David PERSHELL, Plaintiff-Appellee, v. Joseph COOK; Jeffrey Miazga; Andrew Williams, Shawn Martin, Defendants-Appellants.
Nos. 10-1382, 10-1422
United States Court of Appeals, Sixth Circuit.
July 13, 2011.
Before: KEITH, GIBBONS, and WHITE, Circuit Judges.
III.
For these reasons, we dismiss Martinez‘s appeal.
Defendant police officers appeal the district court‘s denial of qualified immunity and state-law immunity in Plaintiff David G. Pershell‘s
I
On February 5, 2007, Pershell, a resident of Baroda, Michigan, called 911 after getting into a verbal and physical altercation at his home with an acquaintance who refused to leave the house. Before police arrived at Pershell‘s home, the acquaintance left the house voluntarily. Pershell then called 911 again to report that he no longer required police assistance. A 911 dispatch employee informed Pershell that an officer would still need to respond to take a report.
Unbeknownst to Pershell, police had an outstanding warrant for his arrest on a misdemeanor charge of recklessly discharging a firearm while under the influence of alcohol. That warrant arose out of
Once the police arrived at the house, Martin knocked and announced himself, and Pershell invited Martin to enter. Martin and Jones entered the residence. Pershell and Martin exchanged pleasantries as they walked to the living room; according to Pershell, Jones was already in the living room by this time. Upon entering the living room, Pershell saw that Jones was pointing a taser at him and heard Jones repeat “I‘ve got a taser” two or three times. Martin then informed Pershell that he was under arrest. Pershell responded by exclaiming, “You‘re crazy. Get the f— out of my house.” At some point during this interaction, the three state troopers entered the room. At his deposition, Pershell identified the state troopers as Troopers “A“, “B“, and “C“. He referred to Officers Martin and Jones by name. According to Pershell, he asked why he was under arrest and a state trooper responded, “Resisting arrest.”
One of the troopers then said “Go,” and, according to Pershell, a trooper knocked Pershell‘s legs out from under him using a “leg sweep.” Pershell landed on the ground face-first. Pershell‘s glasses were “digging into [his] face and they were bent wrong,” and he felt a foot between his shoulders pushing him into the ground. He believed that Trooper B‘s foot was on his back. Pershell asked that his glasses be removed to avoid further damage, and one of the troopers took the glasses off his face and placed them on a nearby desk. He believes that Trooper B removed the glasses because he “felt a slight lift off of the pressure on [his] back” as the glasses were removed. Pershell was unable to see clearly without his glasses. While on the ground, Pershell was handcuffed. He testified that he was lying on the ground and not moving at this time.
Within moments, Pershell felt a “forceful impact” on his left foot and ankle, causing “a searing pain.” Immediately after, Pershell felt an impact or “blow” on his left side, in the area above his buttock and near belt-level. Pershell described the force of the blow as being “hit by a Missouri mule.” Almost instantaneously, he felt a third blow to the area above his left buttock. As a result of the third blow, Pershell lost consciousness. The next thing Pershell remembers is being dragged or carried from the house to a police car and being placed in the back seat. A video recorded by the dashboard camera of Officer Martin‘s car shows approximately 20 seconds of footage of officers removing Pershell from the house. Although officers denied dragging Pershell to the car,
Pershell was bailed out of jail by an acquaintance and taken directly to the emergency room at Lakeland Hospital, where he was examined by a physician. He complained about foot, hip, and back pain, and reported to the medical staff that he had been “assaulted by [a] SWAT team” but that he “[didn‘t] know what they hit him with.” The E.R. physician conducted a visual and tactile examination and ordered a single-view x-ray of Pershell‘s left hip. The examination and x-ray revealed no fractures. Pershell remained in pain during the weeks following discharge from the E.R., and saw an orthopedic specialist on February 28, 2007. The specialist ordered a full x-ray series of the left hip, which revealed a pelvic fracture. A CT scan was performed on March 1, 2007, which showed “a significant acetabelum fracture with some central displacement as well as quite significant comminution of the posterial wall.” Pershell required surgery on his pelvis but had to wait for approximately two years for his bone to heal before the operation could be performed.
