Scottie Pennington v. Bob Terry, 644 F. App'x 533

On March 2, 2012, police stopped a truck; Pennington (passenger) was seen on dashcam appearing to put pills into his mouth. Officers restrained him, ordered him to spit the pills out, handcuffed him, and inspected his mouth.
Sergeant Harris removed a Taser from his holster, held it near Pennington’s right torso, then holstered it; video does not clearly show contact or probes being fired; officers later recovered pills and syringes and Pennington pled guilty to possession.
Pennington (initially pro se) later alleged he was tased while handcuffed and lying on the ground; his earlier sworn deposition had stated no Taser was used.
District court assumed arguendo a brief Taser contact and granted summary judgment to officers based on qualified immunity, finding the use reasonable to prevent evidence destruction and a potential overdose.
Sixth Circuit affirmed but on different grounds: (1) the dashcam blatantly contradicts Pennington’s tasing claim such that no reasonable jury could credit it, and (2) even if a tasing occurred, qualified immunity would apply because the law was not clearly established in these circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did a tasing occur?	Pennington: video shows Harris tased him while handcuffed and not resisting.	Harris/Long: video does not show contact or probe deployment; Pennington previously testified no tasing.	No genuine fact issue — video blatantly contradicts tasing claim; summary judgment affirmed.
If tased, was force excessive under Fourth Amendment?	Pennington: handcuffed, nonresisting person may not be tased.	Officers: force was objectively reasonable to prevent destruction of evidence and a possible overdose.	Court reserved on constitutionality but found no clearly established law that tasing in this factual posture was unlawful.
Qualified immunity — clearly established right?	Pennington: existing precedents prohibit tasing nonresisting persons.	Officers: no controlling Sixth Circuit precedent applying to tasing to prevent overdose/preserve evidence.	Held: right not clearly established as of March 2, 2012; qualified immunity would apply.
Officer Long liability for failure to intervene	Pennington: Long was present and should be liable for not stopping the tasing.	Long: had no realistic opportunity or means to prevent a brief, transitory tasing.	Held: Long entitled to qualified immunity for lack of realistic opportunity to intervene.

Scott v. Harris, 550 U.S. 372 (2007) (video that blatantly contradicts a party’s story may be treated as conclusively depicting the facts for summary-judgment purposes)
Graham v. Connor, 490 U.S. 386 (1989) (Fourth Amendment excessive-force standard: objective reasonableness test)
Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity standard)
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (two-step qualified-immunity framework and ‘‘clearly established’’ formulation)
Pearson v. Callahan, 555 U.S. 223 (2009) (courts may decide qualified-immunity questions in either order)
Mullenix v. Luna, 136 S. Ct. 305 (2015) (right must be clearly established in light of specific conduct; absence of controlling precedent favors immunity)
Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997) (use of force to prevent self-harm from ingested pills can be reasonable)
Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505 (6th Cir. 2012) (use of a Taser on a non-threatening, nonresisting person can violate the Fourth Amendment)
Sanders v. City of Dothan, [citation="409 F. App'x 285"] (11th Cir. 2011) (tasing briefly to prevent swallowing of drugs did not violate a clearly established right as of the incident)