UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CORA MITCHELL, 

 Case No. 09-11480 

 Plaintiff, 

v. 

 Hon. John Corbett O’Meara 

CITY OF WARREN, et al., 

 Defendants. 

 _______________________________/ 

OPINION AND ORDER GRANTING IN PART AND DENYING 

IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT 

 Before the court is Defendants’ October 7, 2011 motion for summary judgment. The 

motion has been fully briefed. The court heard oral argument on December 8, 2011, and took the 

matter under advisement. For the reasons explained below, the court grants in part and denies in 

part Defendants’ motion. 

BACKGROUND FACTS 

 Plaintiff Cora Mitchell (“Plaintiff”) is the personal representative of the estate of her 

deceased son, Robert Mitchell. Plaintiff filed the present action for excessive force and wrongful 

death on April 20, 2009, under the Fourth and Fourteenth Amendments of the United States 

Constitution as well the state law of Michigan. 

 On April 10, 2009, Mitchell, age 16, was the passenger in a vehicle that was pulled over 

by Defendant Raymond Henke and his partner, both Warren police officers. Mitchell fled from 

the stopped vehicle into an abandoned house just south of Eight Mile Road in the City of Detroit. 

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 Henke pursued Mitchell by foot from the scene of the traffic stop into the abandoned 

house. Henke was joined at various points by three or four Detroit police officers and two fellow 

Warren police officers, Scott Taylor and Defendant Jesse Lapham. 

 Inside the house, Henke shouted for Mitchell, who had run to the second floor, to come 

downstairs. Mitchell descended with his arms outstretched, as ordered. The facts are in dispute 

as to what occurred next, once Mitchell reached the bottom of the stairs. However, it is clear that 

Henke attempted to take physical control of Mitchell and that Lapham deployed his taser on 

Mitchell. It is undisputed that Mitchell then fell to the floor and died. 

LAW AND ANALYSIS 

 Each of the five claims from Plaintiff’s complaint will be analyzed in turn below with 

respect to this motion. However, this motion pertains to only three of the four defendants: 

Henke, Lapham, and Police Commissioner William Dwyer. The parties intend to address 

Plaintiff’s claims against the City of Warren at a later date. 

I. Summary Judgment Standard 

 Summary judgment is appropriate if “there is no genuine issue as to any material fact and 

. . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When 

reviewing a motion for summary judgment, the facts and any reasonable inferences drawn from 

the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party opposing summary 

judgment, however, must present more than a “mere scintilla” of evidence; the evidence must be 

such that a reasonable jury could find in favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 252 (1986). 

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II. Excessive Force 

 Plaintiff claims that Henke and Lapham violated Mitchell’s rights under the Fourth and 

Fourteenth Amendments to the United States Constitution as well as Article 1, Section 11, of the 

Michigan Constitution by using excessive force against Mitchell. Plaintiff asserts that Lapham’s 

use of his taser on Mitchell constituted excessive force and that Henke failed to properly 

intervene and protect Mitchell from Lapham’s taser or prevent Lapham from tasing Mitchell. 

 Defendants argue that Henke and Lapham’s actions toward Mitchell did not constitute an 

excessive use of force because they were objectively reasonable given all of the circumstances. 

Defendants further argue that even if Henke or Lapham’s actions constituted excessive force, 

both officers are protected from liability under the doctrine of qualified immunity. 

A. Excessive Force 

 In Graham v. Connor, the Supreme Court made clear that the analysis of whether “force 

used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment” is essentially a 

factual one which asks if the actions in question were objectively reasonable under all of the 

circumstances “from the perspective of a reasonable officer on the scene.” Graham v. Connor, 

490 U.S. 386, 396 (1989). The inquiry excludes consideration of motive or intent and the “20/20 

vision of hindsight,” recognizing that “police officers are often forced to make split-second 

judgments” in “tense, uncertain, and rapidly evolving” situations. Id. Relevant factors for 

consideration include: the severity of the crime at issue, whether the suspect poses an immediate 

threat to the safety of the safety of the officers or others, and whether the suspect is actively 

resisting arrest or attempting to evade arrest by flight. Id; Cole v. City of Dearborn, 2011 U.S. 

App. LEXIS 23761, (6th Cir. 2011); Fox v. DeSoto, 489 F.3d 227, 236-37 (6th Cir. 2007). 

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 1. Lapham 

 Plaintiff argues that Lapham’s use of his taser on Mitchell was objectively unreasonable 

under the three “non-exhaustive” Grahm factors. See City of Dearborn, LEXIS 23761 at *10. 

