RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0181p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT ALLEN SHUMATE,

Plaintiff-Appellee,

v.

CITY OF ADRIAN, MICHIGAN; JEREMY POWERS,

Defendants-Appellants.

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No. 21-2795

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:20-cv-10856—David M. Lawson, District Judge.

Argued: April 28, 2022

Decided and Filed: August 10, 2022

Before: SUHRHEINRICH, MOORE, CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Christian C. Huffman, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for 

Appellant. Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., 

Southfield, Michigan, for Appellee. ON BRIEF: Christian C. Huffman, GARAN LUCOW 

MILLER, P.C., Detroit, Michigan, for Appellant. Kierston D. Nunn, FIEGER, FIEGER, 

KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. In this civil rights action under 42 U.S.C. § 1983, Defendants 

Officer Jeremy Powers and the City of Adrian appeal the district court’s denial of their motion 

for summary judgment on qualified immunity, state law immunity, and municipal liability 

>
No. 21-2795 Shumate v. City of Adrian, Mich. Page 2

grounds. We hold that neither qualified nor state law immunity shields Officer Powers from 

liability. Consequently, we lack appellate jurisdiction to review the municipal liability claim 

against Defendant City of Adrian. The district court’s denial of summary judgment to Defendant 

Powers is AFFIRMED, and Defendant City of Adrian’s municipal liability appeal is 

DISMISSED for lack of appellate jurisdiction. 

I. BACKGROUND

A. Factual Background

The following events giving rise to the three-count complaint occurred on September 27, 

2019, in a CVS parking lot in Adrian, Michigan. The core of the resulting dispute happened over 

approximately four minutes and was captured on the officer’s body camera. The video, along 

with the record as a whole, indicates that Powers deployed a Taser against Plaintiff three times 

(once in drive-stun mode) and applied physical force by allegedly kneeing, punching, and 

kicking Plaintiff.

On September 27, 2019, at 9:35 a.m., Officer Powers conducted a traffic stop on a 

Chevrolet Impala operated by Plaintiff’s daughter, Amy Shumate. After Amy drove her vehicle 

into a CVS parking lot, Powers approached and informed Amy that the Impala’s license plates 

were registered to an Oldsmobile and thus did not match the Impala’s registration. Amy, visibly 

pregnant, told Powers she removed the license plates from her old, recently sold Oldsmobile and 

placed them on her Impala, which she had purchased in July. Amy further admitted that the 

Impala did not have valid insurance. Powers informed Amy he would have to impound the 

vehicle, “mainly for no insurance.” (13:27).1 He instructed Amy to exit the vehicle and “give 

somebody a call,” presumably so the now vehicle-less Amy could be picked up. (14:30). The 

officer issued Amy an “over-the-counter” misdemeanor citation requiring Amy to pay a fee at 

the courthouse. When Powers asked Amy if she knew where the courthouse was, she responded, 

“I’m done answering your questions,” to which the officer replied, “Okay, then go away.” 

(14:59). While still in the vehicle and just out of the view of the body camera footage, Amy can 

be heard speaking to someone on her cell phone, asking “can you come get me.” (14:59; see 

1All citations to the body camera footage refer to the video recording’s timestamp.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 3

also Compl. R., 1, PageID # 4 (“[Plaintiff] responded to a telephone call from his daughter 

requesting a ride[.]”)).

Officer Powers then says, his voice suddenly rising, “Do not start reaching in the car. 

Take yourself and walk over there. Stop resisting, or I’m going to arrest you.” (15:09; Hr’g Tr., 

R. 49, PageID # 455 (“[T]here was really nothing remarkable about that transaction up to that 

point until she wanted to get some of her things out of the car, and then he kind of exploded at 

her.”)). Amy tells the officer she is trying to gather her medical papers. Amy exits her vehicle, 

cell phone at her ear; Powers tells her to “go stand over there on the sidewalk,” seemingly 

referring to the walkway in front of the CVS storefront, not the sidewalk adjacent to the street. 

(15:15). Amy replies, “you know what, I’ll sit right there,” apparently referring to the street-side 

grassy area. Powers says, “no, you’re going to go stand over there.” (15:17). Amy stops 

walking and faces Powers. The officer says, “I don’t care—you’ll go to jail. You want to push 

it?” (15:22). And, gesturing towards Amy’s stomach, Powers says, seemingly referring to her 

pregnancy, “you think that’s going to dissuade me? Go stand over there.” (15:23). Amy walks 

towards the sidewalk abutting the drugstore. Officer Powers tells Amy to “grow up.” (See 

Powers Dep., R. 21-3, PageID # 143 (“She was on the phone partially yelling at me, partially 

yelling on the phone, disparaging things, so . . . that’s why I said it.”)). Amy replies, “fuck you,” 

prompting Powers to say, “you heard me.” (15:35). Over the next six minutes, Powers searches 

the Impala and its trunk and gathers items for Amy’s retrieval in preparation for the vehicle 

impoundment.

At timestamp 22:09, while Powers is gathering the particulars from the driver’s side of 

the Impala, Plaintiff Robert Shumate, Amy’s father, pulls his pickup truck into the lot. He stops 

in the parking spot adjacent to the Impala, and Officer Powers turns around and yells, “What?” to 

Shumate. Shumate exits his vehicle and yells to Powers, “You. You’re the one that had a 

problem with me. You got a problem with me now?” Powers tells Plaintiff to “leave,” and 

Plaintiff responds, “I ain’t leaving nowhere[,] this is a private property.” (22:18–:20). Powers 

then instructs Plaintiff to “stand over here” and not interfere with what he is doing. Some 

unintelligible dialogue is heard from Shumate and Amy before Shumate points to Powers and 

says, “You’re an asshole. Yeah, you are.” (22:29).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 4

Off camera, Amy is heard saying, “I knew it was him, I knew it.” (22:30). Shumate 

replies, “It’s the same one, that’s the one that threatened me at the house.” (22:33).

It turns out that this was not Shumate’s and Powers’ first encounter. The record indicates 

two prior interactions. The first involved Shumate’s son, who was in an argument over a car. 

Powers recalled knocking on Shumate’s door, only to be “met with hostility,” 

“unpleasant[ness],” and “very loud and very argumentative” yelling. (Powers Dep., R. 21-3, 

PageID # 141). However, Shumate did not appear to recall this prior incident. The other 

encounter was more recent and was more front of mind for the parties. “The week before this 

[CVS] incident,” Shumate called the City of Adrian Police Department over a neighborhood 

spat. (R. Shumate Dep., R. 29-5, PageID # 262). Some tree branches and rosebushes had grown 

over the fence and onto Shumate’s neighbor’s property, and the neighbor trimmed the 

overgrowth. Shumate called the police, and Officer Powers was dispatched. Upon the officer’s 

arrival, Plaintiff showed Powers a paper with the property line. Powers recalled informing 

Shumate that there was nothing the police could do to remedy a civil dispute; this answer made 

Shumate “visibly unhappy,” and there was “[a] lot of yelling, screaming, [and] gesticulating,” 

and Shumate snatched the papers back.2 (Powers Dep., R. 21-3, PageID # 142). Their reunion 

in the CVS parking lot was not a happy one. (See id. at PageID # 140 (“I recognized his face 

[immediately] but I could not remember his name until later.”)).

As Powers calls into his radio, Plaintiff says, “call backup, I don’t give a fuck. . . . You 

can’t do shit to me, cause I ain’t done shit, motherfucker.” (22:35–:42). Plaintiff continues, “do 

that on the car so we can get going.” Powers responds, “don’t tell me what to do.” (22:45–:48).

