Michael Kent v. County of Oakland

clause, the Su- we conclude sidual made Johnson’s rule has

preme Court on collat- to cases

categorically retroactive review.

eral

CONCLUSION opinion, reasons stated this

For the prima has made a find that Watkins

we “a that her claim is based on showing

facie law, retro- rule of constitutional made

new review

active to cases on collateral Court, un-

Supreme previously that was hereby Accordingly, we

available.” her motion for authorization

GRANT § petition. a second or successive

file KENT, Plaintiff-Appellee,

Michael G. COUNTY, Defendant,

OAKLAND Maher, Lopez and Christina

Claudio

Defendants-Appellants.

No. 14-2519. Appeals,

United States Court Circuit.

Sixth

Argued: Aug. 2015.

Decided and Filed: Jan. 2016.

Rehearing En Banc Denied

Feb. 2016.* * Judge grant rehearing the reasons stated in his dissent. Suhrheinrich would Patterson, Potter, Rick

ARGUED: J. Patterson, Auburn Deagostino, O’Dea & Hills, Craig Michigan, Appellants. for M. Firm, P.C., Weber, Googasian The Bloom- Hills, Michigan, Appellee. field for ON Patterson, BRIEF: Rick J. Steven M. Potter, Clark, Potter, Deagosti- Robert C. no, Patterson, Hills, Auburn O’dea & Michigan, Appellants. Craig for M. Web- er, Firm, P.C., Bloomfield Googasian Hills, Michigan, Appellee. Before: SUHRHEINRICH MOORE, Judges; Circuit VAN TATENHOVE, Judge.** District TATENHOVE, D.J., delivered the VAN MOORE, J., opinion of the court which SUHRHEINRICH, joined. (pp. J. 398- 403), dissenting separate delivered a opinion.

OPINION TATENHOVE,' F. GREGORY VAN Judge. District underlying rights The events this civil excessive force arose when alleging action ** Tatenhove, Kentucky, sitting by designation. Gregory The Honorable F. Van District of Judge for the Eastern United States District possible as comfortable as County Deputies guest Sheriffs Claudio Oakland p.m. evening, bedroom. At 7:08 Kent responded Maher and Christina passed determined that his father had natural, of Plaintiff Mi- at-home death away: longer breathing he was no that his Kent’s father. Adamant chael carried no and his pulse, pupils were fixed life-sustaining not wished for father had and dilated. Kent’s wife called non- objected vehemently procedures, Kent emergency dispatch report the natural technicians’ efforts to emergency medical death. External Defibrilla- attach an Automated father.

tor to resuscitate his When Firefighter-EMT Anthony Oryszczak at the and refused to calm yelled p.m. arrived around 7:30 and was directed commanded, he was tased. This down as upstairs Oryszczak bedroom. brief- § 1983 fol- pursuant action U.S.C. ly body examined the and asked whether a found that the lowed. The district court hospice present. nurse was Kent informed objectively deputies’ use of the taser was Oryszczak physician that he was a and that unreasonable and violated estab- passed away his father had about fifteen law, deputies’ and it denied the mo- lished Deputy Lopez minutes earlier. As ar- summary judgment qualified tion for rived, Oryszczak EMT asked whether immunity grounds. We governmental Kent had do-not-resuscitate order or the same conclusions and affirm. reach power attorney of paperwork. Kent ex- plained visiting that his father was from

I state, of if out and he “wasn’t sure [his] brought any paperwork mother had with Kent lives in Commerce Town- Michael Oryszczak her.” He that told his mother ship, Michigan, young with his wife and attorney, had and that it his power days A before the incident children. few father’s that no “heroic wish measures” Rick and question, parents in Kent’s attempts upon at resuscitation be taken his of state for a Pamela traveled from out According Lopez, Kent’s mother death. staying family with the visit and were any for do-not-resuscitate was also asked Kent’s home. Kent’s father suffered from that had documents. She reiterated she for problems a number of serious health attorney but did not have the power of majority years, spent several and he her, with and she left the bed- paperwork significant pain. his visit in bed in On the try family room to to contact a member 1, 2013, Kent, who morning September who could send the documents. happens physician, to be a found that his “unresponsive any Oryszczak father was stimulus” EMT then radioed for his breathing pulse. “working] a carotid him in partner but still with come assist Kent what point patient] up.” He knew at that that his father was When asked [the meant, Oryszczak explained dying. living Rick Kent had executed a this will, proper that he did not want the absence of do-not-resuscitate provided which emergency responders’ proto life-sus- “artificially prolonged paperwork, his life an procedures.” required col them to attach Automated taining accordance wishes, if External Defibrillator1 to “determine his father’s Kent made his father http:// portable 1. An AED is a electronic device used Lung, Health, Heart, Inst., & Nat. Blood pa- www.nhlbi.nih.gov/health/healthtopics/topics/ by emergency responders to restore a 23, 2015). (last July rhythm visited heart a normal after a sud- tient’s aed/howdoes responders Emergency attach electrodes den cardiac How Does an Automated arrest. Work?, sensors”) ("sticky patient’s pads with External Nat. Insts. Defibrillator Kent, According to every- “do late the situation. signs of life” and there were “put gun her hand on her patient. Deputy for the Kent they could Maher thing” He that the EMTs commanded to calm down.” [him] this to mean understood depu- to resuscitate refused and told both take “all measures admits he would down, was no [do- father because there ties that “I did not have to calm [Kent’s] power of they or durable not my not-resuscitate order it was home and that were attorney].” my going my to assault dead father According to against home his wishes.” point. this The situation escalated Maher, to com- Kent also refused yelling at the began Kent hands, his with her command to lower ply EMTs, they them that “were telling me,” you although touch saying, “Don’t father or [he] to assault dead going [his] not recall this in his written Kent does have them going to call the time, Around this another statements. jail.” questioned He whether all thrown back-up called for offi- EMT on the scene knew what a DPOA [du- the EMTs “even cers. attorney] and insisted power rable was” mother, proxy as the medical

