GREGORY F. VAN TATENHOVE, District Judge.
The events underlying this civil rights action alleging excessive force arose when
Michael Kent lives in Commerce Township, Michigan, with his wife and young children. A few days before the incident in question, Kent's parents Rick and Pamela traveled from out of state for a visit and were staying with the family in Kent's home. Kent's father suffered from a number of serious health problems for several years, and he spent the majority of his visit in bed in significant pain. On the morning of September 1, 2013, Kent, who happens to be a physician, found that his father was "unresponsive to any stimulus" but still breathing with a carotid pulse. He knew at that point that his father was dying. Rick Kent had executed a living will, which provided that he did not want his life "artificially prolonged by life-sustaining procedures." In accordance with his father's wishes, Kent made his father as comfortable as possible in the guest bedroom. At 7:08 p.m. that evening, Kent determined that his father had passed away: he was no longer breathing and carried no pulse, and his pupils were fixed and dilated. Kent's wife called the non-emergency dispatch to report the natural death.
Firefighter-EMT Anthony Oryszczak arrived around 7:30 p.m. and was directed to the upstairs bedroom. Oryszczak briefly examined the body and asked whether a hospice nurse was present. Kent informed Oryszczak that he was a physician and that his father had passed away about fifteen minutes earlier. As Deputy Lopez arrived, EMT Oryszczak asked whether Kent had a do-not-resuscitate order or power of attorney paperwork. Kent explained that his father was visiting from out of state, and he "wasn't sure if [his] mother had brought any paperwork with her." He told Oryszczak that his mother had power of attorney, and that it was his father's wish that no "heroic measures" or attempts at resuscitation be taken upon his death. According to Lopez, Kent's mother was also asked for any do-not-resuscitate documents. She reiterated that she had power of attorney but did not have the paperwork with her, and she left the bedroom to try to contact a family member who could send the documents.
EMT Oryszczak then radioed for his partner to come assist him in "work[ing] [the patient] up." When Kent asked what this meant, Oryszczak explained that in the absence of proper do-not-resuscitate paperwork, emergency responders' protocol required them to attach an Automated External Defibrillator
The situation escalated at this point. Kent began yelling at the deputies and EMTs, telling them that they "were not going to assault [his] dead father or [he] was going to call the police and have them all thrown in jail." He questioned whether the EMTs "even knew what a DPOA [durable power of attorney] was" and insisted that his mother, as the medical proxy for his father, could tell them what his father's wishes were. Deputy Maher arrived around this time and saw that Kent was gesturing with his hands and "flailing" his arms in the air. Deputy Lopez and an EMT recall that Kent called Oryszczak an "asshole" several times, though Kent does not recall this in his witness statement.
At some point, EMT Oryszczak told Deputy Lopez that he "had an obligation to render aid to the deceased," whom he recalled "did not have obvious signs of death" at that time. Oryszczak asked for the deputies' assistance and told Lopez he could not perform his duties "because he was in fear of Michael Kent intervening." The deputies began attempting to deescalate the situation. According to Kent, Deputy Maher "put her hand on her gun and commanded [him] to calm down." He admits that he refused and told both deputies that "I did not have to calm down, that it was my home and that they were not going to assault my dead father in my home against his wishes." According to Deputy Maher, Kent also refused to comply with her command to lower his hands, saying, "Don't you touch me," although Kent does not recall this in his written statements. Around this time, another EMT on the scene called for back-up officers.
Deputy Lopez recalls that he asked Kent to come downstairs and talk with him. Kent refused, and Lopez says that he then "yelled at Kent that he had to leave the room." Lopez says Kent told him to "get out of his house," but Kent does not recall this exchange in his written statements. Lopez then pulled out his taser and told Kent that if he did not calm down,
Kent remained handcuffed, with the taser probes still attached, during fifteen to twenty minutes of questioning by another non-party deputy. EMTs then removed the probes and dressed Kent's wounds, after which Maher removed the handcuffs. Meanwhile, EMTs "ran a strip" on Kent's father (presumably conducting an AED initial assessment of the patient's carotid pulse). He was pronounced dead around 7:45 p.m. The entire incident therefore lasted around twenty minutes or less.
