*1 above, DENY stated we For the reasons motion to vacate the certifi-
the Warden’s IN PART AFFIRM appealability,
cate of of a writ on three court’s denial
the district to the presented previously claims
IATC courts, IN PART
Kentucky REVERSE four denial of a writ on court’s district presented that were never claims
IATC courts, REMAND for Kentucky with this proceedings consistent
further
opinion. RUDLAFF, Represen Personal
Scott
tative for the Estate of Lawrence Plaintiff-Appellee,
Carpenter, GILLISPIE; Bielski,
Brandon Jacob
Defendants-Appellants. 14-1712.
No. Appeals, Court of
United States
Sixth Circuit.
Argued: June July
Decided and Filed:
subdue Lawrence Carpenter during his ar- show, rest. Their dash-cam videos admits, that he resisted arrest and refused to be handcuffed before the officers used force. anWhen arrestee ac- tively did, resists arrest like Carpenter the police can constitutionally use a taser or a knee strike to subdue him. Because the here, officers did no more than that acted within the bounds of the Fourth Amendment. We accordingly reverse the district court’s denial summary judg- ment to the officers. facts, Before in filling the let us be Marcelyn Stepanski, ARGUED: A. clear on how we view them. in Ordinarily Johnson, Rosati, P.C., Joppich, Schultz & summary-judgment appeals involving qual Hills, Farmington Michigan, Appel- for (like one), ified immunity we view the Blake, Law, lants. David G. Romano facts in light the most favorable to the P.L.L.C., Ridge, Michigan, Pleasant for plaintiff. Harris, Scott v.
Appellee. ON BRIEF: Marcelyn Step- A. anski, Johnson, Rosati, Joppich, Schultz & (2007). But there is “an added wrinkle P.C., Hills, Farmington Michigan, Ap- this case: existence in the record of [two] Davis, pellants. D. Christina Romano videotape[s] capturing ques the events in Law, P.L.L.C., Ridge, Pleasant Michigan, tion.” In Id. such a case—“where the for Appellee. police dash-cam ... depict[ all of video[s] ] genuinely facts,” disputed DONALD, Before: McKEAGUE and Standifer Lacon, Cir. MATTICE, Judges; Circuit District 2014) light “view[] the facts Judge.* —we Scott, depicted by videotape[s].” McKEAGUE, J., opinion delivered the 381, 127 U.S. S.Ct. 1769. MATTICE, D.J., of the court in which facts, then, Here are the according to DONALD, joined, J., joined in the the two dash-cam videos by and filled in DONALD, 644-48), (pp. result. J. the record taken in the plaintiffs favor. a separate opinion concurring delivered Deputy Gillispie As Brandon along drove judgment. Wellston, Route Michigan on routine patrol, afternoon he observed Lawrence OPINION going way. truck the other McKEAGUE, Judge. Circuit Gillispie knew prior from three county police encounters, Two officers used force all involving Carpenter driving taser) (one, strike; other, a knee a suspended license. In the last * Mattice, Jr., Tennessee, Harry The Honorable sitting by designation. S. United Judge States District for the Eastern District “prevent [Gillispie] handcuffing” him. run- encounters, took off
these at 15. by Gillispie. over being pulled ning after history of also knew succeeded swing, Gillispie After getting physical with driving and drunk hands on put both getting Thus, being stopped. after police,officers grab Carpen- attempted the truck and *3 on driving Gillispie Carpenter saw when At it in handcuffs. place ter’s left arm to occasion, was vio- Carpenter he knew this this, swung Gillispie’s arm Carpenter his least) (at because he was lating the law time, trying again for the direction second license, and he suspended a driving with R. 28-1 at being handcuffed. See to resist Carpenter’s high alert because was on in one of the dash-cam 15. The audio police. history with the up Gillispie at least twice picked videos hands.” Carpenter “give to me the telling U-turn, a accordingly made Gillispie Video) (Bielski R. 30 Dash-Cam Carpenter lights, pulled and turned on his Carpenter But still would 13:18:46-50. undisputed him—in an law- arrest over to just that he instead comply. He testified officer, Gillispie called another stop. ful up” Gillispie “kept had because “ball[ed] Bielski, backup and in- Deputy Jacob me,” and that he would have tugging on history of Bielski of formed go. if have let him complied Gillispie would Bielski, who police. toward the aggression R. at 19. 