Pershell was questioned extensively at his deposition about the actions of each officer during the arrest. Based on the positions of the officers and troopers in the room before Pershell was knocked to the floor, he believed that Trooper C performed the “leg sweep,” Trooper B placed his boot on Pershell‘s back and removed Pershell‘s glasses, and Officer Martin delivered the blows to Pershell‘s left side. However, Pershell freely conceded that he did not actually see any of the officers strike him because he was lying on his stomach without his glasses. Pershell testified that Officer Jones was standing to the side holding the taser the whole time, and so he presumably could not have been responsible for any of the blows. From his position on the ground, Pershell could see the boots of Trooper A, so he concluded that Trooper A did not strike him. According to Pershell, Trooper C was located on the right side of Pershell‘s body, while Martin was at Pershell‘s left rear. From this placement, Pershell deduced that Martin was likely responsible for the blows.
The officers contested Pershell‘s version of events. In deposition testimony, each of them denied striking or kicking Pershell and denied seeing any other officer do so. The officers also denied that Pershell‘s feet were intentionally swept from under him. Officer Jones testified that the three troopers assisted Officer Martin in taking Pershell to the floor and handcuffing him but later equivocated about what he saw. Trooper Miazga stated that he held Pershell‘s feet once Pershell was on the ground while Officer Martin applied handcuffs. Officer Martin testified that he believed that he lost his balance while attempting to handcuff Pershell and that, as a result, both men fell to the floor. Trooper Cook testified that he tripped or stumbled and fell shortly after Pershell and Martin fell to the ground but could not recall whether he landed on top of Pershell or not. The officers agreed that the only physically aggressive action taken by Pershell was that he took a “combative stance,” “defensive stance,” or “ready stance,” including possibly clenching his fists, when first confronted in the living room. They conceded that Pershell never
Pershell filed suit against Officers Martin and Jones, Troopers Cook, Miazga, and Williams, and Baroda Township and Lake Township pursuant to
II
Although a district court‘s denial of summary judgment is not normally a proper subject of interlocutory appeal, orders denying qualified immunity are immediately appealable under the collateral-order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). Our jurisdiction over qualified-immunity appeals is narrow, however: “This Court may exercise jurisdiction ‘only to the extent that a summary judgment order denies qualified immunity based on a pure issue of law.‘” Harrison, 539 F.3d at 517 (quoting Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006)). Thus, “the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiff‘s case.” Id. (quoting Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998)). “[T]o the extent that the denial of qualified immunity is based on a factual dispute, such a denial falls outside of the narrow jurisdiction of this Court.” Id.
To the extent jurisdiction is proper, this Court reviews denial of summary judgment by a district court, including denial of qualified immunity, de novo. Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011). In reviewing qualified-immunity claims, we determine: 1) “whether [t]aken in the light most favorable to the party asserting the injury, the facts alleged show the officer‘s conduct violated a constitutional right“; and 2) whether that right was clearly established at the time of the alleged violation. Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (alterations in original) (citation omitted); see also Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Courts may address these questions out of sequence. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 821, 172 L.Ed.2d 565 (2009). A right is clearly established if “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Binay, 601 F.3d at 646-47.