The encounter escalates seconds later. Plaintiff, who had been standing toward the 

middle of the parking lot, near the sidewalk in front of the store, now turns to walk towards his 

pickup truck. (22:50). Although he ordered Shumate to leave forty seconds prior, Powers now 

yells, “stay out of your car, don’t go near [the car].” (22:51). Shumate, standing near the bed of 

2At the motion hearing, Plaintiff’s counsel said that during this prior encounter, “[Shumate] became a little 

upset, [and he] snatched his papers back. And I think that was the extent of it. . . . He was just upset that this officer 

didn’t do anything to help him.” (Hr’g Tr., R. 49, PageID ## 451–52). There is no “claim that Powers was trying 

to retaliate against him as a result of [the prior encounter].” (Id. at PageID # 452).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 5

his truck, yells, “fuck you,” gives Powers the middle finger, but takes no step closer to his 

vehicle. The two are facing each other, a bit more than an arms-length distance apart. Powers 

tells Plaintiff to turn around and put his hands behind his back and reaches out to grab Shumate, 

but Shumate takes a few steps back, his arms slightly elevated near his side, avoiding the 

officer’s grasp, stating, “I ain’t done shit.” (22:55–:56). At 22:58, Powers raises his Taser and 

yells, “put your hands behind your back right now . . . lie down.” Shumate slowly backs away in 

the direction of the CVS and says, “I ain’t doing shit cause I ain’t done nothing.” At timestamp 

23:05, about 47 seconds since Shumate first arrived on the scene, Powers fires his Taser, and the 

probes strike Plaintiff in his chest, abdominal areas, and upper leg. Shumate falls backward, his 

head narrowly missing the sidewalk curb, and screams in pain. Powers’ police report recalled 

the next few moments as follows:

[Shumate] then fell backwards then rolled to his right, I ran to him and, with my 

Taser in my left hand, I switched the Taser to my right hand and attempted to take 

control of his left arm by grabbing it with my left hand. [Shumate] pulled his arm 

away from me by using his strength. I ordered [Shumate] to stop resisting. 

[Shumate] continued to actively resist me by using his strength to pull his arm 

away from me in an attempt to defeat my attempts to physically control him. 

[Shumate] then rolled to his back with his arms bent at the elbows in front of him. 

I had my Taser in my left hand and attempted to gain control of his left hand with 

my right hand by grasping it.

(Police Rep., R. 21-1, PageID ## 123–24; see also Powers Dep., R. 21-3, PageID # 147 (stating 

that he believed he delivered palm strikes against Shumate before the use of the second Taser)). 

Powers straddles the fallen and prone Shumate and tells him to “turn the fuck around” and “put 

your hands behind your back now.” (23:09–:13; see A. Shumate Dep., R. 29-6, PageID # 275 

(“He got to my dad, and he put his whole body on his chest . . . and he started just punching him 

with his fists.”)).

At 23:20, Powers yells, “stop resisting,” several times, though the video indicates no 

resistance by Shumate; in fact, Shumate again says, “I ain’t done shit . . . I come down to get my 

daughter.” (23:22). The officer yells for Shumate to “turn around,” and Powers deploys his 

Taser again. (23:25). As explained in his police report, Powers “reenergized the Taser, by 

pulling the trigger, to deliver another exposure.” (Police Rep., R. 21-1, PageID # 124). Powers 

drops the Taser, and Shumate cries out in pain before saying, “okay.” (23:32).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 6

For the next several seconds, the body camera footage is hard to follow, but it is clear that 

some physical scuffle is occurring, and it appears that Powers is punching and kneeing Shumate. 

(23:35). The police report states:

At this point I felt my hearing fade out and my vision got fuzzy. I also felt my 

heartrate jump up. I was afraid that he was going to strike me so I delivered palm 

heel strikes to [Shumate’s] brachial plexus nerve cluster located on the left side of 

his neck. [Shumate] continued to pull his arms away from me and was able to 

turn over onto his stomach.

(Police Rep., R. 21-1, PageID # 124; id. (stating he “delivered knee strikes to the side of 

[Shumate’s] abdomen in an effort to gain compliance and get him to roll over”); see also A. 

Shumate Dep., R. 29-6, PageID # 276 (confirming she “observe[d] the officer punch [her] father 

in the ribs” and “slam his head down”)). Amy is heard yelling for Powers to “get off of” 

Shumate “now.” (23:38). Powers speaks into his radio that he is “fighting with one,” and 

Shumate says, “yeah, you’re beating me up, and I ain’t done shit.” (23:40–:42). A third and 

final use of the Taser by Powers occurred around this time, now delivered in drive-stun mode to 

Plaintiff’s abdomen. Powers grabs Shumate by the collar and arm and screams three times, “turn 

over.” (23:45–:52). Shumate says, “he’s kicking me.”3 (23:52–:55). Plaintiff lies tilted 

leftward and says, “I know I ain’t done shit. I’m not doing nothing . . . I’m not resisting arrest. I 

didn’t do nothing.” (23:56–24:04). 

Powers repeats into his radio that he is “fighting with one,” and Shumate says, “get off of 

me. I didn’t do nothing, dude.” (24:07–:11). Amy says, “do you know that he has medical 

problems,” which Shumate confirms: “Yeah, I do, get up, please.” (24:10–:13). Powers 

declines: “No. You’re going to jail now.” (24:13–:15). Shumate replies, “I ain’t going 

nowhere, I didn’t do nothing.” (24:15–:17). Powers yells at Shumate, who remains in a prone 

position, slightly on his left side, to “turn over.” (24:19). Shumate says: “I walked away from 

you, and you grabbed me.” (24:20–:22). Powers again orders Shumate to turn over; Shumate 

says, “I ain’t doing nothing,” Powers replies, “all right,” and Amy interjects, “he can’t turn over. 

Help him.” (24:23–:26).

3

It is undisputed that Powers struck Shumate by using palm-heel, backhand, and knee strikes. However, 

Powers denied ever kicking Shumate.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 7

After a brief pause, Shumate says, “I’ll turn over, don’t fucking shoot me again with that 

thing.” (24:28–:31). Powers yells, “do not get up,” and shoved or pushed Shumate before 

repeating, “do not get up.” (24:33–:34; Police Rep. R. 21-1, PageID # 124 (“I then delivered 

back hand strikes to the brachial plexus nerve cluster on the right side of his neck to gain 

compliance.”)). Powers shouts, “turn over, you motherfucker.” (24:37). At this point in the 

video, it appears that Shumate is not lying down but kneeling with his hands and knees on the 

ground while Powers stands over him. Powers admits “deliver[ing] knee strikes to [Plaintiff’s] 

left leg,” and the video also appears to show some punching or kicking. (Police Rep., R. 21-1, 

PageID # 125). Amy yells in objection, saying, “hey . . . that’s excessive force.” (24:38; 24:43). 

A photograph taken by Amy shows Powers preparing to deliver a closed-fist punch to Shumate.

Police sirens, Powers’ backup, can be heard in the background. (24:40). Powers yells, 

“stop resisting,” and Shumate shouts in response, “I ain’t resisting . . . Get off of me, I ain’t 

resisting.” Powers says, “lay down,” and Shumate says, “I am,” and Powers says, “no, you’re 

not.” (24:43–:54). Shumate appears to be kneeling on the ground, not lying down as instructed. 

Amy is heard saying: “How can he lay down, you got a hold of him, you dumbass, let go of 

him.” (24:56). Powers, “using [his] body weight to hold [Shumate] down,” (Police Rep., R. 21-

1, PageID # 124) breathes heavily and passes his Taser from his right hand to his left hand, 

holding it casually in his left hand while radioing his location to backup. Shumate says, “all I 

said to you was, ‘fuck you,’ man. That’s all I said to you, and you do this shit to me?”

Backup arrives. (26:20). Soon after, with the help of two additional officers, Shumate is 

handcuffed. (26:36).

The video continues for several more minutes. Though away from Shumate, Powers 

remained at the scene while his colleagues dealt with Plaintiff and Amy. Around 30:39, Powers 

recounts the incident to his colleagues, stating that Shumate is a “jerk.” Plaintiff was placed on a 

gurney and taken in an ambulance; he was treated and released from a hospital. Meanwhile, 

Powers chatted with his colleagues about the possibility of impounding Shumate’s truck; 

however, his colleagues dissuaded him. As the district court noted at the hearing on the motion 

for summary judgment: “[T]here was some section on the videotape where it sounded like 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 8

Powers was trying to find a reason to impound the pickup truck and as if he were trying to inflict 

more discomfort on [Shumate].” (Hr’g Tr., R. 49, PageID ## 453–54).