28-1 away, pulled over behind only seconds three cars Carpenter. and The Gillispie Gillispie go, Carpen- Yet did not let two- on the narrow shoulder of the parked performed a comply. Gillispie ter did not (cid:127) lane, Both of- 55-mile-per-hour highway. attempting to Carpenter, knee strike on recorded the ficers’ dash-cam videos But the knee strike compliance. force his events that followed. subduing Carpenter, did not succeed R. appeared struggling. still to be who Carpenter’s truck Gillispie approached Video) at (Gillispie Dash-Cam 13:17:43-51. through open him his win- and informed Bielski, had observed all of Deputy who driving that he was under arrest for dow chest, puffed-up to the two this—from (Car- R. 28-1 suspended with a license. balling up, to swings, arm to opened penter Dep.) Gillispie at 14. then yelled at Car- the ineffective knee .strike— side door and told driver’s “relax, you’re gonna get penter to or else According Gillispie, Carpen- to get out. (Bielski Video) R. 30 Dash-Cam tasered.” “highly and was appeared agitated” (Bielski does not remem- at 13:13:50-51. request, to this but “swearing” response giving warning, ber voluntarily exited the truck. R. 28-2 he video.) Carpenter clear from the but depo- (Gillispie Dep.) at 7. The videos “pay that he didn’t attention” [] testified Carpenter appeared sitions confirm warning. R. 28-1 at 16. Moments to this his chest and agitated, puffed as he out later, Carpenter, who almost Bielski tased the vehicle. stared down as he left The offi- immediately ground. fell to the put Gillispie instructed him, him assisted to his cers handcuffed hands- on the truck. But did feet, police cruis- and escorted him to the Gillispie’s instructions. Gillis- not listen to they any force after They er. did not use arm pie grabbed Carpenter’s right then pled guilty who later Carpenter, subdued to move it onto the truck. Car- and tried suspended license. driving (or prefer, penter swung “jerked,” you’d if 646-47) officers, claiming sued the Concurring Op. at his arm back force violation admittedly trying used excessive Gillispie’s direction— Fourteenth) (and Connor, Amendment. Amendment. the Fourth Graham v. 490 U.S. 386, 394-95, Gillispie’s contends that both knee He S.Ct. L.Ed.2d (1989). Bielski’s taser shot exces- 443 But a police strike and were officer who uses sive, briefing types treats the two can personally but his excessive force be held lia- (Carpen- do the same. if clearly of force alike. We ble the use of force was away from passed ter has since causes established as excessive at the time of the Callahan, per- unrelated to this case. His estate’s arrest. Pearson v. Rudlaff, representative,
sonal Scott has S.Ct. L.Ed.2d 565 case, taken but we still refer to That existing over means caselaw must officers, plaintiff Carpenter.) as specifically hold that what the officer insulates immunity believing qualified did—under the circumstances the officer suit, summary sought judg- them from this did it—violated the Constitution. We (A) But citing ment before the district court. therefore must determine whether the *4 fact,” “disputed Constitution; issues of material the dis- officers’ conduct violated the (B) motion, though so, trict court even denied if whether it violated law that it that the “case not fall clearly do[es] noted neat- has been established.
ly clearly into” categories established 1, 7,
law.
32 at
A
appealed.
juris
The officers
have
We
Prong
firmly
One. Our cases
es
appeal
diction to hear the
under the collat
tablish that it is not excessive force for the
eral-order doctrine.
Forsyth,
Mitchell v.
(even
police to tase someone
multiple
511, 530,
2806,
472 U.S.
86 times)
person
actively
when the
resist
411
Contrary
Carpen
L.Ed.2d
ing
Hagans
arrest.
v.
Cnty.
Franklin
contention,
Jones,
ter’s
Johnson v.
515
(6th
505,
Office, 695 F.3d
509
Sheriffs
304, 319-20,
2151,
U.S.
132 Cir.2012);
Sandel,
e.g., Williams v.
433
(1995),
L.Ed.2d 238
does not stand in the
(6th Cir.2011) (not
353,
Fed.Appx.
363
ex
way
“solely
because the officers do not
suspect thirty-
cessive force to tase the
contest
plaintiffs
account of the facts.”
(and
pepper
seven times
use batons and
Family Serv. Ass’n ex rel. Coil v. Wells
arrest).
spray)
actively
because he
resisted
(6th
Cir.2015).
Twp., 783 F.3d
607
“physically
Active resistance
includes
They accept the record taken in the videos’
with,
struggling
threatening, or disobeying
plaintiffs
light
pure ques
and raise a
City
officers.” Cockrell v.
Cincinnati
tion of law: whether their conduct violated
(6th
(col
Cir.2012)
Fed.Appx.
