Robert Shreve v. Franklin Cnty., Ohio

interpretations the two instead found be we would be bound

equally persuasive, lenity adopt posi- the rule of Lagrone.16 “The rule of leni- favoring tion ty ambiguous criminal laws to be requires in favor the defendants ...

interpreted subjecting] punish- [them] [to avoid] clearly prescribed.”17 ment is not felony for each penalties Because misde- clearly pre- meanor-level theft are not statute, interpret scribed we must Therefore, Lagrone’s § favor. we Lagrone properly subject hold that felony § count under single accordingly.18 she must be resentenced reasons, foregoing For the the sentence imposed by the district court is VACAT-

ED and this case is REMANDED to the resentencing.

district court for al., Plaintiffs, Robert SHREVE et Reed, Individually, Michael Plaintiff-Appellant, COUNTY, FRANKLIN et OHIO al., Defendants-Appellees.

No. 13-3119. Appeals, United States Court of Circuit. Sixth Feb. 2014. Santos, 507, 514, 16. United States v. (2008) (ex- 170 L.Ed.2d 912 plaining interpretations that when two of a Bradsby, 18. See United States v. equally plausible, criminal statute are “the tie 1980). Cir.Unit A go defendant”). must Alo, Alo,

ON BRIEF: Noure Harrison Law, Attorneys Columbus, Ohio, Martin, Appellant. Mary Jane Franklin County, Office, Ohio Prosecutor’s Colum- bus, Ohio, for Appellees. BOGGS, CLAY, GILMAN,

Before: Judges. Circuit GILMAN, J., opinion delivered the court, BOGGS, J., in which joined. CLAY, 139-49), (pp. J. delivered a separate dissenting opinion.

OPINION GILMAN,

RONALD LEE Circuit Judge.

This case arises putative out of a class against action County, Ohio, Franklin its Zachary Scott, sheriff and 14 of the sher- deputies iffs for allegedly using excessive against force county jail detainees violating and for privacy of detainees through strip searches. Settlements were reached with all the plaintiffs other than Reed, leaving Michael Reed as the detainee whose presently claims are before us. Reed alleges that used him, excessive against force in violation of Eighth and Fourteenth Amendments Constitution, the United States when him subdued with a Taser while he custody. was in argues He also that the county failed to train on the proper Tasers, use of thereby creating a policy practice of abuse. - Valley Behav- him committed to the Twin summary moved for

The defendants But be- Healthcare Forensic Unit. ioral defendants the individual judgment, with Valley facility did not have cause the Twin immunity and all defen- claiming qualified Reed, II in he was still at FCCC space for violation. denying constitutional dants January 2009. fact that “no rational determining After the defendant could conclude

finder January Reed suffered On conscience-shocking deputies acted depu- in-his cell. Several sheriffs seizure during Mr. malice or sadism towards attempted to entered the' cell and ties Hospital Incident or the the Cell either transport him to handcuff Reed order Incident,” granted court the district nearby for medical treatment. hospital For the reasons set motion. defendants’ Reed, dep- to handcuff In-their efforts below, judgment we AFFIRM forth him uties used a Taser on twice. court.

the district captured on video. Nei- entire incident is the video’s admissibili- party

ther contests the ty completeness portraying its I. BACKGROUND Instead, parties the dis- relevant events. background A. Factual the pute whether the shows video of two incidents claims arise out Reed’s violated Reed’s constitutional deputies January occurred on that both force. rights by using excessive (the Incident), incident' Cell In the first --sitting on- the The video shows Reed cell at the inside Reed’s place which took disoriented, cell,. apparently floor of his II County Center Franklin Corrections cut his his hands raised and a above with (FCCC un- II), deputies were the sheriffs eye. recording begins, left As due to his resistance able to handcuff Reed your “Put deputies tell Reed four times to him. a Taser to subdue and twice used explain you.” deputies The hands behind (the Hospital Inci- incident The second “going put some to Reed that are dent) day at the Mount occurred later that you your safety and ours.” cuffs on Emergency Room. Hospital Carmel West a slightly, his Reed then hands lowers There, on Reed deputy a used a Taser hand, it left moves deputy takes Reed’s deputy. at the lunged after Reed back,- places one of the behind Reed’s on that hand. handcuffs Incident 1. The Cell to take Reed’s deputy But as the tries leading to of the events' genesis The hand- attach it to the other right hand and early in the 1990s began detention Reed’s cuff, holds it the hand back and pulls motorcycle involved in a when Reed was then coax Reed Deputies across his chest. accident, Reed As a result of the accident. left, to his leans but Reed twists up, to sit August seizures. suffers from back, this is begins groaning. While walking down the had a seizure while tell Reed four taking deputies place,' Columbus, Emergency per- street in Ohio. hands behind his put more times to and tried to take Reed sonnel arrived back, lying on the floor on his back. Now violently resisted. hospital, but Reed cuff hand again grasps the left custody charged taken into Reed was deputies right. Twice more with his peace officer. assaulting back. put his hands behind his tell Reed get “going that he is They tell Reed County Pleas also Franklin Common and, four cooperate if of Tased” he does guilty by reason Court found Reed then times, deputies hurt’. The that it will and ordered insanity in December 2008 tell him three times to “let go cell, more entering the deputies finally were time, deputy cuff.” At the same again able to secure the handcuff. pull apart tries to hands Reed’s and finish about, Reed continued to thrash even handcuffing him. with both hands handcuffed behind his time, During deputies this back. deputies After five held Reed down aware that Reed’s loose posed handcuff and made three “stop further commands to threat to physical safety. their One stated resisting,” finally managed to that he the loose considered handcuff “a subdue thrashing on the cell floor. major danger.” Another said that were then able to leg secure open handcuff presented a “sharp [and] irons on Reed and walk him out of his cell.

jagged edge” and that people had been killed from open handcuffs weap- used as a Hospital 2. The Incident on. This deputy had been never to trained According to the deposition testimony lose control of an inmate with a loose Deputy Dishong, James he and Deputy handcuff. Matthew Carter drove Reed to Mount efforts, Unsuccessful all their dep- Hospital Carmel West after Reed was se- step uties back from Reed and a different Deputy Dishong’s cured. account of what deputy “get volunteers to his cuff.” Two happened at the hospital is uncontested deputies try pry apart, hands record; no depositions other or record but are unable to do so. Reed then crawls speak evidence to the incident. officers, towards point at which dep- a Dishong testified that he and Carter uty uses a Taser on Reed. Reed falls onto took Reed to the hospital eventually and his back and begins groaning shaking and into a small examination space bordered pain. A deputy Reed, then instructs by a wall and curtains where Reed was “Don’t fight anymore.” seen a practitioner. nurse In the ex- Recovering shock, from the Reed reach- space, amination Dishong removed Reed’s es “OK, towards the says OK, handcuffs and used them to attach Reed’s OK.” again Reed raises his hands in the leg rail, to irons the bed giving ap- air. instruct “put your proximately a five-foot radius of move- hands your behind back” eight times. But ment. The place examination itself took Reed mumbles something unintelligible without incident. says and then “please.” Reed continues to Carter, Dishong, and Reed were waiting hold his hands in front of him says for paperwork to be completed when “please, please, please, please.” Three stepped Carter out use to the restroom. deputies again attempt grab Reed’s As soon as Carter gone, Reed turned hands and right secure the handcuff on left began his him, muttering. Dishong but are unsuccessful. asked Reed if everything was all right. A deputy then uses the Taser on Reed a Reed continued muttering squatted on second time. Reed is told need Dishong bed. “lay told Reed to back to handcuff him so that they can take him down,” but Reed did not Dishong’s heed out of the cell for medical treatment. One command. He instead Dishong: asked asks him “Do you get want to shocked “Do you piece want a of me?” again? Say Say no. no.” Even after using twice, a Taser three deputies strug- Dishong again instructed “lay Reed to gled get the handcuff on right back” Reed’s or he would “have to be forced hand. Approximately two minutes after you.” tase point At that Reed lunged filed in clarification. brief Reed’s hands raised. rants Dishong toward him, striking probes extensively to his Second. court cites Dishong Tased this leg. Reed left right shoulder and Reed’s But Third Complaint. Amended fell the floor. the wall and struck superseded his Sec- Complaint Amended magis- Complaint Amended when ond background B. Procedural Reed’s Motion to judge granted trate defendants September 61B Am. Complaint. Amend the See judgment on .Reed’s summary for moved (“An § amended Pleading Jur.2d timely responded, claims. Reed individual and does complete that is itself pleading or additional file affidavits did not but pleading a adopt not refer to or former in Opposition. his Brief support proof supersedes supplants of it part summary judg- granted district court Accordingly, any reli- pleading.”). former Canvassing all the defendants. for ment on his places Second ance record, no evidence the court found unavailing Complaint Amended in- requisite they had acted with Third Amended instead shift should sadistically for the “maliciously and tent — however, little, Complaint. This matters harm” —to violate causing very purpose record, in the not the the evidence because rights. Amendment Fourteenth party whether a has pleadings, governs Park, 255 F.3d City See Darrah Oak fact dispute of material genuine raised (6th Cir.2001) forth the (setting summary for to survive motion sufficient liability the Fourteenth standard Catrett, Corp. v. judgment. See Celotex Amendment). S.Ct. appeal that the district argues (1986). L.Ed.2d the De- it “relied on erred because court and thus narration of facts” [sic] fendant’s in the most Summary judgment the facts to view

