NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0216n.06

                                            No. 10-4605

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED

KEITH COCKRELL,                            )                                       Feb 23, 2012
                                           )                                 LEONARD GREEN, Clerk
       Plaintiff-Appellee,                 )
                                           )
v.                                         )                  On Appeal from the United States
                                           )                  District Court for the Southern
CITY OF CINCINNATI, and DAVID HALL, )                         District of Ohio
Individually and in his official capacity, )
                                           )
       Defendants-Appellants.              )




Before:        BOGGS, COLE, and SUTTON, Circuit Judges.

               BOGGS, Circuit Judge. Cincinnati Police Officer David Hall tased Keith Cockrell

as he fled from the scene of a non-violent misdemeanor, jaywalking. Cockrell brought this action

under 42 U.S.C. § 1983, alleging that Hall’s taser use constituted excessive force. Hall moved to

dismiss on qualified-immunity grounds; the district court denied the motion. Hall appeals. To

affirm, we would have to answer ‘yes’ to two questions: (1) Did Hall violate Cockrell’s right to be

free from excessive force by shooting him with a taser as he fled from the scene of a jaywalking

violation? and (2) was it clearly established that Hall’s actions were unconstitutional at the time of

the incident? Because we cannot answer the second question in the affirmative, we reverse.
No. 10-4605
Cockrell v. City of Cincinnati, et al.

                                                  I

               Keith Cockrell was in the Fay Apartment Complex1 on July 3, 2008, visiting his

girlfriend, Miranda Jones. Cockrell left Jones’s apartment, and crossed the street to borrow a pair

of hair clippers from a friend. He jaywalked.2 Officer Hall observed Cockrell’s conduct, got out of

his car, and ran toward Cockrell. Cockrell ran away. There is no indication in the record that Hall

ordered Cockrell to halt or put him under arrest. After chasing Cockrell for a short distance, Hall

deployed his X26 TASER device in “probe mode.” The taser temporarily paralyzed Cockrell,

causing him to crash headlong into the pavement. Unable to break his fall, he sustained “lacerations

and abrasions to his face, chest, [and] arms.”

               The X26 TASER is a type of electric stun-gun.3 It has two modes: dart mode—called

probe mode here—and drive-stun mode. In dart mode,



       1
         The Cincinnati police maintain a substation in the Fay Apartment Complex, and patrol the
area day and night.
       2
         Jaywalking is a minor misdemeanor, which does not normally justify custodial arrest.
Hall’s counsel suggested at argument that, once Cockrell fled, he was guilty of the more serious
misdemeanor of Obstructing Official Business, OHIO REV . CODE § 2921.31, and therefore could have
been arrested.
       3
          Jack Cover, a NASA scientist, called the stun gun he created “Thomas A. Swift’s Electric
Rifle,” or TASER. Orsak v. Metro. Airports Comm. Airport Police Dept., 

, 951
n.2 (D. Minn. 2009). This acronym paid homage to a book by the Stratemeyer Syndicate, published
under the pseudonym Victor Appleton, titled Tom Swift and His Electric Rifle, or, Daring
Adventures in Elephant Land (1911), where Tom Swift hunted wildlife on the African savannah with
an electric rifle he invented. The first appearance of Tom’s futuristic weapon, however, was in the
slightly earlier book, Tom Swift in the Caves of Ice, or, The Wreck of the Airship (1911), where he
used the still-unperfected electric rifle to thwart a horde of rampaging musk-oxen. 

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                [t]he X26 uses compressed nitrogen to propel a pair of
                “probes”—aluminum darts tipped with stainless steel barbs connected
                to the X26 by insulated wires—toward the target at a rate of over 160
                feet per second. Upon striking a person, the X26 delivers a 1200 volt,
                low ampere electrical charge through the wires and probes and into
                his muscles. The impact is as powerful as it is swift. The electrical
                impulse instantly overrides the victim’s central nervous system,
                paralyzing the muscles throughout the body, rendering the target limp
                and helpless. The tasered person also experiences an excruciating
                pain that radiates throughout the body.