While Defendants contend that fleeing from police officers is a severe crime – a felony – in 

Michigan, Plaintiff believes that Mitchell’s flight from a vehicle with expired plates was 

“moderate,” at worst, and not severe. Defs’ Mot at 12 (citing M.C.L. 750.479a(2) which makes 

it a felony to flee from Michigan police); Pl.’s Resp. at 12 (citing Gaddis v. Redfored Twp., 364 

F.3d 763 (6th Cir. 2004)). 

 Plaintiff emphasizes that Mitchell’s youth, small stature, and compliance in descending 

the stairs with his hands outstretched rendered him no threat at all. Plaintiff further notes that 

Mitchell was far outnumbered in the house by police officers larger than him, and asserts that the 

testimony of the officers present establishes, at most, that Mitchell was passively rather than 

actively resisting Henke. 

 Detroit Police Officer Daniel Burmistrzak testified that when Mitchell reached the 

bottom of the stairs, he was “breathing very heavily” and “sweating profusely” and that, given 

his position in the house relative to all police officers, it would have been “totally impossible” 

for him to have escaped. Burmistrzak further testified that, at that same point, both Henke and 

Detroit Police Officer Scott Taylor grabbed Mitchell. And despite the pushing and flinging 

reported by Lapham and Henke, Burmistrzak testified only that Mitchell rocked back and forth 

and appeared “really nervous” while Henke and Taylor were holding him. 

 Viewing the facts in the light most favorable to Plaintiff, it seems that Henke and Taylor 

had established relative control over Mitchell and that he posed very little risk just before being 

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tased by Lapham. Henke and Lapham admit that if Burmistrzak’s description of the events is 

taken as true, then tasing Mitchell was “clearly unreasonable.” 

 In addition, it is undisputed that Lapham did not issue a verbal warning to Mitchell before 

tasing him. Plaintiff cites the Warren Police Department policy which mandates that officers 

give verbal warning, if possible, before deploying tasers. The Department’s policy also 

recognizes graduated levels of force to be applied proportionally to various threats or levels of 

resistance. Plaintiff maintains that Mitchell’s conduct warranted, at most, “soft empty hand 

control” and not a taser. 

 From the testimony of the different police officers alone, there is a material question of 

fact as to whether Lapham’s use of his taser on Mitchell was objectively reasonable under the 

circumstances. The court will therefore deny Defendants’ motion with respect to Lapham’s 

alleged use of excessive force. 

 2. Henke 

 Plaintiff contends that Henke, who held Mitchell as Lapham tased him, is liable for 

Lapham’s use of excessive force. The Sixth Circuit has held that police officers may be liable 

for the use of excessive force by other officers where: (1) the officer observed or had reason to 

know that excessive force would be used or was being used; and, (2) the officer had both the 

opportunity and the means to prevent that harm from occurring. Turner v. Scott, 119 F.3d 425, 

429 (6th Cir. 1997). 

 Henke testified that he neither saw the red laser sight beam on Mitchell’s body prior to 

the tasing nor heard Lapham use the standard pre-taser deployment warning to other officers. 

Nevertheless, Plaintiff believes that Henke’s proximity to Mitchell at the time of tasing and other 

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officers’ sightings of the red laser beam gives rise to a question of fact as to whether Henke truly 

saw the red beam, and thus had an opportunity to intervene. 

 Plaintiff’s arguments fail under Sixth Circuit precedent that holds that officers do not 

have a duty to intervene “where an entire incident unfolds in a matter of seconds” or where they 

have no “realistic opportunity” to prevent the attack. Ontha v. Rutherford County, Tenn., 222 F. 

App’x 498, 506 (6th Cir. 2007); Murray-Ruhl v. Passinault, 246 F. App’x 338, 348 (6th Cir. 

2007). Henke testified that he did not, in fact, see the red beam. Even if he had, however, it is 

undisputed that the entire event from the time Mitchell reached the bottom of the staircase to 

Lapham’s taser deployment was a matter of seconds. Thus, any red beam sighting must have 

been of an even shorter duration and did not provide a “realistic opportunity” to prevent the use 

of the taser. 

 Moreover, the spirit of the precedent cited by both parties suggests simply that officers 

may not stand by and allow fellow officers to unnecessarily abuse suspects for more than de

minimus periods of time. There is no such evidence here given the timing and description of 

events in the record. Thus, the court will grant Defendants’ motion with respect to Henke’s 

alleged failure to intervene. 