“failed B. His non[-]moving party.” favorable district court’s review the “We narration of an alternative brief offers qualified summary judgment grant of facts, and his Second relying on video v. Burgess immunity grounds de novo.” claims that Complaint. Amended He (6th Cir.2013). Fischer, 462, 471 Mr. Reed have could handcuffed “officers y where judgment proper is Summar a Their utiliza- the use of Taser. without any as to genuine dispute no is “there a instance was of the Taser this tion is entitled fact the movant material relat- department policy violation clear . Fed. a of law.” judgment as matter The defen- usage of Tasers.” ing cor-, 56(a). dispute of ma genuine No court respond that the district R.Civ.P. dants no identified “taken the record rectly fact exists where determined terial fact, dispute material genuine a rational trier of a whole could lead Fourteenth arise claims non-moving party.” find for- the fact Amendment, correctly court Indus., Zenith Ra Co. v. Elec. Matsushita no constitutional that Reed suffered found 574, 587, 106 S.Ct. Corp., 475 U.S. dio violation. (1986). Ultimately 1348, 89 L.Ed.2d- 538 the evidence evaluates “whether court

II. LEGAL STANDARD re disagreement a presents sufficient Operative pleading A. it is jury a or whether submission quire prevail as party that one must one-sided so analyze we the substance

Before Liberty v. matter of law.” Anderson procedural point war- appeal, one 132 Inc., 242,

Lobby, 251-52,106 477 U.S. S.Ct. ed that car, when Scott rammed his Harris (1986). 2505, 202 91 L.Ed.2d The court was in full control and that the roads must draw reasonable all inferences in fa clear, ahead were so that jury could vor nonmoving of the party. Burgess, 735 have found Scott’s use of force excessive. F.3d at 471. 375-76, Id. at 127 S.Ct. 1769. The Su preme Court disagreed, observing that party asserting

A genuine- a fact is “[f]ar from being the cautious and con ly disputed may rely on the pleadings trolled driver the lower court depicts, what 56(c)(1) fact. establish that Rule we see on the video closely more resem Federal Rules of Civil Procedure provides bles a Hollywood-style car chase of the sort, most frightening placing police offi party asserting [a] fact ... is cers bystanders and innocent great alike at genuinely disputed must support the as- risk of serious injury.” Id. at by sertion ... citing to particular parts S.Ct. 1769. Accordingly, the Court deter record, in the materials including de- mined that Harris’s “version of events is so positions, documents, electronically utterly discredited record that no information, stored affidavits or declara- reasonable could have believed him.” tions, stipulations (including those made Id. It thus held that the lower courts for purposes of the only), motion admis- “should have viewed the facts in sions, interrogatory answers, or other depicted by videotape.” 381, 127 Id. at materials. S.Ct. 1769. is, party That beyond must “go Celotex,

pleadings.” U.S. holding First, Scott’s is twofold. S.Ct. “A dispute ‘genuine’ 2548. only if Scott stands for the proposition that wit based on upon which evidence a reasonable ness seeking accounts to contradict an un jury could a verdict return in favor of the ambiguous video recording do not create a non-moving party.” Gallagher v. C.H. triable 380-81, issue. Id. at Worldwide, Inc., Robinson Second, Scott reaffirmed the hold (6th Cir.2009) added). (emphasis ings of that, Matsushita and Anderson Harris, In Scott 127 disposing of a motion for summary judg S.Ct. 167 L.Ed.2d (2007), the ment, a court need draw reasonable Supreme Court addressed the role of video inferences in favor of the nonmoving party; evidence summary judgment. it need not construe the record “in such a Court held that opposing parties “[w]hen manner that is wholly unsupportable —in stories, tell two different one of which is view of jury by reasonable the— blatantly by record, contradicted so video recording.” City v. Marvin Tay of that no it, reasonable could believe lor, (6th 234, 509 Cir.2007); F.3d 239 see court should not adopt that version of the also Throckmorton, Green v. 853, facts for of purposes ruling on a motion for (6th Cir.2012) 859 (holding that the court summary judgment.” 380, 127 Id. at S.Ct. should “view[] facts the light depict 1769. ed by the videotape,” and that “[t]he cen case, that the plaintiff Harris claimed tral issue is whether the evidence ... is so that the defendant police officer, Scott, one-sided party that one must prevail aas used force excessive when he bumped law”) (internal Har matter of quotation marks ris’s car with speeding omitted). his police cruiser, This court has also clarified that ultimately rendering Harris quadriplegic. there is “nothing in analysis the Scott that 375, 127 Id. at S.Ct. 1769. Harris contend suggests it should be restricted to