that his Deputy Lopez recalls he asked father, his father’s could tell them what talk with Kent to come downstairs and Deputy Maher arrived wishes were. refused, says that him. Kent that Kent was around this time and saw “yelled at that he had to he then “flailing” his gesturing with his hands and Lopez says the room.” Kent told leave Deputy Lopez in the air. and an arms house,” “get him to out of his but Kent Oryszczak an EMT recall that Kent called exchange does not recall this in his written times, though Kent does “asshole” several Lopez pulled statements. then out his not recall this his witness statement. taser and told Kent that if he did not calm down,2 Lopez going was to tase him. Oryszczak point, At some EMT told Kent, says standing who he was with his obligation that he “had an Deputy Lopez hands raised the air and his back to the deceased,” to render aid to the whom he said, point, undisputedly wall at this “Go signs not have obvious recalled “did me, Lopez ahead and Taze then.” de Oryszczak death” at that time. asked for in dart mode. The ployed the taser deputies’ assistance and told he prongs struck Kent in the stomach and perform could not his duties “because he chest, fell to After the intervening.” was in fear of Michael Kent and he the floor. deputies began attempting cycle, Deputy to deesca- five-second taser Maher or- pa- Lopez says chest. Id. These electrodes detect 2. that he told that he would Kent rhythm, computer analyzes tient's heart and a use the taser if did not leave the room. an information to determine whether But no other written statements from those necessary. electric shock is If a shock is on the scene recall that Kent was commanded needed, computer prompt AED's will interlocutory ap- to leave the room. In this emergency responder push a when to button peal qualified immunity, of a denial of shock, to administer which is delivered Court views the evidence and draws all rea- through the Id. A shock can re- electrodes. light sonable inferences in the most favorable rhythm, store the heart’s "if done normal Thai, Quigley Tuong plaintiff. Vinh [sudden within of the onset of cardi- minutes (6th Cir.2013); 707 F.3d 675 Cockrell arrest].”. ac .When Should an Automated Ex- Cincinnati, 496 n. 7 Used?, ternal Be Nat. Insts. Defibrillator (6th Cir.2012). We therefore assume http:// Lung, Health, Heart, Inst., Nat. & Blood down, Kent was to calm and was commanded www.nhlbi.nih.gov/health/health-topics/ not ordered to leave the room. (last 2015). topics/aed/when July visited present they his hands for hand- “whether EMS and defendants felt dered Kent complied. Kent continued were faced an cuffing, emergency,” and he whether asking had, whether he yell deputies, “emergency personnel at the even- had, what laws he had thought they legal obligation under arrest and response resuscitation,” no got attempt He claims he and whether broken. “Kent minutes, was, finally fact, told non-compliant.” several until The court him that he was not under arrest. went on to that Deputy Lopez’s find use of objectively force was unreasonable handcuffed, Kent remained with the ta- that case law established that the attached, during still fifteen to probes ser use of a an taser on individual who was another twenty questioning minutes arrest, posed safety “not under no threat non-party deputy. EMTs then removed others, to officers or made no such verbal wounds, and dressed Kent’s probes threats, resistant, not physically after which Maher removed the handcuffs. may actually physical compli- have shown Meanwhile, a strip” EMTs “ran on Kent’s ance, constituted It excessive force.” AED (presumably conducting father an therefore concluded that the deputies were patient’s initial carotid assessment qualified governmental not entitled to pulse). pronounced He was dead around immunity and denied their motion for sum- p.m. 7:45 The entire incident therefore mary judgment. The deputies appeal that twenty lasted around minutes or less. decision. Kent filed suit the Eastern District of Michigan against County Oakland II Deputies Lopez and Maher on December claimed, 2013. He under 42 U.S.C. jurisdiction This court has to re § the deputies had violated his interlocutory view a district court’s denial rights. Specifically, Fourth Amendment qualified immunity to the extent that alleged Deputy Lopez’s he use of the appeal raises issues of law. Stoude taser amounted to excessive force and that Corr., Michigan Dep’t mire v. of prevent Maher failed to the use of (6th Cir.2013). 560, not, 564 We do howev brought excessive force. He also state law er, a district court’s determination review battery against dep assault and claims the genuine that the record sets forth issues of taken,3 any depositions uties. Before were material fact for trial. Austin v. Redford deputies summary judgment the moved for (6th 490, 690 F.3d 495 Twp. Dep’t, Police governmental im qualified based on Cir.2012) Jones, (citing Johnson v. 515 munity. 319-20, 2151, 304, U.S. 115 S.Ct. 132 (1995)). Rather, L.Ed.2d “a defendant

The district court found there were 238 immunity may appeal ... genuine qualified issues of material fact as to denied added). quired. (emphasis § 3. The district court relied on witness state- 28 U.S.C. 1746 reports resolving ments and incident this document as Because offered judgment summary however, motion. One of motion, those any an exhibit to their own unsworn, unsigned, and un- documents is an waived, may objection they have had was statement, presumably dated narrative au- may defective declaration for we consider the by thored Michael Kent. While the Federal appeal. Wiley v. United purposes of this longer require a Rules no formal affidavit 222, States, (6th Cir.1994); 20 F.3d 226 10B motions, summary judgment some "written Wright, Arthur R. Mary Miller, & Charles Alan declaration, certificate, verification, unsworn Kay Kane, Federal Practice and Procedure by or statement ... subscribed declarant [the ] ed.1998). (3d § 2738 penalty perjury” re- as true under is still 390 an immediate suspect poses the whether appeal is whether if issue on

[only] or oth best, safety of the officers threat facts, at their show taken plaintiffs, ers, actively resisting and whether he is clearly estab- violated that the defendant to evade arrest attempting arrest or F.3d at 680. Quigley, 707 law.” lished (cita 396, at 109 S.Ct. 1865 flight.” Id. of the characterization court’s “The district omitted). question, The ultimate tions dispositive.” ruling is for its basis “ however, totality of the “whether the Stoudemire, at 564. F.3d 705 particular sort of justifies circumstances summary judgment A denial ” Hickey, v. St. John seizure.’ subject immunity is qualified the basis of (6th Cir.2005) (quoting 768 Tennessee City v. Martin to de novo review. Garner, 1, 8-9, 471 U.S. 105 S.Ct. (6th F.3d 957 Heights, Broadview (1985)). in Throughout 85 L.Ed.2d well, Cir.2013). we as posture In this carefully “the na we must balance quiry, evidence, and all rea draw must “view all of the intrusion on the quality ture and inferences, light in the most favor sonable interests Fourth Amendment individual’s nonmoving party, Kent].” to [the able countervailing governmental against Painesville, 781 F.3d Goodwin Graham, 490 interests at stake.” U.S. Cir.2015). (6th 314, 320 396, “ are to consider 109 S.Ct. 1865. We of the ‘reasonableness at the moment’ A force, ‘judged perspec from the use of as determining whether a law en scene, of a reasonable officer on the tive qualified is entitled to forcement officer hind rather than with the vision of 20/20 claim, we an excessive force immunity on ” Goodwin, sight,’ (quoting 781 F.3d at 321 (1) the officer whether questions: ask two Graham, 1865), 109 S.Ct. U.S. rights constitutional plaintiffs violated the take into account the fact and we must (2) Amendment; and under the Fourth forced to officers “are often right was whether constitutional circum split-second judgments make —in of the inci at the time established uncertain, tense, rap that are stances Cnty. Hagans v. Franklin dent. Sheriff’s amount of force idly evolving —about Cir.2012). Office, F.3d situation.” necessary particular that is any may analysis conduct this order. We Graham, 396-97, 109 490 U.S. at S.Ct. Callahan, 223, 236, 555 U.S. Pearson v. 1865. (2009). 808, 172 L.Ed.2d 565 129 S.Ct. deputies argue the first offense, factor, severity Graham charged an use of force is irrelevant since Kent was never Whether officer’s precisely But fact is any the Fourth with crime. effecting in an arrest violates of a Deputy Lopez’s the offi what calls use taser Amendment turns on “whether ‘objectively question into under this factor. Kent was actions are reasonable’ cer[’s] any arrested and was not told at in of the facts and circumstances never light [him], e.g., was under arrest. See regard without to time he confronting [his] (6th Drury, 567 F.3d 302 Cir. Grawey intent or motivation.” Graham v. underlying 2009) Connor, 386, 397, (finding force where officer 109 S.Ct. excessive v. 490 U.S. (1989). told 1865, 104 pepper sprayed In anal man who was never L.Ed.2d 443 this arrest; police man fled attention to the facts he was under also ysis, paywe “careful case, put against his hands a wall of ... in but later [the] and circumstances resistance”). issue, any indication of severity of the crime at “without cluding

