Lead Opinion
When reporting to the scene of suspected drug activity, Deputies Sean Urban and Thomas Mercure approached Stanley Jackson to ask him questions regarding his potential involvement. Upon seeing the officers, Jackson turned and ran into his mother’s house, followed by Deputy Urban. Soon after, other officers entered the house. In the course of his arrest and an attendant struggle, Jackson was tased four times. Once handcuffed, Jackson was taken to a hospital by ambulance, where he died shortly after being administered a sedative. Plaintiff Pearlie Jackson, Jackson’s mother and personal representative of his estate, brought this action against Washte-naw County and Deputies Thomas Mer-cure, Dean Rich, Sean Urban, and Holly Farmer under 42 U.S.C. § 1983 for excessive force in violation of the Fourth and Fourteenth Amendments and under Michigan tort law for gross negligence, willful and wanton misconduct, assault, battery, and intentional infliction of emotional distress. The district court granted Defendants’ motion for summary judgment on the § 1983 claim on the basis of qualified immunity and declined to exercise jurisdiction over the state-law claims.
Plaintiff appeals the grant of summary judgment, contending that there is a genuine issue of material fact as to whether Defendants’ use of force against Jackson was objectively reasonable. Because we find that Plaintiff produced no evidence creating such a dispute, we AFFIRM the district court’s grant of summary judgment.
On August 20, 2010, Detective Michael Marocco was engaged in a drug investigation of Stanley Jackson (“Jackson”) in Superior Township, Michigan. Marocco was parked down the street from where Jackson was standing in his mother’s driveway and the detective observed various persons approach Jackson. On two occasions, Jackson removed an object from his pants and handed it to his visitor. After the second interaction, Marocco contacted Deputy Sean Urban and advised him to make contact with Jackson and the other man. Deputies Urban and Mercure arrived on the scene in uniform and approached the two men. Deputy Urban was wearing a body microphone, the audio of which was transcribed. Urban asked Jackson, “Hey, what’s going on partner? Come here a second.” Jackson clutched his waistband and began backing away toward the garage, saying “I didn’t do it man.” Urban commanded Jackson to stop, but he turned and ran into his mother’s house, repeating “I did not do it, man.” While Jackson fled, Urban observed that he kept his hands near his waistband.
Urban pursued him into the house, un-holstered his Taser, and warned him, “Stop. I’ll tase you.” In the kitchen, Jackson stopped and turned around, and Urban, allegedly fearing Jackson would pull а weapon from his waistband, fired his Taser in probe mode.
Deputy Holly Farmer arrived and assisted Urban and Mercure in trying to bring Jackson’s arms together, but the three officers and Jackson rolled on the floor in the attempt. The deputies ordered Jackson to turn on his stomach, and Mer-cure unholstered his Taser once more.
The deputies pulled Jackson’s right wrist behind him and handcuffed it to the pair of handcuffs on Jackson’s left wrist. Jackson continued to twist about, spitting and yelling, “Get off me.” Jackson was searched and no weapon was found on him, although a plastic bag with cocaine was found in his waistband, money was found in his front pocket, and a Michigan Department of Corrections tether on his ankle.
When paramedics arrived, they put a disconnected oxygen mask on Jackson to prevent him from spitting on them. After the mask was removed to take his picture, Jackson spat at Urban’s face and continued to struggle against his restraints in the ambulance, preventing paramedics from fully checking his condition. Upon arrival at the hospital, he continued to be “extremely agitated,” and spat at doctors in the emergency room. Hospital records state that because Jackson was combative, security personnel were summoned and placed restraints on him. Although doctors reported his breathing as unlabored, Jackson repeatedly stated that he could not breathe. To calm Jackson, a physician prescribed 2 mg of Ativan (lorazepam), which was administered and caused him to relax. But after two minutes, Jackson went limp and doctors could not find a pulse. Jackson was pronounced dead after doctors were unable to resuscitate him. The reported cause of death on the autopsy was listed as cardiac arrest from nonocclusive ischemic heart disease associated with acute adre-nergic stress reaction, with the Taser application recorded as a potential contributor to stress.