133 the Fourteenth district court held City v. videotapes.” Coble involving cases (6th 865, applied to Reed. House, Amendment F.3d 868-69 634 White .2011). clarified that Cir Lanman plaintiff prisoner was a convicted [i]f incident, CONSTITUTIONAL III. RELEVANT time of the then at the STANDARD Amendment deliberate indiffer- Eighth the standard for ence standard sets Reed’s claims basis for A. Substantive claim. plain- But if the excessive force evidence in this analyzing the Before and the use of person, tiff was a free case, the substantive basis we first address of an arrest force occurred in the course his pleaded claims. Reed for Reed’s seizure, plaintiffs then the or other § Section 42 claims under U.S.C. the Fourth Amend- claim arises under provides that standard. ment and its reasonableness who, any under color of [ejvery person (citations omitted). particu- at 680 Of custom, ordinance, statute, or regulation, case is significance present lar for the Territory or the State or usage, insight that Fourteenth “[t]he Lanman’s Columbia, subjects, or causes District a pretrial is the source of Amendment subjected, any citizen of Unit- to be force claim because detainee’s excessive person within the or other ed States in a situation where plaintiff when a is not deprivation jurisdiction thereof by particular rights governed are or immunities se- any rights, privileges, Eighth Amend- provisions of the Fourth laws, shall by cured the Constitution ments, Due generally applicable the more injured in an ac- party liable to the be of the Fourteenth Amend- Process Clause tion at law.... protec- provides ment the individual deputies violated Reed claims that the physical abuse officials.” against tion Eighth or Four- under either the rights “[njotwithstanding But Id. at 680-81. Amendments to the United States applicabili- teenth broader Due Process Clause’s if a cognizant Constitution. of the fact that ty, we remain by specific claim is covered constitutional Fourteenth Typically, such as provision, constitutional protects Due Process Clause Amendment’s Amendment, the claim Eighth Fourth or force detainees from excessive pretrial ap- under the standard analyzed must be Leary v. Liv punishment, that amounts to specific provision, propriate to Cnty., F.3d Cir. ingston pro- due the rubric of substantive 2008), pro Eighth and the Amendment Fischer, Burgess cess.” from “unneces prisoners tects convicted Cir.2013) (internal quotation infliction pain,” Gra sary and wanton omitted). marks Connor, n. ham v. (1989) An exces is this: The difference 104 L.Ed.2d 443 omitted). Amend (internal Eighth claim under marks sive-force quotation plaintiff show requires ment that Reed’s situ district court determined good-faith in a ef “applied force was awaiting transfer to a mental-health ation— but discipline,” or restore by fort to maintain being guilty found not facility after “maliciously and sadistical squarely applied instead insanity not fit reason of “d[id]— Pelfrey v. Cham cause harm.” See citing ly But any categories.” of these into Cir.1995). bers, Hinson, F.3d 1037 43 decision in Lanman v. this court’s claim under the Cir.2008), the But an excessive-force 529 F.3d 680-81 (alteration (internal operates Fourteenth Amendment on a slid- original) Id. at 306 in Generally, ing quotation omitted); scale. -to constitute a Four- marks see also 'Bur violation, (same). teenth Amendment gess, official’s We will conduct must “shock[] therefore conscience.” evaluate this case according to Burgess, 735 F.3d the Darrah standard. Accord Youngberg Romeo, 307, 314, v. 102 S.Ct. respond officials to “a rap When (1982) 2452, 73 L.Ed.2d 28 (considering fluid, idly evolving, dangerous predic rights “the substantive of involuntarily (internal ament,” quotation id. marks committed mentally persons retarded un omitted), the Fourteenth Amendment’s ex der the Fourteenth Amendment cessive-force standard is the same as the Constitution”); Terrance v. Northville Eighth plaintiff Amendment’s: “[T]he Reg’l Psychiatric Hosp., 286 F.3d must show the defendant acted mali (6th Cir.2002) (holding that “[t]he involun ciously sadistically for very pur tarily committed greater rights have re pose causing harm rather than in a garding confinement under the Fourteenth good faith effort to maintain or restore Amendment than criminals are due under (internal discipline.” quotation, marks Amendment”). Eighth omitted). But defendants af “[w]here are opportunity forded a reasonable to delib Qualified immunity B. [,] erate ... their actions will be deemed Also at play this case is the conscience-shocking they if were taken qualified immunity. doctrine of “The doc with deliberate indifference towards the qualified trine of immunity protects gov plaintiffs federally protected rights.” Id. ernment officials from liability for civil (alteration (internal in original) quotation damages insofar as their conduct does not omitted). marks clearly violate statutory established or con This state of culpability clearly set out rights stitutional of which a reasonable Park, in Darrah City Oak person would have known.” Stanton v. (6th Cir.2001): —Sims, -, 3, 4, U.S. (internal situations implicated (2013) [I]n where the gov- L.Ed.2d 341 quotation omitted). ernment actors are afforded a raised, reason- marks “Once it is the opportunity able to deliberate plaintiffs various burden to show that the defen- prior electing alternatives a course of dants are not qualified entitled to immuni- ..., action their actions will be ty.” deemed Burgess, 735 F.3d at 472. In the conscience-shocking they if were taken Sixth Circuit we generally have “use[d] vdth. (1) deliberate indifference towards the two-step analysis: viewing the facts plaintiffs federally protected rights. most plaintiff, favorable to the we contradistinction, rapidly in a evolving, determine allegations whether give fluid, dangerous predicament violation; (2) which rise to a constitutional precludes luxury of calm and reflec- we assess right whether the clearly pre-response ..., tive deliberation pub- established at the time of the incident.” lic servants’ reflexive actions shock Id. Because we resolve present case conscience if involved affirming force the determination that no consti- employed maliciously sadistically occurred, tutional violation- we need not the very purpose of causing harm rather address alleged whether right was than in good faith (“We effort to maintain or clearly established. See id. can restore discipline. order.”). consider these steps control of an inmate trained never to lose THE AGAINST IV. CLAIMS they a loose handcuff because knew with DEFENDANTS INDIVIDUAL weapon. a it could be used Under that Incident A. The Cell circumstances, if Reed was suf- even these pro- in this case recording The video to and unable com- fering from a seizure jury a to find for sufficient evidence vides statements, deputies’ Reed prehend the afforded the in the cell the situation that claim could not establish an excessive-force to de- opportunity “a reasonable deputies when Amendment under Fourteenth prior to elect- various alternatives liberate him used a Taser to subdue deputies Darrah, 255 F.3d of action.” ing a course the handcuffs. secure omitted). (internal marks quotation at 306 that the Nothing in the record indicates times that he warned multiple was other than acted for reason deputies if he did not get to “going was Tased” Reed follow- treatment for medical getting hurt. The and that it would cooperate seizure, need to a serious medical ing his him to the tried to wrestle deputies also likely have been indifference would which before him several times ground to cuff itself. Reed constitutional violation a each After first use of Taser. challenge the reasonableness fact does not And, one away. they backed attempt, handcuff him— deputies’ decision “get his volunteered to point, deputy prior protection their his— him. deputies assisted and other cuff’ chal- hospital. His transporting him to the that statements are the kinds of These to the use of the lenge is instead limited jury depu- that the permit a to infer would find basis to hold But we no Taser. be- to deliberate opportunity had an ties several of Taser after deputies’ use they did. See taking the actions that fore handcuffs attempts wrestle failed 432, 441 Edgell, 617 F.3d McKenna shocking.” was “conscience onto Cir.2010) (“[W]e to determine ask the point that with the responds The dissent exigent of facts amounted set whether due to him comply failure circumstances.”) original). (emphasis (Dissent 145-46), pp. “reflexively” acting compel also But these same facts might that Reed’s actions implying did not act that the the conclusion Reed’s intent intentional. been have towards “deliberate indifference irrelevant, however, the constitu because Dar rights.” federally protected [Reed’s] in deputies’ on the inquiry centers tional (internal rah, quotation at 306 tent, City Ewolski v. not Reed’s. See omitted). they to hand That tried marks Brunswick, 492, 510 Cir. using before him several times cuff 2002) “must plaintiff (holding sought minimize they shows Taser acted with that the state demonstrate also warned use. The deputies the Taser’s a substan establish culpability to requisite hurt and that the Taser would the Four process violation tive due Tased, which showed not want to be he did Amendment”) (internal quotation teenth unnecessary trying to avoid added): omitted) juryA (emphasis marks harm. to find that entitled therefore be would indif deliberate Tasing was done with is the uneontra- crucial factor Another federally protected toward Reed’s depu- ference testimony indicating that the dicted was thus Summary judgment rights. with Reed ongoing danger faced ties to the Cell related on Reed’s claims with a proper cell floor thrashing about on the had been Incident. handcuff. loose attempts to circumvent time; this con second it they shows that instructed through