Kent filed suit in the Eastern District of Michigan against Oakland County and Deputies Lopez and Maher on December 10, 2013. He claimed, under 42 U.S.C. § 1983, that the deputies had violated his Fourth Amendment rights. Specifically, he alleged that Deputy Lopez's use of the taser amounted to excessive force and that Deputy Maher failed to prevent the use of excessive force. He also brought state law assault and battery claims against the deputies. Before any depositions were taken,
The district court found that there were genuine issues of material fact as to "whether EMS and defendants felt they were faced with an emergency," whether "emergency personnel had, or even thought they had, a legal obligation to attempt resuscitation," and whether "Kent was, in fact, non-compliant." The court went on to find that Deputy Lopez's use of force was objectively unreasonable and that case law clearly established that the use of a taser on an individual who was "not under arrest, posed no safety threat to officers or others, made no such verbal threats, was not physically resistant, and may have actually shown physical compliance, constituted excessive force." It therefore concluded that the deputies were not entitled to qualified and governmental immunity and denied their motion for summary judgment. The deputies appeal that decision.
This court has jurisdiction to review a district court's interlocutory denial of qualified immunity to the extent that the appeal raises issues of law. Stoudemire v. Michigan Dep't of Corr., 705 F.3d 560, 564 (6th Cir.2013). We do not, however, review a district court's determination that the record sets forth genuine issues of material fact for trial. Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 495 (6th Cir.2012) (citing Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). Rather, "a defendant denied qualified immunity may appeal . . .
A denial of summary judgment on the basis of qualified immunity is subject to de novo review. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir.2013). In this posture as well, we must "view all evidence, and draw all reasonable inferences, in the light most favorable to [the nonmoving party, Kent]." Goodwin v. City of Painesville, 781 F.3d 314, 320 (6th Cir.2015).
In determining whether a law enforcement officer is entitled to qualified immunity on an excessive force claim, we ask two questions: (1) whether the officer violated the plaintiff's constitutional rights under the Fourth Amendment; and (2) whether that constitutional right was clearly established at the time of the incident. Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 508 (6th Cir.2012). We may conduct this analysis in any order. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Whether an officer's use of force in effecting an arrest violates the Fourth Amendment turns on "whether the officer[`s] actions are `objectively reasonable' in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In this analysis, we pay "careful attention to the facts and circumstances of . . . [the] case, 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." Id. at 396, 109 S.Ct. 1865 (citations omitted). The ultimate question, however, is "`whether the totality of the circumstances justifies a particular sort of seizure.'" St. John v. Hickey, 411 F.3d 762, 768 (6th Cir.2005) (quoting Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Throughout the inquiry, we must carefully balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865. We are to consider "`reasonableness at the moment' of the use of force, as `judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,'" Goodwin, 781 F.3d at 321 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865), and we must take into account the fact that police officers "are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.
The deputies argue that the first Graham factor, the severity of the offense, is irrelevant since Kent was never charged with any crime. But that fact is precisely what calls Deputy Lopez's use of a taser into question under this factor. Kent was never arrested and was not told at any time that he was under arrest. See e.g., Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009) (finding excessive force where officer pepper sprayed man who was never told he was under arrest; man also fled police but later put his hands against a wall "without any indication of resistance").
The deputies also insist that Kent posed an immediate threat to the safety of those on the scene, but it is difficult to square that claim with our case law. While Kent may have prevented EMTs from fulfilling their perceived duties, his conduct does not resemble the physical and immediate safety threat we have found in other cases to justify tasing. For example, we have found tasing permissible where an individual was armed. See Watson v. City of Marysville, 518 Fed.Appx. 390 (6th Cir. 2013) (holding that tasing did not constitute excessive force where the suspect, who was reported to be armed, reached into bag). In this case, it is undisputed that Kent was unarmed and made no evasive movements to suggest he had a weapon. Further, we have found tasing reasonable where individuals were particularly violent or physically resistant, so as to endanger responders. See Caie v. W. Bloomfield Twp., 485 Fed.Appx. 92, 94 (6th Cir.2012) (plaintiff ran from police while "flailing his arms violently"); Hagans, 695 F.3d at 511 (plaintiff was "out of control and [] forcefully [] resist[ing] arrest"). There is no evidence that Kent was violently thrashing about in an effort to avoid handcuffing or to flee police, such that he might have harmed the deputies and EMTs in the bedroom. Nor is there any indication that he attempted to hit officers or make a display of force. See Rudlaff, 791 F.3d 638, 640 (6th Cir.2015) (finding tasing reasonable where claimant "puffed out his chest and stared down [the officer]," then swung his arms twice toward officers). At the most, according to Deputy Maher's account, Kent used agitated hand gestures. Kent's actions do not, therefore, amount to the same immediate threat to safety found to justify tasing under our case law.