391 Indeed, “puffed evidence that Kent was out his chest and stared down [the there is no officer],” be until swung that he would detained then his arms twice to- aware officers). him most, instructed that he ward At the according to comply if he failed to account, would be tased Deputy Maher’s agitat- Kent used Goodwin, 781 F.3d at 326 commands. See gestures. not, ed hand Kent’s actions do (finding noting excessive force and therefore, amount to the same immediate no evidence that the claimant there was safety justify threat found to tasing being had “reason to be aware he was our under case law. detained”). important This is one consid- importantly, More we also assume totality-of-the-cireumstanees in the eration interlocutory appeal this that Kent had analysis, weighs it favor. Kent’s up against his hands and his back posed insist that Kent deputies also bedroom when ‘wall he was tased. We safety an immediate threat to the of those an poses have held that individual little scene, square on the but it is difficult to threat of harm when her hands are in the that claim ease with our law. While indicating Grawey, air submission. 567 may prevented fulfilling have EMTs from (finding F.3d at 311 excessive force where duties, perceived their his conduct does not approached an individual an officer and physical resemble the and immediate safe initially obey commands to refused low ty found in other threat we have cases hands, er his but later had his hands

justify tasing. example, For we have against a wall in when the offi submission tasing permissible found where an individ him); pepper sprayed cer Correa Si ual was armed. See Watson v. (6th Cir.2013) mone, Fed.Appx. 528 531 (6th Marysville, Fed.Appx. 390 Cir. harm, (finding no threat of immediate 2013) (holding tasing did not consti force, ultimately finding excessive where suspect, tute excessive force where the put arrestee —who was armed —had armed, reported who was to be reached air, resisting, hands in the ceased case, it bag). undisputed into this movements); made no evasive Thomas v. that Kent unarmed and made was no eva Plummer, Fed.Appx. suggest weap sive movements to he had a Cir.2012) (finding that who arrestee had Further, tasing on. we have found reason dropped to her knees and raised her particularly able where individuals were posed “absolutely hands over her head no resistant, physically violent or so as to any threat other offi [the officer’s] endanger responders. See Caie W. “ safety”). Sitting ‘peace cer’s of a Twp., Bloomfield ” chambers,’ judge’s seriously we take an (6th Cir.2012) (plaintiff ran from objectively officer’s reasonable belief that “flailing violently”); while his arms Ha posed an arrestee an immediate threat gans, (plaintiff 695 F.3d at 511 “out of safety safety the officer’s or the of others. forcefully resisting] control and ar [] [] Graham, rest”). 490 U.S. 109 S.Ct. 1865 There is no evidence that Kent Glick, (quoting Johnson v. violently thrashing about an effort (2d Cir.1973)). But once Kent handcuffing police, to avoid or to flee such flailing his arms and assumed this ceased that he might have harmed the or, posture, he indicated submission at the and EMTs in the bedroom. Nor is there least, very any minimized immediate safe any attempted indication that he to hit might dep to the ty posed or threat he have display officers make of force. See (6th Cir.2015) emergency responders in the Rudlaff, 791 F.3d 640 uties and (finding tasing reasonable where claimant bedroom.