Bryan v. MacPherson, 

, 824 (9th Cir. 2010) (internal citations omitted). In drive-stun

mode, “the operator removes the dart cartridge and pushes two electrode contacts located on the front

of the taser directly against the victim. In this mode, the taser delivers an electric shock . . . but does

not cause an override of the victim’s central nervous system as it does in dart-mode.” Mattos v.

Agarano, 

, 443 (9th Cir. 2011) (en banc).

                The City of Cincinnati’s use-of-force policy reminds officers that “they may use

whatever force is reasonably necessary to apprehend the offender or affect [sic] the arrest and no

more.” R. 8-4 at 6 (City of Cincinnati use-of-force policy); see also 

(citing Graham v.

Connor, 

(1989)). It further instructs officers to “avoid using unnecessary violence,”

and requires that any use of force be “reasonable under the circumstances.” 

                The policy also includes specific guidelines for taser use. It recommends that officers

“[u]se the TASER X26 for self defense or to control subjects that are actively resisting arrest.” R.

8-4 at 9.4 “When possible,” it continues, officers should “give the subject a verbal warning that the


        4
        Although, at this point, the policy itself is not at issue, we note that the version of the
Cincinnati Police Division Procedure Manual Cockrell excerpted in his submission below was not
the same policy in effect on July 3, 2008. Rather, the policy Cockrell provided is a March 2010

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TASER will be deployed unless exigent circumstances exist that would make it imprudent to do so.”

provides:

               Officers should avoid using the TASER X26 on obviously pregnant
               females and those individuals under the age of 7 or over the age of 70
               due to the potential for these individuals to fall when incapacitated by
               the TASER, unless the encounter rises to the level of a deadly force
               situation. . . . [and] [o]fficers should avoid using the TASER X26 on
               individuals who are on an elevated surface unless the encounter rises
               to the level of a deadly force situation.

42 U.S.C. § 1983 action in April 2010, alleging that Hall violated

his Fourth Amendment right to be free from the excessive use of force. He also sought “a review

of the policies and training within the Cincinnati Police Department to insure that Tasers are only

deployed consistent with constitutional limits on use of force.” Hall moved to dismiss the excessive-

force claim on qualified-immunity grounds. The district court denied the motion. It used the three-

factor balancing test from Graham, 

, to determine that, taken in the light most favorable

to Cockrell, Officer Hall’s use of force was objectively unreasonable, and thus violated the Fourth

Amendment. The district court then held “that it was clearly established on July 3, 2008 that the use

of a taser, against a fleeing . . . non-violent misdemeanant who posed no threat of harm to anyone,

was prohibited by the Constitution.” R. 10 at 13.5 Hall appeals.




revision, which replaces an August 2009 version. See R. 8-4.
        5
          The district court also held that Cockrell’s municipal-liability claim, based on the city’s
policies, could proceed. Appellants do not challenge this conclusion.

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Cockrell v. City of Cincinnati, et al.

                                                   II

                Section 1983 creates a private right of action against state officials who deprive

individuals of their constitutional rights, under color of state law. 42 U.S.C. § 1983. Civil liability,

however, does not attach simply because a court determines that an official’s actions were

unconstitutional. “Qualified immunity shields federal and state officials from money damages unless

a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-

Kidd, 

, 2080 (2011). We need not address these two elements in order, and indeed

“should think carefully before expending scarce judicial resources to resolve difficult and novel

questions of constitutional or statutory interpretation that will have no effect on the outcome of the

case.” 

Callahan, 

, 236–37 (2009)) (internal quotation marks

omitted); see also Pierre N. Leval, Madison Lecture, Judging Under the Constitution: Dicta About

Dicta, 81 N.Y.U. L. REV . 1249, 1275–81 (2006) (criticizing rule from Saucier v. Katz, 

,

200–01 (2001), which required that courts decide whether action violated constitution, before

deciding whether right allegedly violated was clearly established); Lyons v. City of Xenia, 

, 580–84 (6th Cir. 2005) (Sutton, J. concurring) (same).

