*

The Honorable Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 04a0410p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ELOIS DUNIGAN,

Plaintiff-Appellant,

v.

SCOTT NOBLE, Public Safety Officer, and PERCY

JENKINS, Public Safety Officer, Jointly and Severally,

Defendants-Appellees.

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No. 03-1304

Appeal from the United States District Court

for the Western District of Michigan at Kalamazoo.

No. 02-00039—Joseph C. Scoville, Magistrate Judge.

Argued: June 10, 2004

Decided and Filed: November 29, 2004 

Before: SILER, MOORE, and BALDOCK, Circuit Judges.*

_________________

COUNSEL

ARGUED: Douglas A. Merrow, LAW OFFICE OF DOUGLAS A. MERROW, Portage, Michigan, for

Appellant. Mary Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Appellees.

ON BRIEF: Douglas A. Merrow, LAW OFFICE OF DOUGLAS A. MERROW, Portage, Michigan, for

Appellant. Mary Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Appellees.

BALDOCK, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 9-

11), delivered a separate opinion concurring in part and dissenting in part.

_________________

OPINION _________________

BALDOCK, Circuit Judge. Around 9:30 a.m. on March 8, 2001, Police Officers Scott Noble and

Percy Jenkins arrived at Plaintiff Elois Dunigan’s home in Kalamazoo, Michigan. The officers sought

to arrest Plaintiff’s son, Quincy Dunigan, for failure to report to his parole officer. During the ensuing

melee, Officer Jenkins’ K-9, Kojak, bit Plaintiff. Plaintiff thereafter filed this § 1983 action alleging, among

other things, excessive force against Officers Noble and Jenkins in violation of the Fourth Amendment.

1
No. 03-1304 Dunigan v. Noble, et al. Page 2

1

Prior to the district court’s ruling, Plaintiff voluntarily dismissed her claims against four other officers and the City of

Kalamazoo with the exception of a state law claim against the City under the Michigan Dog Bite Statute. See Mich. Comp. Laws

§ 287.351. The district court declined to exercise supplemental jurisdiction over Plaintiff’s state law claim. See

28 U.S.C. § 1367(c)(3).

2

Page 348 of the Parties’ Joint Appendix sets forth Exhibits 7 and 8 in Support of Defendants’ Motion for Summary

Judgment. Exhibit 7 is a view from directly inside the back screen door of Plaintiff’s home looking down into the basement. The

interior back door, visible on the left side of the exhibit, is open. A shirt or other cloth object hangs on the basement stair railing

on the right side of the exhibit. Exhibit 8 is a view from the top of the kitchen stairs leading down to the landing. Again, the

interior back door is open. The back screen door is partially visible to the left of the interior door.

3

In their respective depositions, the two officers stated that prior to the contact Officer Noble was between Plaintiff

and Kojak. Plaintiff proceeded to jump on Officer Noble’s back in an hysterical effort to get at Officer Jenkins and Kojak to

protect her son. The officers stated Plaintiff climbed over and around Noble from the kitchen area above and moved towards

Officer Jenkins. Plaintiff repeatedly yelled at the officers not to hurt her son. Neither officer places Sergeant O’Connor inside the

home at that point.

The district court granted the officers summary judgment based on qualified immunity. Plaintiff appeals.

We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.1

I.

The following relevant facts are undisputed or taken in the light most favorable to Plaintiff: Quincy

Dunigan is a convicted felon. He failed to report to his parole officer in violation of the terms of his release.

For a year, Leslie Willson, Quincy’s parole officer, visited Plaintiff’s home on numerous occasions looking

for Quincy. A week prior to his arrest, Willson had seen Quincy outside Plaintiff’s Kalamazoo residence

removing trash. Quincy disappeared before she could speak with him. On the morning of March 8, 2001,

Willson received a phone tip suggesting Quincy was at his mother’s home. Willson requested police

assistance to apprehend Quincy. Officer Noble responded to the call. Willson informed Officer Noble

that Quincy was a “runner” and might attempt to evade arrest. Officer Noble called for backup, but did

not specifically request a K-9 unit. Officer Jenkins and Kojak arrived soon thereafter. Sergeants Joseph

O’Connor and Mark Laster and Officers Scott Block and Mike Skurski also arrived on the scene to secure

the home’s perimeter. Dispatch informed all responding officers that Quincy might run.

