Rudlaff v. Gillispie

• Decision Date: 01 July 2015
• Docket Number: No. 14–1712.,14–1712.
• Citation: 791 F.3d 638
• Parties: Scott RUDLAFF, Personal Representative for the Estate of Lawrence Carpenter, Plaintiff–Appellee, v. Brandon GILLISPIE; Jacob Bielski, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

791 F.3d 638

Scott RUDLAFF, Personal Representative for the Estate of Lawrence Carpenter, Plaintiff–Appellee

v.Brandon GILLISPIE; Jacob Bielski, Defendants–Appellants.

No. 14–1712.

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2015.

Decided and Filed: July 1, 2015.

ARGUED:Marcelyn A. Stepanski, Johnson, Rosati, Schultz & Joppich, P.C., Farmington Hills, Michigan, for Appellants. David G. Blake, Romano Law, P.L.L.C., Pleasant Ridge, Michigan, for Appellee. ON BRIEF:Marcelyn A. Stepanski, Johnson, Rosati, Schultz & Joppich, P.C., Farmington Hills, Michigan, for Appellants. Christina D. Davis, Romano Law, P.L.L.C., Pleasant Ridge, Michigan, for Appellee.

Before: McKEAGUE and DONALD, Circuit Judges; MATTICE, District Judge.^*

McKEAGUE, J., delivered the opinion of the court in which MATTICE, D.J., joined, and DONALD, J., joined in the result. DONALD, J. (pp. 644–48), delivered a separate opinion concurring in the judgment.

OPINION

McKEAGUE, Circuit Judge.

Two county police officers used force (one, a knee strike; the other, a taser) to subdue Lawrence Carpenter during his arrest. Their dash-cam videos show, and Carpenter admits, that he resisted arrest and refused to be handcuffed before the officers used force. When an arrestee actively resists arrest like Carpenter did, the police can constitutionally use a taser or a knee strike to subdue him. Because the officers did no more than that here, they acted within the bounds of the Fourth Amendment. We accordingly reverse the district court's denial of summary judgment to the officers.

I

Before filling in the facts, let us be clear on how we view them. Ordinarily in summary-judgment appeals involving qualified immunity (like this one), we view the facts in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). But there is “an added wrinkle in this case: existence in the record of [two] videotape[s] capturing the events in question.” Id. In such a case—“where the police dash-cam video[s] ... depict[ ] all of the genuinely disputed facts,” Standifer v. Lacon, 587 Fed.Appx. 919, 920 (6th Cir.2014) —we “view [ ] the facts in the light depicted by the videotape[s].” Scott, 550 U.S. at 381, 127 S.Ct. 1769.

Here are the facts, then, according to the two dash-cam videos and filled in by the record taken in the plaintiff's favor. As Deputy Brandon Gillispie drove along Route 55 in Wellston, Michigan on routine afternoon patrol, he observed Lawrence Carpenter's truck going the other way. Gillispie knew Carpenter from three prior encounters, all involving Carpenter driving with a suspended license. In the last of these encounters, Carpenter took off running after being pulled over by Gillispie. Gillispie also knew Carpenter's history of drunk driving and getting physical with police officers after being stopped. Thus, when Gillispie saw Carpenter driving on this occasion, he knew Carpenter was violating the law because he was (at least) driving with a suspended license, and he was on high alert because of Carpenter's history with the police.

Gillispie accordingly made a U-turn, turned on his lights, and pulled Carpenter over to arrest him—in an undisputed lawful stop. Gillispie called another officer, Deputy Jacob Bielski, for backup and informed Bielski of Carpenter's history of aggression toward the police. Bielski, who was only seconds away, pulled over behind Gillispie and Carpenter. The three cars parked on the narrow shoulder of the two-lane, 55–mile–per–hour highway. Both officers' dash-cam videos recorded the events that followed.

Gillispie approached Carpenter's truck and informed him through his open window that he was under arrest for driving with a suspended license. R. 28–1 (Carpenter Dep.) at 14. Gillispie then opened the driver's side door and told Carpenter to get out. According to Gillispie, Carpenter appeared “highly agitated” and was “swearing” in response to this request, but he voluntarily exited the truck. R. 28–2 (Gillispie Dep.) at 7. The videos and depositions confirm that Carpenter appeared agitated, as he puffed out his chest and stared down Gillispie as he left the vehicle. Gillispie instructed Carpenter to put his hands on the truck. But Carpenter did not listen to Gillispie's instructions. Gillispie then grabbed Carpenter's right arm and tried to move it onto the truck. Carpenter swung (or “jerked,” if you'd prefer, Concurring Op. at 646–47) his arm back in Gillispie's direction—admittedly trying to “prevent [Gillispie] from handcuffing” him. R. 28–1 at 15.