392 muddy posture ground un face in

That submissive also with his water argument deputies’ ultimately the and a result of dermines died as drown- “actively resisting ing). ‘physical- was arrest.” We includes “Active resistance have often found that the reasonableness with, ly threatening, disobey- or struggling ” of an use of a taser turns on active officer’s ing Rudlaff, 791 F.3d officers.’ at 641 suspect actively resistance: re 495). “When Cockrell, (quoting Fed.Appx. 468 arrest, can police sists the use taser to[ ] It to move “refusing your also includes him; suspect subdue but when a does not you,” hands for handcuff police to id. resist, resisting, stopped they or has can Caie, 94), (citing Fed.Appx. at 485 flee- not.” at 642. Rudlaff, Compare, See, police. e.g., from v. Williams e.g., (holding 695 F.3d at 511 Hagans, (6th Cir.2010) Ingham, Fed.Appx. 542 373 officer did not violate established (holding of taser in drive that use stun law used taser five in drive when he times engaged mode on arrestee who had twice plaintiff, stun mode to subdue who refused high-speed police car chases with was handcuffed, officers, to be fled from and reasonable, where, stopped, once arrestee control,” was breaking “out of windows to handcuffing). refused exit his vehicle for jumping top and on of cars due to what Warren, Citing Eldridge City v. learned was officers later crack cocaine (6th Cir.2013), Fed.Appx. the deputies intoxication); Delaware, City Foos v. actively insist that resisting Kent was ar- (6th Cir.2012) (finding 492 Fed.Appx. 582 comply rest because he refused with that use of taser was reasonable in re their and commands to calm down demon- hostile, sponse belligerent, agitated hostility.” strated “verbal Id. at 535. Af- suspect, revved repeatedly engine who comparing contrasting ter taser cases of his car as officers wrecked arrived circuit, this Eldridge from court noted scene, violently began thrashing then that active resistance could be character- about and reached into back his vehicle “noncompliance” ized as is coupled with, as if weapon), e.g., to retrieve a with “some outward manifestation —either Goodwin, (finding 781 F.3d 314 excessive or physical part verbal of the sus- suspect, convulsing force where still from a —on pect suggests] [that] volitional con- previous application and physically taser scious defiance.” Id. at 534. One case unable comply put with commands to considered, Eldridge Court Caie West his back hands behind and therefore Fed.Appx. Township, 485 arrest, not “actively resisting” tased a Bloomfield (6th Cir.2012), provides compari- a useful Thomas, time); second 489 Fed.Appx. 116 son here. plaintiff The Caie awas (finding excessive force where the suicidal heavily intoxicated man young had ceased her verbal resistance and escaped who had from the care of relatives dropped with to her knees her hands and rowed out to the middle of a lake with tased); above her head at the time she was reported killing Niles, intention of himself. Kijowski 372 Fed.Appx. (6th Cir.2010) young complied man officers’ or- (finding force excessive water, get ders out of the but since once “actively individual could not have onshore, erratically he behaved com- resisted” in between a series rapid Baker, repeatedly mented that he “should applications); fight of taser Landis v. (6th Cir.2008) they officers so that would have a (finding reason to at 94. officers used excessive force on sus kill him.” Id. Concerned but, pect initially plaintiffs fled that the who had at the time resistance could escalate repeated tasing, violence, of the officers’ into pinned the officers decided forci- “crazy” in to young man order and had threatened to kill the bly secure guests police. and the Id. at 319. hospital him to a for mental Intend- transport conduct, disorderly to Nall for arrest They par- were able to health treatment. apartment officers returned to his ground, him the but when he tially hold refused, him step asked to outside. Nall by refusing to move his continued to resist outside, step told them he did not have to handcuffing, applied an officer hands for and closed the door. Id. The officers then Donald, Judge in mode. taser drive stun open kicked the door and tased in Nall writing panel, emphasized for the dart mode for an unusually long period of highly agitated and intoxicated plaintiffs seconds, twenty-one again then in drive state, his demonstrated suicidal tenden- stun mode. The court held that the offi- cies, flee, and, attempts particular, to in cers had in used excessive force the first physical pre- his verbal threats of violence tasing, single since “Mr. Nall’s statement safety strong sented a risk to the that he would not apartment, leave his officers and the himself. Id. at apartment fact that he remained in his facts, this combination of 96-97. Under exiting, rather than does not in itself ren- the court found the officers’ use of the der use of the Taser [the officer’s] reason- to be reasonable. taser “passive able.” at 324. Nall’s Id. refusal” majori- Judge Donald also wrote for the to comply the officers’ commands was Eldridge in found that Caie con- ty suspect’s “more akin to the refusal to exit sharply trasted with that case. In El- Eldridge his car in than to the continued police confronted an dridge, erratic hostility present resistance and in the ac- driver, in they who later discovered was cases, Caie, tive resistance such as hypoglycemic of a epi- the midst diabetic Eldridge distinguishes.” Id. at 325-26. Despite sode. several commands to exit his The combination of facts that made the vehicle, the driver did move and re- use of force reasonable in is not Caie said, fine, you,” “I’m thank peatedly until present here. Kent admits that he did not forcibly officers removed him from the car fully comply deputies’ with the orders to multiple Eldridge, and tased him times. yelled calm down. He also admits that he at 530-31. court con- at officers that he “did not have to calm in response cluded that the use of a taser down,” emergency personnel Eldridge’s passive resistance amounted going “were not to assault dead fa- [his] only force. Not El- excessive were going ther or to call the [he] dridge’s distinguishable verbal statements jail,” all in and that and have them thrown physical from the direct threats violence responded Deputy Lopez’s he final Caie, Eldridge also displayed seen but me, with, warning “Go ahead and Taze physical no deliberate defiance and had language might then.” Kent’s not resem- “played escalating aggres- no role in responses” given ble the “polite El- sion.” Id. at 535. dridge, approach but it does not the direct recently We contrasted these two cases harm physical plain- threat made Painesville, again Caie, Goodwin v. tiff in Caie. And unlike Kent never (6th Cir.2015). Goodwin, officers, 781 F.3d 314 he never attempted to flee initially responded officers a noise com- attempted prevent officers from hand- plaint party Rather, in claimant cuffing from loud David him. much like the claim- Goodwin, who, Kent, apartment Lee Nall’s 2010. Sometime ant in like refused to gave warning, comply after the officers Nall a with an officer’s command and ver- much, bally told them that Nall indicated as Kent’s conduct guest leaving party 394 See, minutes they “continued resis- fifteen before arrived. resemble the

