NOT RECOMMENDED FOR PUBLICATION File Name: 23a0101n.06
Case Nos. 22

- 5687/5701 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CYNTHIA HEFFNER ROBERTS, Administratrix of the Estate of Christopher Allen Roberts, Deceased; CLARK C. JOHNSON, as Guardian Ad Litem for A.A.R., Christopher Allen Roberts’s Minor Daughter , Plaintiffs

- Appellants ,

v. MANUEL CRUZ , Defendant

- Appe llee

. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

O P I N I O N

B efore : S UH RHEINRICH, COLE, and MURPHY, Circuit Judges.
COLE , C ircuit Judge. After a foot chase through a motel, police officer Manuel Cruz ta s ed Christopher Roberts while the two were in a stairwell. Roberts fell and sustained fatal head trauma. Cynthia Heffner Roberts, Roberts ’s mother , brought this lawsuit against Cru z alleging excessive force and Kentucky common law claims. Cruz moved for summary judgment on the basis of qualified immunity, which the district court granted. Roberts appealed. Because Cruz’s conduct violated no clearly established right, we affirm.
I. B ACKGROUND A. Fact s On July 19, 2018, Jeffersontown Police Officer Manuel Cruz was out on patrol. That day, his route took him to HomeTowne Studios, a motel. Cruz entered the parking lot and slowly cruised around, running the license plates of cars parked at the motel through a law enforcementCase Nos. 22

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- database. The parking lot appeared empty except for a man polishing the rims of his car, Antonio Jewell. Then, a man walking a dog outside the motel flagged Cruz over; Cruz stopped to talk to the man, who told him th at there was a “guy” with “a big knife” walking around the motel. The

man with the dog identified himself as Jacob Pinette. Pinette told Cruz that the man with the knife looked to be white and wore a white t

- shirt and red shorts. Cruz was in the proces s of radioing the police dispatcher about the unfolding incident when he came upon a man carrying what Cruz believed to be a black knife. Cruz commanded the man, Christopher Roberts , to drop the knife. Cruz claims that Roberts walked toward him with the knife held at waist

- level , at which point Cruz drew his sidearm and pointed it toward Roberts while continuing to order him to drop the knife

. According to Cruz, Roberts ’s eyes were wi de and his pupils appeared dilated. Roberts did not drop the knife, and instead turned and ran up a nearby stairway. Cruz holstered his gun and gave chase. At some point, Cruz stumbled and lost sight of Roberts . Cruz started running again, and soon enc ountered Roberts in a hallway on the second floor, allegedly trying to open the doors of several motel rooms, at which point Cruz pulled out his taser and again told Roberts to drop the knife. According to Cruz, Roberts refused to comply with his commands , and Cruz discharged his
taser at Roberts , who was standing facing him about 20 feet away. The taser had no effect on Roberts , and he resumed running away from Cruz. Cruz pursued Roberts again, and found him in another stairwell ; this time, Roberts was d escending the stairs. The two were standing about 12 to 15 feet apart, and Roberts turned briefly to face Cruz as he hurried down the stairs. Believing that Roberts had reached the landing and

was rounding the corner toward the parking lot where Pinette and Jewell had been just momentsCase Nos. 22

- 5687/5701 , Roberts, et al., v. Cruz

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- ago , Cruz discharged his taser again. Roberts was stunned and fell to the ground, hitting his head in the process.
Cruz descended the stairs toward Roberts and asked if he was okay, but Roberts was non responsive. Cruz radioed for assistance and explained that he had fired his taser and the individual had fallen. Cruz then noticed that Roberts was bleeding from his ear. Cruz also state d that he called for emergency medical services twice befor e they arrived. While waiting for back

- up, Cruz recovered the knife from the ground near Roberts and realized that, rather than being a black

bladed knife, it was a silver

- bladed knife in a black sheath. Roberts remained unresponsive. Another officer arr ived at the scene, and after ensuring there were no more weapons on Roberts’s person, the y both administered the still