468
495
and,
so,
Fourth
if
Amendment
whether
cases).
lecting
refusing
And
includes
it violated
established law. Plum
your
police
move
hands for the
to handcuff
—
Rickard,
-,
U.S.
hoff
you,
coupled
at least if that inaction is
with
2012, 2019,
(2014);
see other acts of defiance. Caie v.
Bloom
W.
Scott,
378-81,
ful arrest and refuses to move his hands so
Hagans,
can handcuff him.
B
cases).
(collecting
F.3d at 509
all
That’s
Prong Two. Now assume
got
we
it com-
the officers did here.
pletely wrong. On the
point
constitutional
Nor, finally, will we read a de minimis
one),
(prong
assume Carpenter gets exception
resistance
into the Fourth
right: The officers violated the Fourth
Amendment,
as
and the concur-
Amendment because Carpenter did not re-
exception
rence would have us do. This
enough
justify
sist
the knee strike or
presumably prohibit
would
the police from
the one-time use of a taser. We would still
using
jury
if a
force
decided that the sus-
have to reverse. Accord Concurring Op.
pect
kind
resisted arrest. See
at 647-48.
No,
Concurring Op.
plain
at 646-47.
simple:
person
(as
aWhen
resists arrest-
that qualified immunity
Remember
say, by
swinging his arms
the officer’s we’ve
again
been reminded
again)
direction, balling up,
refusing
to com- an “exacting
gives
standard” that
officers
ply with verbal commands—the officers
leeway, requiring
lots of
their conduct to
necessary
can use the amount of force
violate
established
law defeat the
ensure submission. A de minimus rule— defense. City Cnty.
&
San Francisco v.
—
say, that the arrestee’s arm swing needs to Sheehan,
-,
U.S.
officer,
make direct contact with the
see 1774,
(2015);
resists — immunity. re- by qualified We clearly protected established categories within fall at 20:58-21:33. And verse. Argument Oral law. excep- the de minimus created if we even DONALD, Circuit BERNICE BOUIE wants, holding would our
tion judgment. concurring only in the Judge, immu- qualified officers’ not overcome here; against individual apply nity it would majority’s characteriza- in the I concur cases. only in officers and the circum- legal future standard tion of immunity is qualified under which stances court district court. The district is driven That determination appropriate. neatly not fall do[es] case that “this wrote majority uses words by the facts. The clearly estab categories” into the[] satisfy the a scenario that would evoke at 7. That’s a R. 32 lished taser law. stan- prong qualified-immunity of the first find no it could concession Indeed, my In power. words have violation, dard. and the constitutional established view, con- properly in this the facts held stopped have there —and court should case— in favor—did strued Lawrence fact, done In we have for the defendants. by employed of force justify the level in case the same an excessive-force However, light in of the Su- the officers. case cleanly fit within” our taser “does not of the heightening recent 496-98, preme Court’s Cockrell, law, Fed.Appx. at prong qualified-immunity second in immunity operates qualified because standard, majority that agree I with the excessive and ac “hazy border between case are entitled Katz, the officers Saucier v. ceptable force.” I hold immunity. Because would qualified nearly resort that the officers’ immediate Sumner, (2001); see Maciariello constituted excessive Cir.1992) (“Officials to the use of a taser (4th are F.2d force, judgment. in the concur areas; gray guesses for bad not liable transgressing bright they are liable for
lines.”). I. a haze—as the When such it was here —the district court said summary-judgment stage, we At grant summary judg proper course is light in the most must view the evidence officers, even if the court ment to the non-moving party. Shreve to the favorable unconsti hold the officers’ conduct would Ohio, F.3d Cnty., Franklin al-Kidd, hindsight. tutional Cir.2014). applies with principle That 2083; Haugen, 543 U.S. Brosseau v. videos at issue equal force to the dash-cam *7 194, 201, majority that we in this case. The asserts “ holding erred in other The court depict- light the facts the ‘view[] must ” wise. Maj. at videotape[s].’ Op. by ed the *z3 (alterations original) (quoting Scott v. Harris, he resisted ar- Carpenter conceded that (2007)). view, my In the L.Ed.2d 686 the same. And the