More importantly, we also assume in this interlocutory appeal that Kent had his hands up and his back against the bedroom wall when he was tased. We have held that an individual poses little threat of harm when her hands are in the air indicating submission. Grawey, 567 F.3d at 311 (finding excessive force where an individual approached an officer and initially refused to obey commands to lower his hands, but later had his hands against a wall in submission when the officer pepper sprayed him); Correa v. Simone, 528 Fed.Appx. 531 (6th Cir.2013) (finding no immediate threat of harm, and ultimately finding excessive force, where arrestee—who was armed—had put his hands in the air, ceased resisting, and made no evasive movements); Thomas v. Plummer, 489 Fed.Appx. 116, 126 (6th Cir.2012) (finding that arrestee who had dropped to her knees and raised her hands over her head posed "absolutely no threat to [the officer's] or any other officer's safety"). Sitting in the "`peace of a judge's chambers,'" we take seriously an officer's objectively reasonable belief that an arrestee posed an immediate threat to the officer's safety or the safety of others. Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). But once Kent ceased flailing his arms and assumed this posture, he indicated submission or, at the very least, minimized any immediate safety threat he might have posed to the deputies and emergency responders in the bedroom.
Citing Eldridge v. City of Warren, 533 Fed.Appx. 529 (6th Cir.2013), the deputies insist that Kent was actively resisting arrest because he refused to comply with their commands to calm down and demonstrated "verbal hostility." Id. at 535. After comparing and contrasting taser cases from this circuit, the Eldridge court noted that active resistance could be characterized as "noncompliance" that is coupled with "some outward manifestation—either verbal or physical—on the part of the suspect [that] suggest[s] volitional and conscious defiance." Id. at 534. One case the Eldridge Court considered, Caie v. West Bloomfield Township, 485 Fed.Appx. 92 (6th Cir.2012), provides a useful comparison here. The plaintiff in Caie was a suicidal and heavily intoxicated young man who had escaped from the care of relatives and rowed out to the middle of a lake with the reported intention of killing himself. The young man complied with officers' orders to get out of the water, but once onshore, he behaved erratically and commented repeatedly that he "should fight the officers so that they would have a reason to kill him." Id. at 94. Concerned that the plaintiff's resistance could escalate into violence, the officers decided to forcibly
Judge Donald also wrote for the majority in Eldridge and found that Caie contrasted sharply with that case. In Eldridge, the police confronted an erratic driver, who they later discovered was in the midst of a diabetic hypoglycemic episode. Despite several commands to exit his vehicle, the driver did not move and repeatedly said, "I'm fine, thank you," until officers forcibly removed him from the car and tased him multiple times. Eldridge, 533 Fed.Appx. at 530-31. The court concluded that the use of a taser in response to Eldridge's passive resistance amounted to excessive force. Not only were Eldridge's verbal statements distinguishable from the direct threats of physical violence seen in Caie, but Eldridge also displayed no deliberate physical defiance and had "played no role in escalating the aggression." Id. at 535.
We recently contrasted these two cases again in Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir.2015). In Goodwin, officers initially responded to a noise complaint from a loud party in claimant David Lee Nall's apartment in 2010. Sometime after the officers gave Nall a warning, a guest leaving the party told them that Nall was "crazy" and had threatened to kill the guests and the police. Id. at 319. Intending to arrest Nall for disorderly conduct, the officers returned to his apartment and asked him to step outside. Nall refused, told them he did not have to step outside, and closed the door. Id. The officers then kicked the door open and tased Nall in dart mode for an unusually long period of twenty-one seconds, then again in drive stun mode. The court held that the officers had used excessive force in the first tasing, since "Mr. Nall's single statement that he would not leave his apartment, or the fact that he remained in his apartment rather than exiting, does not in itself render [the officer's] use of the Taser reasonable." Id. at 324. Nall's "passive refusal" to comply with the officers' commands was "more akin to the suspect's refusal to exit his car in Eldridge than to the continued resistance and hostility present in the active resistance cases, such as Caie, that Eldridge distinguishes." Id. at 325-26.