does not Coburn, 650, in our 473 F.3d 658 hostility” present e.g., often tance and Griffith (6th Cir.2007) cases, (taking into account the fact including Caie. active resistance Goodwin, suspect were that the F.3d at that officers aware 781 325-26. “experiencing some sort of mental or that, time of keenly at the are aware We difficulty,” had where mother emotional incident, that deputies the understood the seeking having him called 911 advice about so obligated the scene they were to secure see v. Out hospitalized); Champion also perceived perform EMTs could their that Nashville, Inc., 893, 904 look 380 F.3d duties,4 forced deputies and that the were (citations omitted) (“The Cir.2004) dimin in cir split-second judgments [ ] to “make of an detainee capacity ished unarmed tense, uncertain, that [were] cumstances assessing into taken account when must be Graham, evolving.” 490 U.S. rapidly and exerted.”). amount of force the 396-97, Indeed, distinct 109 S.Ct. 1865. analy They perhaps in this were also well circumstances fact-sensitive aware — incident compel importantly conclusion most the entire might sis different —that home, in Kent’s the most perceived use of force occurred one about of emergency. example, spaces For of under the Fourth Amend- medical sacred Strieker, protections. Kyllo use of v. United upheld we the officers’ ment’s States, 27, 31, 2038, weapons, 121 150 pointing using pressure 533 U.S. S.Ct. force— (2001) holds, handcuffing they (quoting were 94 Silverman v. and L.Ed.2d —where States, possible drug to a overdose of 365 81 S.Ct. responding United U.S. 734) (1961) (“ drug very man known as a L.Ed.2d ‘At the young to officers 5 user, parents repeatedly re of the Fourth ‘stands after had core’ Amendment emergency right to allow the of a man to retreat into his own fused officers to enter their house to treat and there be free from unreasonable responders home ”); E.g., Township governmental him. Stricker v. Cam intrusion.’ see also Good- of (6th Cir.2013). win, But bridge, (turning 710 F.3d 350 327 to the “cen- tasing, Dep purpose did not involve a tral Fourth Amendment” Strieker home, uties and Maher were confronted hold that Nall’s refusal to exit his more, did re- very with a different scenario than without not constitute active sistance). course, Here, responders. deputies pre- Strieker Of officers are not they responding using knew were to a natural from force in that cluded reasonable investigation justified it can setting, death and were aware sometimes be just away father had some face of active an imme- passed Kent’s resistance or "[Wjhat parties' off-point: court briefs 4. The district and the matters is the reasonable- whether, extensively belief[,j focused under sub- they of the officers' as 'did not ness " law, Michigan city ordi- stantive relevant could not whether [know] and have known' nances, proce- policies local EMT actually required AED the use of the dures, emergency there was indeed an or a county protocol. Co- under Pollard deputies, duty administer the AED. lumbus, (6th Cir.2015) F.3d however, regardless wheth- are correct that omitted). (citations Oryszczak Because EMT existed, ongoing emergency er an medical deputies duty render told he had a judge Court must their conduct "from AED, father aid to Kent’s and attach the perspective of a on the reasonable officer wrongly— rightly or understood — scene, rather than with the vision of 20/20 firefight- duty was to that their ensure that the Graham, hindsight.” U.S. at perform ers could task. We therefore S.Ct. 1865. The district court’s substantive vantage point. view the incident from is, ultimately, analysis emergency protocols safety of officers or diate threat established law and loses that im Stricker, (find when, E.g., others. F.3d 350 munity at the time of the challenged “ entry pointing weapons forcible conduct, right ‘[t]he contours of are [a] response per to in home reasonable sufficiently every clear’ that ‘reasonable flight ceived from officers and continued official would have understood that what ” permit officers and EMTs to aid refusal al-Kidd, doing right.’ he is violates that also, overdose); e.g., in drug individual see (alteration 131 at in original) S.Ct. 2083 644, Carpenter Gage, 686 F.3d 647 (quoting Creighton, Anderson v. 483 U.S. Cir.2012) (finding the use of a taser rea 635, 640, 3034, 107 S.Ct. 97 L.Ed.2d 523 “ where, responded sonable when officers (1987)). Supreme The Court not ‘do[es] a 911 call paramedics with for medical a require directly point’ case on before home, plaintiff at plaintiffs aid threatened concluding clearly the law is estab with a baseball bat and officers were them lished, existing precedent ‘but must have plaintiff gun). told the caller that had á placed statutory the ques constitutional ” circumstances, however, large Those were Stanton, beyond tion debate.’ 134 S.Ct. at ly guest absent Kent was tased in his when al-Kidd, (quoting 2083); 5 131 S.Ct. at Carefully balancing unique bedroom. Mullenix, 308; Rudlaff, 136 S.Ct. at 791 presented totality-of-the-cir facts this (“[E]xisting F.3d at 643 case law ... must ” analysis, cumstances we conclude that “the put precise question ‘beyond debate.’ quality nature and of the intrusion on al-Kidd, 2083)). (quoting at 131 S.Ct. The Fourth Amendment [Kent’s] interests]” clearly law is established when the outweighs countervailing governmen “the can point controlling either to “cases of Graham, tal interests at stake.” 490 U.S. jurisdiction authority at the time of 396, Deputy Lopez’s at 109 S.Ct. 1865. incident,” or “a consensus of cases of objectively use of a taser was unreasonable persuasive authority such that a reason here. officer could able not have believed that his actions were lawful.” v. Layne, Wilson 2 603, 617, 526 U.S. 119 S.Ct. 143 question The second in the also, al-Kidd, (1999); e.g., L.Ed.2d 818 see whether, qualified immunity analysis asks (applying 131 S.Ct. at 2083-84 the stan in September at the time of the incident Wilson); Sheehan, dard from 135 S.Ct. at clearly it was that Kent established (same). 1776-78 right had a not to be tased under these deputies argue inqui- The first that this qualified circumstances. The doctrine of ry “community must be limited to the immunity “gives government officials caretaker” context emphasize no breathing room to make reasonable but expressly prohibited case has use of judgments,” mistaken ‘all “protects securing taser when officers are a scene incompetent plainly but the or those who ” emergency personnel. This narrow knowingly violate the law.’ Stanton v. — definition, however, contrary guidance Sims, -, 3, 5, U.S. 134 S.Ct. (2013) Supreme from the Court and this Circuit. (quoting L.Ed.2d 341 v. al- Ashcroft Kidd, 2074, 2085, Supreme “repeatedly” Court'has cau- 563 U.S. 131 S.Ct. (2011); that courts not define the tioned should Malley Briggs, 179 L.Ed.2d 1149 335, 341, right question “high with a level U.S. 106 S.Ct. Luna, (1986)); generality,” but should instead base their L.Ed.2d 271 Mullenix v. -, 305, 308, analysis reasonably particularized 577 U.S. 136 S.Ct. (2015). al-Kidd, An at In- L.Ed.2d 255 officer violates definition. 131 S.Ct. 2084. “actively resists tasing suspect who an overbroad deed, noted that we have handcuffed” does arrest and refuses be unhelpful, but doctri- only definition is not Amendment. Ha- does not violate the Fourth “If a court nally problematic: Relying again on collaps- it risks 695 F.3d at 509. right, gans, carefully define inquiries that active resistance Eldridge’s statement qualified-immunity the two ... one, “noncompliance paired [ ] the constitutional-vio- permitting involves into clearly Eldridge, always hostility,” to answer inquiry signs lation of verbal Hagans, argue it inquiry.” established like definition overly. An restrictive that Kent’s failure 508. established poses also deputies promote the one to. calm down comply with commands qualified-im- the “If it defeats problems: and his “physical amounted to defiance” ,to right too define the munity analysis amount- the and EMTs shouts at (as to be free of exces- broadly right that he belligerence,” ed to such “verbal force), purpose of it defeats the in sive But “actively resisting arrest.” was (as narrowly right too Goodwin, very § to define the recently rejected that we that, free of needless assaults right Instead, to be we held as argument. Tuesday during 2010, officers clearly left-handed it was established June of siestas).” Indeed, Supreme Court very Id. response in that the use of a taser directly on require a case refusing comply “do[es] with similar behavior— 2083; al-Kidd, see also 131 S.Ct. point.” say- and apartment commands to leave an John, (noting that 411 F.3d at 774 officers, St. the claimant ing as much to when not restricted to the reviewing courts are and told he was under arrest was never case”). prior of a “factual context precise safety threat to officers—con- posed little inquiry clearly-established Confining F.3d at 326. stituted excessive force. 781 un- caretaker” cases risks “community clearly a If the claimant in Goodwin had §of 1983 and con- dermining purposes right to be free from the use established from the Su- flicts with clear directives 2010, in then it must be said taser preme Court. clearly the same established Kent had September in 2013. right mind, in turn those directives we

With whether, it was September in mid-2005, that, also held since We have it excessive clearly established was cases general among consensus our “[t]he an individual who refused force to tase ... officers cannot force on a is that use commands to calm comply with officers’ subdued, is not told detainee who has been responders, yelled emergency down arrest, resisting under and is not he is arrest, he was under but was never told (cita Grawey, arrest.” 567 F.3d at 314 violence, physical never demonstrated omitted); also, Thomas, 489 e.g., tions see arms in the air and his back had his clearly it Fed.Appx. (holding was precedent Under recent wall when tased. tasing a once- established that an “officer’s in assessing the state of the law we stopped re suspect disobedient who has affirma- question must answer that force, as of sisting constituted excessive tive. 2009”). noted, August As we have arrest, in this Kent was never told he was under clearly It established a non and—like claimant Goodwin—there that “the use of a Taser on Circuit to be is no evidence that he had reason suspect” constitutes excessive resistant Goodwin, being at 601. lieve he was detained. Kijowski, force. interlocutory In this 781 F.3d at 326. Conversely, it is also established accept Kent’s account that Maher also had appeal, opportunity we also “the and the prevent means to the harm from occur- his arms were raised and his back was ring.” Id. She was the bedroom for just the bedroom wall before he against majority incident, communicated posture indicated Again, was tased. Lopez unfolded, as the events least, or, very at the minimized submission facing Kent when she heard posed threat he to those on the any safety warn that he would use the taser. Accepting scene. Kent’s version of the enough She was close to handcuff Kent us, on the law before facts based we immediately after the taser deployed. must conclude that Kent —a man who Turner, (find- Contra 119 F.3d at 429-30 yelled comply at officers and refused to could not establish an down, calm with commands to but was inaction claim facing where officer was not arrest, never told that he was under never the arrestee when another officer used violence, physical demonstrated and had force, and did not communicate with the his arms in the air and his back to the wall beforehand). other officers Kent has pre- right when tased —had to be free from give sented sufficient evidence to rise to the use of a taser under these circum- jury question as to whether a reasonable stances, September “‘[t]he position officer in Maher’s would have ob- right sufficiently contours of [that] [were] Deputy Lopez’s served use of the taser ” deputies. clear’ to the and would have taken prevent action to dissent, thoughtful Judge Suh- Goodwin, Lopez from it. applying 781 suggests rheinrich that we should look to F.3d at 329. guidance in the Eleventh with re- Circuit The same is true of Kent’s state law spect give to the facts that a rise to consti- battery assault and claims. Since it was tutional But it deprivation. surely de- clearly established the use of a taser mands too much from law enforcement these under circumstances constituted ex personnel “clearly to be aware of the es- force, Deputies cessive Lopez and Maher holdings tablished” of other circuits. cannot show that their “un conduct was clear, it Where Sixth Circuit law is con- good dertaken in faith” and without 868, Higgason Stephens, trols. v. 288 F.3d disregard rights “wanton reckless of the (6th Cir.2002) (“In inquiring 876 whether a Wayne Cnty., of another.” See Odom v. established, right constitutional is (2008) 459, 217, 482 Mich. 760 N.W.2d 228 we must look first to decisions Su- (citations omitted); Scozzari v. Court, preme then to decisions of this Clare, (E.D.Mich. 974, F.Supp.2d 723 978 circuit, court and other courts within our 2010) Odom, 225), (citing 760 at N.W.2d circuits.”). finally and to decisions of other v. sub nom. Scozzari Miedzianow aff'd (6th ski, Cir.2012); 454 455 see B 691.1407(3). § Comp. also Mich. Laws