clusion bare assertion. In his re him at least a dozen times put his hands sponse the defendants’ motion for sum behind his back they so that put could mary judgment, only him; Reed said that handcuffs “[i]t is it flailing shows handcuff; clear from the videos and around with" the facts and a loose finally, it they of the case that shows depu circumstances warned [the him four times express ties] had an punish intent to Taser would hurt. deputies’ Mr. use of Reed.” This statement appears may Taser this context without have any record, miscalculation, been a citation to the as does but it does “shock Darrah, entire recounting of conscience.” See events Re 56(c) F.3d at 306. sponse. But Rule of the Federal Rules of Civil requires Procedure a party In reaching conclusion, the opposite “go beyond the pleadings” identify dissent relies on an unpublished opinion admissible evidence of the essential ele court, from this Eldridge v. City War- ments of his claim. See Corp. v. Celotex ren, Fed.Appx. Cir.2013), Catrett, 317, 324, 477 Ü.S. to draw illusory an distinction between (1986). 91 L.Ed.2d 265 Reed’s complaint active resistance and mere noncompliance. satisfy does not this standard for the sim The dissent contends that the video re- ple pleadings reason that are not evidence. cording depicts the latter and that only Compare Fed.R.Civ.P. 8 (defining plead active resistance can possibly justify the ings) with Fed.R.Evid. 401 (defining rele use of a Taser. theory This has numerous evidence). vant First, pitfalls. Eldridge is unpublished an opinion “fails provide any prece- responds dissent “[i]n guidance.” dential See United States v. evidence, all of including video, Johnson, Cir.2006). reasonable could undoubtedly find This court has therefore “recognized that the officers’ use of force shocks the important an distinction between noncom- conscience because it was taken with delib- ” pliance and ‘active resistance’ as claimed erate indifference toward Reed’s federally by (Dissent our dissenting colleague. at (Dissent protected 145) rights.” p. But 145-46) pp. Reed did not cite materials supporting Second, if even Eldridge good law, an that' inference acted with' de- it is easily distinguishable from Reed’s indifference, liberate and the district court Eldridge case. concerned a suspected “need consider the cited materials.” drunk driver who had driven his car into a 56(c)(3). Fed.R.Civ.P. The dissent cannot “condominium complex, curb, over a now attempt salvage Reed’s claims by through patches of grass” before “eventu- providing record citations that Reed him- ally [coming] to a halt at a construction self present failed to to the district court. area, with progress further stifled tem- All of this leaves Reed with nothing porary construction barricades.” 533 Fed. more argument than that we should Appx. at 530. Officers approached the infer deliberate indifference from the video driver and repeatedly ordered him out of recording. But we have seen the record- his car. When the driver refused to com- ing. It shows three ply,. They tried removed keys the car three times to Reed before “tuggfed]” handcuff on his arm in attempt Taser, first use of a were again remove his hands from the steering wheel. unsuccessful before deploying the Taser 530-31. The driver continued re- to kneel told Harris one officer the officer’s While “I’m fíne” to simply sponding r s up, down, Harris’ hands held a anothe used of the officers until one commands comply Harris to for making impossible circum- it Under these Id. at 531. Taser. Id. at 361. to kneel. the the command with stances, determined this court Harris forcibly subdued question a officers then force was The of excessive issue Critically, the Taser. deployed a jury. Id. at the not do that “Harris was recognized court contrast, here, used the in deputies deputies Id. The anything to resist.” ing warnings and multiple only after Taser contrast, only af here, the used Taser arms Reed’s attempts -wrestle multiple and, impor more warnings multiple ter Moreover, deputies the his back. behind wrestle attempts tantly, multiple handcuff on loose testified his back. arms behind weap- as a could have been used left hand awith struggling detainee Tasing a on. deputies that the also do not believe We not akin to simply is metal handcuff loose exhaust constitutionally required to was who drunk driver Tasing suspected a a Ta- using before alternatives possible all declining to take than nothing more doing colleague proposes dissenting ser. Our steering off the wheel. his hands hand- could have finished deputies that the body or waited of his cuffing Reed front distinguishes point One further linger- from the had recovered until Reed the sus Eldridge concerned Eldridge: pro- first seizure. The ing effects of the because rights Amendment Fourth pect’s impossible raises an posed alternative arrested. See yet been the driver had support finds no which hypothetical Amendment, the Fourth —one id. at 532. Under record, by Reed not advocated in the is offi whether a court must determine himself, from be determined and cannot reasonable.” “objectively conduct cers’ recording recording. Indeed the video 386, 397, Connor, 490 U.S. v. See Graham thrashing each began shows (1989). L.Ed.2d 443 104 him, attempted to secure time arrested however, already Reed, had been only to placing averse that he was jail. As county custody at the was in back. behind his hands Four such, arises under Reed’s claim Amendment, a standard teenth until deputies to wait requiring And meet. See plaintiff difficult for more the sei from fully recovered had Darrah, (noting that ex at 306 placed would have effects lingering zure’s Fourteenth force cessive impossible Catch-22 in an hur “substantially higher is a Amendment being long and risk too wait situation: meet than the plaintiff for the dle” wanton “unnecessary and of the accused Graham, test “objective reasonableness indif by their deliberate pain” infliction if the can found force be in which excessive needs, serious medical to Reed’s ference totality actions, officer’s 97, 104, Gamble, Estelle see circumstances, objectively were not (internal (1976) 50 L.Ed.2d S.Ct. reasonable”) (internal marks quotation omitted), quick too or act marks quotation omitted). “deliberate with charged being and risk ly federal plaintiffs towards reprise indifference Moreover, is not this case Claybrook v. see rights,” Circleville, ly protected F.3d 356 City Harris v. Cir.2000) Birchwell, Harris, Cir.2009). police officers omitted). We (internal marks quotation in handcuffs placed had Harris deputies to on the onus put at 360. decline his back.. hands behind assess at their risk the seriousness of Dishong acted with malicious sadistic Reed’s seizure in order intent, to determine would not be entitled to so n whether it warranted immediate medical find. treatment. Their decision to use a Taser responds dissent by arguing that taking subdue before him to the Dishong may have violated the county’s hospital might unwise, have been but it policy use-of-force prohibiting the use of was not unconstitutional. Tasers on inmates who are restrained leg irons. But the dissent cites no authori- Hospital B. The Incident ty for proposition that any violation of Likewise, agree we with the dis county’s policy use-of-force equates to a trict court’s determination that Deputy constitutional violation. The relevant Dishong did not violate Reed’s constitu question, words, in other is not whether tional rights during Hospital Incident. Dishong used his Taser on an inmate re- Dishong testified as that- soon as Carter by irons, strained leg but whether he did gone, Reed turned to his left and “maliciously so sadistically and for the began muttering squatted and on the bed. very purpose (inter- of causing harm.” Id. He “lay down,” told Reed to back but quotation omitted). nal marks On this Reed did not heed the Instead, command. question, the evidence is beyond dispute Reed Dishong asked you “Do piece awant he did Summary not. judgment in of me?” lunged and toward Dishong with favor Dishong was therefore appropri- his hands Dishong raised. explained that ate. he way had “no of retreating” because of the cramped quarters and Reed’s position V. CLAIMS AGAINST FRANKLIN over while standing him on the bed. With COUNTY these mind, considerations Dishong We turn now to Reed’s claims Tased him. against County, Franklin rely which This testimony does not support the con- v. Department Monell Services, Social clusion that Dishong was “afforded a rea- 658, U.S. 98 S.Ct. L.Ed.2d 611 2018/56 sonable opportunity deliberate,” 'and (1978). Monell held that govern “[l]oeal Reed offers no evidence his own. See ing bodies ... can be sued directly under Darrah, (internal 255 F.3d at 306 quota- § where, here, 1983 ... the action that omitted). tion marks On the record before o is alleged t be imple unconstitutional us, can dispute there be no Hospi- ments or policy statement, executes a ordi tal Incident rapidly was “a fluid, evolving, nance, regulation, or officially decision and dangerous predicament pre- which adopted and promulgated by that body’s cludes luxury of calm and reflective 690, officers.” Id. at 98 S.Ct. 2018. But pre-response (inter- deliberation.....” “Pliability against [a local government] nal quotation omitted). marks arises if it violated a constitutional or context,

In this Reed must show that statutory'right through a prac custom or Dishong’s actions “involved employed force of doing Vill, tice so.” Hidden LLC v. maliciously and sadistically for very Lakewood, City purpose of causing harm Cir.2013). rather than Because we conclude that Reed good faith effort to maintain or restore suffered no violation of his constitutional (internal discipline.” Id. quotation marks rights, Reed’s claims against Franklin omitted). He us directs to no proof. such County fail. His Monell claims are there Absent evidence the record that fore without merit. motions) jerking rhythmic by followed