B. Qualified Immunity 

 Defendants Henke and Lapham are protected by qualified immunity for discretionary acts 

performed within their scope of official duty unless those acts are “objectively unreasonable in 

light of [a] clearly established constitutional right.” Feathers v. Aey, 319 F.3d 843, 847-48 (6th 

Cir. 2003). See also Saucier v. Katz, 533 U.S. 194, 201-202 (2001). Substantively, there is 

significant overlap between determining whether the force used was excessive and determining 

whether defendants are immune from liability for their use of such force. A plaintiff may 

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sometimes have a valid claim on the former but not the latter if, for example, the constitutional 

right in question is not clearly established. This is not the case here, however. 

 Mitchell did have a clearly established Fourth Amendment right to be free from excessive 

force, which Defendants mischaracterize too narrowly as Mitchell’s “right to be free from 

Lapham’s single use of the Taser.” Defs.’ Mot at 15. While there may be many meritorious 

reasons for using tasers, a taser is ultimately a “mere instrument[] of force.” Pl.s’ Resp. at 15, 

16. Therefore, whether Henke and Lapham are protected by qualified immunity turns on 

essentially the same analysis as above for excessive force, and the parties reiterate substantially 

the same arguments. Accordingly, the court will deny Defendants’ motion with respect to 

qualified immunity for Lapham and grant the motion in favor of Henke. 

III. Equal Protection and Invidious Racial Animus 

A. Equal Protection 

Plaintiff claims that Defendants unlawfully targeted African Americans, including 

Mitchell, along Eight Mile Road in the City of Warren by stopping and arresting them at 

disproportionately higher frequencies than other races. To state a § 1983 equal protection claim, 

a plaintiff must show: (1) that he was treated differently from a similarly situated group; and, (2) 

that the defendants acted with an intent or purpose to discriminate against him based upon his 

membership in a protected class. Herron v. Harrison, 203 F.3d 410, 417 (6th Cir. 2000). In an 

effort to make such a showing, Plaintiff relies on a single statistic about the percentage of 

African Americans arrested in Warren during 2009. Pl.’s Resp. at 27 (citing United States v. 

Saucedo, 226 F.3d 782, 790 (6th Cir. 2000) (explaining that plaintiffs can use statistical evidence 

to show that they were the target of racial profiling and denied equal protection). 

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 At this time, Plaintiff has not presented sufficient facts to support an equal protection 

claim. Plaintiff points to little more than a general statistic, which Defendants persuasively rebut 

as insufficiently related to Lapham and Henke’s stop of Mitchell. Moreover, Defendants assert 

that the vehicle in which Mitchell was a passenger was stopped for expired license plates and not 

out of any discriminatory intent. Although summary judgment may well be appropriate on this 

claim, Plaintiff notes that her discovery on this claim is incomplete and asks the court to defer its 

decision until it is. Pl.’s Resp. at 26, 27 (citing Ex. 24, Rule 56(d) Affidavit). The court will 

deny Defendants’ motion without prejudice, giving Plaintiff an opportunity to complete 

discovery.

B. Conspiracy Invidious Racial Animus 

 Plaintiff further claims that Defendants conspired to violate Mitchell’s constitutional 

rights with invidious racial animus. To state a § 1985(3) claim for conspiracy, a plaintiff must 

show that the defendants: (1) conspired together, (2) for the purpose of depriving, directly or 

indirectly, a person or class of persons of the equal protection of the law and, (3) committed an 

act in furtherance of the conspiracy, (4) which cause injury to person or property, or deprivation 

of any right or privilege of a citizen of the United States, and (5) that the conspiracy was 

motivated by racial or other class-based invidiously discriminatory animus. Radvansky v. City of 

Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005). 

 Again, Plaintiff’s claim here is unsupported. Plaintiff alleges no facts to support a 

conspiracy claim. The court is inclined to grant summary judgment in Defendants’ favor, but it 

will allow Plaintiff to complete the discovery she seeks in the event that facts are uncovered to 

support this claim. Pl.’s Resp. at 27 (citing Ex. 24, Rule 56(d) Affidavit). Accordingly, the court 

will deny Defendants’ motion without prejudice on this issue. 

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IV. Dwyer as an Individual 

 Plaintiff claims that in his official and individual capacity, the Commissioner of the 

Warren Police Department, Defendant William Dwyer, acquiesced to and ratified policies which 

allowed or promoted the excessive use of force by Warren police officers, particularly with 

respect to tasers. 