After the swing, Gillispie succeeded in getting Carpenter to put both hands on the truck and attempted to grab Carpenter's left arm to place it in handcuffs. At this, Carpenter swung his arm in Gillispie's direction for the second time, again trying to resist being handcuffed. See R. 28–1 at 15. The audio in one of the dash-cam videos picked up Gillispie at least twice telling Carpenter to “give me the hands.” R. 30 (Bielski Dash–Cam Video) at 13:13:46–50. But Carpenter still would not comply. He testified that he instead just “ball[ed] up” because Gillispie had “kept tugging on me,” and that he would have complied if Gillispie would have let him go. R. 28–1 at 19.

Yet Gillispie did not let go, and Carpenter did not comply. Gillispie performed a knee strike on Carpenter, attempting to force his compliance. But the knee strike did not succeed in subduing Carpenter, who still appeared to be struggling. R. 30 (Gillispie Dash–Cam Video) at 13:17:43–51. Deputy Bielski, who had observed all of this—from the puffed-up chest, to the two arm swings, to Carpenter's balling up, to the ineffective knee strike—yelled at Carpenter to “relax, or else you're gonna get tasered.” R. 30 (Bielski Dash–Cam Video) at 13:13:50–51. (Bielski does not remember giving this warning, see R. 28–3 at 7, but it is clear from the video.) Carpenter testified that he didn't “pay [ ] attention” to this warning. R. 28–1 at 16. Moments later, Bielski tased Carpenter, who almost immediately fell to the ground. The officers handcuffed him, assisted him to his feet, and escorted him to the police cruiser. They did not use any force after they subdued Carpenter, who later pled guilty to driving with a suspended license.

Carpenter sued the officers, claiming they used excessive force in violation of the Fourth (and Fourteenth) Amendment. He contends that both Gillispie's knee strike and Bielski's taser shot were excessive, but his briefing treats the two types of force alike. We do the same. (Carpenter has since passed away from causes unrelated to this case. His estate's personal representative, Scott Rudlaff, has taken over the case, but we still refer to the plaintiff as Carpenter.) The officers, believing qualified immunity insulates them from this suit, sought summary judgment before the district court. But citing “disputed issues of material fact,” the district court denied the motion, even though it noted that the “case do[es] not fall neatly into” categories of clearly established law. R. 32 at 1, 7, 9.

The officers appealed. We have jurisdiction to hear the appeal under the collateral-order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Contrary to Carpenter's contention, Johnson v. Jones, 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), does not stand in the way because the officers do not “solely contest the plaintiff's account of the facts.” Family Serv. Ass'n ex rel. Coil v. Wells Twp., 783 F.3d 600, 607 (6th Cir.2015). They accept the record taken in the videos' and plaintiff's light and raise a pure question of law: whether their conduct violated the Fourth Amendment and, if so, whether it violated clearly established law. Plumhoff v. Rickard, ––– U.S. ––––, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014) ; see Scott, 550 U.S. at 378–81, 127 S.Ct. 1769.

II

We begin with some general propositions of law. The police must act reasonably when seizing a person. See U.S. CONST. amends. IV & XIV. Using “excessive force” during an arrest is unreasonable and thus violates the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394–95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). But a police officer who uses excessive force can be held personally liable only if the use of force was clearly established as excessive at the time of the arrest. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). That means existing caselaw must clearly and specifically hold that what the officer did—under the circumstances the officer did it—violated the Constitution. We therefore must determine (A) whether the officers' conduct violated the Constitution; and (B) if so, whether it violated law that has been clearly established.

A

Prong One. Our cases firmly establish that it is not excessive force for the police to tase someone (even multiple times) when the person is actively resisting arrest. Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 509 (6th Cir.2012) ; e.g., Williams v. Sandel, 433 Fed.Appx. 353, 363 (6th Cir.2011) (not excessive force to tase the suspect thirty-seven times (and use batons and pepper spray) because he actively resisted arrest). Active resistance includes “physically struggling with, threatening, or disobeying officers.” Cockrell v. City of Cincinnati, 468 Fed.Appx. 491, 495 (6th Cir.2012) (collecting cases). And it includes refusing to move your hands for the police to handcuff you, at least if that inaction is coupled with other acts of defiance. Caie v. W. Bloomfield Twp., 485 Fed.Appx. 92, 94, 96–97 (6th Cir.2012) ; see Williams v. Ingham, 373 Fed.Appx. 542, 548 (6th Cir.2010). But active resistance does not include being “compliant or hav[ing] stopped resisting,” Hagans, 695 F.3d at 509 ; or having “done nothing to resist arrest,” or having “already [been] detained,” Cockrell, 468 Fed.Appx. at 496 (collecting cases). E.g., Eldridge v. City of Warren, 533 Fed.Appx. 529, 535 (...