NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0403n.06

                                       Case No. 19-2346

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

S. BAXTER JONES,                                   )                             FILED
                                                   )                        Jul 14, 2020
       Plaintiff-Appellee,                                             DEBORAH S. HUNT, Clerk
                                                   )
                                                   )
v.
                                                   )
                                                   )       ON APPEAL FROM THE UNITED
CITY OF DETROIT, MICHIGAN; SGT.
                                                   )       STATES DISTRICT COURT FOR
REUBEN FLUKER; OFFICER ROBIN
                                                   )       THE EASTERN DISTRICT OF
CLEAVER; SGT. EDWARD HUDSON;
                                                   )       MICHIGAN
COMMANDER ELVIN BARREN,
                                                   )
       Defendants-Appellants.                      )


       BEFORE: MOORE, SUTTON, and GRIFFIN, Circuit Judges.

       SUTTON, Circuit Judge. Detroit police arrested Baxter Jones for disorderly conduct.

They transported Jones, who uses a wheelchair, in a modified cargo van. Jones says riding in the

van aggravated his spinal injuries and hurt his shoulders and hands. The district court denied the

officers’ motion for summary judgment based on qualified immunity. But the officers did not

violate clearly established law based on Jones’s observable physical needs, and Jones did not ask

them to treat him differently. We reverse.

       On July 17, 2014, protestors gathered to draw attention to water shutoffs in Detroit. They

blocked the driveway of a city water contractor, preventing workers and vehicles from entering

or exiting.   Police arrested nine protestors, including Jones, for disorderly conduct.     They
Case No. 19-2346, Jones v. City of Detroit


transported eight protestors in a police bus. Because Jones uses a wheelchair, they transported

him in a modified cargo van.

       A video fully captures the next minute or so of the encounter. Readers can watch the

video for themselves.     https://www.opn.ca6.uscourts.gov/media/mediaopn.php.         Commander

Elvin Barren asked Jones if officers could lift him into the van in his wheelchair. Jones nodded

yes. Barren and three other officers lifted Jones, still in his wheelchair, into the van. As they

lifted him, someone said, “Watch his head!” R. 62-6 at 1:33–1:35. Consistent with the warning,

an officer placed his hand on the back of Jones’s head as it passed through the van door.

According to Jones, this aggravated a preexisting neck condition, and he felt a jolt of pain that

brought tears to his eyes. He said “something like ow” as he was moved into the van. R. 34-5 at

73. Sergeant Cleaver maneuvered Jones inside the van once the other officers lifted him in. As

Sergeant Cleaver maneuvered him into place, Jones complained to him that there was not enough

room in the van. But as the video shows, the wheelchair, with Jones in it, fit tightly into the back

of the van.

       The video also confirms that the officers did not change the existing restraints holding

Jones in his wheelchair. Once they had placed him in the van, they engaged his wheelchair’s

brakes and relied on an intern to ride with him and use his feet to keep Jones’s wheelchair from

moving in what the video confirms is a tight space moving from the right to left side of the van.

The van did not have any specialized wheelchair restraints.            The dissent, by the way,

characterizes the events in the video differently. We encourage the interested reader to watch the

video for herself.

       Jones waited in the van while the officers arrested the other eight protestors and loaded

them into another vehicle. He complained to the person in the back with him that he was in pain,



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Case No. 19-2346, Jones v. City of Detroit


because he was forced to bend his head forward due to the van’s low vertical clearance.

        Once the van started moving, Jones says, his wheelchair jostled and bounced

uncomfortably, with his head constantly in contact with the van’s ceiling during the ride. He hit

his head on the van’s ceiling until he slouched down in his wheelchair, injuring his spine and

hurting his hands and shoulders as he gripped the wheelchair’s arms. Jones complained to the

person riding with him and to the driver that he was in pain and should be transported with safety

restraints. Jones’s medical records indicate that he suffered spinal changes and increased pain

after his arrest. He attributes them to his handling during the arrest and transportation.

        Jones sued the city and the officers who loaded him into the van, arguing that they used

excessive force to arrest and transport him and that they failed to accommodate his disabilities as

required by the Americans with Disabilities Act, the Rehabilitation Act, and state law. 42 U.S.C.