Plaintiff was charged with the felony of resisting and obstructing a police officer under 

M.C.L. § 750.81d(1). However, he later pled guilty to the misdemeanor offense of being a 

disorderly person in violation of M.C.L. § 750.165(1)(l). Powers also was disciplined after an 

internal affairs investigation into this incident. The two week suspension (one with pay, one 

without) resulted from “rudeness to a citizen,” i.e., Amy Shumate. (Powers Dep., R. 21-3, 

PageID ## 136–37; see also Hr’g Tr., R. 49, PageID ## 445–46).

B. Procedural History

On April 2, 2020, Plaintiff Shumate filed the instant complaint against Defendants City 

of Adrian and Officer Powers. The three-count complaint alleged an excessive force claim, 

municipal liability pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and state law 

assault and battery claims. After discovery closed, Defendants timely filed their motion for 

summary judgment on January 15, 2021.

Following a hearing on June 17, 2021, the district court issued an opinion and order 

denying Defendants’ motion for summary judgment. (Dist. Ct. Op. & Order Denying Mot. for 

Summ. J. (“Order”), R. 45). The district court held that material questions of fact existed 

precluding summary judgment as to Plaintiff’s § 1983 claim against Powers, reasoning that the 

parameters of the force that Powers could reasonably utilize are clearly defined, such that a jury 

might conclude that Powers had exceeded those standards. The district court also denied 

Defendants’ request for summary dismissal of Plaintiff’s Monell claim against the City, ruling 

that a genuine issue of material fact existed as to whether Powers’ alleged use of excessive force 

arose from the City’s failure to properly discipline Powers for previous inappropriate behavior. 

The district court did not address Powers’ assertion of statutory immunity on Plaintiff’s state law 

assault and battery claims. Defendants now appeal and ask this Court to reverse and remand this 

matter for entry of summary judgment in Defendants’ favor.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 9

II. DISCUSSION

A. Standard of Review

We review a district court’s denial of qualified immunity de novo. Gregory v. City of 

Louisville, 444 F.3d 725, 742 (6th Cir. 2006). An order denying “qualified immunity is 

immediately appealable only if the appeal is premised not on a factual dispute, but rather on 

‘neat abstract issues of law.’” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 

2008) (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)). Although a district court’s factual 

findings are not reviewable on interlocutory appeal, “where a district court’s denial of summary 

judgment may appear to be based on factual issues, we may nonetheless review that court’s 

determination if it ‘hinges on legal errors as to whether the factual disputes (a) are genuine and 

(b) concern material facts.’” Essex v. Cnty. of Livingston, 518 F. App’x 351, 356 (6th Cir. 

2013) (quoting Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009)). At the 

summary judgment stage, courts are required to “view the facts and draw reasonable inferences 

in ‘the light most favorable to the party opposing the summary judgment motion.’” Scott v. 

Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 

(1962)) (per curiam) (brackets omitted). If the evidence would allow a reasonable jury to find in 

favor of a non-moving party, summary judgment may not be granted. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986).

“There is, however, an added wrinkle” where the record contains “a videotape capturing 

the events in question.” Scott, 550 U.S. at 378. Because facts “must be viewed in the light most 

favorable to the non[-]moving party only if there is a ‘genuine’ dispute as to those facts,” we 

may not adopt a version of the facts that is “blatantly contradicted” by video footage that is not 

“doctored or altered in any way” and which clearly “depicts . . . [the events that] actually 

happened.” Id. at 378–80 (quoting Fed. R. Civ. P. 56(c)) (emphasis added). But we must 

nonetheless “view any relevant gaps or uncertainties left by the videos in the light most favorable 

to the Plaintiff,” Latits v. Phillips, 878 F.3d 541, 544 (6th Cir. 2017) (citing Godawa v. Byrd, 798 

F.3d 457, 463 (6th Cir. 2015)), and must also “make all reasonable inferences in their favor when 

undertaking the qualified immunity analysis on summary judgment,” Godawa, 798 F.3d at 

463; cf. Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 783–84 (6th Cir. 2004) (Clay, J., 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 10

dissenting) (concluding that where video footage is unclear and could support differing 

outcomes, courts should view the facts in the light most favorable to the non-moving party).

B. Analysis

This appeal presents three issues. First, we determine whether, when viewing the facts in 

the light most favorable to Plaintiff, a reasonable jury could conclude Defendant Powers used 

unreasonable force in violation of Plaintiff’s clearly established Fourth Amendment right to be 

free from excessive force and is therefore not entitled to qualified immunity. Second, we review 

whether we have jurisdiction to consider the parties’ arguments concerning municipal liability. 

Third, we ask whether Defendant Powers may be entitled to statutory immunity from state law 

liability, noting that the district court did not make an affirmative finding on this question.

1. Qualified Immunity

Plaintiff’s excessive force claim is brought according to 42 U.S.C. § 1983 and alleges 

violations of the Fourth Amendment. In response, Defendant Powers asserts the affirmative 

defense of qualified immunity, claiming that the doctrine shields him from Plaintiff Shumate’s 

claims. This case is not amenable to pretrial disposition because the record contains genuine 

disputes of material fact that preclude summary judgment at this stage.

Title 42 U.S.C. § 1983, enacted by Congress in 1871, sets forth the relevant statutory 

scheme. It does not confer any substantive rights. Rather, the statute supplies a federal cause of 

action against a person “who, under color of any statute . . . depriv[es] [another] of any rights, 

privileges, or immunities secured by the Constitution and laws.” Section 1983’s jurisdictional 

counterpart, 28 U.S.C. § 1343(a)(3), provides federal district courts with jurisdiction to oversee 

civil actions brought to “redress the deprivation . . . of any right, privilege[,] or immunity secured 

by the Constitution . . . or by any Act of Congress providing for equal rights of citizens or of all 

persons within the jurisdiction of the United States.” The Fourth Amendment, when invoked in 

connection with § 1983, provides the primary source of constitutional protection against 

excessive force by law enforcement officials. Most relevant for present purposes, it guarantees 

citizens the right to be secure in their persons against “unreasonable . . . seizures,” including 

excessive force in making an arrest. U.S. Const. amend. IV.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 11

However, the ability to go forward on a § 1983 claim against an officer for a violation of 

the Fourth Amendment is “limited by the qualified immunity exception.” Ahlers v. Schebil, 

188 F.3d 365, 372–73 (6th Cir. 1999). Qualified immunity shields “government officials from 

liability for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 

555 U.S. 223, 231 (2009) (internal citations and quotations omitted).4 

From the foregoing comes the familiar two-part test used to determine whether a law 

enforcement official is entitled to qualified immunity. The first step is to determine if the facts 

alleged make out a violation of a constitutional right. Id. at 232. The second is to ask if the 

constitutional right was clearly established at the time of the alleged violation. Wright v. City of 

Euclid, 962 F.3d 852, 864 (6th Cir. 2020). For a case to merit submission to the factfinder, each 

question must be answered in the affirmative. Otherwise, qualified immunity shields the officer 

from civil liability.