Willson, with Officers Noble and Jenkins at her side, knocked on Plaintiff’s back door. Kojak stood

with Jenkins wearing a body harness and leash used for tracking. Plaintiff opened the back interior door and

remained behind the locked screen door. Willson informed Plaintiff she had “come to get Quincy.”

Plaintiff responded “just a minute” and shut the interior door. Plaintiff proceeded to the basement’s

living area where Plaintiff’s two sons, Quincy and Tory, and grandson, Shawn, were located. Plaintiff

informed Quincy of the officers’ presence. When Plaintiff returned and began opening the door, three

officers rushed in. Officer Noble entered the home first. Sergeant O’Connor also entered. Officer Jenkins

and Kojak proceeded onto the landing directly inside the back door of the home. The landing measures

approximately three and one- half square feet. The basement stairs extend down from the landing directly

behind the back door. Four stair steps to the right of the back door extend up the landing into the kitchen.

See Joint App. at 348 (attached hereto).2

Officer Noble proceeded to the top step of the kitchen stairs. Sergeant O’Connor proceeded to the

basement stairs. Officer Jenkins entered the landing and looked down into the basement. Plaintiff remained

on the second step of the kitchen stairs. Officer Jenkins announced that someone was in the basement. He

ordered the individual to show his hands, but to no avail. After announcing police presence, Officer Jenkins

alerted Kojak to begin barking. At this point, Tory proceeded up the basement stairs through the landing

and into the kitchen, passing Kojak and the officers without incident. Immediately thereafter, Officer Noble

pushed Plaintiff in the back.3

 The force caused Plaintiff to stumble and move from the second to the first

step of the kitchen staircase. When asked what happened when Officer Noble pushed her, Plaintiff
No. 03-1304 Dunigan v. Noble, et al. Page 3

4

An ambulance arrived shortly thereafter. A paramedic advised Plaintiff: “Mrs. Dunigan, don’t talk, don’t try to speak

because you’re on the verge of a heart attack or a stroke. Your blood pressure is 220 over 180.” The medical center’s

“Emergency and Trauma Report” on Plaintiff reads:

The patient said that she was feeling more comfortable and felt like she wanted to go home. Because this patient’s pain

was clearly stress induced and it responded immediately with nitroglycerin this appears to be an angina episode for the

patient which would not be classified as unstable. . . . Her wound on her leg will not require stitches and because it is

not a puncture wound we will not give her antibiotics at this time. . . .

In her deposition, Plaintiff stated her wound subsequently became infected and required surgery. Plaintiff says she has suffered

nerve and muscle damage, is in chronic pain, and “might get crippled as I get older.” Plaintiff also states she may have contacted

Hepatitis-C. Aside from the trauma report, however, the record is devoid of any medical evidence establishing the exact nature

and extent of Plaintiff’s injuries.

5

Prior to Saucier, a majority of Circuits, including our own, held the question of whether an officer was entitled to qualified

immunity from an excessive force claim was identical to the inquiry on the merits of the claim. See, e.g., Bass v. Robinson, 167 F.3d 1041, 1051 (6th Cir. 1999); Katz v. United States, 194 F.3d 962, 968 (9th Cir. 1999) (collecting cases). Thus, under prior

answered: “That is when the dog attacked me.” Kojak bit Plaintiff three times on her leg. Officer Jenkins

promptly restrained Kojak by the collar. According to Plaintiff, Officer Noble then “grabbed me by the

neck, threw me outside and made me lay face down on the cement sidewalk.”4

Plaintiff’s friend, Kim Marshall, witnessed the entire event. Marshall explained the situation

“was pretty chaotic, so there was a lot of yelling and screaming and hysterics going on.” Marshall described