II
A. Standard of Review
We review a district court’s grant of summary judgment de novo. Mullins v. Cyranek,
A claim under 42 U.S.C. § 1983 requires that a plaintiff allege that he was deprived of a federal right by someone acting under
B. Analysis
The Fourth Amendment enshrines the people’s right to freedom from unreasonable seizures. The use of forcе by police officers will constitute a seizure, and force that is “ ‘objectively [unreasonable’ in light of the facts and circumstances confronting” officers violates a federal right. Graham v. Connor,
The question in this case is whether Jackson was actively resisting arrest. Plaintiff asserts that Defendants used unreаsonable force when they tased Jackson four times and punched him in the face because he was “neutralized” and had “submitted to [police] authority when he sustained his injuries.” We have long distinguished active resistance by arrestees from passive resistance. See Goodwin v. City of Painesville,
Because each tasing or punch can be a separate constitutional violation, we analyze them in turn. The first Taser application occurred after Jackson had fled into his mother’s home, ignoring Urban’s commands to stop. Suddenly, once in the house, he stopped and turned with his hand by his waistband. Where a suspect has refused to follow police orders and may be in possession of a weapon, we have determined there is no clearly established right to resist that can defeat qualified immunity. See Watson v. City of Marysville,
The second tasing occurred just under four minutes later. After Jackson was struck by the first Taser in probe mode, he crumpled to the ground. Urban and Mer-cure attempted to secure his arms, but his muscles were tense and they were unable to link the handcuffs on each wrist. It became apparent to them that Jackson was in some distress, as he was not moving his eyes and had his arms locked from the Taser’s shock. The officers began asking Jackson if he was all right, telling him to relax, and that help was on the way. About two minutes and forty-five seconds after the tasing, however, Jackson began moving again and wrestling with the officers. After a warning that continued resistancе would result in another tasing, Mercure used his Taser on Jackson. It is clear that if Jackson were flailing or resisting solely as a result of the initial Taser shock and this was apparent to officers, they would then be in violation of Jackson’s constitutional rights. In Goodwin, we found a violation of clearly established rights where a man was tased again for “resisting” where he was “obviously convulsing” from the effects of a Taser deployed seconds earlier.
Here, the initial tasering had a demonstrable effect on Jackson: his muscles contracted to the extent that the deputies could not move his arms, his jaw locked, and his eyes stared unblinking straight ahead. Any alleged resistance during this stage would have been due to the shock and any tasing would be unreasonable. But the police did not tase Jackson during this time; although they initially were prepared to tase Jackson again for failure to present his arms, they stopped once they realized he was unable to move on his own. The deputies attempted to calm Jackson and make sure that he was medically stable. It was when Jackson appeared to recover and began to “come out of his condition,” pulling his arms toward his stomach and waist and away from the deputies, that Mercure tased Jackson again. We have held that a failure to present one’s arms to an officer upon request without more is at most passive resistance, but that a physical struggle to maintain control of one’s limbs while being placed in handcuffs can be active resistance. Compare Griffith v. Coburn,
Based on the evidence before us, a reasonable officer on the scene could have
The third tasing took place fifteen seconds later, after continued struggling on the floor. The record before us shows that the Taser was used contemporaneously with Jackson being rolled onto his stomach. Unfortunately, Jackson is not available to provide his account, which may or may not have differed from that in the police reports and the audio tape. We have found in other cases that the accounts of the plaintiff or a witness can sustain a case beyond summary judgment where a court might have been compelled to grant qualified immunity based solely on the facts given by the reporting officers. See, e.g., Bolick v. City of East Grand Rapids,
Shortly after this Taser use, Jackson moved his head toward Farmer’s trapped arm and attempted to bite her. She punched Jackson in the jaw to prevent the bite. Farmer’s actions were reasonable given there existed probable cause to believe that harm was imminently threatened. See Chappell v. City of Cleveland,
The fourth and final use of a Taser came just over a minute after the third tasing. By this time, the deputies had man
Given Defendants’ entitlement to qualified immunity on the § 1983 claims, the district court did not err in declining to exercise jurisdiction over the supplemental state-law claims. “Generally, once a federal court has dismissed a plaintiffs federal law claim, it should not reach state law claims.” Sussman v. Dalton,
III
Based on the foregoing, we AFFIRM the district court’s grant of summary judgment as to the excessive-force claim against the individual Defendants
Notes
. The Taser at issue here (a TASER X26) has two mоdes of use: probe mode, which fires probes into the target’s skin and thereby shocks him, and drive-stun mode, which involves the application of two electrode contacts onto a target and the running of a current between them. A shock via probes can override the central nervous system, while a shock in drive-stun mode administers localized pain and will not override the nervous system. See Cockrell v. City of Cincinnati,
. Although the police reports indicated that the deputies used drive-stun mode for the ensuing uses of their Tasers, Plaintiff argues through her expert that probe mode (the more painful and incapacitating mode) was used for at least two if not all of the discharges. In reviewing the recоrd on appeal from summary judgment, we adopt the plaintiff's version of facts unless blatantly contradicted by the record. See Scott v. Harris,
. Defendants contend that it is unclear whether this discharge actually contacted Jackson, but for the purposes of this appeal, we assume the third shock did contact Jackson. See Appellant’s Br. 3 ("Stanley Jackson ... was tasered no [fewer] than four (4) times.... ”).