III
Defendants contend that they should have been granted qualified immunity
The
Taking the facts in a light most favorable to Pershell, officers performed a leg sweep, causing Pershell to fall on his face, handcuffed him once he was on the ground, and then struck him three times, causing him to lose consciousness and sustain a hip fracture. The blows to Pershell‘s body, if intentionally applied, were not objectively reasonable, and therefore constituted a violation of the
Using a leg sweep to knock Pershell face-first onto the floor was also objectively unreasonable. Aside from telling the officers to “get the f— out of my house” and possibly balling up his fists as his hands hung by his sides, Pershell did not resist arrest or pose an immediate danger to officers at the time he was knocked to the ground. It is uncontested that Pershell was unarmed when officers arrived at the house to serve the warrant and that he did not swing or strike at the officers. There were five armed officers at the scene, one of them pointing a taser at Pershell and another carrying a rifle. Although some level of caution and perhaps force would have been justified in effecting the arrest, the leg sweep was objectively unreasonable under the circumstances. See Lawler v. City of Taylor, 268 Fed. Appx. 384, 386-87 (6th Cir. 2008) (unpublished) (concluding that the defendant officer‘s “use of force in throwing Lawler to the floor was disproportionate to any threat he faced from Lawler” given that Lawler merely insulted the officer and “raised his left arm slightly“); Solomon v. Auburn Hills Police Dep‘t, 389 F.3d 167, 174 (6th Cir. 2004) (holding that attempting a leg sweep and then shoving plaintiff against a wall was unreasonable force giv-
Defendants also seek qualified immunity on the basis that Pershell could not definitively state which defendant was responsible for which aspect of the excessive force. For the purposes of
The district court determined that there are genuine issues of material fact regarding the liability of the defendants under the first prong above, their active participation in the use of excessive force. For the reasons stated by the district court during its March 11, 2010 hearing and formally adopted by its order of March 15, 2010, we affirm the denial of qualified immunity to Martin, Cook, Miazga, and Williams. (See Tr. of Defs’ Mots. for Summ. J. 74–91, R. 71; Order, R. 64.) Although Pershell was unable to see the officers standing above and behind him at the precise moment of the blows to his body, he has provided significant information about the location and conduct of the officers based on his own sensory observations. Further, the officers themselves provide accounts of the incident. These sources will provide the jury with sufficient information to determine the liability of each individual defendant for the alleged constitutional violation. This case differs from those in which the plaintiff lacked sufficient information to name responsible defendants or to offer an informed account of the facts. See, e.g., Totman v. Louisville Jefferson Cnty. Metro Gov‘t, 391 Fed. Appx. 454, 464-65 (6th Cir. 2010) (unpublished) (granting summary judgment to defendants where plaintiff sued one named individual defendant and other “unknown” officers for excessive use of force during the booking process following a warrantless arrest on the basis that unnamed officers may have been responsible for the use of force); Combs v. Wilkinson, 315 F.3d 548, 557-58 (6th Cir. 2002) (affirming grant of summary judgment to unidentified officer defendants where state-prison-inmate plaintiffs were unable to name defendants because the officers “wore black uniforms, gas masks, and no name badges” during the incident in question); Thornton v. Spooner, 872 F.2d 1029, 1989 WL 34026, at *2 (6th Cir. 1989) (unpublished table opinion) (affirming grant of summary judgment to three officers, all of whom were white, where the plaintiff was unable to identify the officer who allegedly used excessive force except to state that he was black).
IV
Pershell also brings state-law claims for assault and battery against the defendant
(a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial.
Odom v. Wayne Cnty., 482 Mich. 459, 760 N.W.2d 217, 228 (2008). The only disputed question here is whether the officers’ alleged acts were undertaken in good faith. “The good-faith element of the ... test is subjective in nature. It protects a defendant‘s honest belief and good-faith conduct with the cloak of immunity while exposing to liability a defendant who acts with malicious intent.” Id. at 229. A claim for assault and battery in the course of an arrest implicates the question whether the officers’ actions were “objectively reasonable under the circumstances.” Van Vorous v. Burmeister, 262 Mich.App. 467, 687 N.W.2d 132, 142 (2004).
There are genuine issues of material fact regarding whether the officers acted with malice when they allegedly struck Pershell repeatedly while he was handcuffed and on the floor. Intentionally striking an incapacitated arrestee with enough force to fracture his pelvis supports an inference of bad faith. The same allegations that would support that Defendants acted objectively unreasonably for purposes of the
V
For the foregoing reasons, we AFFIRM the denial of qualified immunity to Defendants Martin, Cook, Miazga, and Williams.
HELENE N. WHITE
CIRCUIT JUDGE