                Because “[q]ualified immunity is an affirmative defense . . . [t]he defendant bears the

burden of pleading” it in the first instance. Sheets v. Mullins, 

, 586 (6th Cir. 2002).

The burden then shifts to the plaintiff, who must show that the official violated a right so clearly

established “that every reasonable official would have understood that what he [was] doing

violate[d] that right.” 

; 

; Dominque v. Telb, 831

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Cockrell v. City of Cincinnati, et al.

F.2d 673, 676–77 (6th Cir. 1987). The plaintiff “bears the ultimate burden of proof to show that the

individual officers are not entitled to qualified immunity.” Garretson v. City of Madison Heights,

, 798 (6th Cir. 2005). If the plaintiff fails to carry this burden as to either element of

the analysis, qualified immunity applies and the state official is proof against the plaintiff’s suit.

                We review the denial of a motion to dismiss on qualified-immunity grounds de novo,

treating all allegations in the complaint as true and drawing all inferences in favor of the non-moving

party. Heyne v. Metro. Nashville Public Schools, 

, 562–63 (6th Cir. 2011) (“We apply

the ordinary standard used in reviewing motions to dismiss,” when considering denial of a motion

to dismiss on qualified-immunity grounds) (citing Back v. Hall, 

, 556 (6th Cir. 2008)).

                                                  III

                We accept Pearson’s invitation and begin by considering whether the right allegedly

violated was clearly established on the date of the incident. See 

–37. “A

government official’s conduct violates clearly established law when, at the time of the challenged

conduct, the contours of a right are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” 

(quoting Anderson

v. Creighton, 

, 640 (1987)) (internal quotation marks omitted). “[O]fficials can still

be on notice that their conduct violates established law even in novel factual circumstances.” Hope

v. Pelzer, 

, 741 (2002). Existing case law from our circuit and others, guidance from

experts in a field, and even “[t]he obvious cruelty inherent in [a] practice” can contribute to the

conclusion that an act was so aberrant that every reasonable official would have understood that it

was unconstitutional. See 

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               “The difficult part of this inquiry is identifying the level of generality at which the

constitutional right must be clearly established.” Casey v. City of Federal Heights, 

,

1284 (10th Cir. 2007) (McConnell, J.). Without question, the use of objectively unreasonable force

violates the Fourth Amendment. 

U.S. at 395 (1989)). The Supreme

Court, however, has “repeatedly told courts . . . not to define clearly established law at a high level

of generality. The general proposition, for example, that an unreasonable search or seizure violates

the Fourth Amendment is of little help in determining whether the violative nature of particular

conduct is clearly established.” 

(internal citations omitted). “In other

words, the fact that it is clear that any unreasonable use of force is unconstitutional does not mean

that it is always clear which uses of force are unreasonable.” 

(emphasis in

original).

               Taking this guidance into account, we define the question this case presents as

whether a misdemeanant, fleeing from the scene of a non-violent misdemeanor, but offering no other

resistance and disobeying no official command, had a clearly established right not to be tased on July

3, 2008. Because neither case law, nor external sources, nor “[t]he obvious cruelty inherent” in taser

use, 

, would have put every reasonable officer on notice that Hall’s conduct

violated the Fourth Amendment in July 2008, we hold that Hall is entitled to qualified immunity,

even if he did use excessive force.6




        6
        Because we resolve this case on the ‘clearly established’ element of qualified immunity, we
express no opinion on the constitutionality of Hall’s actions.

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No. 10-4605
Cockrell v. City of Cincinnati, et al.