. The pertinent portions of the record before us are an audio transcript of the entire interaction between Jackson and the officеrs, and the officers' testimony, nothing else.
. We note that Plaintiff produced no evidence that multiple tasings create an unreasonable risk of harm.
. Plaintiff failed to brief her municipal-liability claim, so her claim against Washtenaw County has been forfeited. See Wright v. Knox Cty. Bd. of Educ., 23 Fed.Appx, 519 (6th Cir. 2001).
Dissenting Opinion
dissenting.
Accepting as true the facts presented by Plaintiff, as we must when faced with a motion for summary judgment, I believe that there remain material issues of fact as to whether Jackson actively resisted and whether the Defendants’ actions were reasonable. I would reverse the district court’s grant of summary judgment as to the excessive force claim, and remand the case for further proceedings. I respectfully dissent.
I.
Qualified immunity shields officers and officials from civil liability only if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
A. Constitutional Violation
I agree with the majority that the major question presented in this case is whether Jackson actively resisted arrest. Where we part ways is with the finding that the record conclusively shows that Defendants’ continuous tasing of an already-incapacitated and pinned-down suspect wаs a reasonable response to the resistance they perceived.
Plaintiff points to expert testimony and contends that Jackson did not actively resist arrest but only failed to present his hands for handcuffing or follow Defendants’ orders due to taser-induced effects. (,See Appellant’s Br. 9-10.) Alleging differently, Defendants compare Jackson’s actions to the resistance of claimants in cases in which' this Court has found qualified immunity, among them Hagans,
In Hagans, as soon as the officer arrived at the scene, the suspect began running toward the officer.
In Rudlaff, the incident in question began when the officer stopped the suspect during a traffic stop.
What happened in Hagans and in Rud-laff falls short of capturing the kind of resistance that occurred in this ease. Although Hagans and Rudlaff involved resisting arrestees, Jackson’s resistance tells a different tale. Jackson was never told that he was under arrest. (R. 28-3, PageID 392-99.) Jackson stopped running when Officer Urban warned him that he was going to tase him. (Id. at 393,
Defendants describe how Jackson resisted attempts by four different Washtenaw County Sheriffs Deputies to arrest and handcuff him. (Appellee’s Br. 5-9.) What they fail to note, however, is the point at which Jackson began resisting: after he had been tased. After he had become incapacitated. After his limbs had become too stiff and rigid to move. And after he had at least two officers on top of him, jerking his flailing arms back behind his back. (Id.)