Plaintiff’s emotional state at various points as “very upset,” “crying” and “concerned about the dog being in

the home and very much concerned about her son.” Once the officers entered the home, Plaintiff tried “to

explain to them that [Quincy] wanted to turn his self [sic] in, not to–not to hurt him and she was kind of

begging them, please, you know, don’t hurt her son.” Tory was yelling at the officers to leave his mother

alone. When asked to describe the push, Marshall responded:

[Plaintiff] was standing on top of the steps that was right by the kitchen and one of the

officers pushed her, so there is three or four steps that lead back to the back door landing

area, she lost her footing and at that point she raised herself back up and that is when the dog

bit her right in the thigh area.

The district court granted Officers Noble and Jenkins’ motion for summary judgment based on

qualified immunity. The court first noted Plaintiff characterized the question of excessive force with regard

to both officers as arising solely under the Fourth Amendment’s proscription against unlawful seizures. As

to Officer Jenkins, the court held the evidence failed to establish the requisite seizure through means of

force intentionally applied. The district court next held Officer Noble did not use excessive force

when pushing Plaintiff aside in a rapidly-evolving, highly volatile situation. The court noted nothing in the

record provided a basis for inferring Officer Noble had any intent to injure Plaintiff. On appeal, Plaintiff

renews her argument that Officers Jenkins and Noble employed unlawful force in effecting a seizure of her

person. Notably, Plaintiff has not challenged the officers’ entry into her home or her actual arrest.

Defendant Officers again respond with the defense of qualified immunity.

II.

“Qualified immunity is a government official’s ‘entitlement not to stand trial or face the other

burdens of litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). Such immunity is “‘an expression of policy designed to aid in the effective functioning

of government.’” Schuer v. Rhodes, 416 U.S. 232, 242 (1974) (quoting Barr v. Matteo, 360 U.S. 564,

572-73 (1959)). Implicit in the qualified immunity doctrine is a recognition that police officers, acting

reasonably, may err. Id. The concept of immunity thus acknowledges that “it is better to risk some error

and possible injury from such error than not to decide or act at all.” Id.5
No. 03-1304 Dunigan v. Noble, et al. Page 4

law the existence of a genuine factual dispute always precluded summary judgment. In Saucier, the Supreme Court criticized

the approach of denying summary judgment “any time a material issue of fact remains on the excessive force claim” as

undermining “‘the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many

insubstantial claims on summary judgment.’” Saucier, 533 U.S. at 202 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The Supreme Court held “the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether

unreasonable force was used in making the arrest.” Id. at 197.

6

Despite Saucier’s direction, some panels of this Court have continued to rely on a three step analysis of qualified immunity

claims grounded in our pre-Saucier en banc decision in Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc). See, e.g., Dean v. Byerley, 354 F.3d 540, 557 (6th Cir. 2004); Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). Other panels

acknowledge Saucier as binding. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1042 (6th Cir. 2003); Weaver v. Shadoan, 340

F.3d 398, 406-07 (6th Cir. 2003); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002); Bell v. Johnson, 308 F.3d 594, 601-02

(6th Cir. 2002). We take the latter approach.

7

Absent a seizure, an individual injured as a result of police misconduct may pursue a substantive due process claim. See

Lewis, 523 U.S. at 844. Plaintiff does not claim a violation of her substantive due process rights in this case.

In Saucier, the Court carefully delineated a two-fold inquiry to determine an officer’s entitlement

to qualified immunity in the context of an excessive force claim:

A court required to rule upon the qualified immunity issue must consider . . . this threshold

question: Taken in the light most favorable to the party asserting the injury, do the facts .

. . show the officer’s conduct violated a constitutional right? This must be the initial

inquiry. . . . . . . [I]f a violation could be made out on a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly established. This inquiry, it is vital to

note, must be undertaken in light of the specific context of the case, not as a broad general

proposition . . . .