The combination of facts that made the use of force reasonable in Caie is not present here. Kent admits that he did not fully comply with the deputies' orders to calm down. He also admits that he yelled at officers that he "did not have to calm down," that the emergency personnel "were not going to assault [his] dead father or [he] was going to call the police and have them all thrown in jail," and that he responded to Deputy Lopez's final warning with, "Go ahead and Taze me, then." Kent's language might not resemble the "polite responses" given in Eldridge, but it does not approach the direct threat of physical harm made by the plaintiff in Caie. And unlike Caie, Kent never attempted to flee officers, and he never attempted to prevent officers from handcuffing him. Rather, much like the claimant in Goodwin, who, like Kent, refused to comply with an officer's command and verbally indicated as much, Kent's conduct
We are keenly aware that, at the time of the incident, the deputies understood that they were obligated to secure the scene so that EMTs could perform their perceived duties,
They were also well aware—perhaps most importantly—that the entire incident occurred in Kent's home, one of the most sacred of spaces under the Fourth Amendment's protections. Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734) (1961) ("`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'"); see also Goodwin, 781 F.3d at 327 (turning to the "central purpose of the Fourth Amendment" to hold that Nall's refusal to exit his home, without more, did not constitute active resistance). Of course, officers are not precluded from using reasonable force in that setting, and it can sometimes be justified in the face of active resistance or an immediate
The second question in the qualified immunity analysis asks whether, at the time of the incident in September 2013, it was clearly established that Kent had a right not to be tased under these circumstances. The doctrine of qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments," and "protects `all but the plainly incompetent or those who knowingly violate the law.'" Stanton v. Sims, ___ U.S. ___, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011); Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)); Mullenix v. Luna, 577 U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015). An officer violates clearly established law and loses that immunity when, at the time of the challenged conduct, "`[t]he contours of [a] right are sufficiently clear' that every `reasonable official would have understood that what he is doing violates that right.'" al-Kidd, 131 S.Ct. at 2083 (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The Supreme Court "`do[es] not require a case directly on point' before concluding that the law is clearly established, `but existing precedent must have placed the statutory or constitutional question beyond debate.'" Stanton, 134 S.Ct. at 5 (quoting al-Kidd, 131 S.Ct. at 2083); Mullenix, 136 S.Ct. at 308; Rudlaff, 791 F.3d at 643 ("[E]xisting case law ... must put the precise question `beyond debate.'" (quoting al-Kidd, 131 S.Ct. at 2083)). The law is clearly established when the plaintiff can point either to "cases of controlling authority in his jurisdiction at the time of the incident," or "a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful." Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); see also, e.g., al-Kidd, 131 S.Ct. at 2083-84 (applying the standard from Wilson); Sheehan, 135 S.Ct. at 1776-78 (same).
The deputies first argue that this inquiry must be limited to the "community caretaker" context and emphasize that no case has expressly prohibited the use of a taser when officers are securing a scene for emergency personnel. This narrow definition, however, is contrary to guidance from the Supreme Court and this Circuit. The Supreme Court has "repeatedly" cautioned that courts should not define the right in question with a "high level of generality," but should instead base their analysis on a reasonably particularized definition. al-Kidd, 131 S.Ct. at 2084. Indeed,
With those directives in mind, we turn to whether, in September 2013, it was clearly established that it was excessive force to tase an individual who refused to comply with officers' commands to calm down and yelled at emergency responders, but was never told he was under arrest, never demonstrated physical violence, and had his arms in the air and his back to the wall when tased. Under recent precedent assessing the state of the law in 2010, we must answer that question in the affirmative.
It is clearly established in this Circuit that "the use of a Taser on a non-resistant suspect" constitutes excessive force. Kijowski, 372 Fed.Appx. at 601. Conversely, it is also clearly established that tasing a suspect who "actively resists arrest and refuses to be handcuffed" does not violate the Fourth Amendment. Hagans, 695 F.3d at 509. Relying again on Eldridge's statement that active resistance involves "noncompliance ... paired with [] signs of verbal hostility," Eldridge, 533 Fed.Appx. at 535, the deputies argue it was clearly established that Kent's failure to comply with commands to calm down amounted to "physical defiance" and his shouts at the deputies and EMTs amounted to "verbal belligerence," such that he was "actively resisting arrest." But in Goodwin, we recently rejected that very argument. Instead, we held that, as of June of 2010, it was clearly established that the use of a taser in response to very similar behavior—refusing to comply with commands to leave an apartment and saying as much to officers, when the claimant was never told he was under arrest and posed little safety threat to officers—constituted excessive force. 781 F.3d at 326. If the claimant in Goodwill had a clearly established right to be free from the use of a taser in 2010, then it must be said that Kent had the same clearly established right in September 2013.
