—and more importantly for our purposes, befor e J une 2009. See Hagans , 695 F.3d at 509; see also W ysong v. City of Heath , 260 F. App’ x 848, 856 (6th Cir. 2008).

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arren et al. Having discerne d a constitutional violation and the clea rly -established nature of th e ri gh t underly ing that violation, we conclude that the district court proper ly denied qualified immunit y for the alleg ations arising from the use of the Taser

. Acc ording ly , we aff irm that aspec t of the district court’s de nial of summary judgme nt. I I I

. We a re left with one residual issue: whether Offic er Moore’ s use of his kne e in a n attempt
to keep Eldridg e pinned to the g round constituted excessive forc e. The office r claims that Eldridg e

was re sisting ar

rest beca use “his rig ht arm wa s supporting his body off the g round, contra

ry to the office rs’ commands to lay on the g round.” Eldridg e rejoins that he was not resisting arr est. Rather, he arg ues, he “wa s attempting to comply with the office rs’ commands” as evidenc ed by the fac t that he “can be audibly

hear d indicating he’s trying to comply

with [ their] commands.” Alternatively , he contends that he was not actively resisting b ec au se he “wa s simply unable to comply with the Def endants’ commands due to his medical c ondition and combined with the fact that he had been
tasere d, twice.” Id. Take n in the light most favor able to Eldridg e, as we must on interlocutory
appea l, the video demonstrates that he wa s at t em pting to comply with the office rs’ reque sts. We there fore aff

irm the district court’s denial of qualified immunit y with respe ct to Offic er Moore’ s use of his knee. I V. For the re asons provided a

bove, we AF F IRM the district court’s de nial of summary judgme nt.

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arren et al. NORRIS, Circuit Judge, dissentin g. The majority paints a compelling picture of a softly spoken driver offe ring “polite re sponses to the offic ers’ questions about his phy sical i ncapa city to move from his stationary

vehicle” who was ne verthe less tased by defe ndant offic ers. I n painting this picture , the majority aver s, as it should, that it is construing the fac ts in the light most favor able to plaintiff. Howeve r, this case is u nusual two respe cts: first, the entire

s eq uence of events was caug ht on the police cruiser ’s dashboar d came ra; and, second, plai n t i ff

conce des that he has no rec ollection of the events. When uncontrove rted video evidenc e is available ,

we should view “the fac ts in the light depicted by the video tape.” Scott v. Harris , 550 U.S. 372, 380- 81 (2007); see also Carnaby v. City of Houston , 636 F.3d 183, 187 (5th Cir. 2011) (“A lthough we revie w evidenc e in the light most favor able to the nonmoving party , we assig n g rea ter weig ht, even
at the summary judgme nt stag e, to the fac ts evident from the video rec ording s taken at the scene .”). Be cause the majority relies upon fac ts contra dicted by the clea r video e v id e n c e , I r espec tfully dissent. As the m aj o ri ty notes, when a suspect is not actively resisting police eff orts to appre hend him, there is a clea

rly established rig ht to be fre e from the use of phy sical forc e. Hagans v. Franklin Cnty. Sheriff’s Office , 695 F.3d 505, 509 (6th Cir. 2012) (summarizing case s from 2004 onwar ds in which “the suspects we re c ompliant or had stopped re sisting” and noting that ex cessive f orce was found in such case s). That maxi m is true, but it is equally well-settled that the rig ht to make an arr est “neces s ar i l y ca rr i es with it the rig ht to use some deg ree of phy sical coer cion or threa t there of to eff ect it.” Graham v. Connor , 490 U.S. 386, 396 (1989). Ha v ing revie wed the video tape of the
encounte r betwee n plaintiff and the office rs numerous times, the events captur ed strike me as a fairly routine arr est of an uncooper ative driver whom the office rs had rea son to suspect was u n d er t h e - 14 -No. 12-1500

Eldridge v. City of W

arren et al. influence of alcohol. I n the course of their encounte r he ref used t o co m p l y wi th repe ated, 1

rea sonable police commands and phy sically resisted the office rs ’ eff orts to remove him from his vehicle. The majority believes that plaintiff was attempting to c omply with the office rs’ commands but was phy sically incapa ble of doing so. I n my view, this concl u s i on is belied by the video evidence. Two aver ag e-sized m ale police office rs could undoubtedly have helped the dri v er fr o m his pickup truck unless he was resisting those eff orts. I nstead, the video t ap e s h o ws t he office rs asking plaintiff to ste p out of his truc k at least a dozen times. The tone of these reque sts g radua lly

esca lated from calm to insistent, and, finally , culminated in threa ts to use forc e (including a war ning that they would tase him if he continued to r esist). Rather than comply , plaintiff answe red sever al times w ith “ I ’m fine.” When they attempted to pull him from the truck, the video tape shows him clutching the steering whee l and brac ing his leg s (the brake lights flare as the office rs try to pull him out of the truck) . I n short, plaintiff was a ctively and phy sically

resisting

. The majority states that forc e is only justifiable in the fac e of “ac tive resistanc e, some outward manifestation—either verba l or phy sical—on the part of the suspect [sugg esting ] volitional and consc ious defianc e.” A s just recounted, pla intiff showed just such defia nce. Other tha

n a fe w expletives used in the heat of t h e m o m en t, the office rs conducte d themselves in a rea sonable and