                Cases addressing qualified immunity for taser use fall into two groups. The first

involves plaintiffs tased while actively resisting arrest by physically struggling with, threatening, or

disobeying officers. In the face of such resistance, courts conclude either that no constitutional

violation occurred, or that the right not to be tased while resisting arrest was not clearly established

at the time of the incident. Mattos, 

(holding, in consolidated cases, that 2004 and 2006

taser deployments constituted excessive force, but did not violate clearly established law, where one

plaintiff, a pregnant woman pulled over for speeding, refused to sign citation, became agitated,

screamed at officers, clung to steering wheel, and was tased three times, and other plaintiff, also a

woman, was shot with taser in dart mode as she stood between officers and her large, drunken,

aggressive husband who was under arrest); McKenney v. Harrison, 

(8th Cir. 2011)

(holding that 2007 taser deployment against misdemeanant who made sudden move toward window

while being questioned by police and told not to “try anything stupid” did not constitute excessive

force, even though misdemeanant fell out of window to his death after being tased); Bryan, 

(holding that 2005 taser deployment against motorist yelling angrily and acting erratically after

traffic stop for failing to wear seatbelt violated Fourth Amendment, but not clearly established law);

Baird v. Ehlers, No. C10–1540JLR, 

(W.D. Wash. Nov. 21, 2011) (holding that

using taser three times on man who, in “drunken stupor,” was physically removed from city bus, and

engaged in verbal and physical confrontation with officer, may have been excessive use of force, but

that law regarding taser use was not clearly established as of November 2009); Carter v. City of

Carlsbad, No. 10–CV–1072–IEG, 

(S.D. Cal. June 30, 2011) (holding that use

of taser against large, belligerent, drunken ex-marine who “took an offensive fighting stance” may

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have been excessive, but did not violate clearly established law on October 31, 2009); Azevedo v.

City of Fresno, No. 1:09–CV–375, 

(E.D. Cal. Jan. 25, 2011) (holding that use of

taser against suspect detained during investigation of burglary, who fled after being asked about

weapons then was warned to stop, may have violated Fourth Amendment, but did not violate clearly

established law, as of November 2007); Sanders v. City of Dothan, 

(M.D. Ala.

2009) (holding that officer who tased detained, but uncooperative, suspect using drive-stun mode

did not violate clearly established law, as of August 2005); Beaver v. City of Federal Way, 507 F.

Supp. 2d 1137 (W.D. Wash. 2007) (holding that, of five August 2004 taser deployments against

suspect who fled scene of residential burglary and refused to obey command to stop, first three were

not excessive uses of force, since officer had to make split-second decisions on how to subdue

disobedient, fleeing felon, while last two constituted excessive force because suspect was no longer

immediate threat; qualified immunity still was appropriate, however, because law was not clearly

established).

                In the second group of cases, a law-enforcement official tases a plaintiff who has done

nothing to resist arrest or is already detained. Courts faced with this scenario hold that a § 1983

excessive-force claim is available, since “the right to be free from physical force when one is not

resisting the police is a clearly established right.” Kijowski v. City of Niles, 372 F. App’x 595, 601

(6th Cir. 2010) (quoting Wysong v. City of Heath, 260 F. App’x 848, 856 (6th Cir. 2008)); see also

Brown v. City of Golden Valley, 

(8th Cir. 2009) (holding that tasing non-violent

passenger during traffic stop for failure to hang up from 911 call violated clearly established law, as

of October 2005); Landis v. Baker, 297 F. App’x 453 (6th Cir. 2008) (holding that repeated use of

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Cockrell v. City of Cincinnati, et al.

taser against subdued defendant lying face-down in swamp water violated clearly established law,

as of November 2004); Casey, 

(holding that officers’ tasing compliant, non-violent

misdemeanant violated clearly established law, as of August 2003); Shekleton v. Eichenberger, No.

C10–2051, 

(N.D. Iowa Apr. 26, 2011) (holding that tasing non-violent

misdemeanant, who did not resist arrest, struggle with, or pose a threat to, officers, or attempt to flee,

violated clearly established law, as of September 2008); Borton v. City of Dothan, 

(M.D. Ala. 2010) (holding that tasing mentally disturbed patient who was not under arrest three

times, even though she was secured to a gurney with handcuffs and restraints, was violation of

clearly established law, as of August 2006); Orsak, 

(holding that officers who

pulled cyclist from bike, stood him up, and shot him with taser may have violated clearly established

law, as of Spetember 2006); Asten v. City of Boulder, 

(D. Colo. 2009) (holding

that “the unforewarned tasing of a mentally unstable woman [who was not under arrest] in her own

home” violated clearly established law, as of October 2006).