Id. at 201.6 In other words, where a constitutional violation exists, an officer’s personal liability turns on

the “objective legal reasonableness” of the action in view of the circumstances the officer confronted

assessed in light of “clearly established” legal rules. Id. at 202; Anderson v. Creighton, 483 U.S. 635, 639

(1987).

III.

As Saucier directs, we turn first to the question of whether Officer Jenkins and/or Noble violated

Plaintiff’s Fourth Amendment right to be free from excessive force. We review this question de novo,

applying the same summary judgment standard as the district court. We view the evidence in a light most

favorable to Plaintiff. At the same time, we are mindful that “the mere existence of some factual dispute”

will not frustrate an otherwise proper summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986). Considering the evidence “through the prism of the substantive evidentiary burden,”

id. at 254, we must determine “not whether there is literally no evidence, but whether there is any upon

which a jury could properly proceed to find a verdict for the party producing it upon whom the onus of proof

is imposed.” Improvement Co. v. Munson, 81 U.S. 442, 448 (1872); accord Anderson, 477 U.S. at 252;

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

A.

A seizure must occur before an excessive force claim is cognizable under the Fourth Amendment.

See County of Sacramento v. Lewis, 523 U.S. 833, 844-45 & n.7 (1998).7

 Plaintiff contends Officer Jenkins

seized her when he knowingly brought a dangerous animal, Kojak, into the narrow entranceway of
No. 03-1304 Dunigan v. Noble, et al. Page 5

8

Plaintiff has continually maintained Kojak is an instrument of deadly force. Notably, Plaintiff does not claim or present

evidence that Kojak was improperly trained. No federal appeals court has held a properly trained police dog is an instrument of

deadly force. See Kuha v. City of Minnetonka, 365 F.3d 590, 597-98 (8th Cir. 2003) (citing cases). Instead, we explained

in Robinette v. Barnes, 854 F.2d 909, 913 (6th Cir. 1988):

We do not dispute the fact that trained police dogs can appear to be dangerous, threatening animals. The dogs’ ability

to aid law enforcement would be minimal if they did not possess this trait. However, the mere recognition that a law

enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force.

her home.8 A seizure within the meaning of the Fourth Amendment, however, “requires an intentional

acquisition of physical control.” Brower v. Inyo County, 489 U.S. 593, 596 (1989). “[O]nly when there is

a governmental termination of freedom of movement through means intentionally applied” is the Fourth

Amendment implicated. Id. at 597. “[T]he Fourth Amendment addresses ‘misuse of power,’ . . . not the

accidental effects of otherwise lawful government conduct.” Id. at 596.

Accepting Plaintiff’s version of events, nothing in the record suggests Officer Jenkins introduced

Kojak into the home intending to seize Plaintiff or that he actually seized Plaintiff “through means

intentionally applied.” Officer Jenkins, unaware of Quincy Dunigan’s precise whereabouts, lawfully

brought Kojak into the home. Despite Plaintiff’s contrary assertion, the circumstances undoubtedly

justified Kojak’s presence. Kojak was trained to “track.” Quincy Dunigan was a fugitive from law and had

been “on the run” for nearly a year. Officer Jenkins legitimately believed Quincy might attempt to flee.

Kojak’s presence served the legitimate purpose of curtailing that possibility.

Officer Jenkins did not command Kojak to bite Plaintiff and was not responsible for the contact

which caused Plaintiff to stumble towards the dog. According to Officer Jenkins, Kojak perceived a threat

when Plaintiff stumbled one step down the kitchen stairs into the dog’s defensive perimeter. Kojak

responded, as trained, by defending its handler. Officer Jenkins quickly restrained and refocused Kojak

once the dog began biting Plaintiff. Additionally, Plaintiff stated her son, Tory, came up from the basement

into the kitchen immediately preceding the attack without incident. This fact gives rise to the reasonable

inference that Officer Jenkins was exercising control over Kojak. As a result, a reasonable jury could only

conclude Kojak’s actions were a spontaneous response to Plaintiff’s “threatening” movement into the dog’s

defensive perimeter. The district court properly held Officer Jenkins did not seize Plaintiff “through

means intentionally applied,” and thus, Plaintiff had no cognizable Fourth Amendment claim against Officer

Jenkins.

