489 F. App'x 116
6th Cir.2012Background
- Washington, driving Thomas’s car, rear-ended a garbage truck; he fled and was stopped by Cincinnati Officers Glueck and Myers, who identified Washington’s lack of license and insurance.
- Washington denied having a warrant; a struggle ensued while Thomas opened her car door; Glueck and Myers commanded them to get back in the car and to subdue Washington.
- Plummer arrived, drew his gun, and then tasered Thomas as she knelt with hands raised after being ordered to the ground; she cried out and was handcuffed.
- Thomas was charged with Obstructing Official Business; Washington was cited for OVI; a container of alcohol found in Thomas’s car was suppressed; Thomas was acquitted of obstructing official business in state court.
- Thomas sued Myers and Plummer under 42 U.S.C. § 1983, asserting Fourth Amendment violations for illegal search (Myers) and excessive force (Plummer); the district court denied qualified immunity to both.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Myers is entitled to qualified immunity for the vehicle search. | Thomas: search violated Fourth Amendment and was clearly established. | Myers: search could be reasonable under Gant based on the crime of arrest. | Not clearly established; reversal for Myers |
| Whether Plummer’s taser use on a kneeling, hands-raised suspect was excessive force and whether it was clearly established at the time. | Thomas: taser in the back was excessive and unconstitutional. | Plummer: force reasonable given circumstances and policy guidance. | Excessive force; not entitled to qualified immunity; affirmed as to liability |
Key Cases Cited
- Arizona v. Gant, 556 U.S. 332 (U.S. 2009) (vehicle search incident to arrest limited by reasonable-belief criteria)
- Ashcroft v. al-Kidd, 131 S. Ct. 2074 (U.S. 2011) (clearly established qualified-immunity standard)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (allows granting/denying qualified-immunity motion on a basis different from full analysis)
- Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (analyze constitutional right and its clearly established status)
- Hope v. Pelzer, 536 U.S. 730 (U.S. 2002) (on novel factual circumstances may still give fair warning of unconstitutionality)
- Kijowski v. City of Niles, 372 F. App’x 595 (6th Cir. 2010) (clearly established right not to be tasered when non-resistant as of 2006)
- Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009) (busies the balance of force against non-resistant suspect tasering)