§ 12132 et seq.; 29 U.S.C. § 794; Mich. Comp. L. § 37.1101 et seq. The defendants sought

summary judgment based on qualified immunity. The district court granted summary judgment

on all the claims except the excessive-force claims against the officers.

        Summary judgment is appropriate when only one party has introduced sufficient material

facts to support a jury verdict in its favor. If a jury could reasonably find for either of the parties,

the case proceeds to trial. Anderson v. Liberty Lobby, Inc., 

, 248 (1986).

        Qualified immunity precludes liability for police officers except when they commit (1) a

violation of the law (2) that is clearly established. Pearson v. Callahan, 

, 232

(2009). Jones bears the burden of establishing that the officers’ conduct fails the test—that “each

defendant officer, through his or her own individual actions, personally violated [his] rights

under clearly established law.” Johnson v. Moseley, 

, 653 (6th Cir. 2015).




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Case No. 19-2346, Jones v. City of Detroit


       What does “clearly established” mean?        It means that “existing precedent” put the

“constitutional question beyond debate.” City & County of San Francisco v. Sheehan, 

, 1774 (2015) (quotation omitted). In the light cast by “pre-existing law,” “the unlawfulness

must be apparent.” White v. Pauly, 

, 552 (2017) (quotation omitted). That is an

“exacting standard.” 

. General excessive force principles, without

more, may clearly establish a behavior’s unlawfulness only in the most “obvious” cases. 

. In all other cases, especially those “present[ing] a unique set of facts and

circumstances,” courts must “identify a case where an officer acting under similar circumstances

as [the defendant] was held to have violated the Fourth Amendment.”

       Jones claims the officers used excessive force when they transported him in a van without

using traditional safety restraints to secure the wheelchair and without enough headroom. But

our cases say the opposite when it comes to the closest analogy, transporting non-wheelchair

users. Faced with that question, courts within and outside our circuit have repeatedly rejected

constitutional challenges to transportation of detainees without seatbelts. Ingram v. Herrington,

No. 4:06-CV-P65-M, 

, *4–5 (W.D. Ky. Sept. 26, 2007); Young v. Dep’t of

Corr., No. 04-10309, 

, *4–6 (E.D. Mich. July 27, 2007); Spencer v.

Knapheide Truck Equip. Co., 

, 906 (8th Cir. 1999); Taylor v. Stateville Dep’t of

Corr., No. 10 C 3700, 

, at *1–2 (N.D. Ill. Dec. 1, 2010) (collecting cases).

Jones does not cite any contrary authority. The closest analogy, in other words, would not have

warned the officers of a constitutional requirement to transport Jones only with the aid of safety

restraints to secure the wheelchair. And those cases would not have shown that what the officers

did do—allow an individual to hold the wheelchair in place with his feet in a tight space that left

little room for movement anyway—violated clearly established law.



                                                4
Case No. 19-2346, Jones v. City of Detroit


       Our cases about transporting people in wheelchairs similarly tell the officers nothing

about whether they transgressed constitutional boundaries in transporting Jones. Jones identifies

just one case about transporting an arrestee who used a wheelchair. In St. John v. Hickey, 

, 766 (6th Cir. 2005), police carried the plaintiff out of his house in his wheelchair,

instead of using his wheelchair ramp. They dropped him on the way out.

that

he could not fit into the patrol car because his legs could not bend, but the officers attempted to

bend his legs and put him in the car anyway.

him two more times in the

process and injured his leg by pinning it between the car and the door.

facts, we

found excessive force and denied qualified immunity.

       Only one other case in our circuit has involved a claim that an officer used excessive

force while arresting a wheelchair user. That case upheld a jury verdict against an officer who

pulled a paraplegic driver out of his car by his neck, dropped him on the ground, kicked and

kneed him in the head, and dragged him across the ground by his forearms. Koehler v. Smith,

, at *5 (6th Cir. 1997) (table).

       Our circuit thus has decided two cases about excessive force against wheelchair-bound

suspects, and neither one could have alerted the officers to constitutional headroom, head-

guiding, or safety-restraint requirements. The case’s scarce forebears suggest it “presents a

unique set of facts and circumstances” cutting in favor of qualified immunity, 

(quotation omitted), not a constitutional rule that is “beyond debate,” 

(quotation omitted).