A few other matters remain. deputies govern are not entitled to Maher, first, Deputy not entitled immunity Michigan Fi mental under law. immunity in qualified Kent’s inaction nally, deputies’ challenges to the dis Deputy Lopez’s claim. use of the Since trict factual determinations have no court’s novo, under facts place interlocutory appeal. taser these constituted exces in this de September sive force in it follows Ill

that Maher “had reason to know that ex being reasons, cessive force would be or was used.” AFFIRM the dis- For these we Goodwin, at (citing denying deputies 781 F.3d 328 Turner v. trict court’s decision Scott, (6th Cir.1997)). qualified governmental immunity. and F.3d Drury, Grawey SUHRHEINRICH, Judge, able. Circuit Cir.2009). Deputy The EMTs and dissenting. response the scene in arrived at Lopez analyzes majority I Because believe father. the death of Kent’s reporting call the lens of through conduct deputies’ bedroom upstairs They proceeded immu denying qualified them hindsight in lying in bed. Kent’s father was where Connor, nity, I dissent. See Graham Oryszczak Kent Firefighter-EMT advised 386, 396-97, 109 S.Ct. 490 U.S. an AED to duty had a to attach that he (1989) (holding that whether L.Ed.2d father, determine apparently to Kent’s “objectively force was use of an officer’s dead, in fact Kent’s father was whether “judged per from the must be reasonable” could for him” if everything to “do he officer on the of a reasonable spective tirade, shout not. Kent flew into scene, vision of he was rather than with the 20/20 Granted, Oryszczak going that “he was not Deputy Lopez’s use hindsight.”). Oryszczak call. But that is told my was a close dead father.” of the Taser assault immunity: give obligation an qualified “he had point Deputy ambiguous judgment to officers’ not credit to the deceased and could render aid id. See 109 S.Ct. 1865 Kent situations. he was fear of Michael because make “allowance (stating arrived, that courts must intervening.” Deputy Maher are often forced to for the fact that officers EMT per his threat to the repeated circum judgments split-second make “they were sonnel and —in tense, uncertain, rap that are stances I my dead father or was going to assault evolving”). idly have them to call the going jail.” Deputy Lopez explained thrown Lopez’s Use of the Taser I. Kent, duty Depu to act to the EMT’s First, Deputy Lopez’s use I believe that commanded Kent to calm down. ty Maher objectively was an reasonable of the Taser “I not have to calm Kent retorted: did and not a constitutional viola- use of force home, down, my they it and that that was tion. my to assault dead father going were not At that my against home his wishes.” the facts “taken

A brief review of Deputy Lopez pulled out his Taser point, plaintiff but light most favorable to if he would use it Kent would and warned perspective of a reason- viewed from Appel not calm down and leave the room. why the explains on the scene” able officer the room. lee Br. 9.1 Kent did not leave objectively actions were reason- deputies’ Cir.2013) ("a qualified denied im Deputy Lopez defendant majority 1. The assumes down, only to calm and not only appeal commanded Kent munity may appeal if the issue on room, neither Kent nor to because facts, leave plaintiff’s at their whether the taken any recalls in their written other witness best, violated show that the defendant Lopez Deputy ordered Kent to statements that law”); Lafayette see also Moore v. established Kent, Maj. Op. at 388 n. 2. leave the room. Co., 416, Cir.2006) (6th 458 F.3d Ins. Life however, "Deputy in his brief that admits (considering party’s brief a fact admitted in pulled out his taser and told Dr. then summary purposes reviewing grant of leave the room or Kent to calm down Farms, Andersons, judgment); Inc. v. Horton (em- Appellee the taser.” Br. 9 he would use 308, (6th Cir.1998) (same). Inc., 166 F.3d added). phasis Kent admits in his Because Furthermore, court, in the Kent nei district command, Deputy Lopez gave this brief Deputy Lopez him to ther denied that ordered part "plaintiff’s facts” and thus this fact is presented the room nor facts' inconsis leave purpose may of review- be considered for command, Lopez giving Deputy this tent immunity. Quigley qualified a denial of Thai, (6th effectively undisputed. making this fact Tuong Vinh 707 F.3d wall, they in front of the Kent instead officers “knew were Standing responding to a taunt- hands above his head and raised his natural investigation.” Maj. death atOp. ed, me then.” Id. “Go ahead and tase 394. But this disregards assessment deployed then his Taser for Deputy Lopez duty signs and, EMTs’ to test for of life if cycle. a five-second Id. at 10. Kent fell to alive, provide Kent’s father was still medi floor, Maher handcuffed cal assistance. It perceive also fails to strip” him. “ran a on Kent’s Id. EMTs officers’ urgency understandable sense of attempt father that indicated not to resus- quickly enable the EMTs to act since an citation. EMTs later removed the Taser AED must be administered within minutes wounds, probes and dressed Kent’s which life, of a arrest to Maj. cardiac restore see further require did not medical attention. Op. at 387-88 n. leaving little time for undisputed Dep The facts establish that persuasion verbal or other more tentative uty minimal Lopez applied force secure measures.2 Oryszczak Kent’s submission so that perform the other EMTs could their duties majority also mischaracterizes emergency without fear in an situation. or, most, Kent’s behavior as submission majority emergency Yet the dismisses this passive opinion resistance. The contrasts insufficiently compared as serious to the Kent’s behavior with the intoxicated and Township situation in Strieker v. Cam threatening plaintiff who fled (6th Cir.2013). bridge, 710 F.3d 364-65 Caie v. West Township, 485 Bloomfield Strieker, Maj. Op. at 394-95. the court (6th Cir.2012), 96-97 where pointing gun, using found that a taser Taser, upheld the court use of a and likens hold, pressure handcuffing did not vio single it to the act of disobedience and late the Fourth Amendment where the verbal defiance Goodwin v. repeatedly repelled had officers’ Painesville, 323-24 Cir. attempts respond reporting to a 911 call 2015), the court where held use of a Taser potential drug her son’s overdose. Id. at Maj. Op. unreasonable. See at 392-96. principal justification 355-56. A for the Goodwin, however, Neither Caie nor es officer’s use of force in Strieker was the aggressive tablishes that argu Kent’s plaintiff’s “earlier attempts prevent ably threatening posed pas behavior mere personnel’s medical access to son who [the Although sive resistance. Kent was not Id. at 365. Like the overdosed].” officers intoxicated, did not threaten the officers Strieker, in Deputies Lopez and Maher harm, physical EMTs with and did not run blocking faced an individual their attempts Caie, police plaintiff from the like the in in person potential to examine and assist a equally his behavior was volatile. He ob majority medical distress. The trivializes treatment, perceived emergency emergency the here because the structed medical majority distinguishes by justifies also Strieker Kent’s more volatile a resistance 2. noting tasing.” Maj. Op. it “did not involve a application more substantial of force. See Deputy Lopez at But the 394. fact that used Hall, Smoak v. 460 F.3d Cir. pressure speaks only a Taser instead of a hold 2006) (noting objective that the reasonable “ to the different kind of resistance each officer ness standard includes ‘a built-in measure moment; plaintiff encountered in the the in on-the-spot judg of deference to the officer’s closet, crouching Strieker was down in a and necessary light ment the about level in of force pressure the officer used a stand, Stricker, to force her to hold ” particular of the circumstances of the case’ at F.3d whereas Kent added) (emphasis (quoting Kiefer, Burchett v. standing, yelling, refusing to leave (6th Cir.2002))). 310 F.3d perform job. the room so EMTs could their reasonably perceived have they Lopez orders could disobeyed when the officers’ perform the EMTs to threat attempted allow this behavior a continued and not as EMTs duties, the in fear of placed their Deputy response, Lopez In submission. police the violence, officers goaded force used the minimum amount of neces- repeated into force. Kent’s using physical sary to stabilize the situation. not “they EMTs] were protest [the akin to the plain- Nor Kent’s behavior (and my implied father” a going to assault in single tiffs act of disobedience Goodwin. certainly could infer officer