We have also held that, since mid-2005, "[t]he general consensus among our cases is that officers cannot use force ... on a detainee who has been subdued, is not told he is under arrest, and is not resisting arrest." Grawey, 567 F.3d at 314 (citations omitted); see also, e.g., Thomas, 489 Fed.Appx. 116, 125 (holding it was clearly established that an "officer's tasing a once-disobedient suspect who has stopped resisting constituted excessive force, as of August 23, 2009"). As we have noted, Kent was never told he was under arrest, and—like the claimant in Goodwin—there is no evidence that he had reason to believe he was being detained. Goodwin, 781 F.3d at 326. In this interlocutory
In his thoughtful dissent, Judge Suhrheinrich suggests that we should look to guidance in the Eleventh Circuit with respect to the facts that give rise to a constitutional deprivation. But surely it demands too much from law enforcement personnel to be aware of the "clearly established" holdings of other circuits. Where Sixth Circuit law is clear, it controls. Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002) ("In inquiring whether a constitutional right is clearly established, we must look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.").
A few other matters remain. Deputy Maher, first, is not entitled to qualified immunity in Kent's inaction claim. Since Deputy Lopez's use of the taser under these facts constituted excessive force in September 2013, it follows that Maher "had reason to know that excessive force would be or was being used." Goodwin, 781 F.3d at 328 (citing Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997)). Maher also had "the opportunity and the means to prevent the harm from occurring." Id. She was in the bedroom for the majority of the incident, communicated with Lopez as the events unfolded, and was facing Kent when she heard Lopez warn Kent that he would use the taser. She was close enough to handcuff Kent immediately after the taser was deployed. Contra Turner, 119 F.3d at 429-30 (finding that plaintiff could not establish an inaction claim where officer was not facing the arrestee when another officer used force, and did not communicate with the other officers beforehand). Kent has presented sufficient evidence to give rise to a jury question as to whether a reasonable officer in Maher's position would have observed Deputy Lopez's use of the taser and would have taken action to prevent Lopez from applying it. Goodwin, 781 F.3d at 329.
The same is true of Kent's state law assault and battery claims. Since it was clearly established that the use of a taser under these circumstances constituted excessive force, Deputies Lopez and Maher cannot show that their conduct was "undertaken in good faith" and without a "wanton or reckless disregard of the rights of another." See Odom v. Wayne Cnty., 482 Mich. 459, 760 N.W.2d 217, 228 (2008) (citations omitted); Scozzari v. City of Clare, 723 F.Supp.2d 974, 978 (E.D.Mich. 2010) (citing Odom, 760 N.W.2d at 225), aff'd sub nom. Scozzari v. Miedzianowski, 454 Fed.Appx. 455 (6th Cir.2012); see also Mich. Comp. Laws § 691.1407(3). The deputies are not entitled to governmental immunity under Michigan law. Finally, the deputies' challenges to the district court's factual determinations have no place in this de novo, interlocutory appeal.
For these reasons, we
SUHRHEINRICH, Circuit Judge, dissenting.
First, I believe that Deputy Lopez's use of the Taser was an objectively reasonable use of force and not a constitutional violation.
A brief review of the facts "taken in the light most favorable to the plaintiff but viewed from the perspective of a reasonable officer on the scene" explains why the deputies' actions were objectively reasonable. Grawey v. Drury, 567 F.3d 302, 309 (6th Cir.2009). The EMTs and Deputy Lopez arrived at the scene in response to a call reporting the death of Kent's father. They proceeded to the upstairs bedroom where Kent's father was lying in bed. Firefighter-EMT Oryszczak advised Kent that he had a duty to attach an AED to Kent's father, apparently to determine whether Kent's father was in fact dead, and to "do everything he could for him" if he was not. Kent flew into a tirade, shouting at Oryszczak that "he was not going to assault my dead father." Oryszczak told Deputy Lopez "he had an obligation to render aid to the deceased and could not because he was in fear of Michael Kent intervening." Deputy Maher arrived, and Kent repeated his threat to the EMT personnel and deputies that "they were not going to assault my dead father or I was going to call the police and have them thrown in jail." Deputy Lopez explained the EMT's duty to act to Kent, and Deputy Maher commanded Kent to calm down. Kent retorted: "I did not have to calm down, that it was my home, and that they were not going to assault my dead father in my home against his wishes." At that point, Deputy Lopez pulled out his Taser and warned he would use it if Kent would not calm down and leave the room. Appellee Br. 9.