VI. CONCLUSION (the person ap- partial seizures complex above, forth set the reasons all of For contact blankly and loses to stare pears of the district judgment AFFIRM we by surroundings, often followed with his court. movements, unor- mumbling, and chewing movements). many who suf- Like ganized dissenting. CLAY, Judge, Circuit seizures, usually does not from fer Mi that Plaintiff suggests majority con- having the seizure becomes recall plead ‘go beyond fails “to chael Reed disoriented, in the aft- fatigued fused, evidence of identify admissible ings’ ermath. claim,” see of his elements the essential Corp. v. (quoting Celotex Majority at 136 seizure August had Catrett, Emergency street. walking on while (1986)); dis strongly I 91 L.Ed.2d (“EMTs”) responded technicians medical supported are allegations agree. scene, became allegedly record video convincing evidence: EMT when and assaultive aggressive in Reed’s transpired events ing of the that him try to take him to approached rapidly offi the in which depositions jail cell and receiving medi- of hospital. Instead the to a nonviolent tasing to thrice admit cers with as- attention, charged was cal Reed of a aftermath in the immediate individual jail to at and officer taken saulting peace argument its To bolster seizure. II County Center Corrections Franklin the pleadings, solely on the claim rests Reed’s (“FCCCII”). Reed suggest that majority seems Judge Michael On December response in “only” one sentence submitted County Common Franklin of the Holbrook judg summary motion for to Defendants’ by rea- not guilty Reed Court found Pleas in cite to evidence failed to and ment (“NGRI”) ordered and insanity son This Majority at 135-36. See the record. Valley Twin committed to the be Reed to Defen response misleading; Reed’s Unit. Forensic Healthcare Behavioral summary judgment motion dants’ be- overcrowding at the However, due to re and referred long, pages eighteen Reed had facility, healthcare havioral rec recording in the to the video peatedly avail- a bed until became at FCCCII stay the dis majority, like Because ord. the court Although Valley. at Twin able holding of below, misapplies the trict court belong at Reed did not recognized that Harris, Scott and health to his mental due FCCCII (2007), by doing and 1769, 167 L.Ed.2d conditions, was nevertheless Reed medical respectful I jury, usurps role so treated FCCCII, he was where sent ly dissent. prisoner. I. a seizure Reed had January On major- begins with the disagreement My Deputy James jail cell in FCCCII. his in 'in this case. the facts ity’s narration medical,” which “code blue Jodrey called a record, including the evidence medical requires inmate that an signals as follows: video, the facts establishes Re- Affairs Internal Att. See attention. Statement, No. ECF 09-048, Jodrey port caused of an accident the result As Deputies Byrd Corporal Sam ago, 163-1. many years injury brain a traumatic Clayton Jodrey, Montrose, James sei- Sam tonic clonic both suffers from (collectively, “offi- Starner and Chris muscles Kern rigidity (stiffening zures cers”) jail entered Reed’s response cell in body to him, handcuff and Reed lightly They the code blue. were all aware moved his arm Id. at forward. 00:00:26- just seizure, that Reed had had a and that 0:34. When the again officer pull tried to were to assist transporting Reed to Reed’s arm back, behind his Reed moved hospital for medical treatment. Id. All his arm and held it across his stomach and of the officers were also aware that Reed started to lie back down on floor. Id. gets disoriented and immediately confused at 00:00:34-00:00:38. The left handcuff seizure, following a and that Reed was not was attached to wrist, Reed’s left and the in a state to obey understand or -their right handcuff open. The officers told was. commands. See Att. Internal Affairs Re- Reed to sit up, and deputy one pushed him port 09-048, ECF No. 163-1. upright so that sitting Reed was on the floor, over, hunched with his hands was on the folded floor of his cell when lap. his Id. at 00:00:40. five officers entered. officers dazed, Reed was did not confused, attempt to attach open clearly hand- disoriented. See cuff to right 00:00:00-00:00:29, at wrist Video when both ECF No. 160. seconds, For Reed’s hands ten were in the five of his body. officers front shouted Instead, rapid two Reed, grabbed commands at officers demanding Reed’s arms put attempted pull his hands behind his back so hands behind Id. officers could back. handcuff him. Id. at 00:00:43-00:00:46. Reed then 00:00:01-00:00:12. It twisted his left, is clear torso to from falling the vid- eo, onto should have stomach. been obvious to the 00:00:46-00:00:49. officers, Much Reed did not scene is not captured understand a on the video, single word that but approximately said. officers three Reed seconds la- ter, sat appears it motionless on the floor with his rolled onto his hands up in back began and position “surrender” and groaning/shouting stared “Ahhh! blankly at Ahh! Ahhh!” Id. at five uniformed men in his 00:00:48-00:00:52. All cell. Id. five Reed, officers stood over shouting var- ious commands.

Although Reed put did not either of his At back, hands behind his 52-second video, mark of the officers at- we tempted clearly see a red handcuff him anyway. Id. laser used at —the aim 00:00:13. Reed the X26 did not taser gun projected resist when one onto — officer Reed’s put tried to chest. As lay handcuff on Reed on Reed’s his back on wrist; left fact, in the floor moved, jail Reed barely his cell with his hands the officer chest, across secured Reed’s his left wrist with- began the officers shout- out incident. ing at at Id. Reed that he was “going 00:00:14-00:00:23. get Reed did not respond to the tased” officers’ and “it gonna [was] com- fucking hurt for mands him to put right his bad.” hand Id. at behind 00:00:52-00:01:07. Reed con- his back. Id. at 00:00:23-00:00:29. tinued to lie on Reed the floor without speaking sat with his him, hands front of appar- making any threatening gestures. Id. ently unaware of was going on in at what The officers shouted 00:00:52-00:01:07.. post-seizure state. Id. asked, One officer at Reed and made one unsuccessful at- “Has he not taking been his meds?” tempt Id. pry Reed’s hands apart. Id. at 00:00:24.1 Another officer tried to grab Again 00:01:12-00:01:17. the officers did right pull wrist and it behind his not attempt open handcuff, secure the Later, another one of the officers asks Reed 00:06:08-00:06:12, meds?" See Video at ECF twice, "Reed,- you have taking your been No. 170. at 00:03:50- leg irons. Id. legs with attaching it done have which could 00:04:08. both of Reed’s when hand right to Reed’s body. Within of his in front

hands completely re- Reed was Even after de- gun, taser seconds, Byrd deployed leg irons and in handcuffs strained through Reed’s shocks livering electric floor, the motionlessly on the cell laying Id. seconds. about ten body for to threaten continued Reed officers convulsing began Reed 00:01:17-00:01:27. (“Are you 00:04:30 gun. Id. at the taser the floor. on have to gonna Am I up now? gonna stand After time, you again?”). tase first for the tased Reed Byrd After him and walked to his feet pulled Reed in “surren- up with his hands sat still for treatment get hall to medical down the groggily, begged he position, der” forehead, Reed bleeding laceration on at 00:01:29- Id. please.” please, “please, voice, I “What did in a dazed began to ask The offi- appeared He startled. 00:01:38. at 00:06:20. I Id. did do?” do? What Reed stared yelling but cers continued in the sitting calmly video, Reed was Even after Id. In blankly at them. cuffed behind his hands holding cell with is visible gun taser of the laser irons, leg his feet secured his back and 00:01:40-00:01:49, cam- From chest. him: threatened one officers stand- by various era was blocked to tase to have I don’t want “Don’t move. lens, see we .cannot so in front of ing at 00:07:08. again.” Id. you appears It from occurred. precisely what inup his hands kept the video Mat- Dishong and Christopher Deputies position. body “surrender” front of his transported Reed thew later Carter Reed, as Reed shouting at Byrd continued Emergency West Hospital Mount Carmel please, please,” “please, beg continued treat- examination and further Room for gun his taser deployed Byrd Dish- his forehead. the lesion on ment of appears It at 00:01:49. second time. Reed received ong testified after lying then Reed was from the video head, cut on his for the stitches loudly. We can groaning on the floor emergency general a section of the sent to the officers were audio that from the infer “leg attached deputies room area. nearly unconscious aware hospi- Reed to the connected irons” which to ‘Wake Reed of them told because one Dishong’s re- to According tal stretcher. 00:02:03, asking “Do before up!” Id. at go to room left the port, Carter Say no! again? get shocked you want to hospi- on the bathroom, squatted and Reed no!” at 00:02:08. Say Id. his mutter under began to tal bed incident, this is no video There be- breath. Reed then handcuffed he ordered Dishong claims that but Id. at 00:02:12-00:02:27. his hind back. warned on the bed down to lie back handcuffs, com- one officer

With did tased. Reed be he would Reed that and Reed “roll over!” manded Reed at allegedly “lunged” comply, and All four at 00:02:32. obliged. Id. (while was still shackled Dishong laid face as he over Reed crouched As a tased him. bed); Dishong then his hands cuffed floor with down on the bed, struck result, off Reed fell Id. at 00:02:43-00:02:49. behind back. floor, and sustained the wall and head on by mostly officers is obscured The scene laceration, required which head camera, another but of his video standing in front stitches. secured the officers it appears that