reasonable disobeyed at admittedly Kent least two that) stop EMTs physically he would commands, police direct refused to cooper- AJED, as indicated attaching from attempts Lopez’s ate with to ex- Deputy Deputy Oryszczak’s statement act, Michael plain repeatedly that he in fear Kent inter- EMTs’ duties “was perceived Reacting to medi- vening.” at and the personnel police, shouted EMT threat physical cal emergency physical and dared the officers to use personnel, Depu- medical interference with plaintiff disobeyed force. The Goodwin ty Lopez reasonably single used five- only police verbally one com- defied to deescalate Kent’s cycle second Taser apartment. step mand to outside his order, restore similar to aggression and Goodwin, Moreover, 326. “neutralizing what officer Caie Deputy Lopez emergency acted under con- perceive a dan- officer could as reasonable Goodwin, not which in- present ditions Caie, 485 gerous situation.” disorderly an volved arrest conduct. 97. Deputy quickly to act Lopez had to re- Deputy actually supports Lopez’s Caie delaying potentially strain Kent from ur- plain of a in this situation. The use Taser aid; contrast, gent medical Goodwin only after he was tiff was tased Caie officers little reason to tase the plain- had “taken and refused to move ground” tiff before less forceful attempting meas- handcuffing. his Id. at 94. hands for ures to the arrest. carry out plaintiff “argu Even the Caie though presents An case Eleventh Circuit the risk of ably harm or subdued” closer to this factual scenario case than minimized, the flight up court had been either Caie or and confirms that Goodwin “con tasing held because Deputy decision to tase Kent Lopez’s did at 97. uncooperative.”3 tinued to be Id. not violate Draper the Constitution. charged apparently non similarly 1270, 1272-73, Reynolds, F.3d with a defiant dare to threatening posture (11th Cir.2004),4 held the “go me then.” the court use of a ahead and tase plaintiff, similarly circuit because'the who 3. in our have excessive force Lower courts uncooperative” upheld tasing handcuffed had been “hostile and from individuals file (cid:127) encounter, the start exhibit "still was they when continue to verbal defiance resisting police commands to the noncompliance with officers’ enter and orders. See them”). police arguing car with Shelby Twp., and was City 07-cv- Alexander v. No. of (E.D.Mich. *2 2009 WL 8, 2009) tasing analyz- in (finding 4. This out case is relevant Oct. of a hand- of-circuit Lopez’s conduct violated plaintiff cuffed not excessive force where whether multiple plaintiff disobeyed enter the Constitution in the first instance —not in orders to patrol displayed belligerent determining conduct a whether his violated car and had arrest); "clearly right. As threatening and since his De- established” constitutional attitude 05-71863, Rebant, opinion "clearly this reach the estab- vos v. No. 2006 WL does not 13, 2006) (E.D.Mich. prong qualified immunity lished” anal- at *6-7 Feb. Draper tasing ysis, rely it that (finding plaintiff of a does not show handcuffed ture”). stop It gun undisputed Oryszczak Taser at a traffic reasonable loudly insisting he response plaintiff to the told Deputy Lopez he was fearful Kent nothing wrong, accusing the offi- had done him if would assault he tried to administer him, harassing repeatedly refusing cer of Deputy Lopez’s the AED. From perspec- request- documents the officer produce tive, then, a failure to act could have re- ed, stating, going your “I’m not to kiss delayed sulted in a response medical and a you’re police ass because officer.” damn of Attempting loss life to Kent’s father. directly never threatened to plaintiff physical verbal arrest command and re- force, use and the officer never physical moval of physical Kent could have led to a informed the he was under arrest. likely altercation that would have harmed the court found Id. at 1272-73. Yet the Kent, EMTs, or the more gun officer’s use of a Taser reasonable cycle than a five-second Taser and would even without a verbal arrest command have delayed any further resuscitation at- “hostile, belliger- response plaintiffs tempt had Kent’s father been alive. See ent, attitude; uncooperative” noncom- (“a Draper, 369 F.3d at 1278 verbal arrest commands; pliance multiple police accompanied by attempted phys- command harassment; complaints police and re- ical handcuffing, these particular- factual peated yelling at the officer. Id. at 1278. circumstances, may have, well or would too, uncoopera- Here Kent was hostile and have, likely escalated a tense and difficult tive, accused both the EMTs and officers situation into a physical struggle serious father, “assaulting]” ignored his re- Draper Reynolds which either would be peated commands to calm down and exit hurt”); seriously Hagans see also room, yelled everyone around Cnty. Office, Franklin Sheriff’s indicates, Draper just him. As because (6th Cir.2012) (noting that Tasers arrest, Kent was not told he was under present significantly “a injury lower risk of violence, expressly never threatened to use force”). than physical Confronted with physically and never resisted the officers this unpromising options, Deputy set of disobey does not mean he could and ver- Lopez’s hardly decision to tase Kent can bally antagonize impunity. the officers with “objectively be branded unreasonable.” Notably, majority suggest does not truth, only person in the room Deputy Lopez should in what have done day objectively who acted unreason- tasing key judges stead of Kent. A reason Although understandably able was Kent. give judgment should deference to officers’ distraught very over the recent death of in difficult scenarios like this one is the father, disrespect outright Kent’s inability of courts to recommend an alter aggression personnel towards EMT police native course of action officers. Warren, police upheaval created needless over what Eldridge See 533 Fed. Cir.2013), (Norris, J., turned out Appx. to be mere confirmation dissenting) majority’s expect Kent’s father was dead. our (observing “the We opinion police guidance offers little to officers officers exercise restraint and use situation, confronting good judgment, a similar in the fu- but that does divest .not Deputy Lopez reasonably relied on out-of-cir- that reference to this Eleventh Circuit case Rather, tasing opinion cuit law in Kent. this effectively require would law enforcement Draper guidance looks to as for what consti- ‘clearly holdings learn "the established’ objectively tutes an reasonable re- is, therefore, Maj. other circuits” unfounded. sponse closely analogous to behavior to Op. at 397. majority’s expressed Kent’s. The concern 402 Tenn., 222 Cnty., highly edu- Ontha especially