The undisputed facts establish that Deputy Lopez applied minimal force to secure Kent's submission so that Oryszczak and the other EMTs could perform their duties without fear in an emergency situation. Yet the majority dismisses this emergency as insufficiently serious compared to the situation in Stricker v. Township of Cambridge, 710 F.3d 350, 364-65 (6th Cir.2013). Maj. Op. at 394-95. In Stricker, the court found that pointing a taser gun, using a pressure hold, and handcuffing did not violate the Fourth Amendment where the plaintiff had repeatedly repelled officers' attempts to respond to a 911 call reporting her son's potential drug overdose. Id. at 355-56. A principal justification for the officer's use of force in Stricker was the plaintiff's "earlier attempts to prevent medical personnel's access to [the son who overdosed]." Id. at 365. Like the officers in Stricker, Deputies Lopez and Maher faced an individual blocking their attempts to examine and assist a person in potential medical distress. The majority trivializes the perceived emergency here because the officers "knew they were responding to a natural death investigation." Maj. Op. at 394. But this assessment disregards the EMTs' duty to test for signs of life and, if Kent's father was still alive, provide medical assistance. It also fails to perceive the officers' understandable sense of urgency to enable the EMTs to act quickly since an AED must be administered within minutes of a cardiac arrest to restore life, see Maj. Op. at 387-88 n. 1, leaving little time for verbal persuasion or other more tentative measures.
The majority also mischaracterizes Kent's behavior as submission or, at most, passive resistance. The opinion contrasts Kent's behavior with the intoxicated and threatening plaintiff who fled police in Caie v. West Bloomfield Township, 485 Fed.Appx. 92, 96-97 (6th Cir.2012), where the court upheld use of a Taser, and likens it to the single act of disobedience and verbal defiance in Goodwin v. City of Painesville, 781 F.3d 314, 323-24 (6th Cir. 2015), where the court held use of a Taser unreasonable. See Maj. Op. at 392-96. Neither Caie nor Goodwin, however, establishes that Kent's aggressive and arguably threatening behavior posed mere passive resistance. Although Kent was not intoxicated, did not threaten the officers or EMTs with physical harm, and did not run from the police like the plaintiff in Caie, his behavior was equally volatile. He obstructed emergency medical treatment,
Caie actually supports Deputy Lopez's use of a Taser in this situation. The plaintiff in Caie was tased only after he was "taken to the ground" and refused to move his hands for handcuffing. Id. at 94. Even though the Caie plaintiff was "arguably subdued" and the risk of harm or flight had been minimized, the court upheld the tasing because the plaintiff "continued to be uncooperative."
Nor is Kent's behavior akin to the plaintiff's single act of disobedience in Goodwin. Kent admittedly disobeyed at least two direct police commands, refused to cooperate with Deputy Lopez's attempts to explain EMTs' duties to act, repeatedly shouted at EMT personnel and the police, and dared the officers to use physical force. The Goodwin plaintiff disobeyed and verbally defied only one police command to step outside his apartment. Goodwin, 781 F.3d at 319, 326. Moreover, Deputy Lopez acted under emergency conditions not present in Goodwin, which involved an arrest for disorderly conduct. Deputy Lopez had to act quickly to restrain Kent from delaying potentially urgent medical aid; in contrast, the Goodwin officers had little reason to tase the plaintiff before attempting less forceful measures to carry out the arrest.
An Eleventh Circuit case presents a closer factual scenario to this case than either Caie or Goodwin and confirms that Deputy Lopez's decision to tase Kent did not violate the Constitution. In Draper v. Reynolds, 369 F.3d 1270, 1272-73, 1278 (11th Cir.2004),
Notably, the majority does not suggest what Deputy Lopez should have done instead of tasing Kent. A key reason judges should give deference to officers' judgment in difficult scenarios like this one is the inability of courts to recommend an alternative course of action for police officers. See Eldridge v. City of Warren, 533 Fed. Appx. 529, 538 (6th Cir.2013), (Norris, J., dissenting) (observing that "the majority's opinion offers little guidance to officers confronting a similar situation in the future"). It is undisputed that Oryszczak told Deputy Lopez he was fearful Kent would assault him if he tried to administer the AED. From Deputy Lopez's perspective, then, a failure to act could have resulted in a delayed medical response and a loss of life to Kent's father. Attempting a verbal arrest command and physical removal of Kent could have led to a physical altercation that likely would have harmed Kent, the EMTs, or the deputies more than a five-second Taser cycle and would have further delayed any resuscitation attempt had Kent's father been alive. See Draper, 369 F.3d at 1278 ("a verbal arrest command accompanied by attempted physical handcuffing, in these particular factual circumstances, may well have, or would likely have, escalated a tense and difficult situation into a serious physical struggle in which either Draper or Reynolds would be seriously hurt"); see also Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 510 (6th Cir.2012) (noting that Tasers present "a significantly lower risk of injury than physical force"). Confronted with this unpromising set of options, Deputy Lopez's decision to tase Kent can hardly be branded "objectively unreasonable."