       To the extent cases from outside our circuit figure into the “clearly established”

analysis—they usually do not, Ashford v. Raby, 

, 804 (6th Cir. 2020)—they tell the

same story. No case to our knowledge, and none cited by Jones, elaborates a Fourth Amendment



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Case No. 19-2346, Jones v. City of Detroit


standard for safety restraints, head-guiding, or headroom in transporting wheelchair users.

       Two cases, it’s true, involved safety restraint failures. In Gorman v. Bartch, officers

violated the law when they removed a paraplegic arrestee from his wheelchair and tied him into a

van with a combination of his own belt and a standard seatbelt. 

, 909–10 (8th Cir.

1998). Gorman sued under the Americans with Disabilities Act.

But in today’s case,

the officers never removed Jones from his wheelchair. And Gorman at any rate held that

qualified immunity shielded the officers from liability.

       In the second case, Sayers v. City of New York, officers transported a prisoner in his

wheelchair in a police van. No. CV-04-3907, 

, at *1 (E.D.N.Y. Mar. 23, 2007).

The van had safety restraints, and the officers attempted to use them.

them they

had secured him incorrectly, but they ignored his complaints.

drive, Sayers

tipped over backwards in his wheelchair, hitting his head on the window and fracturing his

pelvis.

On those facts, too, the court granted qualified immunity, without announcing

a constitutional rule that could apply to Jones’s transportation.

Nothing, inside or

outside our circuit, should have tipped off the officers to the existence of the constitutional rules

Jones claims they violated.

       Jones insists that the officers violated Detroit Police Department policy when they

transported him in the cargo van. The policy requires that officers have a supervisor determine

“the most appropriate method” for transporting disabled arrestees. R. 40-14 at 2. “Whether or

not an officer is following police procedures is certainly relevant to the question of

reasonableness in excessive force cases.” Mullins v. Cyranek, 

, 768 (6th Cir. 2015).

But a policy violation “is not necessarily conclusive proof that the Constitution has been

violated.”

policy violation might prove, no violation of the policy occurred. The



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Case No. 19-2346, Jones v. City of Detroit


officers followed police procedures when the supervisor on the scene—Commander Barren—

determined what he believed to be the most appropriate transportation method, a prisoner

transport van. Jones’s disagreement with Commander Barren’s decision does not transform the

officers’ actions into a policy violation—or a constitutional violation.

       Jones adds that St. John establishes that the officers violated clearly established rights by

lifting him into the van while seated in his wheelchair. But he consented to being lifted in his

wheelchair into the van.

       Even if we analogize this lawsuit to handcuffing cases, it does not help Jones. In some

situations, it is true, ordinarily reasonable police actions may injure arrestees, as happens

occasionally with handcuffing. See, e.g., Lyons v. City of Xenia, 

(6th Cir. 2005).

In those cases, it is also true, an injured arrestee may show that the handcuffs obviously caused

or exacerbated a problem, Smith v. City of Wyoming, 

, 717 (6th Cir. 2016), or that

she alerted the officer to her pain and asked for the handcuffs to be loosened, Vance v. Wade,

, 782–83 (6th Cir. 2008).

       (By the way, the dissent, though not Jones, says Vance placed the officers on notice that

they violated Jones’s rights by putting him in a vehicle without sufficient headroom. Vance said

nothing of the sort. The plaintiff in that case complained that an officer “took his hand and put

[it] on [Vance’s] shoulder and he twisted [Vance’s] upper trunk all the way around.”

The officer then used his hands and the door to shove Vance into the patrol car so that he “fell

face forward into the floorboard,” where he became stuck for the next ten to fifteen minutes.

That case told the officers nothing about how they should have transported Jones.)

       Should officers have known, without a complaint, that their actions would hurt Jones?

No. It was obvious that Jones used a wheelchair, and officers observed that Jones’s head



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Case No. 19-2346, Jones v. City of Detroit


touched the van’s ceiling. But nothing about wheelchair use in general would have alerted a

reasonable officer that Jones could not slightly bend his neck or lean forward to avoid hitting his

head. The use of a wheelchair by itself does not show a pre-existing neck injury. And we have

already explained that nothing clearly established the officers’ duty to use safety restraints on

Jones’s wheelchair, as opposed to the use of the intern’s feet to keep the wheelchair in place in

the tight space in the back of the van.