On appeal, Officer Powers asserts that he is entitled to qualified immunity because the 

force was not unconstitutionally excessive or, alternatively, that the law violated was not clearly 

established. In analyzing both questions, the district court held that Powers was not entitled to 

summary judgment on his claim of qualified immunity. We take each issue in turn.

a. Constitutional Violation

“First, we must decide whether the facts . . . adequately established a violation of 

[P]laintiff’s constitutional rights to be free from excessive force . . . under the Fourth 

Amendment.” Vanderhoef v. Dixon, 938 F.3d 271, 276 (6th Cir. 2019). Excessive force during 

an arrest is unreasonable and violates the Fourth Amendment. Rudlaff v. Gillispie, 791 F.3d 638, 

641 (6th Cir. 2015) (citing Graham v. Connor, 490 U.S. 386, 394–95 (1989)). This test of 

reasonableness has us consider three factors: (1) the severity of the crime at issue; (2) whether 

4This doctrine “balances two important interests—the need to hold public officials accountable when they 

exercise power irresponsibly[,] and the need to shield officials from harassment, distraction, and liability when they 

perform their duties reasonably.” Vanderhoef v. Dixon, 938 F.3d 271, 276 (6th Cir. 2019) (quoting Pearson, 555 

U.S. at 231). This standard “gives ample room for mistaken judgments by protecting all but the plainly incompetent 

or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting another source).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 12

the suspect posed an immediate threat to the officer or others; and (3) whether the suspect was 

actively resisting arrest or attempting to evade arrest by flight. These factors are non-exhaustive, 

and the ultimate question is whether “the totality of the circumstances justifies [the] particular 

sort of seizure” that took place. Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 

471 U.S. 1, 8–9 (1985) (brackets and ellipse omitted)).

Importantly, in determining whether the use of force in effecting an arrest is excessive in 

violation of the Fourth Amendment, we must determine “whether the officers’ actions [were] 

‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard 

to their underlying intent or motivation.” Id. at 397. We consider “the facts and circumstances 

of each case viewed from the perspective of a reasonable officer on the scene and not with 20/20 

hindsight,” without regard to the underlying intent or motivation of the officer. Fox v. DeSoto, 

489 F.3d 227, 236 (6th Cir. 2007). “The calculus of reasonableness must embody allowance for 

the fact that police officers are often forced to make split-second judgment—in circumstances 

that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a 

particular situation.” Graham, 490 U.S. at 396–97. In applying these standards, courts look 

“only to the facts that were knowable to the defendant officer[]” at the time. Reich v. City of 

Elizabethtown, 945 F.3d 968, 979 (6th Cir. 2019) (quoting White v. Pauly, 137 S. Ct. 548, 550 

(2017)). 

i. Severity of the crime

Turning to the three Graham factors recited above, the first, the severity of the crime at 

issue, weighs in Shumate’s favor. The district court summarized the pertinent facts: “[P]laintiff 

was charged with ‘resisting and obstructing’ a police officer and later pleaded guilty to 

disorderly conduct. Nothing in the video record shows him being anything more than merely 

annoying and insulting toward Officer Powers before Shumate was shocked, tackled, and 

beaten.” (Order, R. 45, PageID # 427). Accordingly, the district court held that the first Graham

factor militated “against a finding that violent force was justified to effect the arrest.” (Id.).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 13

Gauging the severity of an offense is not always a straightforward task, and the caselaw 

from this Circuit and our sister circuits employs various methods to determine an offense’s 

severity. These approaches, and their applicability to the case at bar, are discussed below.

Many courts begin this inquiry by focusing on the classification of the offense, i.e., 

misdemeanor or felony.5 Officer Powers submits that the first Graham test comes out in his 

favor because he asserts that Shumate obstructed Powers’ inventory of Amy’s Impala—and thus 

violated the felony obstruction statute—at least five times before the first tasing. 

Chronologically, Powers argues Shumate obstructed the inventory of Amy’s vehicle by failing to 

comply with the orders: (1) to leave the parking lot; (2) to stand on the other side of the parking 

lot; (3) that he refrain from going near his pickup truck, instead continuing toward the truck and 

yelling “fuck you,” and making a rude hand gesture; (4) to “turn around” and “put [his] hands 

behind his back;” and (5) to “put your hands behind your back now,” but instead resisted and 

obstructed by fleeing across the parking lot, calling Powers a “motherfucker.” After the first 

tasing, Powers argues that Plaintiff’s behavior continued to meet the requirements of felonious 

resisting and obstructing a police officer by failing to comply with Powers’ demands to put his 

hands behind his back and “stop resisting” and “stop fighting.”

To start, the argument that a reasonable officer in Powers’ position would have believed 

Shumate committed the felony obstruction statute is contradicted by the record. In Officer 

Powers’ deposition, he stated that he was attempting to arrest Shumate “[f]or the city 

misdemeanor statute of opposing and obstructing an officer.” (Powers Dep., R. 21-3, PageID # 

140 (emphasis added)).

Even if Powers had probable cause to believe Plaintiff committed a felony, there was 

minimal (if any) connotation of violence by Plaintiff in this encounter. See LaPlante v. City of 

Battle Creek, 30 F.4th 572, 580 (6th Cir. 2022) (“Indeed, there is no allegation that Plaintiff’s 

offense was violent or otherwise resulted in any injuries.”). A reasonable jury could conclude 

5Zuress v. City of Newark, 815 F. App’x 1, 6 (6th Cir. 2020) (“Because the crimes a reasonable officer 

would have suspected plaintiff of having committed were non-violent misdemeanors without harsh penalties, 

the severity-of-the-crime factor weighs in plaintiff’s favor.”); Thomas v. Plummer, 489 F. App’x 116, 126 (6th Cir. 

2012) (citation omitted) (holding that because the misdemeanor did not “create[] a risk of physical harm,” the crime 

was not “a particularly serious offense”).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 14

that Powers’ force was not justified against an individual thought to have committed a nonviolent felony, suggesting a lesser level of force might have been reasonable in connection with 

an arrest for it. Goodwin v. City of Painesville, 781 F.3d 314, 322 (6th Cir. 2015) (concluding 

that disputes of material fact existed over whether offense of disorderly conduct was a serious 

crime). Even if an “exchange . . . contain[ing] the use of profanity” amounts to resisting arrest 

under a state statute, such crime is not particularly severe. Roe v. City of Cushing, 13 F.3d 406 

(10th Cir. 1993); see also Thacker v. Lawrence Cnty., 182 F. App’x 464, 472 (6th Cir. 

2006) (“[D]isorderly conduct is not a violent or serious crime, and this fact weighs in favor of 

using less force in arresting [a suspect].”). A felony of resisting and obstructing that involves 

little more than hurling profanities is only moderately severe when judged from the perspective 

of a reasonable officer on the scene. See Vanderhoef, 938 F.3d at 277 (citing Goodwin, 781 F.3d 

at 322) (“Conduct that is not a violent or serious crime does not permit an officer to use 

increased force absent other factors.”).

Additional methods courts use to assess the severity of the offense also tilt in Shumate’s

favor. The severity of a crime weighs in favor of a finding that the use of force was not

excessive where an individual is suspected of being involved in an underlying felony, such as 

when an officer responds to an emergency call or is in pursuit of a known felon. Kapuscinski v. 

City of Gibraltar, 821 F. App’x 604, 609–10 (6th Cir. 2020) (finding an offense severe where 

officer responded to complaint of domestic violence and arrived at the scene to find “a 

potentially deadly assault”); Kirk v. Calhoun Cnty., 2021 WL 2929736, at *6 (6th Cir. 2021) 

(“Claudia’s husband was suspected of assaulting a police officer with a firearm—a serious 

crime.”); Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021) (finding the 

first factor favored the officer because the plaintiff “was wanted for a felony at the time of the 

challenged use of force”). In this case, Shumate was not suspected of being involved in an 

underlying crime, nor was Powers responding to an emergency call of a person in distress or 

reporting that a dangerous individual was afoot. These points strongly counsel against the use of 

force exerted.

Lastly and relatedly, weighing the government’s interest in subduing a suspect assists in 

our determination of an offense’s severity; this question acts as a proxy for public safety 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 15

concerns. See Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 900 (4th 

Cir. 2016) (citations and brackets omitted) (asking “whether an officer had any reason to believe 

that the subject of a seizure was a potentially dangerous individual”).6 Again, from this vantage 

point, the severity of the offense was low. At worst, Shumate’s behavior distracted Powers from 

completing Amy’s vehicle impoundment, which was, in Powers’ words, an “over-the-counter 

misdemeanor.” There was no “ongoing emergency” that Shumate’s conduct “exacerbated.” 

Ames v. King Cnty., 846 F.3d 340, 348 (9th Cir. 2017) (determining the severity of the offense 

by focusing on “the serious—indeed, life-threatening—situation that was unfolding at the time”). 

Shumate’s behavior was obnoxious and disrupting, possibly prolonging Powers’ inventory 

search. But it would strain credulity to classify Shumate’s behavior as severe, especially given 

the low government interest at stake. Cf. McCoy v. Myers, 887 F.3d 1034, 1049–50 (10th Cir. 

2018) (finding government interest in subduing suspect high and offense severe where police 

were advised suspect was armed and had two hostages).