                This case does not fit cleanly within either group. At no point did Cockrell use

violence, make threats, or even disobey a command to stop.7 He simply fled. Yet flight, non-violent

though it may be, is still a form of resistance. See Azevedo, 

, at *8 (“[A]lthough

Azevedo was not physically resisting arrest, he was actively fleeing. . . . The active evasion or flight

by a non-felon generally favors a police officer’s use of non-deadly force.”); 

        7
          At oral argument, Hall’s counsel urged us to infer that Hall ordered Cockrell to stop. There
is, however, no evidence of such a command in the record. At this stage, we are required to draw
all inferences in Cockrell’s favor. 

–63. We therefore assume that Hall said
nothing to Cockrell before tasing him.

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(noting that determination whether officer used excessive force requires analysis of “whether [the

person being pursued was] actively resisting arrest or attempting to evade arrest by flight”) (quoting

(1989)). Neither line of cases, then, dictates a particular result in this

scenario; both apply in some measure.

                The most we can draw from today’s case law, in summary, is this: in no case where

courts denied qualified immunity was the plaintiff fleeing, and in at least some of these cases, the

court specifically referred to the fact of non-flight. See, e.g., 

(considering

“whether [plaintiff was] actively resisting arrest or attempting to evade arrest by flight”); Shekleton,

, at *9 (“In assessing the reasonableness of Deputy Eichenberger's conduct, the

Court considers that . . . Shekleton did not struggle with officers, resist arrest, or attempt to escape.”).

By contrast, in all cases where a plaintiff fled from police, the court held that qualified immunity was

appropriate, and some courts referred specifically to the plaintiff’s flight. See, e.g., Azevedo, 

, at *8 (“[A]lthough Azevedo was not physically resisting arrest, he was actively fleeing.

. . . The active evasion or flight by a non-felon generally favors a police officer’s use of non-deadly

force.”); 

(“Initially, Mr. Beaver was attempting to flee and the

Court has no trouble concluding that the first tasing was justified to stop him.”). These broad

principles do not establish the contours of the right Hall allegedly violated so clearly that every

reasonable officer would know his actions were unconstitutional, even today. It certainly did not do

so in July 2008.




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               Neither does guidance from outside sources show that Hall’s actions were objectively

unreasonable. The district court emphasized that the Department of Justice8 and other law-

enforcement agencies nationwide “have determined that the use of a taser against a non-violent

suspect who is fleeing on foot creates a risk of serious injury and recommend that such use be

prohibited or discouraged.” It also noted that the manufacturer of the device, TASER International,

“warned that the use of the device against individuals who are running can cause serious injury or

death.” At the same time, “a study by six university departments of emergency medicine found that

99.7 percent of those Tased by police suffer no injuries or, at most, mild ones.” 

(Kozinski, C.J., concurring in part and dissenting in part) (citing William P. Bozeman et al.,

Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Against

Criminal Suspects, 53 Annals Emergency Med. 480, 484 (2009)). And “[t]he research division of

the Department of Justice concluded that Taser deployment has a margin of safety as great or greater

than most alternatives, and carries a significantly lower risk of injury than physical force.” 

Laub, Director, Nat'l Inst. of Justice, Study of Deaths Following Electro Muscular

Disruption 30–31 (2011)). Of course, the materials the district court cited focus specifically on

suspects fleeing from law enforcement. But this does not diminish the force of arguments

concerning tasers’ relative safety, as compared to other methods of detaining suspects—even

suspects who are running from the police. See 

alternative methods of

subduing suspects). Data from outside sources, then, confirms our analysis of taser-use case law:


       8
        The district court’s citation is to a memorandum from the Department of Justice’s Civil
Rights Division.

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No. 10-4605
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it is not clear that every reasonable officer would believe that Hall’s actions violated Cockrell’s right

to be free from excessive force.