Use of an X26 gun taser 323, causes “neuro- 106 S.Ct. genuine 2548. A issue of muscular interruption,” which renders the material fact if exists the evidence is such subject may unable to move cause him that a jury reasonable return could a ver to fall. Exhibit See Declaration and Poli- dict for Reed. See Anderson v. Liberty cies, No. 6-1. People ECF tased espe- Inc., are Lobby, 242, 248, 106 S.Ct. cially at injury risk of if they are in (1986). 91 L.Ed.2d 202 We deter position they where could fall and suffer simply mine “whether the pres evidence an impact injury head, are on an ents sufficient disagreement require surface, elevated or unstable or are in submission jury to a or whether it is so incapacitate restraints that or immobilize one-sided that must prevail [Defendants] them. as a matter of law.” Id. at 106 S.Ct. 2505. We weigh must not the evidence or

According to the Franklin County Sher- credibility make determinations. Id. at (“the policy iffs Office Jail Policy”), Taser 2505; Champion v. Outlook guns are to be gain “to deployed control Nashville, Inc., of a violent or dangerous inmate at- when Cir.2004). Thus, “the performed inquiry is tempts to subdue the inmate conven- the threshold inquiry of determining tional tactics have likely been are to be whether there ais need for a trial —wheth ineffective or there is expecta- reasonable er, words, in other there any genuine are tion that it will be unsafe for deputies to factual issues that can properly be re approach within range contact of the in- only by solved finder of fact because mate.” See Exhibit Declaration and Poli- may reasonably be resolved in favor of cies, ECF No. 6-1. The Jail Policy per- party.” Anderson, either 477 U.S. at mits deployment taser in the following 106 S.Ct. 2505. If Reed’s account of the self-defense; circumstances: protection of facts “does not require a suspension such staff; another inmate or an in- disarming of reality that no juror reasonable could mate conditions;- under non-lethal pre- it, accept enough allow a venting inmate; self-harm to an or con- hear claim.” Garcia, Jones v. trolling a combative inmate. Id. The Jail Fed.Appx. 987, Cir.2009). That Policy specifically states that Tasers he “may have a difficult time winning his should deployed not be upon persons who case does not disable him trying, from are by a restrained mechanical device least so far as Rule 56 Id.; is concerned.” such handcuffs, irons, leg or a restraint see also Schuckmann, Kinzer v. chair. Id. (S.D.Ohio F.Supp.2d 785, 2012) (deny ing summary judgment on the issue of II. qualified immunity even where “Plaintiffs We review de novo the district court’s excessive force best”). claim ... is thin at grant of summary judgment. Longaber- ger Kolt, Co. 459, (6th v. 586 F.3d 465 reviewing In the district grant court’s of Cir.2009). Summary judgment is proper summary judgment, we adopt must “if the pleadings, depositions, answers to Scott, version of the facts. 378, U.S. at 550 interrogatories, and file, admissions (for on to S.Ct. 127 1769 summary judgment gether affidavits, with the any, if show that qualified cases, “[i]n immunity [we usually there is genuine no as to any issue materi ... adopt] plaintiffs version of the al fact that and [Defendants facts”); are] entitled see also Matsushita Elec. Indus. to a judgment as a of Co:, matter law.” Fed. Ltd. v. Zenith Radio Corp., 475 U.S. 56(c); R.Civ.P. Celotex, see also 574, 587, 1348, 106 S.Ct. 89 L.Ed.2d 538

143 Prods., Inc., 530 Plumbing Sanderson all and draw (we (1986) the evidence view 2097, 147 150-51, U.S. favorable most in the inferences words, (2000)). “the In other L.Ed.2d 105 Baxter v. White nonmoving party); evidence to the credence give should court (6th 381, 390 Corp., Healthcare that evidence well as favoring [Reed] to this Cir.2008). exception an There is uncontra- is that [Defendants] supporting version plaintiffs rule when to the at least unimpeached, dicted rec- by the “blatantly contradicted facts is from dis- comes that evidence that extent could be- jury reasonable ord, no so that Reeves, U.S. witnesses.” interested exception is this it,” but Id. at lieve court The district S.Ct. 2097. case at hand.2 inapplicable “only if reasonable be affirmed should recording of the so- Although the video other to a conclusion not come minds could captures accurately Incident” called “Cell favoring [Defendants].” one than it “neither transpired, that the events Co, Transp. v. Cassens (quoting Garrison claim” be disproves [Reed’s] nor proves (6th Cir.2003)). 528, 537-38 F.3d suscepti video is activity in the cause January incidents I view Because Dix interpretation. than one to more ble fol- event—a seizure single 2009 as Roscommon, 479 Fed. County v. (two jail cell in the tasings by three lowed Cir.2012). Though the 680, 682 Appx. believe that hospital) one —I otherwise, Reed’s inter suggests majority to a proceed should entire claim is video on the of the events pretation video re- is no there fact. That trier of by the “blatantly contradicted” no means “Hospital Inci- of the so-called cording true be especially This video evidence. the essential where dispositive dent” is activity in the video of the cause much Shortly after Reed undisputed: facts are oth of the frame outside occurred medi- received a seizure had suffered Scott, where Unlike obscured. erwise laceration, Dish- a head cal treatment recording so discredited the video Reed while gun on his taser deployed ong jury that no of events version plaintiffs bed hospital with to a was shackled it, a reasonable believed could have is entitled of the facts The trier leg irons. viewing the video after believe Reed could context, may look at the event City White Coble See in evidence. testi- Dishong’s deposition determine Cir. House, 868-69 F.3d is not .at him “lunged” mony that Dixon, at 682. 2011); Fed.Appx. credible. Reed’s inter Therefore, accept we must purposes video for the of the pretation III.

this appeal. Capacity Claims Individual all disregard evi- addition, “must we Violation Constitutional that the [Defendants] dence favorable the dis majority I agree Champi- to believe.” required jury is to constitu is entitled trict court Reeves v. on, (quoting at 900 unambiguous audio apply would proposi- Scott quotes majority Coble for 2. The blatantly analy- recording contradicted nothing Scott in the “there is tion facts, be restricted and concluded suggests it should plaintiff’s sis version Majority at videotapes.” 132- involving indicated cases never Court has would. This that it House, City 634 (quoting v. White Coble 33 beyond an holding of of Scott extends the Cir.2011) (internal quo- 865, (6th 868-69 F.3d dis- recording events unambiguous Coble, omitted)). we consid- marks tation pute. exception articulated whether the ered 144

tional protection under the Fourteenth him tased maliciously and sadistically for Amendment. The test applied by the Su very the purpose of causing harm rather preme Court to determine gov whether than in a faith good effort to maintain or ernmental conduct violates individual’s restore- a safe environment.” Reed need process substantive due rights is whether not show that the deputies acted for the the alleged conduct “shocks the con very purpose of causing harm; him Claybrook Birchwell, science.” v. F.3d 199 “in a fluid,-and rapidly evolving, dangerous 350, (6th Cir.2000) 359 (citing County predicament” would Reed need to show Lewis, 833, Sacramento v. 848, 523 U.S. that -the officers had such nefarious intent. 1708, (1998)).3 118 S.Ct. 140 L.Ed.2d 1043 The law requires only that Reed cite evi- As majority recognizes, apply we dif dence to support allegation ferent standards “conscience-shocking” deliberately officers were indifferent depending on the circumstances in which right to be free from excessive force. To governmental action occurred. See satisfy burden, this low points City Park, Darrah v. Oak 301, 255 F.3d video recording of five officers brutally (6th Cir.2001) 306 Lewis, (citing 523 U.S. tasing him for failing to comply with their 850-51, 1708). 118 Where, S.Ct. rapid-fire commands a mere moment after here, implicated government áctors “are he had suffered from a massive seizure. a afforded reasonable opportunity to delib Reed has met undoubtedly his burden. erate various alternatives prior to' electing Furthermore, I disagree with major a ..., course action their actions will be ity’s assertion that “there can be no dis deemed conscience-shocking if pute” that the so-called “Hospital Inci taken with ‘deliberate indifference’ to dent” was “rapidly evolving, fluid, and wards plaintiffs federally protected dangerous predicament which precludes rights.” Claybrook, 199 F.3d at (quot 359 luxury of calm and pre-re- reflective , ing Lewis, 523 U.S. at 118 S.Ct. 852-53 sponse deliberation.” Majority 138. 1708).4 I agree with the majority that Supreme The Court applied has height “[t]he video recording in this provides case ened standard in limited circumstances: sufficient evidence for to find that namely a prison riot and a high- sudden the situation in the cell afforded depu speed automobile chase. See Whitley v. ties a reasonable opportunity” for delibera Albers, 312, 475 U.S. 1078, 106 S.Ct. tion. Majority at 135. (1986) L.Ed.2d 251 (prison riot is a rapidly