- unconscious Roberts first aid. Roberts died from his injuries the next day

. The coroner’s report confirmed that Roberts died from head trauma and had methamphetamine and fentanyl in his system. With Roberts deceased , the only witness to the incident besides Cruz was Pinette, the man walking his dog in the parking lot. Pinette allegedly told paramedics and officers on the scene that he sa w Cruz tase Roberts while Roberts was only about halfway down the stairs. Pinette also said that Roberts had been gripping the railing with both hands and attempting to jump down the rest of the stairs, meaning that he could not have been holding the knif e when he was ta s ed. Neither party has been able to locate Pinette since this incident, and so he was never deposed.
B. Procedural History Cynthia Heffner Roberts brought this lawsuit against the City of Jeffersontown, Kentucky ; Jeffersontown Chief of Police Sam Rogers ; and Jeffersontown Police Officer Manuel Cruz, as administratrix of the estate of her deceased son, Christopher Roberts, and next friend of his daughter, A.A.R (collectively “Roberts” or “ p laintiffs”)

. After a dis agre e ment during discoveryCase Nos. 22

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- involving A.A.R.’s mother, the district court appointed Clark C. Johnson to act as guardian ad litem for A.A.R. in this ma tter

. Plaintiffs alleged excessive force in violation of the Fourth and Fourteenth Amendments pursuant to § 1983 as well as common law claims of negligence, vicarious liability, and battery. The parties agreed to the dismissal of all claims except the excessive force and state law battery claim s against Cruz. Cruz then moved for summary judgment on the remaining claims on the basis of qualified immunity. The district court granted the motion, reasoning that even if , as plaintiffs contend ed , Roberts had still been on the stairs and had not been holding the knife at the moment of the taser discharge, Cruz ’s use of the taser was still reasonable under the circumstances and violated no clearly established right

. Plaintiffs timely appealed. A clerical error resulted in both the Notice of Appeal (R. 93) and Amended Notice of Appeal (R. 95) receiving separate case numbers (Nos. 22

- 5687 and 22

- 5701), but the appeals are identical and are resolved in this o pinion

. II. ANALYSIS A. Legal Standards We review a grant of summary judgment on qualified immunity grounds de novo. Barton
v. Martin , 949 F.3d 938, 946 (6th Cir. 2020). Summary judgment is only appropriate where there is no genuine dispute of material fact such that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322

– 23 (1986); Fed. R. Civ. P. 56( a )

. Once the defendant raises a qualified immunity defense, the burden falls to the plaintiff to show that the defendant is not entitled to qualified immunity because his conduct violated a constitutional right that was clearly established at the relevant time. P alma v. Johns , 27 F.4th 419,
427

– 28 (6th Cir. 2022). Where, as here, a police officer is the lone survivor of the encounterCase Nos. 22

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- giving rise to the plaintiff’s claims, we take “particular care” in assessing the district court’s grant of summary judgment. Burn ette v. Gee , 137 F. App’x 806, 809 (6th Cir. 2005) (citing Plakas v. Drinski , 19 F.3d 1143, 1147 (7th Cir. 1994 )).
B. No Clearly Established Right Broadly speaking, the Fourth Amendment prohibits the use of excessive force, and a determination of whether a p articular use of force was excessive turns on its reasonableness under the totality of the circumstances. See Stewart v. City of Euclid , 970 F.3d 667, 672 (6th Cir. 2020). The relevant

— although not exhaustive

— circumstances for this analysis include “ the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight .” Graham
v. Connor , 490 U.S. 386, 396 (1989). The d istrict court concluded that these factors weighed in favor of granting Cruz qualified immunity even if, as plaintiffs argue, Roberts was still on the stairs and was no longer holding the knife in his hand when tased. Among other things, plaintiffs argue that the district court erred in concluding that Roberts’s conduct constituted an immediate threat to safety , a conclusion it reached while relying on cases where a suspect indisputably threatened officers or others with a knife. See, e.g. , Reich v. City of Elizabethtown , 945 F.3d 968, 979 (6th Cir. 2019). Roberts, meanwhile, had a knife in hand but was not suspect ed or accused of using it, and was fleeing from Cruz rather than charging toward him. Cf. S tevens

- Rucker v. City of Columbus , 739 F. App’x 834 , 84 1

– 42 (6th Cir. 2018) (finding officer entitled to qualified immunity for shooting knife

- wielding suspect running in his direction). Roberts’s conduct here may not have risen to the level of dangerousness present in those

cases , but ultimately, we need not wade into the morass of case law on deadly force and FourthCase Nos. 22

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- Amendment reasonableness . As the Supreme Court has instructed, there is no need to perform the broader Fourth Amendment reasonableness analysis where it is clear that the specific right in
qu estion was not clearly established. Pearson v. Callahan , 555 U.S. 223, 236 (2009). We therefore start our analysis with whether Cruz’s decision to tase Roberts in the stairwell violated one of Roberts’s clearly established rights. Here, e ven if Cruz’s c onduct violated the Fourth Amendment’s prohibition on excessive force, we would nevertheless be obligated to affirm the district court’s grant of summary judgment because he violated no clearly established right. A right is clearly established when its “c ontours” are clear enough that every reasonable officer would know that his conduct violated that right and “existing precedent” has “placed the statutory or constitutional question beyond debate.” Ashcroft v. al