Only i n h i ndsight is this an unusual case beca use plaintiff was not intox icated but 1 experiencing hy

pog ly cemia, the sy

mptoms of which can m i m i c intox ication. See, e.g. , Padula v. Leimbach , 656 F.3d 595, 601 (7th Cir. 2011). I n revie wing claims for excessive forc e, a court must revie w the encounte r based on what the office r saw without the bene fi t of hindsight. Caie v. W

. Bloomfield Twp. , 485 F. App’ x 92, 95 (6th Cir. 2012). - 15 -No. 12-1500

Eldridge v. City of W

arren et al. profe ssional manner . I am unable to discern any thing remotely rese mbling a violation of plaintiff’s constitutional rights. Unfortuna tely , the majority ’s opinion offe rs littl e g uidance to office rs confr onting a simil ar situation in the fu t u re . Given the failed eff orts initially to remove plaintiff from the truck, what should ha ve happene d next? The office rs had immobil ized the truck; should they have le ft him in it and waited for him to sober up (base d on their rea sonable assumption that he was under the influence of drug s or alcohol)? I ronica lly , such a strateg y could have resulted in perma nent brain damag e or even death had plainti ff’ s low blood sug ar persisted or worsene d. See Phili p E. Cry er, H y p o g ly c e m ia , F

u n c ti o n al Brain Failure, and Brain Death , 117 J

. Clini cal I nvestig ation 86 8 , 8 6 8

- 6 9 (2007), available at

http:// www.nc bi.nlm.nih.gov/pmc/article s/PMC 1838950/. I nstead, the office rs deploy ed their Taser and it worke d as desig ned. After the shock, plaintiff immediately came out of the truck and, though it took both office rs, they quickly g ained control of him without injury to any one. Plaintiff continued to resist as the office rs strug g led to handcuf f him, and they ultimately abandone d eff orts to g et his wrists in position to be cuff ed, instead fastening two
sets of cuff

s toge ther to incre ase the leng th. The moment he was fully immobil ized and cuff ed, the 2 office rs re spectfully

helped plaintiff, whom they ref err ed to as “sir,” g et to his feet a nd sat him on the front of their cruiser

. When they discovere d plaintiff’s insulin p u m p , t h ey immediately summoned medical pe rsonnel who pr omptly trea ted his hy

pog ly cemia. I f the majority insists that

I ntere stingly , some of the case s cited by the majority sug g est that if the office rs had tased 2 plaintiff for re sisting being handcuf fed, such a use of forc e would have been constitutionally permissible. See, e.g. , Caie , 485 F. App’x 92 at 96; W illiams v. Sandel , 433 F. App’x 353, 361 (6th Cir. 2011); W

illiams v. Ingham , 373 F. App’ x 542, 548 (6th Cir. 2010). - 16 -No. 12-1500

Eldridge v. City of W

arren et al. this response constituted a constitutional violation, it would be helpful to provide some g uidance to future of fice rs conf

ronting simil ar situations. To illust rate how far the majority has rea ched here , it is instructive to dig a littl e deepe r into the case s ref

ere nced by the majority as compar able prec edents wher e office rs used excessive forc e ag ainst suspects offe ring no resistanc e. For example, in Kijow ski v. City of Niles , 372 F. App’ x 595 (6th Cir. 2010) , Kijowski w as

a wedding g uest sitti ng in his truck talking on his phone, and not disobey ing police commands. Id.
at 600-01. Offic ers drag g ed him from his truck, smashed his phone , and tased and kicked him. Id.
at 597. I n Landis v. Bake r , 297 F. App’x 453 (6th Cir. 2008), office rs used excessive forc e in tasing
a suspec t pinned to the g round, with offic ers on his bac k forc ing his head unde r muddy water

. Id.
at 457-58. The suspect aspirate d water , mud, and leave s, and ultimately died as a result of drowning

. Id. at 458. I n Roberts v. Mangold , 240 F. App’x 675 (6th Cir. 2007), an office r used excessive forc e in tasing a suspect repe atedly afte r the suspect was “complete ly pinned” on the g round. Id. at 676. L astly , in a case about pepper spray rathe r t h an a T as er , office rs used excessive forc e when they doused a suspect in pepper spray and applied asphy x iating pressure afte r he was fully immobil ized with handcuf

fs and legshackle s, and had stoppe d resisting

. Champion v. Outlook Nashville, Inc. , 380 F.3d 893, 897 (6th Cir. 2004)

. The suspect subsequently died from car diac arr est. Id. at 898. I n my view, these case s are all fac tually distinguishable from the conduct of the office rs here

. To sug g es t t h at t h i s line of case s put the office rs on notice that their use of forc e ag ainst plaintiff would violate his clea

rly established constitutional rig hts is si mply untenable.

- 17 -No. 12-1500

Eldridge v. City of W

arren et al. For these rea sons, I would REVERSE the district court’s denial of the defe ndants’ motion for summary

judgme nt based on qua lified immunit y .

- 18 -