In truth, the only person in the room that day who acted objectively unreasonable was Kent. Although understandably distraught over the very recent death of his father, Kent's disrespect and outright aggression towards EMT personnel and police created needless upheaval over what turned out to be mere confirmation that Kent's father was dead. We expect our police officers to exercise restraint and use good judgment, but that does not divest
Because I find Deputy Lopez's use of the Taser to subdue Kent did not violate the Constitution under the version of facts most favorable to Kent, I would reverse the district court's denial of qualified immunity to Deputies Lopez and Maher. Under the same analysis, I would reverse the district court's denial of governmental immunity to the deputies on Kent's state law assault and battery claims.
Even if Deputy Lopez's use of the Taser violated Kent's right to be free from excessive force, Deputy Maher did not violate that right because the tasing lasted only five seconds, leaving Deputy Maher no realistic opportunity to intervene.
Police officers may be liable for failing to protect a person from excessive force if the officer knew or should have known that excessive force would or might be used, and the officer had both the opportunity and means to prevent the harm from occurring. Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997). No duty to intervene exists, however, where one officer's act of excessive force occurs so rapidly that a second officer on the scene lacks "`a realistic opportunity to intervene and prevent harm.'" Wells v. City of Dearborn, 538 Fed.Appx. 631, 640 (6th Cir.2013) (quoting Ontha v. Rutherford Cnty., Tenn., 222 Fed.Appx. 498, 507 (6th Cir.2007)).
The majority claims that Deputy Maher had the opportunity to prevent the tasing here because she was in the bedroom with Deputy Lopez and Kent, she saw Deputy Lopez point the Taser at Kent, and she was standing close enough to Kent to handcuff him after he was tased. Maj. Op. at 398-400. But our case law makes clear that where an instance of excessive force lasts only a matter of seconds, officers have no opportunity to intercede and therefore cannot be held liable for failing to prevent the violation. See, e.g., Amerson v. Waterford Twp., 562 Fed.Appx. 484, 490 (6th Cir.2014) (finding an officer had no opportunity to prevent two strikes to the plaintiff's head because the span of time for intervention "could not have been more than a few seconds"); Wells, 538 Fed.Appx. at 640 (finding no opportunity to prevent a knee strike and tasing where the acts were "rapid" and did not constitute an "extended string of abuses"); Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir.2013) (finding no opportunity to prevent a "takedown" that lasted no more than ten seconds); Kowolonek v. Moore, 463 Fed.Appx. 531, 539 (6th Cir.2012) (finding that officers had no opportunity to stop a tasing that "could only have lasted for a fraction" of the entire altercation with police, which itself lasted only minutes); Ontha, 222 Fed.Appx. at 506-07 (finding officer who was a passenger in a patrol car that ran over a fleeing suspect lacked opportunity to "implement preventative measures within a short time span of six to seven seconds").
Kowolonek v. Moore is particularly on point. In Kowolonek, the plaintiff alleged that one of the five officers attempting to detain him threatened to use a Taser and then did so after the plaintiff stated "a Taser would be the only way to get [me]." 463 Fed.Appx. at 533. The court rejected
For these reasons, the majority's reliance on Goodwin is misplaced. There, we found that the plaintiff stated a constitutional violation where the officers confronted "a prolonged application of force"—a twenty-one-second initial tasing followed by an additional five-second tasing—because the officers could have interrupted the abuse or at least prevented its repetition. Goodwin, 781 F.3d at 319, 329. As stated, Deputy Maher could not have acted in five seconds. Thus, Deputy Maher is entitled to qualified immunity in any event.
For the foregoing reasons, I respectfully dissent.