In summary, the record does not indicate that any offense committed could properly be 

considered severe, meaning the first Graham factor weighs in favor of Shumate. In fact, when 

judged from the perspective of a reasonable officer on the scene, without the benefit of hindsight, 

it is not even apparent what crime Shumate was suspected of having committed or when he 

committed it. Similar doubts have led other courts to conclude that the first factor tilts in favor 

of the plaintiff. See Newman v. Guedry, 703 F.3d 757, 762 (5th Cir. 2012) (analyzing the first 

Graham factor and recognizing the presence of a factual question as to whether plaintiff 

committed a crime at all). Accordingly, a reasonable jury could find that Powers had no reason 

to suspect Shumate of a crime, severe or otherwise, when he used force against Plaintiff. 

6Our cases have also treated the government’s interest in subduing a suspect as related to the broader issue 

of public safety concerns. See Harris v. City of Circleville, 583 F.3d 356, 366 (6th Cir. 2009) (“Relatively speaking 

[speeding, DUI[,] and failing to appear] are not particularly serious crimes and none of them involve violence.”); 

Latits v. Phillips, 878 F.3d 541, 549 (6th Cir. 2017) (holding that the first Graham factor favored a suspect because 

he was “suspected of possessing narcotics—not a violent crime”); Graves v. Malone, 810 F. App’x 414, 422 (6th 

Cir. 2020) (holding the first Graham factor cuts against a plaintiff when the plaintiff “was suspected of having 

committed a violent crime”).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 16

ii. The immediacy of the threat

With regard to the second Graham factor—whether the suspect posed an immediate 

threat to an officer or others—the district court described the sequence of events, construing the 

facts in the light most favorable to Shumate, and found that a trier of fact could conclude that the 

use of force was objectively unreasonable. Specifically, the district court held that a “jury could 

conclude that a reasonable officer on the scene would not credibly have felt threatened by an 

unarmed suspect’s mere attempt to comply with the officer’s command issued just moments 

prior to leave the scene.” (Order, R. 45, PageID # 424). Additionally, the district court 

acknowledged that Plaintiff was verbally antagonizing and “annoying and insulting,” but that did 

not justify the use of force exerted. (Id. at PageID ## 423, 427). This factor came out in 

Plaintiff’s favor since “nothing in his demeanor throughout the encounter evidences any manifest 

intention to engage physically with [D]efendant Powers—or even aggressively to approach him.” 

(Id. at PageID # 423).

The question presented on appeal is whether Officer Powers could have reasonably 

considered Shumate to pose an immediate threat to officer safety at the moments that force was 

applied.7 Powers asserts that a reasonable officer in his position would have been justified in 

perceiving that Shumate posed an immediate threat to officer safety. The facts considered in the 

light most favorable to Shumate tell a different story.8 The encounter can be divided into two 

moments of constitutional import: before the first tasing and afterward. We take each in turn.

First, considering the events before the first tasing, Powers offers his version of the facts 

as follows: Shumate raced into the CVS parking lot with the engine of his truck revving, 

7The second Graham factor often involves assessing the danger a suspect posed to law enforcement as well 

as others in the vicinity, such as passers-by. In this case, there is no suggestion by the defense that Shumate posed a 

danger to other civilians, so we focus only on the threat he may have posed to the officer.

8

In a bit of a sideshow argument, Powers first says that his earlier encounter with Shumate (where the 

officer was dispatched in response to a disagreement between Shumate and his neighbor over a rosebush) indicated 

Shumate was easy to anger and, accordingly, informed his approach in the CVS parking lot. An officer’s prior 

knowledge of a later-encountered arrestee or suspect is a relevant factor in this inquiry. Latits, 878 F.3d at 548; 

Martin, 712 F.3d at 958. But the rosebush incident would not give a reasonable officer a basis to believe that 

Shumate was a potentially dangerous individual. At most, all that prior event indicated was that Shumate was a 

defensive horticulturist and finicky neighbor—not that he had a propensity to pose a threat of physical violence to 

law enforcement.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 17

screeched to a halt, jumped out of the truck, and immediately started yelling; it is asserted that 

rather than complying with Powers’ command to leave, Shumate instead began to “pace[] 

menacingly back and forth throughout the parking lot,” while yelling obscenities at Powers. 

(Def.’s Br., ECF No. 22 at 44). Powers’ recitation of the facts continues: Shumate, despite 

having just refused to leave the parking lot (“I ain’t going nowhere”), suddenly reverses course 

and walks toward his truck; Powers, fearful that Shumate plans to retrieve a weapon from the 

vehicle, tells him to stay away from the truck. Shumate curses (“fuck you”) and makes an 

obscene hand gesture; Powers twice commands Shumate to “turn around” and “put your hands 

behind your back.” Shumate does not, and Powers tases him.

Powers asks us to credit this re-telling and conclude that the initial use of the Taser was 

objectively reasonable. Such a conclusion would be unsupported, even under the officer’s 

version of the facts. 

An officer’s use of a Taser is permissible where a suspect poses an immediate threat in 

the form of “violent[] thrashing,” an “attempt[] to hit officers[,] or [by] mak[ing] a display of 

force.” Kent v. Oakland Cnty., 810 F.3d 384, 391 (6th Cir. 2016); see also Rudlaff, 791 F.3d at 

640 (finding tasing reasonable where claimant “puffed out his chest and stared down [the 

officer],” then swung his arms twice at the officer). Shumate’s behavior before he was tased 

does not fall into that camp. The video betrays no intent of Shumate to injure Powers. Kent, 910 

F.3d at 391. To be sure, Shumate may have been minimally threatening insofar as his behavior 

was rude, annoying, untoward, and uncooperative. However, mere “agitated hand gestures” and 

profanity, unaccompanied by threats, fall short of the prototypical behavior that would make an 

officer fear for his physical safety. See id. (Powers Dep., R. 21-3, PageID # 144 (“Other than 

his irate behavior, the repeated instances of foul language directed at me, nothing—[Shumate] 

didn’t verbalize any specific threat.”)). Such a conclusion is particularly apt in this case, where 

the officer likewise displayed a penchant for profanity.

Powers also hopes to justify the first tasing by insisting that a reasonable officer would 

find objectively threatening Shumate’s movement towards the truck for fear he intended to 

retrieve a weapon. This argument flies in the face of our caselaw and that of other circuits. A 

reasonable officer would not believe that Shumate posed an immediate threat of harm when there 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 18

was nothing—no evasive movements towards a waistband, no threats of violence, no charging 

towards the officer—suggesting possession or intent to possess a weapon. Browning v. 

Edmonson Cnty., 18 F.4th 516, 526 (6th Cir. 2021) (“The jury could also rely on the absence of 

any evidence that [the officer] had reason to believe there was a firearm in the car.”); Wilkins v. 

City of Tulsa, 33 F.4th 1265, 1274 (10th Cir. 2022) (“[N]othing in the record shows the officers 

believed or had reason to believe that [the suspect] had a weapon or even that they asked if he 

was armed.”). We do not credit an officer’s subjective fear that an individual has a weapon 

where objective indicia are absent.9 Browning, 18 F.4th at 528 (“[T]he remote risk that [the 

suspect] could have been armed does not establish that he posed a reasonable threat of danger.”). 

A factfinder could rely on the total absence of evidence that Powers had a reason to believe a 

firearm was in the car. This inference would comport with Shumate’s deposition testimony:

Q. And despite that—and so he’s investigating a crime and you decide that you’re 

going to walk back to that vehicle, your vehicle, correct?

A. Yeah, because he told me to leave.

Q. You were going to go get into your vehicle and leave; that was your purpose?

A. Yes, I was. I was going to leave.

Q. While your daughter was there?

A. Yes, because I wasn’t going to get in it with him. I wanted to leave to avoid the 

confrontation with that officer.

(R. Shumate Dep., R. 29-5, PageID ## 264–65).

Powers’ related argument that Shumate posed an immediate threat because Shumate 

disobeyed orders ignores the fact that Powers issued contradictory demands, telling Plaintiff to 

leave seconds before commanding him to not get in the car. A reasonable jury might find that 

Shumate’s walking towards his vehicle complied with Powers’ order issued seconds before to 

leave the premises. See Wright, 962 F.3d at 867.