       Is there anything Jones said that should have alerted officers that their actions hurt him?

Again, no. Take the events chronologically. Jones agreed to be lifted in his wheelchair into the

van. That did not create notice. He said “something like ow” when an officer put a hand on his

head as he passed through the van’s doorframe. R. 34-5 at 73. But indistinct or generic

expressions of discomfort do not place officers on notice. See Henry v. City of Flint, -- F. App’x

--, 

, at *8 (6th Cir. 2020); Standifer v. Lacon, 587 F. App’x 919, 923 (6th Cir.

2014). He complained to Sergeant Cleaver that there was “not enough room in here” just after

he entered the van. R. 34-5 at 82. But that remark, too, would not have put a reasonable officer

on notice that Jones was suffering neck pain or physical injury.

       True, Jones did complain once the ride and his posture caused him pain. That complaint

put the people who heard it on notice that there might be a problem. But Jones voiced that

complaint during the ride.      The only people who heard it, according to Jones, were the

unidentified van driver and the unidentified person riding in the back with him. Jones never

claims that the four officers heard those complaints. And he does not argue that the four officers

should be responsible on a supervisory, duty-to-protect, or failure-to-act theory. See Fazica v.

Jordan, 

, 289 (6th Cir. 2019).




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Case No. 19-2346, Jones v. City of Detroit


       Why didn’t Jones sue the people who heard his complaint? He inquired about their

identities in an interrogatory. The police department responded that it could not identify them.

Best we can tell, Jones’s only follow-up was to ask four witnesses during depositions if they

remembered who drove the van or rode in the back. At oral argument, the officers’ attorney

explained that the van driver’s name should be available in a record held by the State, outside the

city’s possession. When asked, Jones’s attorney could not recall seeking the district court’s aid

in identifying the unknown driver and rider through discovery.

       Because the officers did not violate any clearly established law, qualified immunity

applies.

       We reverse.




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Case No. 19-2346, Jones v. City of Detroit


       KAREN NELSON MOORE, Circuit Judge, dissenting. The majority opinion is vise-

like in its analysis of whether Jones’s constitutional rights are clearly established. Rather than

considering “‘the salient question’ in evaluating the clearly established prong,” “whether

officials had ‘fair warning’ that their conduct was unconstitutional,” Guertin v. State, 

, 932 (6th Cir. 2019) (quoting Hope v. Pelzer, 

, 741 (2002)), the majority frames

the question at the most granular level. It concludes that “[n]o case . . . elaborates a Fourth

Amendment standard for safety restraints, head-guiding, or headroom in transporting wheelchair

users.” Majority Op. at 5–6. If this definition of the constitutional right is not so narrowly

defined as to “defeat[ ] the purpose of [42 U.S.C.] § 1983,” then it is difficult to imagine what

definition would be too narrow. Hagans v. Franklin Cty. Sheriff’s Office, 

, 509 (6th

Cir. 2012). The majority treats the fact that Jones is wheelchair-bound as a feature that makes it

less likely that a reasonable officer would know that his actions violated our excessive-force

precedent because few cases address arrestees in wheelchairs. But this misses the obvious

point—because of Jones’s apparent disability and because of the prevalence of persons without

disabilities in our excessive-force precedent, we should conclude that this fact makes it more

likely that a reasonable officer would be on notice that his treatment of Jones amounted to

excessive force. Our caselaw about transferring persons who are observably disabled to police

vehicles and about cramming persons who are not disabled into police vehicles establishes that

nonviolent arrestees have the right to be free from unnecessary pain knowingly inflicted during

an arrest, including when the arrestee is moved into and positioned within police vehicles for

transport. Accordingly, a reasonable officer would have known that the force used during

Jones’s arrest, specifically the force used to move Jones into and position him within the police




                                               10
Case No. 19-2346, Jones v. City of Detroit


cargo van for transport without being secured, was excessive and hence unlawful under the

Fourth Amendment.