B.

Although for different reasons, we also conclude Officer Noble did not violate Plaintiff’s Fourth

Amendment rights. Unlike Officer Jenkins, Officer Noble seized Plaintiff when he arrested her. Viewing

the evidence in a light most favorable to Plaintiff, however, we conclude Officer Noble did not act

unreasonably in making that arrest. The reasonableness inquiry in a Fourth Amendment excessive force

case is objective. In Graham v. Connor, 490 U.S. 386, 397 (1989), the Supreme Court explained the

relevant

question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to the underlying intent or motivation. . . . An officer’s evil intentions will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer’s good intentions make an objectively

unreasonable use of force constitutional.

(emphasis added).

Whether an officer’s use of force was reasonable turns on the facts of each case. Relevant to the

inquiry are (1) the severity of the crime at issue, (2) the immediate threat the suspect poses to the safety of
No. 03-1304 Dunigan v. Noble, et al. Page 6

9

Given the situation, no reasonable jury could conclude Plaintiff stood between Officer Jenkins and Noble for “five to ten

minutes” as she claims before Officer Noble made contact with her.

the officer or others, (3) the suspect’s resistance, if any, and (4) the possibility of flight. Id. at 396. The

objective reasonableness inquiry is well-established:

The ‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every

push or shove, even if it may later seem unnecessary in the peace of a judge’s chamber,

violates the Fourth Amendment. The calculus of reasonableness must embody allowance

for the fact that police officers are often forced to make split-second judgments–in

circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that

is necessary in a particular situation.

Id. at 396-97 (internal quotation and citation omitted) (emphasis added); accord Saucier 533 U.S. at 204-05.

The relevant question, then, is whether a reasonable officer on the scene could have believed Officer

Noble’s push of Plaintiff from one step to the next in the close confines of the stairwell and landing while

in the presence of a police dog was unlawful. Officer Noble’s subjective intentions are irrelevant.

In her brief, Plaintiff admits she was “understandably upset” over the situation, but claims she posed

no threat whatsoever to anyone. Plaintiff is mistaken. Kim Marshall, Plaintiff’s own witness, stated

the situation “was pretty chaotic, so there was a lot of yelling and screaming and hysterics going on.”

Marshall stated Plaintiff “was begging” the officers not to hurt her son. As the officers entered the home,

Plaintiff was necessarily standing in front of them given the small confines of the landing. See Joint App.

at 348. Plaintiff knew for certain Quincy was in the basement when Officers Jenkins and Noble entered the

home. The officers did not possess such knowledge as Plaintiff had closed the inside back door blocking

the officer’s view before she went to the basement to inform Quincy of the officers’ presence. Instead

of moving out of the officers’ path, Plaintiff made the decision to remain close by on the kitchen steps.

Perhaps Officer Noble moved up the stairs past Plaintiff to cut off an escape route or get a view of

his back side. Regardless, we will not second guess Officer Noble’s actions.9

 Officer Noble was confronted

with a rapidly-evolving, highly-volatile situation which precluded the luxury of calm and reflective preresponse deliberation. See Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). Officer Noble had

no opportunity to ponder or debate his reaction to the potentially explosive situation. Simply stated,

Plaintiff’s insistence on remaining in the middle of a chaotic, tense, and rapidly evolving situation posed

a risk to herself, to Quincy, the officers seeking to arrest Quincy, and the other individuals present.

Moreover, Plaintiff’s presence in the midst of this situation interfered with Officer Noble’s efforts

to perform his duties.