Considering the distinction between active and passive resistance, it is obvious that an individual who cannot control his or her body during a tasing episode is not capable of active resistance. See Goodwin v. City of Painesville,
In Goodimn, for instance, we found that although the suspect failed to present his arms for handcuffing as officers instructed him, there was ample evidence in the record to support his claim that he did not have enough control of his body to comply during the tasing episode. Id. In fact, when being tased, the suspect landed on his back and started to bring his arms up under his chin in an apparent involuntary manner, and then he began convulsing uncontrollably while the officers incessantly told him to “quit resisting.” Id. at 319. In his wife’s deposition, she testified that he was not resisting but convulsing. Id. at 324. To further support his account, the suspect submitted the following witness tеstimony describing his convulsions: “Foam was coming out of his mouth.... He couldn’t put his hands behind his back because they shocked him so bad.” Id. Viewing these facts in the light most favorable to the suspect in that case, we concluded in Goodwin that the suspect’s taser-induced convulsions amounted to passive resistance, which by no means warranted the force used against him. Id.
Consider, also, Austin v. Redford Township Police Department, where we found that although the suspect did not immediately comply with the officer’s commands, he was not actively resisting because he was too disoriented from at least two prior taser deployments and one police dog attack to properly obey officers’ orders.
Lastly, I point to this Court’s decision in Shreve v. Jessamine County Fiscal Court, in which the suspect became disoriented and incapacitated as a result of being pepper sprayed by officers.
Turning back to the facts of this case, a jury could conclude that Jackson’s uncontrollable convulsions, as described by Defendants, caused him to only passively resist the officers after he was tased. This case does not appear to be the type of case that lends itself to a summary review of a police incident report to yield a one-sided conclusion as to whether a suspect actively resisted arrest. The fact that Jackson was suffering from taser-induced effects at the moment he started resisting is telling as to his volitional capacity to resist, which, as Plaintiff argues, creates a question of fact for a jury.
Plaintiff submitted a report from law enforcement expert, Ernest Burwell, who ultimately opined the extent to which Jackson may have resisted out of a mere struggle for his life and not one against the officers. (R. 34, PageID 779-80.) In the report, he described how Jackson most likely lacked control of his bоdy movement and suffered from difficulty in breathing after being tased. (Id.) Burwell stated that “depending on its method of use, the taser gun has the capacity to overcome the central nervous system, meaning that it can cause the human body to become rigid and inflexible.” (R. 34, PageID 779.) He described how a person being tased can react in the following various ways: falling immediately to the ground, yelling, screaming, being silent, freezing in place during the discharge of the current, kicking, suffering from eye injury, suffering from any secondary injuries caused by falling, temporary tingling, and lacking memory or sensation of pain. (Id. ) Noting the difference between probe-mode and drive stun-mode, he opined that, contrary tо the police report, Jackson may have been tased at least three times in probe-mode, which is the more painful mode. (Id. at 775.)
Hearing this evidence, a jury could conclude that, at the time of each deployment of the taser gun, Jackson had already become subdued. Also, if we are to accept Plaintiffs version of the facts, including her expert report, as true, we must presume that any resistance was taser-in-duced. To be clear, we may allow for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving as to the amount of fоrce necessary in a particular situation. Graham v. Connor,
As the majority notes, we do not have testimony from decedent Jackson describing, in his own words, which movements he could and could not control as we have had in previous cases. Regardless, considering the facts of the incident in the light most favorable to Plaintiff, both the expert report and the timing of Jackson’s resistance
B. Clearly Established Right
The second question asks whether that right was “clearly established” at the time of the alleged violation. Campbell v. City of Springboro,
Fourth Amendment jurisprudence makes clear that the right to be free from excessive force even if passive resistance occurs is not a newly discovered right. See Phelps v. Coy,
Therefore, a reasonable officer would have known that repeatedly tasing someone who had already exhibited all the signs of being incapacitated and in distress would violate the right to be free from excessive force. Defendants could not have reasonably believed that their repeated tasings of Jackson, after recognizing Jаckson’s dire need for medical assistance and pinning him down, was not wrong. This is not a case where the evidence is so objectively compelling that no reasonable juror could believe Plaintiff. The Plaintiff has presented sufficient evidence for a jury to rationally determine that Defendants used excessive force against Jackson and should be denied qualified immunity.
II.
This case is not as clear-cut as the majority would make it seem. The record viewed in the light most favorable to the non-moving party, Jackson, demonstrates that a genuine issue of material fact exists as to the reasonableness of Defendants’ decision to continuously tase Jackson. For this reason, I respectfully dissent.