        “A defendant enjoys qualified immunity on summary judgment unless the facts alleged

and the evidence produced, when viewed in the light most favorable to the plaintiff, would

permit a reasonable juror to find that: (1) the defendant violated a constitutional right; and

(2) the right was clearly established.” Schulkers v. Kammer, 

, 532 (6th Cir. 2020)

(quoting Kovacic v. Cuyahoga Cty. Dep’t of Children & Family Servs., 

, 695 (6th

Cir. 2013)). To be clearly established, a right’s “contours” must be “sufficiently definite that any

reasonable official in the defendant’s shoes would have understood that he was violating it.”

(quoting Kisela v. Hughes, 

, 1153 (2018)). Notice to officials is the

touchstone of qualified immunity.

not require a prior, ‘precise situation,’ a finding

that ‘the very action in question has previously been held unlawful,’ or a ‘case directly on

point.’” 

(citations omitted). If we did require such factual similarity,

we would not be able to consider “the general reasoning that a court employs,” in addition to

“direct holdings” and “specific examples describing certain conduct as prohibited,” to discern

what rights are clearly established. Baynes v. Cleland, 

, 612 (6th Cir. 2015).

Indeed, both the Supreme Court and this court have rejected “rigid, overreliance on factual

similarity.”

that the defendants violated his clearly established Fourth Amendment

rights when they lifted his wheelchair into the van and pushed his head down to get him inside

the van, and then left him unsecured and crammed into the van for transport. Appellee Br. at

11.1 At least two cases demonstrate that he is correct: St. John v. Hickey, 

(6th Cir.


        1
          The majority helpfully includes a link to the video footage. Majority Op. at 2. Viewers should pay
particular attention to the video at minute 1:46, which shows that Jones must keep his head down and his neck bent

                                                       11
Case No. 19-2346, Jones v. City of Detroit


2005), abrogation on other grounds recognized by Marvin v. City of Taylor, 

, 246

n.6 (6th Cir. 2017)), and Vance v. Wade, 

(6th Cir. 2008).

         In St. John, we addressed the transport of a person with a physical disability who was in a

wheelchair. There, we concluded that the right at issue was “the right of a nonviolent arrestee to

be free from unnecessary pain knowingly inflicted during an arrest” and that the right “was

clearly 

. In St. John, the officers took the plaintiff out of his

wheelchair and forced the plaintiff’s rigid legs to bend in an attempt to place him in the back of a

police cruiser.

The plaintiff was nonviolent; he was arrested for disorderly

conduct, a non-serious crime; he did not present a risk to others or a risk of flight; and the

circumstances were not remotely exigent as to require the officers immediately to force the

plaintiff into the back of the 

; see also

(setting forth factors courts

consider in excessive-force cases, “including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight” (quoting Graham v. Connor, 

, 396 (1989))).

         This is how we should define the right at issue here. Jones was also a nonviolent arrestee

and the portion of his arrest where the defendants pushed his head down is materially

indistinguishable from the arrest in St. John. Jones was arrested for disorderly conduct, the same

crime as the plaintiff in St. John; he did not present a risk of flight; he posed no threat to others;

and there were no exigent circumstances necessitating his immediate transport or confinement in

the van. Additionally, the defendants here were aware that they were causing Jones unnecessary



to avoid hitting the cargo van’s ceiling. The majority argues that “Jones . . . fit tightly into the back of the van.”
Majority Op. at 2. It is worth pointing out that Jones also would have “fit tightly” in a multitude of spaces
depending on how he contorted his body. But, semantics aside, it is most useful for our purposes to note that Jones
could not straighten his neck and keep his head from hitting the ceiling because of the height of his wheelchair.

                                                         12
Case No. 19-2346, Jones v. City of Detroit


pain. First, it was readily apparent that he was wheelchair-bound, like the plaintiff in St John.

Second, Jones cried out, “ow,” to the officers as they pushed his head down. R. 40-2

(Jones Dep. at 72) (Page ID #915). The fact that Jones did not apprise the officers of the

specifics of his disability is not fatal to his case. In St. John, the plaintiff explained to the

officers that his legs could not bend due to muscular 
dystrophy. 411 F.3d at 772
, 775. But the

issue was whether the officers were aware that they were causing the plaintiff, “an obviously

disabled and wheelchair-bound man,” pain—not that he gave a particular verbal warning.
 Id. To

that 
end, we considered the plaintiff’s verbal warning and the fact that he used a wheelchair.
 Id.

at 775. 
The majority opinion interprets “knowingly” from St. John to require a particular verbal

warning, even if the arrestee has an obvious disability that a reasonable officer would appreciate

and has otherwise communicated his pain to the officers. This makes little sense.