 Defendants note that suing Dwyer in his official capacity is equivalent to suing the 

governmental entity itself and such claims will be addressed in a separate motion. Defs’ Mot. at 

9 (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). 

With respect to claims against Dwyer in his individual capacity, Plaintiff must “point to 

specific action” where Dwyer “played an active role in the alleged violations” to defeat Dwyer’s 

qualified immunity. Phillips v. Roane Cnty. Tenn., 534 F.3d 531, 544 (6th Cir. 2008); Greene v. 

Barber, 310 F.3d 889, 899 (6th Cir. 2002). Plaintiff does not assert evidence that creates a direct 

causal nexus between any specific action taken by Dwyer and Lapham’s tasing of Mitchell. 

Plaintiff does raise a number of factual questions pertaining to whether Dwyer perhaps allowed a 

culture of lax policy on taser use. See Pl.’s Reply at 7-9, 24-26 (citing what Plaintiff believes are 

bias and perfunctory investigations and premature exonerations that amount to ratification of 

policy which ultimately caused Mitchell’s death). 

However, Defendants correctly note that the causal connection Plaintiff draws between 

any policy Dwyer allegedly allowed or promoted and Lapham’s tasering of Mitchell is tenuous 

and more germane to Dwyer’s official capacity. As such, Dwyer’s qualified immunity for his 

individual actions does not seem to be successfully challenged here. Plaintiff again requests 

additional time to complete discovery, however. See Pl.’s Resp. at 24 n.25 (explaining that 

despite repeated attempts, Plaintiff has not yet had the chance to depose Dwyer). Although 

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summary judgment may well be appropriate here too, the court will allow the parties to complete 

discovery and deny Defendants’ motion on this point without prejudice. 

V. Interference with Familial Relations

 Plaintiff claims that Defendants unconstitutionally interfered with her right to familial 

relations with her son, Mitchell. Defendants argue that there is no remedy of damages for 

violations of the Michigan Constitution, and Plaintiff does not respond. Defs.’ Mot. at 23 (citing 

Jones v. Powell, 462 Mich. 329; 612 N.W.2d 423 (2000)). Additionally, Kottmyer does not 

stand directly for the proposition that the Sixth Circuit adopted a right of familial association 

“arising from the killing of a child by a state actor,” as Plaintiff intimates. Pl.’s Resp. at 28; 

Kottmyer v. Mass, 436 F.3d 684, 690 (6th Cir. 2006). The Kottmyer court merely mentions that 

other circuits have recognized such a right in due process claims but does not adopt the same 

approach. In fact, as Defendants point out, the Sixth Circuit has specifically avoided creating 

such a right. Purnell v. City of Akron, 925 F.2d 941, 948 n.6 (6th Cir. 1991). All other precedent 

cited by Plaintiff is from other circuits or related to rights distinct from those of a family member 

surviving a decedent killed by a state actor. As such, Plaintiff fails to state a legally cognizable 

claim and Defendants’ motion will be granted. 

VI. Wrongful Death 

 Defendants also seek dismissal of Plaintiff’s claim under the Michigan Wrongful Death 

Act. However, Plaintiff invokes the Michigan Wrongful Death Act only insofar as it provides a 

mechanism for collecting damages for Plaintiff’s § 1983 claims, and not as an independent 

ground for relief. It is clear that § 1988 allows § 1983 plaintiffs to “include remedies available 

under state statutes” like the Wrongful Death Act as a means of collecting damages in 

circumstances like this where Plaintiff is a decedent’s estate and the decedent perished as a result 

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of constitutional violations. See Pl.’s Resp. at 29 (citing Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 

1984)). Defendants’ arguments for immunity from tort liability under the Wrongful Death Act 

are thus inapposite. Therefore, the court will deny Defendants’ motion with respect to Plaintiff’s 

claims for damages under the Michigan Wrongful Death Act. 

ORDER 

 Accordingly, IT IS HEREBY ORDERED that Defendants’ October 7, 2011 motion for 

summary judgment is GRANTED IN PART and DENIED IN PART, consistent with this 

opinion and order. 

Date: February 9, 2012 s/John Corbett O’Meara 

 United States District Judge 

 I hereby certify that a copy of this Opinion and Order was served upon counsel of record 

on this date, February 9, 2012 using the ECF system. 

 s/William Barkholz 

 Case Manager 

 

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