I therefore note that the district court evolving, fluid; and dangerous predicament); applied an legal incorrect standard. is, 833, 523 U.S. 118 S.Ct. 1708 Lew district court erroneously (1998) stated that “the (high-speed automobile chase is a defendant officers’ conduct rapidly [ violates ] evolving, fluid, dangerous pre Reed’s constitutional rights only dicament). if they Even under the alleged facts Supreme 16, Court has recognized 1861, also 99 S.Ct. (1979)); 60 L.Ed.2d 447 see conduct that Lewis, meets deliberate 850, indifference also 523 U.S. at 118 S.Ct. 1708. Eighth standard of the Amendment would Amendment, violate the Fourteenth since the 4. This Court recognized has also protections afforded under the Fourteenth Amendment, Fourteenth very "[a]t least Amendment great are at least as as those protects ... a[n individual] from the use of Eighth City Amendment. Revere excessive force that punish- amounts ” v. 239, Hosp., Massachusetts Gen. ment,’ 463 U.S. Hinson, Lanman v. (1983) L.Ed.2d 605 Cir.2008) (quoting Phelps Coy, (citing Wolfish, Bell v. n. Cir.2002)). insufficient alone is noncompliance hardly say we can Dishong’s deposition, of force. See use the officers’ evolving, justify to “rapidly awas situation that the Circleville, City v. on-the Harris predicament” fluid, dangerous of (6th Cir.2009) an arrestee (holding that high-speed riot or prison aas same level officer’s command comply with not hospi on the who did squatted When chase. El- resisting); was not- mutter, shack down” was to “kneel he began to tal bed Warren, irons; Fed.Appx. City leg dridge v. with hospital bed the led of Cir.2013) per that a (holding his course to deliberate had time' Dishong despite in his vehicle appear who remained did son if Reed Even of action. him to commands repeated present officers’ the situation Dishong, “lunge” at resisting, actively not other vehicle was anyone exit the any, if danger, ed limited gun to subdue a Taser use of re physically was and officers’ Reed since than unreasonable” “objectively was person irons. the leg the strained Amendment). Fourth the and violated did not that Defendants concluding In important recognized has This Court the rights, Reed’s constitutional violate noncompliance between distinction its own relies on impermissibly majority (“noncom Id. at 535 resistance.” “áctive video as of the interpretation subjective active resis not indicate does alone pliance of account one-sided Defendants’ well more”); something tance; be there must on improper is analysis This the facts. (“Other than not Harris, at 361 583 F.3d of all of In judgment. summary doing not was [plaintiff] ... complying video, a reasonable evidence, including ap does not anything [Plaintiff] to resist. the offi- find that undoubtedly jury could videotape.”).5 on resisting be pear to conscience shocks the use of force cers’ a rea presented, on the evidence Based deliberate indif- it was taken because that Reed was conclude could sonable federally protected toward Reed’s ference actively not and was noncompliant, merely rights. supports both the video resisting. Since Amendment Fourteenth applying of Reed’s interpretations proffered parties’ tasers, “courts have to the standard use fact issue behavior, genuine there is conduct when individual’s] [the on focused Reed was resist or not regarding whether frequency and applied, the taser dispute factual this must resolve ing. We and the applied, it was which force with our purposes favor for in Reed’s institution.” security needs overall appeal. analysis issue l:07-CV-58, 2009 No. Cooper, v. Spears Reed’s alle- 2009) supports also evidence (E.D.Tenn. Mar. WL 838179 a substantial pose Ruth, did gation v. Spears nom. part sub rev’d in . officers, himself, the safety of Cir.2009). regard risk With claims majority parties. or third factor, supports the evidence the first to con- any evidence has not offered not active Reed was allegation that testimony that Defendants’ tradict restrain efforts resisting the officers’ ly a substantial presented handcuff open comply with did not Though Reed him. majority fails risk; disagree. The I safety commanding rapid-fire orders the officers’ casts doubt video itself back, to consider behind put hands him to Circleville," Ma- City of Harris reprise in this Circuit Eldridge case recog- 137,- deny Harris it cannot jority active re- between recognize a distinction resistance between a distinction Though nizes noncompliance. sistance noncompliance. “is not case may that Reed's majority believe testimony, Defendants’ since it is clear mony is not required for Reed to survive a in the that video the officers had ample motion summary judgment where a opportunity secure the open handcuff on interpretation reasonable of the video con- right Reed’s hand in front of Reed’s body, tradicts Defendants’ testimony. There is a and they did not do It so. was foreseeable genuine issue of material fact as to wheth- that an individual in Reed’s disoriented er or not open the presented handcuff might state reflexiyely pull his arms for- substantial risk to the safety, officers’ ward when officer attempts pull we must resolve this factual dispute in back, them behind his yet the officers nev- Reed’s favor for purposes the of our analy- ertheless decided to handcuff Reed’s left sis the issue on appeal. wrist while Reed’s hands rested in front of The majority asserts that body certain “facts” pull tried to Reed’s them compel its conclusion that hands none of behind the dep- his back.6 If a loose hand- uties acted with presented cuff deliberate such a threat to indifference: the officers’ that,the namely, safety, officers then the tried to officers would handcuff first have positioned “several times” before using both of Reed’s hands the ta- behind his body ser and that the before officers warned handcuffing one of Reed that Reed’s the taser wrists. would hurt. Alternatively, the While I agree officers that could have these facts support until could waited jury’s to” “came before decision trying to that the handcuff officers’ Or, him at conduct all. did not rise to the the level of a circumstances (having violation, not done constitutional either I above), the strongly disagree the officers could have sim- these facts compel ply secured the such a by loose handcuff conclusion. On contrary, attach- the the ing open video handcuff to offers right wrist considerable support for the (which front of body conclusion that the would have officers acted with de- neutralized the risk). purported liberate safety I ’indifference to Reed’s federally raise possible these protected rights (or, alternatives not be- alternatively, that the I cause believe officers used excessive force that amount- constitutionally required punishment). ed to exhaust all Specifically, the rec- possible alternatives before using taser, ord shows that the officers were fully but because the fact aware just had suffered from a passed up these opportunities casts seizure, serious doubt were supposed to on the credibility of the professed officers’ help him to get medical assistance; yet, belief that open posed handcuff any fifty-two within seconds entering substantial threat their safety. cell, Byrd While was already preparing to use his Reed could certainly benefit from expert taser gun on Reed. Adthough Reed was testimony purporting to refute the testi- clearly dazed and discombobulated, the of- mony submitted Defendants,- such testi- ficers did not make genuine effort to majority argument mischaracterizes the was reflexive and foreseeable is relevant to of the dissent. See Majority at 135-36. The inquiry our regarding deputies’ intent. I dissent does suggest fact question deputies' integri intent —and the Reed's movement was unintentional ty automat of their belief that the open handcuff was ically renders the officers’ conduct conscious- major "a danger” that have could been used shocking. To the contrary, agree I with the deadly as a weapon clearly video —where majority that the inquiry constitutional cen shows that the passed officers up op several p ters on deputies' intent, and not Reed's prevent, neutralize, or at least ortunities the However, intent. for the I reasons have ex "dangerous presented situation” by an plained above, the fact that Reed's open movement handcuff. forty than gun less a taser wait times to alertness snap back help Reed later. to seconds trying before responsive until more Instead, much him. number emphasizes