       Moreover, St. John also gave the defendants here fair notice that they could not leave a

person with an apparent disability in an unsafe position. If officers cannot transfer an arrestee to

a police vehicle using unnecessary force, it should be clear that they certainly cannot leave the

arrestee in that physical position and avoid further constitutional liability. Even in St. John, the

unlawfulness of leaving the plaintiff in the back of the police cruiser once his pain was apparent

was so clear that the officers “attempted to return him to his wheelchair.”
 

       Vance likewise demonstrates that the defendants violated Jones’s clearly established right

to be free from excessive force regarding how any arrestee, a person with a disability or

otherwise, is transferred to and then left in a police vehicle. In Vance, we concluded that the

defendants used excessive force in “cramming him in the backseat of the police 
vehicle.” 546

F.3d at 780
, 786. The defendants left the plaintiff facedown into the floorboard of the car for ten

to fifteen minutes.
 Id. at 778–80. 
Critical to our analysis was that there was a low degree of



                                                13
Case No. 19-2346, Jones v. City of Detroit


“tension and concern for keeping order.”
 Id. at 785 
(discussing the fact that the officer left the

vehicle and then came back to forcefully stuff the plaintiff into the car). In Jones’s case, it is

undisputed that there was no tension and no concern for keeping order—it was a peaceful-protest

demonstration. And though the level of force in Vance was arguably more egregious, the

plaintiff in Vance was not a person with an obvious physical disability. Because Jones was in a

wheelchair, a reasonable officer would have known that even less force was permissible to

position Jones within the cargo van; he was left squeezed into the back of the van, his head and

neck compressed due to the height of wheelchair. The majority points out that Vance does not

discuss the transport of an arrestee. Majority Op. at 7. But Vance certainly discusses leaving an

arrestee in a compromised position in a police vehicle. It is unclear how the fact that the vehicle

in Vance was not yet moving factors into the majority’s analysis without requiring unnecessary

factual similarity. Based on our reasoning in Vance, the defendants were on notice that under

these circumstances, their insistence on cramming Jones into the cargo van and leaving him there

to be transported without being adequately secured was objectively unreasonable.

       It is also important that in Vance it made no difference to the constitutional analysis that

the plaintiff did not inform the officers he had just had neck surgery before being forcefully

crammed into the police 
car. 546 F.3d at 779
. Rather, this detail went to the extent of his

injuries. See id.; see also
 id. at 783–86 
(omitting mention of the neck surgery in the qualified-

immunity analysis). The unreasonableness of the officers’ actions in Vance was clear even

without knowledge of the plaintiff’s recent neck surgery. Such is the case here—Jones was

wheelchair-bound and crammed into a van in a position that left him unable to keep his head

from hitting the van’s ceiling, to straighten his neck, or to stay in a secure, stable position. For

these reasons, Jones had a clearly established Fourth Amendment right as a nonviolent arrestee



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Case No. 19-2346, Jones v. City of Detroit


to be free from unnecessary pain knowingly inflicted during his arrest, including when he was

moved into the cargo van and then left in a dangerous position for transport.2

         I would affirm the district court, upholding its denial of qualified immunity. Thus, I

dissent.




         2
          The majority indicates that Jones should have named the officer driving the van and the officer that rode
with Jones in the back of the van, and then it chastises Jones for failing to find the identities of these officers during
discovery. Majority Op. at 8–9. Jones pursued the issue, but the City of Detroit stated that no records identifying
these officers existed. R. 40-11 (Answers to Interrogs. at 1) (Page ID #990). It is unclear how Jones could have
asked the district court to compel the defendants to provide what was presented as a non-existent record, much less
divine that the true location of the records was with the State of Michigan—a fact that counsel for defendants
disclosed during rebuttal at oral argument, three years into this case, and to which Jones was not afforded the
opportunity to respond. Oral Arg. at 31:30–32:08.

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