                Finally, there is no “obvious cruelty inherent” in the use of tasers, 

, which would render Hall’s conduct objectively unreasonable.               Tasers in general, and

particularly devices like the X26, which are designed to cause temporary paralysis, involve a

significant degree of force. As Judge Murphy of the Eighth Circuit observed: “especially with the

newer tasers, the nature and quality of their intrusion on the individual’s Fourth Amendment interests

is somewhat unique in that they render even the most pain tolerant individuals utterly limp.”

(Murphy, J., concurring). Similarly, the Ninth Circuit has observed:

“The X26 . . . intrudes upon the victim’s physiological functions and physical integrity in a way that

other non-lethal uses of force do not. ” 

. However, argues Ninth Circuit

Chief Judge Kozinski, even if tasers do involve a significant degree of force, they are a highly

desirable and extremely effective law-enforcement tool. They allow an officer to deter an

uncooperative suspect from a safe distance, without undue risk to either party. 

–54 (Kozinski, C.J., concurring in part and dissenting in part).9 We take no position on the

merits of any judge’s argument; nor do we need to do so. It is enough to say that such a difference




        9
          Notably, Chief Judge Kozinski and Judge Murphy cite different studies, reporting different
rates of injury to suspects tased. Compare 

(“a study by six university
departments of emergency medicine found that 99.7 percent of those Tased by police suffer no
injuries or, at most, mild ones.”) with 

(“As many as thirteen percent of
taser targets are injured by falls.”).

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of opinion among reasonable jurists demonstrates that taser use is not so inherently cruel that it is

objectively unreasonable on that basis alone.

                                                 IV

               In short, it is not clear whether tasing a suspect who fled from the scene of a non-

violent misdemeanor constituted excessive force, as of July 2008. Nor is there consensus that taser

use is categorically improper, unsafe, or cruel. We cannot, therefore, say that “every reasonable

official would have understood that what [Hall was] doing” violated Cockrell’s Fourth-Amendment

rights. 

.

               We hold that the district court erred by failing to grant Officer Hall qualified

immunity.10 We REVERSE IN PART the decision below, and REMAND for further proceedings

consistent with this opinion.




       10
          We note that Appellants did not challenge the district court’s ruling on Cockrell’s claim
against the City of Cincinnati. That claim, of course, may proceed.

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        COLE, Circuit Judge, concurring. I am persuaded that Cockrell, as of July 3, 2008, did not

have a clearly established right not to be tased for fleeing from a non-violent misdemeanor. I write

separately because, given the totality of the circumstances, I believe that Officer Hall’s use of force

was excessive.

        In several of the cases cited by the majority, in which courts found that the use of a taser

against a resisting arrestee constituted excessive force, the courts placed great weight on the officer’s

failure to warn the suspect prior to deploying the taser. See Mattos v. Agarano, 

, 451

(9th Cir. 2011) (en banc) (finding excessive force and reasoning that the officer’s failure to warn the

plaintiff before deploying her taser “pushes this use of force far beyond the pale,” but that

jurisprudence restricting taser usage was not clearly established in August 2006); Bryan v.

MacPherson, 

, 831, 833 (9th Cir. 2010) (finding excessive force and noting that the

officer’s failure to warn the plaintiff before tasing her “militate[s] against finding [the defendant’s]

use of force reasonable,” but that relevant taser jurisprudence was not clearly established in July

2005); Casey v. City of Federal Heights, 

, 1285 (10th Cir. 2007) (finding excessive

force and a violation of clearly established law, reasoning that “[t]he absence of any warning” before

the officer deployed her taser . . . “makes the circumstances of this case especially troubling”).

Likewise, the City of Cincinnati’s use-of-force policy advises officers to “give the subject a verbal

warning that the TASER will be deployed unless exigent circumstances exist that would make it

imprudent to do so.” R.8-4 at 9.

        Here, Hall does not allege that he warned Cockrell of the impending use of his taser—or even

that he ordered him to stop—nor does he allege that exigent circumstances prevented him from doing

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so. Thus, I would find that his use of a taser under these circumstances violated Cockrell’s Fourth

Amendment right to be free from excessive force.




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