rest. The videos show Scott, arrest, which stands majority overreads resists says law that when someone that a court need proposition for the may constitutionally use force to the of the facts accept plaintiffs a version juryA has noth- compliance. ensure their by video- “blatantly [a if it contradicted the officers ing left to decide. Because jury could so that no reasonable constitutionally tape], even if acted because —and didn’t, they believe it.” 550 U.S. by all accounts didn’t words, only “un- Gillispie 1769. In other where an 13:17:33. testified that he then recording” indicates that ambiguous video Carpenter place instructed to his hands on issue, Shreve, there is no triable truck, the bed of the Carpenter but that weighing should the traditional (Gillispie refused. R. 28-1 Dep.) at Pa- inferences in favor of the non-moving par- gelD According Gillispie, Carpen ty way to give video evidence. See id. refuse[,].... ter “didn’t verbally but he J., (Clay, dissenting) (arguing that a comply refused to put and both hands on panel accept non-moving party’s must the the back of the truck as I him asked interpretation of a video where “a reason- Carpenter’s do.” Id. testimony tells a jury non-moving able could believe [the slightly story. different According to Car party] viewing after the video evi- penter, “[Gillispie] tried to turn me around dence”). mind, this in With brief sum- up against and lean truck and wanted mary of the facts follows. put my me to my hands behind back....” R. (Carpenter Dep.) at PageID 137. II. video, Gillispie’s dash-cam which did not On the of February afternoon as capture an recording audio of the ex Deputy Gillispie Brandon drove eastbound change Carpenter between Gillispie, Wellston, on Michigan, Route 55 he does not confirm veracity of either person, observed a known to him Law- as party’s portion version of this of the en Carpenter, driving going rence a truck note, counter. Of it does not confirm that opposite prior direction. Based on a en- Gillispie informed Carpenter place his counter, Gillispie Carpenter surmised that truck, or, hands on the bed of the as the driving suspended was on a license. Gillis- contends, majority “Carpenter did not U-turn, pie made a activated his blue Maj. Op. Moreover, listen.” at 640. al lights, pulled Carpenter over. The though majority readily accepts Gillis- captured by relevant encounter Gillispie’s true, pie’s testimony point on this as dash-cam video—from Gillispie the time “Carpenter video does not confirm that approached Carpenter’s vehicle until the appeared ‘highly agitated’ and was ‘swear time for a tasered —lasted ing’ in response request.” Id. approximately total of 26 seconds. See Video) (Gillispie Dash-Cam at 13:17:25- event, any In the video captures Gillispie 13:17:51. grabbing Carpenter’s right arm as Car- penter gripped the bed of his truck with
Gillispie approached subject vehicle his left arm. R. (Gillispie Dash-Cam told that he was under Video) at 13:17:36-13:17:38. driving suspended arrest for on a license. jerked right away Gillispie’s arm immediately
Gillispie opened the driver’s- Gillispie grip.2 ultimately side truck Id. was able to door and or- him get dered to exit the vehicle. Id. at both of hands on the bed truck, 13:17:40, complied.1 13:17:25. Id. at id. at to which Car- Although Carpenter majority Carpenter's testified that 2. The characterizes mo- truck, *8 "jerked” him out of the the video evi "sw[i]ng Gillispie’s tion as a ... in direction.” portion dence that contradicts of his testimo Maj. Op. jury watching at 640. A the video Compare ny. (Carpenter Dep.) R. 28-1 at reasonably could conclude that the motion 137, PageID (Gillispie with R. 30 Dash-Cam benign. was far more Video) Accordingly, at 13:17:33. we need not Scott, 380, accept it as true. U.S. at 127 550 S.Ct. 1769. 646 issue, cluding severity of the crime at (Carpenter R. 28-1 “the “hung on.”
penter
suspect poses an immediate
According
to Car- whether the
Dep.)
PagelD
at
said, Well,
safety
the officers or oth
put your arm threat
to the
of
“[Gillispie]
penter,
ers,
back,
actively resisting
him I
he is
and I told
wasn’t
and whether
your
behind
said,
attempting
by
I
to evade arrest
go
let me
and will arrest or
going to.
Just
Connor,
it,
386,
flight.”
and I will do
but he
Graham v.
U.S.