ordinary Rutherford citizens— (6th Cir.2007)). 498, 507 Fed.Appx. respon- their own like Kent —of cated ones comply with sibility to use self-control Maher majority Deputy claims that Kent’s irate police commands. reasonable tasing prevent to opportunity had the stressful, a difficult created overreaction with in the bedroom here because she was Lopez to Deputy Kent, Deputy forced situation she saw Deputy Kent, imperfect, and she perhaps the Taser at split-second, Lopez point make a Kent to judgment enough to to standing reasonable close but nevertheless Maj. Op. him he was tased. not handcuff after tasing. Kent should subdue our law makes clear But case 398-400. because he be- to now allowed recover be force an instance of excessive that where mis- judgment was Lopez’s Deputy lieves seconds, officers only a matter of lasts taken. to intercede opportunity have no use of Deputy Lopez’s Because I find failing cannot be held liable therefore not violate Kent did to subdue the Taser See, e.g., Amer the violation. prevent to of facts under the version the Constitution Twp., Fed.Appx. 562 son v. Waterford Kent, I would reverse to most favorable (6th Cir.2014) had (finding an officer im- qualified court’s denial the district to prevent to two strikes opportunity no Maher. Lopez and munity Deputies to span head plaintiffs because I reverse analysis, would the same Under “could not have time for intervention been governmental court’s denial of the district seconds”); Wells, 538 more than a few on Kent’s state immunity opportunity no Fed.Appx. (finding at 640 battery claims. law assault tasing strike and where prevent to a knee “rapid” and did not consti the acts were abuses”); Failure to Inter- Maher’s Bur string II. tute an “extended (6th Fischer, 462, 476

vene 735 F.3d gess v. Cir.2013) pre to (finding opportunity no of the Taser Deputy Lopez’s if use Even lasted no more vent a “takedown” that free from exces- right Kent’s to be violated Moore, seconds); than Kowolonek v. ten force, did not violate Deputy Maher sive (6th Cir.2012) 531, 539 Fed.Appx. only tasing because the lasted right opportunity had no to (finding that officers seconds, Maher no leaving Deputy five only that “could have lasted stop tasing to intervene. opportunity realistic fraction” of the entire altercation for a only min which itself lasted police, may failing be liable for Police officers Ontha, utes); Fed.Appx. at 506-07 if from excessive force protect person in a passenger who (finding officer known or should have the officer knew fleeing suspect that ran over a patrol car might be force would or that excessive “implement preven opportunity lacked used, opportu- the officer had both span of within a short time tative measures from prevent the harm nity and means to seconds”). six to seven Scott, Turner v. occurring. Cir.1997). (6th duty to intervene No particularly Kowolonek v. Moore is exists, however, one officer’s act of where Kowolonek, alleged plaintiff point. that a rapidly force occurs so attempting excessive that one of the five officers “ ‘a real- on the scene lacks use a Taser and second officer him threatened to detain “a prevent intervene and stated opportunity istic then did so after ” Dearborn, only way get be the [me].” Taser would harm.’ Wells Cir.2013) rejected court Fed.Appx. at 533. The (quoting 463 claim plaintiffs “failure to intervene” Josephine Evillo who witnessed the tas- DOMINGO Domin against the officers individually go, parents if Kowolonek can ing, ruling that and as “[e]ven guardians N.D.; that the officers had reason to know show natural of Rasheedah against used him” due to a taser would be Gray, individually parent and as warning, tasing officer’s officers guardian R.G; natural Elizabeth opportunity stop tasing lacked the Garcia, individually parent and as only the entire altercation lasted because guardian J.J., natural Plaintiffs- minutes, “could and the use the taser Appellants, only have lasted for a fraction of this time.” Id. at 539. This Court reached the case, tasing in

same result another Wells KOWALSKI; Marsha North Point Edu Dearborn, Center; cational Service William B. tasing only because the there occurred Lally; McCarthy; Dan Charlotte “fleeting point[] once and at a time.” Wagner; Streng, Karen Defendants- “in The court reasoned that the absence of Appellees. ongoing, repeated tasing, there was no No. 14-3957.

way for to intervene and [the officers] prevent harm.” Id. As Kowolonek and Appeals, United States Court of Wells, Deputy Lopez discharged his Taser Sixth Circuit. once, only and the Taser lasted application Argued: June 2015. only Appellee five seconds. Br. 10. And tasing in Kowolo- warning like officer’s Decided and Filed: Jan. 2016. nek, Deputy Lopez’s warning that he Rehearing En Banc Denied change did would use the Taser Feb. 2016. and, brief duration of the force itself there- fore, an opportunity did not create

Deputy Maher to intervene. reasons, majority’s

For these reli- There, misplaced.

ance on we Goodwin

found that the stated a constitu-

tional violation where the officers confront- prolonged application

ed “a of force”—a

twenty-one-second initial tasing followed tasing an additional five-second —be- interrupted

cause the officers could have prevented repeti-

the abuse or at least its Goodwin,

tion. 329. As

stated, Deputy Maher could not have acted Thus, five seconds. Maher is qualified immunity any

entitled to event. reasons,

For the I foregoing respectfully

dissent.

Case Details

Case Name: Michael Kent v. County of Oakland

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 6, 2016

Citation: 810 F.3d 384

Docket Number: 14-2519

Court Abbreviation: 6th Cir.