Second, we now turn to Powers’ uses of force after the first tasing, i.e., the additional 

Taser deployments and uses of physical force. Powers argues that a reasonable officer would 

9The district court noted that “when the truck was searched” after the encounter, “no weapons were found.” 

(Order, R. 45, PageID # 424). However accurate this is in retrospect, retrospection is not the correct perspective 

from which to assess a qualified immunity claim. Fox, 489 F.3d at 236.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 19

have justifiably perceived that Plaintiff posed a serious threat to Powers’ safety in the latter half 

of the encounter. According to Powers, “Plaintiff continued to wrestle with Powers and to 

thwart Powers’ efforts to subdue and arrest [him] until Powers’ backup arrived, at which point it 

took two additional officers to finally wrestle Plaintiff into submission.” (Def.’s Br., ECF No. 22 

at 46). Powers asserts a reasonable officer would have justifiably perceived that Plaintiff posed a 

serious threat to Powers’ safety because he could not effectively subdue Plaintiff until backup 

arrived. Powers finds little corroboration in this account by way of the body camera footage, 

which perhaps explains why he devotes just a paragraph to defending this portion of the 

encounter. 

A reasonable jury could find, as the video amply supports, that nothing suggested an 

immediate threat of harm to Powers. For one, Plaintiff does not appear to be offering much 

resistance, so these subsequent uses of force, particularly the punches and the kicks that can be 

heard clearly on video, were not needed to subdue Shumate. Vette, 989 F.3d at 1170 (finding 

no immediate threat because suspect was under the officers’ control). The video also suggests 

that compliance with Powers’ quickly issued and often contradictory commands was difficult 

since the officer was straddling Shumate, and thus Plaintiff may have been physically incapable 

of complying in the way Powers demanded. See Wright, 962 F.3d at 867. The record bears out 

this assumption. (A. Shumate Dep., R. 29-6, PageID # 276 (“He couldn’t do nothing. The 

officer was sitting on him[,] and he had his hands across his chest like this and blocking his 

face.”)). 

What is more, the video shows Powers (while straddling Shumate) communicating with 

police dispatch with relative ease. The district court found that: “[Powers] swapped his [T]aser 

to an unready position in his left hand, holding the weapon by the business end, against the 

[P]laintiff’s chest, obviously within the [P]laintiff’s immediate reach, in order to casually retain 

the [P]laintiff with one arm, while using his free hand to activate his radio.” (Order, R. 45, 

PageID # 425). Even acknowledging that “[o]ne of the most dangerous moments for a police 

officer is just before a suspect is handcuffed . . . [and remains] unrestrained,” Cunningham v. 

Mich. State Police, 852 F. App’x 178, 180 (6th Cir. 2021), the fact that Powers was ineffective in 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 20

handcuffing Shumate without assistance from other officers does not demonstrate that Shumate 

posed an immediate threat. 

Finally, Powers’ citation to this Court’s decision in Kapuscinski v. City of Gibraltar, 821 

F. App’x 604 (6th Cir. 2020), does not support the result he seeks. In that case, a panel of this 

Court found the suspect posed an immediate threat to officer safety where the individual failed to 

“obey [the officer’s] order to roll over so he could be arrested,” “kicked towards the officers,” 

and “attempted to stand up.” Id. at 611, n.3. Multiple Taser deployments failed to immobilize 

the Kapuscinski plaintiff, so it was reasonable for the officer to believe that the plaintiff was “out 

of control.” Id. Powers tries to analogize Kapuscinski to the instant appeal, asserting that the 

uses of the Taser and physical force were not effective in immobilizing Shumate, making it 

reasonable for Powers to believe that Plaintiff posed an immediate threat to his safety. Such a 

reading would stretch the holding in Kapuscinski beyond recognition. In that case, “[t]he 

officers had just seen [Kapuscinski] violently assault and threaten to kill [a woman,] and he was 

refusing to comply with their instructions to roll over so that he could be safely apprehended.” 

Id. That suspect “looked crazed and dangerous and . . . ready to attack.” Id. 610–11. Unlike the 

suspect in Kapuscinski, whom the officers just observed commit a violent assault, there was no 

independent basis to form an objectively reasonable belief that Shumate posed an immediate 

threat. 

To conclude this subsection, we draw insight from a frequent refrain of federal courts: 

“Not every push or shove [by a police officer], even if it may later seem unnecessary in the peace 

of a judge’s chambers, violates the Fourth Amendment.” Kostrzewa v. City of Troy, 247 F.3d 

633, 639 (6th Cir. 2001) (quoting Graham, 490 U.S. at 396). In this case, the converse rings 

true: Not every profane uttering or rude gesture by a free citizen, even if it may seem 

unnecessary to a police officer, justifies using force on an otherwise non-threatening individual. 

Under these circumstances, Shumate posed a minimal safety threat, and the second Graham 

factor weighs against the use of force deployed since the force used did not match the threat 

Shumate presented. The district court did not err in its consideration of the second Graham 

factor. 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 21

iii. Resistance to arrest or evasion of arrest by flight

The third and last Graham factor is whether the suspect was actively resisting arrest or 

evading arrest by flight. The district court found that

Although the [P]laintiff did retreat and withdraw his arm to evade Powers’[] 

grasp, his reaction fairly could be viewed by the jury as merely noncompliant 

rather than resistant. He also attested that after he was pinned on the ground by 

Officer Powers, he only kept his arms in front of him and attempted to maintain 

an all-fours posture to avoid being slammed into the ground by Powers, who was 

bearing down on him with his considerably greater weight.10 Shumate’s reaction 

fairly can be viewed as not comprising any of the typical sorts of aggression that 

characterize “active resistance” according to the decisions on point.

(Order, R. 45, PageID # 424 (citing Kapuscinski, 821 F. App’x at 612)).

“When a suspect actively resists arrest, the police can use a [T]aser (or a knee strike) to 

subdue him; but when a suspect does not resist[] or has stopped resisting, they cannot.” Rudlaff, 

791 F.3d at 642. Active resistance has been found where “some outward manifestation—either 

verbal or physical—on the part of the suspect had suggested volitional and conscious 

defiance.” Eldridge v. City of Warren, 533 F. App’x 529, 534 (6th Cir. 2013). Conversely, “[i]f 

there is a common thread to be found in our caselaw on this issue, it is that noncompliance alone 

does not indicate active resistance.” Id. at 535 (holding that a man driving erratically who 

crashed into a concrete barricade and refused to obey officer commands to exit his vehicle until 

he was tased was not actively resisting arrest).

On appeal, the parties dispute whether Shumate’s behavior amounts to active resistance 

or evasion by flight. The facts present two periods of possible resistance: first, the time leading 

up to Officer Powers’ initial firing of the Taser, and second, the period in which Shumate was 

lying on the ground after the first Taser deployment. Taken in the light most favorable to 

Plaintiff, his passive noncompliance was not paired with any moments of active resistance or 

evasion by flight.

10Powers is 5’8”, 225 pounds. Shumate is 5’10”, 145 pounds.
No. 21-2795 Shumate v. City of Adrian, Mich. Page 22

The constitutional analysis for the first period turns on whether Shumate was actively 

resisting or evading arrest by flight, rendering the initial discharge of the Taser objectively 

reasonable. To facilitate our review, we subdivide the first part of the encounter into three 

constituent parts, namely, when Shumate pulled his arms away from Powers; backed away from 

the officer, with his arms slightly elevated; and hurled various invectives at Powers. The 

moments immediately preceding the first tasing do not reveal any active resistance on the part of 

Shumate.

Powers argues that Plaintiff actively resisted arrest when he pulled his arms away from 

the officer. Shumate admits that he did not comply with Powers’ commands to present his hands 

to be handcuffed. However, it is settled in this Circuit that noncompliance alone, without “other 

acts of defiance,” Rudlaff, 791 F.3d at 641, is not sufficiently “active” opposition to justify the 

use of a Taser to subdue a subject who does not otherwise present any immediate threat to officer 

safety. Indeed, “the fact that a suspect does not immediately surrender does not inherently mean 

that he is resisting.” LaPlante, 30 F.4th at 580 (citing another source); compare Goodwin, 781 

F.3d at 324 (finding a “single statement that he would not [comply with the officer’s orders did] 

not in itself render Officer[’s] use of the Taser reasonable.”), with Hagans v. Franklin Cnty. 