Plaintiff points out she is not a felon and was not fleeing or attempting to evade arrest. She misses

the point. At the time the push occurred, Officer Noble’s focus was on Quincy Dunigan. Officer Noble

knew (1) Quincy had been a fugitive from the law for nearly a year and might attempt to flee, (2) at least one

unidentified individual was in the basement directly below, and (3) that individual posed a potential threat

by refusing to show his hands as ordered. See Graham, 490 U.S. at 396. Moreover, Officer Noble did not

have cover on his back side and did not know who else was in the home. He could not see into the basement

from his location on the kitchen stairs. See Joint App. at 348. Amidst all these uncertainties, Officer Noble

applied force to Plaintiff’s back or shoulder in closely confined quarters causing her to momentarily lose her

balance and stumble down one step of stairs towards Kojak.

That Kojak responded as trained does not change our analysis. Kojak’s presence on the landing was

undoubtedly lawful. The evidence further reveals that Officer Noble had no control over Kojak. Officer

Noble stated without contradiction that he did not call for a police dog, is not trained in handling police

dogs, and does not know their commands. He further testified the policy of the City of Kalamazoo, by
No. 03-1304 Dunigan v. Noble, et al. Page 7

10Because the Fourth Amendment does not duplicate state tort law, we make no judgment as to whether under the facts of

this case Officer Jenkins or Noble exercised reasonable care in the “tort sense.” Michigan state law may or may not afford

Plaintiff a remedy.

which he abides, is to follow the directions and orders of the dog handler when a canine is present.

Plaintiff’s case is further undermined by her own statement that immediately preceding the push Tory ran

past Kojak in the narrow confines of the landing and stairwell without incident. Under Plaintiff’s version

of events, Officer Noble could not have missed observing Tory. Thus, Officer Noble had no reason to

believe his minimal use of force which caused Plaintiff to momentarily stumble would cause Kojak to react.

Nor would any reasonable officer so believe.10

A contrary conclusion would invite any third party who is unhappy about an arrest to resist that

arrest, however mildly, hoping an officer would simply desist rather than chance violating that party’s

constitutional rights. This is simply an unacceptable alternative. For us to “fine-tune” the situation arising

in Plaintiff’s home on the morning of March 8, 2001, from the warm comfort of our chambers would

undercut the necessary element of judgment inherent in Officer Noble’s attempt to control a volatile chain

of events. See Brown v. Gilmore, 278 F.3d 362, 369-70 (4th Cir. 2002). “[J]udged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Graham, 490 U.S. at

396, Officer Noble’s actions did not violate Plaintiff’s Fourth Amendment rights.

IV.

For the foregoing reasons, the district court properly held Officer Noble and Officer Jenkins were

entitled to qualified immunity. Because we decide this case under the first prong of Saucier’s two part

qualified immunity inquiry, we do not reach the second prong of that inquiry. The judgment of the district

court is–

AFFIRMED.
No. 03-1304 Dunigan v. Noble, et al. Page 8
No. 03-1304 Dunigan v. Noble, et al. Page 9

_______________________________________________

CONCURRING IN PART, DISSENTING IN PART

_______________________________________________

KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. Although I

concur in the majority’s opinion affirming summary judgment in favor of Officer Percy Jenkins (“Officer

Jenkins”), I respectfully dissent from the majority’s holding that qualified immunity shields Officer Scott

Noble (“Officer Noble”) from liability because I believe that Officer Noble’s use of force against Elois

Dunigan (“Dunigan”) was an objectively unreasonable violation of Dunigan’s clearly established Fourth

Amendment rights.

Determining whether the actions of a police officer rise to the level of unconstitutionally excessive

force is often a difficult task, for police officers frequently must make on-the-spot decisions in the face of

chaotic, rapidly-evolving, and potentially dangerous situations. Indeed, we repeatedly draw upon, as if by

rote, the Supreme Court’s guiding maxims that “[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment,” and that we should not

judge police officers’ conduct “with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396

(1989) (internal quotation marks omitted). However, acknowledging the fact that police officers operate

in a fast-paced, uncertain environment should not lead to our reflexive rubber-stamping of “every push or

shove” by a police officer. Rather, in each case we must determine whether, given similar circumstances,

a reasonable and prudent police officer would have acted in like fashion, taking into consideration such

factors as the severity of the crime involved and the immediate threat to safety posed by the seized person.