my
take
time
(1989)
1865,
Gillispie
As
contin-
III. jury would not be unreasonable for a jerked majority’s Carpenter simply statement of the law re- conclude that away Gillispie, context of arm rather than full- garding excessive force “swinging” of tasers accurate. re- on his direction.. See su the use Courts case-by- pra majority’s view excessive-force claims on a at 645 n. 2. The conclusion totality jury applying that “a reasonable the law of case basis consider the ” case, in- particular circumstances in each our circuit could conclude that Car-
647 arrest, Maj. actively Op. pepper sprayed resisted and penter repeatedly tased —to added), (emphasis depends on the 642 little suspect effect—a who was high on Carpenter’s “noncompliance premise ecstasy, jogging along interstate, naked an ‘paired signs with of verbal hostili- [ ] was and struggling escape from officers af ” ty physical or Id. at 642 resistance[.]’ they had successfully handcuffed only 535). Eldridge, F. (quoting App’x 533 353, one of his arms. Fed.Appx. 433 354-56 in- premise Because that rests on factual (6thCir.2011). In Ingham, Williams v. impermissibly ferences drawn from the officers a suspect tased who led them on a opposing party’s testimony against the high-speed through chase a residential non-moving party, would affirm the area, struggled with an officer attempting judgment of the district court. to remove him from his vehicle (breaking survey A brief of our law upholding case finger the officer’s process), resisting suspects taser stuns on refused to remove his —much hands from under majority support which the cites for neath body being —dem- after wrestled to the Carpenter’s onstrates that case is distin- (6th ground. Fed.Appx. Cir. guishable. simply, jury Put a could rea- 2010). None of these is on all fours cases sonably find that resistance to with far-less-dramatic behavi justify was too de minimis to or.4 The officers’ use of a taser on Car In Hagans, level force used.3 officers penter in these circumstances constituted confronted a suspect and tased who fled on excessive force.
foot, attempted open the locked driver’s- cruiser, and,
side door of a after IV. officers him ground, had wrestled to the “locked tightly body his arms under his [to prong qualified-immu second handcuffed], being kicking resist his feet however, nity inquiry, shields officers from continuing to scream.” 695 F.3d at trial a statutory unless “violated In Caie v. West Town- Bloomfield right that clearly estab constitutional ship, highly officers encountered a intoxi- challenged lished at the time of the con cated, suspect suicidal who threatened the — Howards, U.S. -, duct.” Reichle and, upon officers their approach, “began run flailing violently.” while his arms (2012). In its recent pronouncements on (6th Cir.2012). Offi- qualified immunity, Supreme ar Court suspect only wrestling cers tased the after guably heightened has the standard to him ground repeated to the and after re- clarify that a right is established if quests for him to remove his hands body “sufficiently every clear ‘that underneath his order to be hand- reason Sandel, cuffed. Id. In Williams officers able official would [have understood] Despite majority's justified" (citing insistence to the con- ... resistance Shreve v. Jessa- Court, Cnty. mine Fiscal 453 F.3d trary, Maj. Op. panel's recognition (6th Cir.2006)) added)). (emphasis may that excessive force be actionable where wpuld resistance is de minimis not be a novel Carpenter argues, jury 4. As a could reason Recent, concept. published case law demon- that, ably given conclude the short duration of See, e.g., City strates as much. Goodwin v. encounter, "[Carpenter] did not have time Painesville, (6th Cir.2015) 781 F.3d comply [Gillispie's] with [Biel order before (recognizing approval prior Sixth Cir- ski] used his Taser.” See Austin Redford holding cuit case "that the officers' force was Twp. Dep’t, Police Cir.2012). [plaintiff’s] far in excess of what the minimal *10 648 ” “beyond it must debate.” right.’ that Id. is not—as doing violates
what he is
be—
added)
(alteration
al-Kidd,
(emphasis
I
hold
original)
not be a case with the exact same fundamentally or even similar or
pattern facts; rather,
materially
ques
similar
the defendants had fair
tion is whether
AND RE
SOARING EAGLE CASINO
warning that their actions were unconstitu
SORT,
Enterprise
Saginaw
an
(alteration in original) (quoting
tional.”
Chippewa
Michigan,
Indian Tribe of
Akron,
676,
City
Cummings v.
Petitioner/Cross-Respondent,
(6th Cir.2005)) (internal quotation
omitted)). Now, however, the law
marks
NATIONAL LABOR RELATIONS
time of the officers’ conduct must
BOARD, Respondent/Cross-
placed
question
the constitutional
have
Petitioner.
—Sims,
“beyond debate.”5 Stanton v.
14-2405,
Nos.
14-2558.
U.S. -,
5. While the Court have "virtu- stan- ally ignored” warning” the "fair standard set "ensure[s] dard the officer has 'fair and clear decision, Hope forth in in its al-Kidd see Kar- warning’ requires.” of what the Constitution Blum, Chemerinsky, Erwin & Martin A. en Lanier, (quoting United States v. Schwartz, Qualified Immunity Developments: Hope Plaintiffs, Not Much 29 Touro Left (1997))). recognized courts have Lower (2013), expressly L.Rev. it did not Swanson, "puzzling” Morgan silence. al-Kidd, (or mention) overrule even it. See (5th Cir.2011) (en banc). F.3d J., (Kennedy, at 2086-87 concur- S.Ct.