Sheriff’s Off., 695 F.3d 505, 511 (6th Cir. 2012) (holding that officer did not violate clearly 

established law when he used Taser five times in drive stun mode to subdue plaintiff, who 

refused to be handcuffed, fled from officers, and was “out of control,” breaking windows and 

jumping on top of cars due to what officers later learned was crack cocaine intoxication). 

Additionally, Shumate had not been told he was under arrest prior to being tased, so his 

resistance, if it was resistance at all, was merely passive, rendering unreasonable the first use of 

the Taser less than a minute after his arrival on the scene. Wright, 962 F.3d at 867–68; see also 

Gradisher v. City of Akron, 794 F.3d 574, 585 (6th Cir. 2015).

Moreover, nowhere in this portion of the encounter does Shumate indicate evasion of 

arrest by flight. Even assuming, for purposes of argument, that Powers might have reasonably 

perceived Shumate as attempting to flee at some point (an assumption that is, in our 

approximation, plainly unsupported), he took no further action evincing flight when the Taser 

was used. The video shows Plaintiff slowly back away from his truck, thus complying with 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 23

Powers’ command to not get in the vehicle. This behavior does not constitute flight. See Fils v. 

City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (finding no resistance where the suspect 

took a step backward). 

While this Court has found that a “verbal showing of hostility” can signify active 

resistance, such a finding would not map onto the facts of this instant case. Eldridge, 533 F. 

App’x at 535; see also id. at 534–35 (noting that verbal hostility can indicate active resistance, 

such as where it was “the final straw in a series of consciously[] resistive acts”). 

Shumate’s verbal jabs and rude hand gestures were not threatening in a manner that would 

amount to active resistance absent something more, such as overtly threatening language. Cf.

Caie v. W. Bloomfield Twp., 485 F. App’x 92, 94, 96–97 (6th Cir. 2012) (finding active 

resistance where the suspect threatened to “fight[] the police” and implied he had a gun and 

intended to kill himself). 

The constitutional analysis of the second period of possible resistance turns on whether 

Shumate actively resisted arrest when Powers tased Plaintiff twice more and kneed, kicked, and 

punched him (or, as Powers testified, used backhand, palm-heel, and knee strikes). This portion 

of the video is harder to follow, but it again betrays no evasion by flight or active resistance by 

Shumate. Plaintiff, prone on the pavement and screaming in pain from the first Taser 

deployment, is told by Powers to “turn the fuck around,” and the Taser can be heard continuing 

to deploy. Seconds later, Powers shouts, “stop resisting,” and Shumate says, “I ain’t done shit.” 

A few seconds later, after Shumate says, “I come down to get my daughter,” Powers deploys the 

Taser for a third time, in apparent response to nothing other than Shumate’s verbal protests. 

Shumate cries out in pain, and Powers yells, “turn around,” and Plaintiff replies, “okay.” Then, 

Powers delivers multiple strikes to Plaintiff’s upper body and torso while yelling, “turn the fuck 

around.” Powers calls for backup, stating that he is “fighting with one,” and Shumate says, 

“yeah, you’re beating me up.” Powers grabs Shumate by the collar and commands him to “turn 

over” multiple times, and Shumate cries, “he’s kicking me,” before saying, “I know I ain’t do 

shit. I’m not doing nothing. I’m not doing nothing,” and “I’m not resisting arrest, I didn’t do 

nothing.” Only after these uses of force does Powers tell Shumate, “You’re going to jail now.” 

(24:13).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 24

Within this period, there are two moments of particular import for present purposes: 

before and after Powers told Shumate he was under arrest. 

To start, taken in the light most favorable to Shumate, a reasonable officer faced with the 

same circumstances could not have determined that Shumate’s actions bore the hallmarks of 

active resistance. See Kelly v. Sines, 647 F. App’x 572, 575 (6th Cir. 2016) (citations omitted)

(quoting another source) (“[W]hen a plaintiff’s actions do ‘not follow the typical course of active 

resistance,’ we are more inclined to deny qualified immunity.”). A reasonable jury could 

conclude that Shumate’s physical behavior (lying prone) indicated submission and that his verbal 

statements (saying “okay,” “I’m not resisting,” and “I’ll turn over, don’t fucking shoot me again 

with that thing”) indicated compliance.

To be sure, Plaintiff admits that he failed to readily offer his arms for cuffing.11 

However, this action does not reflect a “deliberate act of defiance using one’s own body,” 

Eldridge, 533 F. App’x at 535, such as might be true where a suspect actively resists arrest “by 

kicking, flailing, and wriggling away from [the officers’] grasp.” Roell v. Hamilton Cnty., 870 

F.3d 471, 482 (6th Cir. 2017). The moment Powers applied the Taser for the third time is 

particularly jarring, given that Shumate appeared to be doing nothing other than lying on the 

pavement under Powers’ weight. “Whatever ‘active’ means, it has to mean something more than 

mere silence and inaction.” See Browning, 18 F.4th at 526–27. Such a finding accords with the 

record; Powers wrote in his police report and confirmed in his deposition that, at this point, 

Shumate “passively resist[ed], I mean he was just using his body weight, just dead weight, not 

rolling himself over.” (Powers Dep., R. 21-3, PageID # 147). A jury could conclude that no 

reasonable officer would believe that Plaintiff was actively resisting arrest. 

The suggestion that Shumate’s behavior amounted to an act of defiance is diminished for 

another reason: he was not told that he was under arrest until after Powers tased him three times 

and used physical force. “The general consensus among our cases is that officers cannot use 

force . . . on a detainee who . . . is not told he is under arrest, or is not resisting arrest.” Grawey 

v. Drury, 567 F.3d 302, 314 (6th Cir. 2009) (citing another source). Were we to credit Powers’ 

11Shumate testified that he kept his arms in front of him so Powers “could [not] smash [his] face in the 

ground.” (R. Shumate Dep., R. 29-5, PageID # 266).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 25

version of the facts, the severity of the use of force is plainly disproportionate to the level of 

noncompliance offered by Shumate. Indeed, a reasonable jury could conclude that as the 

incident progressed—and with each subsequent use of force by Powers—any potential threat 

Shumate presented decreased.

In sum, our analysis of the three Graham factors leads to the conclusion that the officer’s 

use of force was not objectively reasonable considering the totality of the circumstances. The 

objective facts, when viewed in the light most favorable to Shumate, show that the severity of the 

offense (assuming there was one) was quite low; he posed no immediate threat to officer safety; 

and he offered nothing more than verbal belligerence or passive noncompliance. Accordingly, 

the district court did not err in finding that a reasonable jury could find that Powers violated 

Shumate’s Fourth Amendment right to be free from excessive force.

b. Clearly Established

For purposes of qualified immunity, it is not enough that an officer violates a plaintiff’s 

constitutional rights; instead, to prevail on the excessive force claim, Shumate must also show 

that Powers’ use of force amounted to a violation of Shumate’s clearly established rights—the 

second prong of the qualified immunity analysis. “A Government official’s conduct violates 

clearly established law when, at the time of the challenged conduct, the contours of a right are 

sufficiently clear that every reasonable official would have understood that what he is doing 

violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation marks and 

brackets omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

“As a starting point, [Plaintiff] had a clearly established right to be free from excessive 

force.” Palma v. Johns, 27 F.4th 419, 442 (6th Cir. 2022) (citing Godawa, 798 F.3d at 463). 

However, while “this general right is well known, the right at issue is not defined at such ‘a high 

level of generality.’” Id. (quoting Godawa, 798 F.3d at 467). Stated otherwise, a plaintiff need 

not always put forth “a case directly on point” to show that his claimed rights were indeed 

clearly established at the time of the conduct. Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 

(2021) (per curiam). That is because “courts ‘ask whether it would have been clear to a 

reasonable officer that the alleged conduct was unlawful in the situation he confronted.’” Palma, 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 26

27 F.4th at 442 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1867, 198 (2017). Plaintiff need not 

show that “the very action in question has previously been held unlawful, but . . . in light of preexisting law, the unlawfulness [of the official action] must be apparent.” Creighton, 483 U.S. at 

640 (1987).