handcuff majority a suffered after Reed minute commands one shouted than the officers that times with Reed brutally subdued seizure, Byrd obscures narration warnings, but their and the officers in video shows place took gun. scene a taser this entire fact that the a dog than like a For Reed more seconds. treating eighty less than span of a and up” “sit commanding seconds, him to blank- stared thirty Reed first the human — first at the over,” him shouted. punishing the officers “roll into while space ly in Reed been did Had all. Reed no movement sign of non-obedience. made Reed notice) cell, there jail a even he did not (arguably instead hospital the resist not behavior officers’ a placed the handcuff that officers question the no when- conscious-shocking. of his hands considered while both be wrist would left to only began Reed body, and of his front sug- majority’s the disagree with I also pull tried officers to when the forward pull fully until Reed had “wait[ing] that gestion arm back. right behind the effects lingering from the recovered light most in the record viewed hospital the him to taking before seizure that each of establishes to Reed favorable placed have would treatment” for medical just suf- had Reed knew that officers the Catch-22 impossible “in an the officers not seizure, Reed was that a from fered being risk long and wait too situation: a pose did not resisting, actively ‘unnecessary and wanton the accused was officers, Reed and that the to threat indif- by their deliberate pain’ infliction of (twice cell, and the times three tased needs, or medical to serious ference also The record hospital). in the once being charged risk quickly too act not Reed was the inference supports plain- toward indifference ‘deliberate ” the offi- dangerous,” “violent Majority rights.’ federally protected tiffs the Jail taser violated use cers’ false is a alleged Catch-22 This at 187. not offered Reed has Although Policy. of con- range is a wide dichotomy. There tes- Defendants’ testimony refute to expert nei- behavior stitutionally acceptable presented handcuff open timony that unneces- nor force excessive involves ther safety, the officers’ to threat substantial treatment. access medical sary delay of to refute this the video rely on can have waited certainly could The officers clearly shows video notion, since ap- before seconds than fourteen more se- ample opportunity had officers him try to handcuff Reed to proaching cuffing Reed’s open handcuff cure clearly discombobulated. was while Reed body, and of his in front right wrist handcuffed Reed they could have Or so. not do did is foreseeable it body, since of his front Dishong’s use regard With disoriented in Reed’s individual that an Dishong’s true accept taser, if we even for- his arms reflexively pull might state Dishong, “lunged” testimony that Reed pull attempts an officer when ward fa- most in the viewed Instead, the evidence offi- his back. them behind was shows at a vir- vorable commands rapid-fire cers shouted aftermath bed in hospital ato shackled non-threatening individual catatonic, tually did operation, and medical a seizure they approached before twelve seconds Dishong. risk a substantial pose hand- him into to “wrestle” and tried him inference supports also The evidence multiple him to shock cuffs, prepared that Dishong’s use of the taser Cir.2008) violated the (citing Hickey Reeder, Jail Policy, which specifically states that Cir.1993) (“a stun gun inflicts tasers should be deployed upon per- a painful and blow, frightening which tem sons who are restrained by leg irons. porarily paralyzes large muscles of the Moreover, Dishong was aware that Reed body, rendering the victim helpless” and was especially at risk of injury, since Reed its use without legitimate might reason elevated, on an (the unstable surface violate Eighth Amendment)). ap hospital bed), in position where he could plying the Fourteenth Amendment stan fall and suffer an impact injury to the head dard specifically to the tasers, use of (crouching), and was in restraints that im- “courts have focused on detainees’ conduct irons). mobilized (leg him when the taser was applied, the frequency

A jury and force with could reasonably which it was applied, conclude that the the officers’ overall security use of gun a taser on a needs the non- institu threatening, tion.” Spears, mentally ill 2009 WL in individual the 838179. immediate aftermath of a seizure shocks In hand, the case at the evidence viewed the conscience because it was taken with in light the most favorable Reed estab- deliberate indifference toward right lishes that Reed was not actively resisting, to be free from excessive force. At the that Reed pose did not a threat very least, the evidence presented raises officers, and that was tased two an issue material fact as to whether the Each, jail in his times cell. of the officers officers’ behavior shocks conscience, the present in the cell was aware that Reed and summary judgment on the issue of had a serious medical condition, and that qualified immunity was therefore improp- just he had suffered from a seizure. Nev- er. ertheless, within eighty seconds of enter- Clearly Right Established ing Reed’s cell in order to transport him to the hospital,

Each of Byrd the officers should decided to deploy have known that his taser gun, behavior causing violated X26 Reed’s constitu in- “neuromuscular tional rights. terruption” It is and a great well established shock for the dis- the Due oriented Process victim. Byrd Clause the did so spite Fourteenth Amendment the protects fact individuals Jail Policy from-abu .the instructed government sive to deploy conduct that officers “shocks taser guns only the for self- conscience,” Lewis, defense, protection 834, 523 U.S. of another 118 inmate or S.Ct. staff, and from disarming excessive force inmate under non-le- amounts to punishment, thal conditions, see Leary v. Liv preventing self-harm to an ingston County, inmate, controlling a inmate. combative Cir.2008) (citing Connor, Graham v. The evidence, including video, the viewed U.S. 395 n. light S.Ct. the most Reed, favorable to estab- L.Ed.2d (1989)), or “unnecessary lishes that Reed was not threatening, com- wanton infliction of pain,” bative, Whitley, 475 or armed. Under these circum- U.S. at 320-21, 106 S.Ct. stances, a reasonable officer should have known that use of the

In taser would violate context of the Fourth Amend Reed’s due process rights. ment, we previously have recognized that “[officers should [know] that gratu Similarly, even if we accept as true itous or excessive use of a taser violate[s] a Dishong’s testimony that Reed “lunged” at clearly established constitutional right.” him, the evidence viewed in most Baker, Landis v. 297 Fed.Appx. 453 favorable to Reed supports the conclusion did its conclusion taser based to use decision Dishong’s sFourteenth of hi a violation with suffer was made circumstances reasons, dis rights. For Amendment constitu- to Reed’s indifference deliberate stat Reed has I supra, believe-that cussed rights. tionally protected violation, so dis ed constitutional case, clearly estab- instant In the claims, ground this of these missal pn right to be is the right lished constitutional erroneous. that “shocks force excessive from free ' it was right, light of this conscience.” IV. the officers objectively unreasonable needed when he repeatedly tase reasons, disagree I foregoing For actively re- and was attention medical reverse the -majority, and would submitted evidence sisting. Reed has court remand of the district order testimony and deposition form of consistent proceedings for further case incident. recording part video opinion. with this evidence, I believe reviewing this After claim support Reed’s it is sufficient objectively actions Defendants’ clearly established of unreasonable

law. [Byrd fact that

Additionally, “the trigger on Dishong] pulled officers] other [the does absolve taser Mik, Jr., MIK, Lee Ann F. Paul at 464 Landis, Fed.Appx. liability.” of LLC, Enterprises, and PALS Dunaway, 684 v. (citing Bruner Plaintiffs-Appellants,' Cir.1982) (“it necessary, v. officer liable police to hold order MORTGAGE LOAN FEDERAL HOME officer that the demonstrate [§ ] CORPORATION, Defendant- force [using actively participated Appellee. evidence There is plaintiff’)). against] use encouraged the officers the other 12-6051. No. attempt made no taser and Appeals, Court States United A Reed. the taser on the use thwart Circuit. Sixth conclude jury could reasonable opportu the means “had officers other 19, 2013. June Argued: Reed, and harm” to prevent nity 7, 2014. Filed: Feb. Decided so was conscience- failure to do their shocking. Remaining Claims Reed’s re dismissed district court against claims claims—Reed’s

maining as well capacities in their official officers County, Franklin against his claims Soc. Dep’t rely on Monell which York, U.S. City New Servs. (1978)— L.Ed.2d

Case Details

Case Name: Robert Shreve v. Franklin Cnty., Ohio

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 6, 2014

Citation: 743 F.3d 126

Docket Number: 13-3119

Court Abbreviation: 6th Cir.