- Kidd , 563 U.S. 731, 741 (2011) (citation o mitted)

. The Supreme Court has also directed us to employ a “high degree of specificity” in defining the relevant right so as to better answer “the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Dist ri ct of Columbia v. Wesby , 138 S. Ct. 577, 590 (2018) (internal marks and citations omitted). The right to be free from excessive force is and has been clearly established. See Barton , 949 F.3d at 954. But whether force is “excessive” depends on the partic ular context

. Although this circuit has routinely determined that non

- threatening individuals have a clearly established right to be free from tasing , e.g. , Eldridge v. City of Warren , 533 F. App’x 529, 535 (6th Cir. 2013) , “[o]ur cases firmly establish t hat it is not excessive force to tase someone (even multiple times) when the person is actively resisting arrest [ , ] ” Rudlaff v. Gillispie , 791 F.3d 638, 641 (6th Cir. 2015). On the other hand, in a case even closer to this one

— though still no perfect fit

— we concluded that a suspected misdemeanant who earlier fled from police but was no longer fleeingCase Nos. 22

- 5687/5701 , Roberts, et al., v. Cruz

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- or resisting had a clearly established right not to be tased at the top of a staircase. Baker v. Union
T ownship , 587 F. App’x 229, 236 (6th Cir. 2014). And in that case we highlighted the heightened risk of injury or death associated with tasing an individual on an elevated surface, like stairs. Id.
at 234. Accepting, as the district court did, that Roberts was still on the stairs and may not have had the knife in his hand at the instant of tasing, our inquiry boils down to whether an individual who disobeys police commands to drop a weapon and then flees has a right not to be tased on a staircase. Given that even the closest case to this one , Baker , ha s important distinguishing factors

— specifically, the re was no indicat ion that the suspect there had a weapon and he had stopped fleeing

— we conclude that this case falls into the “hazy border between excessive and acceptable force,” which means that Cruz did not violate a clearly established right. Brosseau v. Haugen , 543 U.S. 194, 201 (2004) (per curiam) (quoting Saucier v. Katz , 533 U.S. 194, 206 (2001))

. At bottom, “ [t] he essence of qualified immunity [] is to give government officials cover when they resolve close calls in reasonable (even if ultimately incorrect) ways. ” Hagans v. Franklin Cnty. Sheriff’s Of f. , 695 F.3d 505, 511 (6th Cir. 2012). Because we cannot say that Cruz’s actions violated clearly established law, we must affirm the distri ct court ’ s grant of summary judgment on the basis of qualified immunity. C. Common Law Battery Roberts’s common law battery claim also fails. A defendant officer is immune from a battery claim under Kentucky law so long as the defendant’s conduct was (1) a discretionary act or function; (2) taken in good faith; and (3) within the official scope of the defendant ’ s authority

. Yanero v. Davis , 65 S.W.3d 510, 522 (Ky. 2001).Case Nos. 22

- 5687/5701 , Roberts, et al., v. Cruz

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- First, Cruz’s use of the taser here was discretionary. See Smith v. Norton Hosps., Inc. , 488 S.W. 3 d 23, 3 1 (Ky. Ct. App. 2016) (“ [T] he determination of the amount of force required to effect the investigatory stop or arrest is [] a discretionary act within the scope of a peace officer ’ s authority .”) Second, as a matter of law, the evidence shows that Cruz’s conduct was in “good faith” because it did not violate a clearly established right and he did not maliciously intend to harm Roberts

. See Yanero , 65 S.W.3d at 523 ; see also Ritchie v. Turner , 559 S.W.3d 822, 843

– 44 (Ky. 2018)

. Third, it is undisputed that Cruz’s conduct was within the purview of his capacity
as a Jeffersontown Police Officer. See Browning v. Edmonson C ounty , 18 F.4th 516, 530 (6th Cir. 2021)

. Cruz is therefore also immune from Roberts’s state law battery claim. See Reich , 945 F.3d
at 98 2

– 83

. III. CONCLUSION For the foregoing reasons, we affirm the district court ’ s grant of summary judgment in favor of Cruz on the basis of qualified immunity.