By 2019, when this incident occurred, the right to be free from physical force when one is 

not actively resisting the police was clearly established. Kijowski v. City of Niles, 372 F. App’x 

595, 601 (6th Cir. 2010); Griffith v. Coburn, 473 F.3d 650, 659–60 (6th Cir. 2007) (noting that it 

was clearly established that officers may not use gratuitous violence against an individual who 

“pose[s] no threat to the officers or anyone else”). It was also clearly established in this Circuit 

that an individual has a constitutional right not to be tased when he is not actively resisting. 

Browning, 18 F.4th at 525. Consequently, Powers violated those rights by tasing Shumate three 

times and using physical force where Plaintiff was not engaged in active resistance. Id. Under 

Shumate’s version of the facts, there was no indication that he committed a severe crime, posed 

an immediate threat to Powers, or attempted to evade arrest by flight or resisted arrest. 

Because the right to be free from being tased and subjected to physical force (in the 

alleged form of punching, knee strikes, kicking, and hitting) while not actively resisting and 

while being non-violent was clearly established prior to 2019, Powers was on “notice that his 

specific conduct was unlawful.” Rivas-Villegas, 142 S. Ct. at 8. Thus, a reasonable jury could 

find that Powers violated Shumate’s clearly established right to be free from excessive force. 

The district court properly denied Powers qualified immunity for the § 1983 claim.

2. Municipal Liability

Defendant City of Adrian appeals the district court’s denial of summary judgment on 

Shumate’s Monell claim. See Monell, 436 U.S. at 692. “Although not appealable as a final 

decision under 28 U.S.C. § 1291, an appellate court can exercise pendent appellate jurisdiction 

on a § 1983 claim alleging municipal liability where the municipality’s motion for summary 

judgment is inextricably intertwined with the qualified immunity analysis properly before the 

Court.” Lane v. City of LaFollette, 490 F.3d 410, 423 (6th Cir. 2007) (internal quotation marks 

omitted). A pendent appellate claim is “inextricably intertwined” with a properly 
No. 21-2795 Shumate v. City of Adrian, Mich. Page 27

reviewable claim on collateral appeal “only if . . . appellate resolution of the collateral 

appeal necessarily resolves the pendent claim as well.” Mattox v. City of Forest Park, 183 F.3d 

515, 524 (6th Cir. 1999) (internal quotation marks omitted). In this case, resolution of Powers’ 

appeal does not necessarily determine the extent, if any, of Defendant City of Adrian’s municipal 

liability. Because the district court correctly denied Defendant Powers’ motion for summary 

judgment on the basis of the qualified immunity doctrine, we lack pendent appellate jurisdiction 

over Defendant City of Adrian’s interlocutory appeal of the denial of its summary judgment 

motion. Martin, 712 F.3d at 963.

3. State Law Immunity

The final issue on appeal concerns Shumate’s state law claims of assault and battery 

against Officer Powers, and Powers’ resulting argument that governmental immunity shields him 

from suit. Assault and battery are intentional torts under Michigan law. People v. Reeves, 

458 Mich. 236, 240 (1998).12 A police officer has immunity from tort liability. M.C.L. 

§ 691.1407(2). To enjoy this governmental immunity, an officer must establish: (1) the 

employee’s challenged acts were undertaken during the course of employment and that the 

employee was acting, or reasonably believed he was acting, within the scope of his authority; 

(2) the acts were subjectively undertaken in good faith, that is, without malice; and (3) the acts 

were discretionary, rather than ministerial in nature. Odom v. Wayne Cnty., 482 Mich. 459, 461 

(2008); Ross v. Consumers Power Co., 420 Mich. 567 (1984). “In other words, Michigan state 

law imposes a subjective test for governmental immunity for intentional torts, based on the 

officials’ state of mind, in contrast to the objective test for federal qualified immunity.” Brown 

v. Lewis, 779 F.3d 401, 420 (6th Cir. 2015). On appeal, Powers asserts that all elements have 

been satisfied, and therefore, he is entitled to immunity from Plaintiff’s assault and battery 

claims. Plaintiff concedes the first and third prongs but contends the acts were not taken in good 

faith.

12Michigan law defines “battery” as an “intentional, unconsented[,] and harmful or offensive touching of 

the person of another, or of something closely connected with the person.” Reeves, 458 Mich. at 240. It defines 

“assault” as “either an attempt to commit a battery or an unlawful act which places another in reasonable 

apprehension of receiving an immediate battery.” Id. (quotations and citations omitted).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 28

In this case, the parties presented arguments on the merits regarding statutory immunity 

in their briefing before the district court. However, the court did not rule on Plaintiff’s state law 

claims and made no mention of Powers’ statutory immunity defense. 

“[W]e normally decline to rule on an issue not decided below.” Stoudemire v. Mich. 

Dep’t of Corr., 705 F.3d 560, 576 (6th Cir. 2013) (quoting another source). Still, we may 

exercise pendent appellate jurisdiction where the state law claim “is inextricably intertwined with 

the immunity analysis.” Browning, 18 F.4th at 529. Because the state law tort claims rise and 

fall with the officer’s federal qualified immunity defense, and since the parties set forth detailed 

arguments below and on appeal, the question of governmental immunity is properly before this 

Court. McKenzie v. City of Detroit, 74 F. App’x 553, 556 (6th Cir. 2003) (assuming jurisdiction 

where state law claim was “factually and legally intertwined with [plaintiff’s] federal excessive 

force claim”).13

Having found that Powers’ actions are not shielded by qualified immunity, we conclude 

that Powers is not entitled to governmental immunity under state law. Hunt v. Massi, 773 F.3d 

361, 372 (1st Cir. 2014) (citation omitted) (“The determination of the reasonableness of the force 

used under § 1983 also controls the determination of the reasonableness of the force used under 

the common law assault and battery claims.”). For the reasons explored in the § 1983 analysis, a 

reasonable trier of fact could find Officer Powers liable for the intentional torts of assault and 

battery. Martin, 712 F.3d at 963 (“[R]esolution of the state-law immunity issue is heavily 

dependent on the same disputed material facts as the excessive-force determination under 

§ 1983[.]”) The use of force—in the form of multiple Taser shocks, beating or hitting, and arm 

and leg strikes—could be deemed unreasonable, not undertaken in good faith, and with willful 

disregard for the possibility of harm. Brown, 779 F.3d at 421. As with the federal law claims, 

13Compare Wright, 962 F.3d at 878 (quoting Hopper v. Plummer, 887 F.3d 744, 759 (6th Cir. 2018) 

(“When federal qualified immunity and Ohio state-law immunity under Ohio Rev. Code § 2744.03(A)(6) rest on the 

same questions of material fact, we may review the state-law immunity defense ‘through the lens of federal qualified 

immunity analysis.’”), and Brennan v. Twp. of Northville, 78 F.3d 1152, 1158 (6th Cir. 1996) (quoting another 

source) (“[T]he two appeals are coterminous because [the] federal and state law claims against the City—to the 

extent the state law claim references the alleged constitutional violation—are both premised on his claim that 

Defendants violated his [constitutional rights]), with Thompson v. City of Lebanon, 831 F.3d 366, 371 (6th Cir. 

2016) (“We likewise lack pendent appellate jurisdiction to review the district court’s denial of summary judgment 

on the plaintiff’s state-law claims.”).
No. 21-2795 Shumate v. City of Adrian, Mich. Page 29

Shumate relies on facts that are in dispute, and if a jury were to believe Plaintiff’s version, 

Powers would not be entitled to governmental immunity for Shumate’s intentional tort state law 

claims.

CONCLUSION

For the reasons stated above, the district court’s denial of summary judgment to 

Defendant Powers is AFFIRMED, and Defendant City of Adrian’s municipal liability appeal is 

DISMISSED for lack of appellate jurisdiction.