After reviewing the events that transpired at the Dunigan residence on the morning of March 8, 2001 in the

light most favorable to Dunigan, I believe that Officer Noble acted unreasonably and with excessive force

in pushing Dunigan, a fifty-nine-year-old woman, down a narrow stairway towards another police officer

and his police dog.

First, Officer Noble and the other members of the Kalamazoo Police Department reported to the

Dunigan residence not in response to a violent crime, but rather simply to take Dunigan’s son, Quincy

Dunigan (“Quincy”), into custody for failing to report to his parole officer, Leslie Willson (“Willson”).

Although Willson enlisted the aid of several police officers to help effectuate Quincy’s arrest because

Quincy had a history of attempting to flee police custody, the record does not seem to indicate that Quincy

had a history of violent behavior. Indeed, Dunigan indicated that Willson and Officer Noble had come to

her home several times looking for Quincy and that they had walked through her home without incident just

a few weeks earlier. Joint Appendix (“J.A.”) at 158 (Elois Dunigan Dep.).

Second, contrary to the majority’s suggestion, Dunigan did not pose a serious threat to the safety of

others present by being emotionally agitated, yelling, and screaming. According to Dunigan, she was not

upset and did not yell at the officers. J.A. at 158-59 (Elois Dunigan Dep.). However, even if Dunigan was

emotionally upset by the entry of police officers and a police dog into her home, a reasonable and prudent

police officer would not attempt to diffuse such a situation by pushing the upset bystander from behind and

down a stairway in the direction of other officers and a police dog.

The majority also contends that Dunigan posed a threat to the police officers by remaining on the

kitchen steps and not moving out of the officers’ path. However, the record does not seem to indicate that

the officers asked Dunigan to step outdoors or to move to another part of the house while they executed the

search. Furthermore, because Dunigan claims to have been standing between Officers Noble and Jenkins

on the stairway, Dunigan could go nowhere without moving in the direction of at least one of the officers,

which itself could have been interpreted by the officers as a threatening or hostile act. Ultimately, if there

was a need to remove Dunigan from the main area of activity, pushing her downstairs further into the fray

in the direction of Officer Jenkins, police dog Kojak, and the primary ingress point for other officers was

not a reasonable means of accomplishing such an objective. J.A. at 225 (Scott Noble Dep.) (“Q. Other than
No. 03-1304 Dunigan v. Noble, et al. Page 10

it would constitute an excessive use of force, what are all of the other reasons for which you would not want

to do that sort of thing? A. I would not want to push her down in the way of what is going on because she’s

going to interfere more with what is going on down there. I want to keep her out of the area. Q. So pushing

her down under that hypothetical scenario, Number 1, would pose a risk of— A. Risk to Percy. Q. It would

pose a risk of serious injury to her from the dog, correct? A. Correct. Q. It would pose a risk to Percy

Jenkins? A. Correct. Q. What else? A. Anybody else that is down there.”).

The majority also justifies Officer Noble’s actions by explaining that he faced a situation fraught

with uncertainties in that the officers were attempting to arrest someone who had a history of evading

capture, there was an unknown person in the basement who refused to show his hands, and there might have

been other persons in the home who could attack the officers. To determine whether a police officer has

acted reasonably, we must evaluate the amount and type of force used in light of the particular uncertainties

facing the officer. In this case, Officer Noble acted unreasonably notwithstanding the general air of

uncertainty at the Dunigan residence because the force he used (pushing Dunigan down the stairs toward

Officer Jenkins and police dog Kojak) bears no reasonable relation to the specific uncertainties the majority

says Officer Noble faced (Quincy’s history of fleeing, the presence of an unidentified person in the

basement, and the possibility of other persons being in the house).

