Clay v. Emmi

• Citation: 797 F.3d 364
• Decision Date: 13 August 2015
• Docket Number: No. 14–2351.,14–2351.
• Parties: Joshua CLAY, Plaintiff–Appellee, v. Michael EMMI, Hazel Park Police Officer, Defendant–Appellant, Richard Story, Hazel Park Firefighter/Medic; Michael Sharrow, Hazel Park Firefighter/Medic; Paul Vandenadelle, Security Personnel at St. John Oakland Hospital; Kevin Mitchell, Security Personnel at St. John Oakland Hospital; St. John Providence Health System, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

797 F.3d 364

Joshua CLAY, Plaintiff–Appellee
v.
Michael EMMI, Hazel Park Police Officer, Defendant–Appellant
Richard Story, Hazel Park Firefighter/Medic; Michael Sharrow, Hazel Park Firefighter/Medic; Paul Vandenadelle, Security Personnel at St. John Oakland Hospital; Kevin Mitchell, Security Personnel at St. John Oakland Hospital; St. John Providence Health System, Defendants.

No. 14–2351.

United States Court of Appeals, Sixth Circuit.

Aug. 13, 2015.

797 F.3d 366

ON BRIEF:Marcelyn A. Stepanski, Johnson, Rosati, Schultz & Joppich, P.C., Farmington Hills, Michigan, for Appellant. Trevor J. Zaborsky, Romano Law, P.L.L.C., Pleasant Ridge, Michigan, for Appellee.

Before: COLE, Chief Judge; GIBBONS and STRANCH, Circuit Judges.

OPINION

STRANCH, Circuit Judge.

This appeal addresses Joshua Clay's § 1983 claim that Police Officer Michael Emmi used excessive force while restraining him during a mental health commitment. Officer Emmi moved for summary judgment, arguing that the Fourteenth Amendment rather than the Fourth Amendment applies to the use of force claim here, and that he is entitled to qualified immunity because the force he used was appropriate under the circumstances and not prohibited by clearly established law. The district court determined that the Fourth Amendment applies because the force was used in the context of a seizure, and held that Officer Emmi was not entitled to qualified immunity because there exists a genuine dispute of material fact about the amount of force used. Officer Emmi appealed and we AFFIRM.

I. BACKGROUND

On April 8, 2010, Clay, who has been diagnosed with schizophrenia and bipolar disorder, spoke on the phone with his Easter Seals caseworker about his depression. The caseworker then called Hazel Park Police dispatch to report that Clay had told her he had a present plan to commit suicide by slitting his wrists. She asked that the police investigate the situation and explained that Clay had attempted suicide in the past, had been repeatedly hospitalized for expressing suicidal ideations, and might have left his home on foot after she told him she was obligated to report his statements. Police dispatch assigned Officer Emmi to the job and summoned fire department paramedics to the scene as well.

Officer Emmi and another officer arrived first and spoke with Clay's mother, who was unaware that Clay had called Easter Seals. Clay was found hiding in a minivan in the driveway. He explained that he was there because he did not want to go to the hospital. After the other officer and the paramedics spoke with Clay about going to the hospital, he agreed to go to “just go talk to somebody.” Clay got into the ambulance of his own accord and

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was driven to the hospital, with Officer Emmi following behind in his vehicle. Clay was not handcuffed at any point during the journey.

Upon arrival, Clay walked with the paramedics to the emergency department and was placed in a curtained-off area without incident. Someone from the hospital put a gown next to where Clay was sitting and a doctor told him to take off his clothes and put it on. Clay did not want to take his clothes off but he cannot remember if he told anyone that at the time. He does recall that after he made no move to put on the gown, either a doctor or a police officer said, “[Y]ou going to do it the easy way or the hard way?” R. 26–2, Clay Dep., PageID# 356. He believes that at this time two officers, hospital security, a doctor, and possibly some other people were in the room with him. After Clay didn't put the gown on, people in the room “wrestled” him to the ground. Id. at 357. According to Clay, “[i]t was just like I'm being jumped. I got took to the ground with a lot of force.” Id. He cannot remember whether he got up to leave before force was used against him, but testified that because of the number of people in the room he would not have been able to get up and walk out even if he had tried to do so.

Once Clay was brought to the floor, people held his arms, their knees pressed down on his back, and there was a foot in his face, so he could not move. He testified that he did not resist and that he knew he “couldn't resist” because there were “too many people.” He thought it wasn't “worth it” to fight because “I can get in trouble for one. And I'm not about to fight with the law.” Id. at 358. At his deposition, he was asked to clarify his statement that he was “wrestled” to the ground, and he explained that “I went [down] willingly but at the same time they was pulling me like they was wrestling me.” Id. at 370. He testified that he was not thrashing around or trying to prevent himself from being brought to the ground.

Clay testified that after he was handcuffed he heard someone say, “I'm going to taser you.” Id. at 358. He laughed because he was already down and secured in handcuffs at that point, but Officer Emmi then used his Taser on Clay's back and everyone else backed off. Clay started yelling and crying when he felt the pain of the electricity running through him. After Officer Emmi stopped, Clay was picked up and put on a hospital bed, still in handcuffs. Later, someone removed the handcuffs and restrained Clay to the bed. He spent the night in the hospital's psychiatric ward, and was released after a day or two. During his stay, he tested positive for cocaine and marijuana.

At his deposition, Clay testified that he had experienced memory problems in the last few years. But despite not being able to remember various details about the events of the day at issue and other life events, he recalled being handcuffed and on the ground before being tasered and testified to that at three separate points during his deposition.

Officer Emmi's account of the facts differs from Clay's in two fundamental respects. First, it includes witness testimony indicating that Clay tried to get up and leave after being told to put the gown on, and that he was “flailing” and trying to get away from hospital staff (though not punching or kicking at them). Appellant's Br. 10–17. Officer Emmi argues that though Clay denied resisting during the incident, his use of the term “wrestled,” belies compliance and suggests he struggled against a counter-force or opposition. Officer Emmi's account fails to acknowledge that when directly asked about the word “wrestle,” Clay said he “went [down]

797 F.3d 368

willingly” but “they was pulling me like they was wrestling me.”

Second, Officer Emmi introduces testimony from several witnesses that Clay was placed in restraints only after Emmi warned him that a Taser would be applied and then actually applied it. He refuses to concede Clay's assertion that he was first handcuffed and then tasered.

II. ANALYSIS

A. Jurisdiction and...