Finally, the majority contends that Officer Noble had no reason to expect that Dunigan’s stumbling

down the stairway would cause Kojak to bite her because Officer Noble had previously witnessed one of

Dunigan’s sons run past Kojak without being attacked. However, Officer Jenkins testified that police dogs

are trained to protect their police handlers and agreed that it “wouldn’t be a reasonable use of force to push

somebody towards a police dog handler and a police dog . . . [b]ecause the dog could bite them.” J.A. at

256 (Percy Jenkins Dep.). Furthermore, even if it were reasonable for Office Noble to assume that Kojak

would not bite Dunigan if she were pushed in his direction, the fact that a fifty-nine-year-old woman could

be injured if pushed down a stairway should not have come as a surprise to Officer Noble. That Dunigan’s

injuries took the form of a dog bite rather than a broken hip or sprained ankle does not make Officer Noble’s

actions any more reasonable.

Because pushing a fifty-nine-year-old female bystander from behind and without provocation down

a stairway in the direction of other police officers and a police dog amounts to unconstitutionally excessive

force, I believe that Officer Noble violated Dunigan’s Fourth Amendment rights. Moreover, I do not believe

that Officer Noble should be immune from liability, as his conduct was objectively unreasonable in light

of clearly established law at the time of the incident. The doctrine of qualified immunity is driven by the

notion that, although a government official may have violated a citizen’s rights, “‘[i]f the law at that time

was not clearly established, an official could not . . . fairly be said to ‘know’ that the law forbade conduct

not previously identified as unlawful.’” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.

2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (second alteration in Champion). Here,

however, Office Noble admitted during his deposition that, if Dunigan’s allegations were true, his actions

would constitute excessive force:

Q. . . . Let’s assume there is an eyewitness who says that you pushed Miss

Dunigan, that she was not posing any sort of physical threat, nor was she

antagonizing the dog, and that you pushed her from behind on the shoulder

into the direction of the dog which was barking and which was located in

close proximity, are you telling me that that is something that you didn’t do?

A. That is correct.

Q. Are you telling me is something that you wouldn’t do?

A. I would not do that.

Q. And one of the reasons you would not do that is because in your opinion that

would be an excessive use of force under those circumstances, would it not,

Officer?

A. Correct.
No. 03-1304 Dunigan v. Noble, et al. Page 11

Q. Okay. And that’s your opinion based on your 14 years experience on the

Kalamazoo force, as well as your education and training —

A. That’s correct.

Q. — in-service academy, et cetera, correct?

A. Correct.

J.A. at 224-25 (Scott Noble Dep.). Moreover, at the time of the events in question, the right of bystanders

not to be attacked, particularly from behind and without provocation, was clearly established in this court

and others. See Dugan v. Brooks, 818 F.2d 513, 516-17 (6th Cir. 1987) (vacating district court’s order

dismissing suit for failure to state a claim, concluding that complaint which “not only alleges that [the

officer] arrested [the plaintiff] without probable cause but also alleges that, in doing so, with malice and

without warning or justification, struck [the plaintiff] on the head from behind, knocking him to the floor

and seriously injuring him . . . clearly alleges a deprivation of the rights secured by the fourth amendment

as made applicable to the states by the fourteenth amendment”); Teames v. Henry, No. Civ. 3:03-CV-1236-

H, 2004 WL 357961, *3-4 (N.D. Tex. 2004) (denying police officer’s motion for summary judgment on the

basis of qualified immunity in suit alleging that the officer violated the Fourth Amendment rights of a

seventy-nine-year-old woman by pushing her off a porch, and citing cases from 1998 and earlier in support

of its finding that “a bystander’s right to be free from an officer’s use of excessive force . . . was clearly

established in . . . 2002 when [the officer] allegedly used excessive force”); see also Kain v. Nesbitt, 156

F.3d 669, 670, 673 (6th Cir. 1998) (reversing grant of summary judgment for police officer on the basis of

qualified immunity because jury should resolve fact question of whether officer was reasonable in grabbing

mother and pushing her against the wall during search for her son).

In sum, because I believe that Office Noble’s conduct violated Dunigan’s Fourth Amendment right

not to be seized with excessive force and was objectively unreasonable in light of clearly established law,

I respectfully dissent from the majority affirmance of summary judgment in favor of Officer Noble.