                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0221n.06

                                           No. 09-3764                                  FILED
                                                                                    Apr 08, 2010
                            UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


JOSEPH KIJOWSKI,                                         )
                                                         )
          Plaintiff-Appellant,                           )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Northern
CITY OF NILES et al.,                                    )   District of Ohio
                                                         )
          Defendants,                                    )
                                                         )
CRAIG AURILIO,                                           )
                                                         )
          Defendant-Appellee.                            )



Before:          KEITH, BOGGS, and GRIFFIN, Circuit Judges.

                 BOGGS, Circuit Judge. Joseph Kijowski was arrested during a donnybrook at a

wedding reception. According to Kijowski, police officers dragged him from a truck, threw him to

the ground, shocked him twice with a Taser, and kicked him repeatedly. Kijowski subsequently

brought suit in state court, claiming he was entitled to damages under 42 U.S.C. § 1983 because the

officers violated his Fourth Amendment right to be free from the use of excessive force. The case

was then removed to federal court, where Officer Craig Aurilio, one of the defendants, asserted

qualified immunity and moved for summary judgment. The district court granted his motion, and

Kijowski now appeals. Viewing the facts in the light most favorable to Kijowski, Officer Aurilio’s
No. 09-3764
Joseph Kijowski v. City of Niles et al.

conduct was objectively unreasonable and violated a clearly established constitutional right. We

therefore REVERSE and REMAND for further proceedings.

                                                  I

       On October 28, 2006, things got out of hand at Aulizio’s Banquet Center in Warren, Ohio.

That night, the Banquet Center hosted a wedding reception, at which Kijowski was a guest.1 What

should have been a wholly joyous occasion soured after Reuben Shaw, an off-duty police officer

hired by the Banquet Center to provide security, observed the groom urinating in the parking lot.

Officer Shaw approached the groom and suggested that he “use the restrooms inside.”

Someone—possibly Kijowski’s brother, possibly the groom’s—then grabbed Officer Shaw from

behind, telling him that the man he was speaking to was the groom and that he “better respect that.”2

The situation escalated when the interloper called Officer Shaw “a security guard” and pushed him

with both hands. The pair then “locked up for a short struggle.” Officer Shaw eventually wrestled

his opponent to the ground, but this prompted the groom to jump on Officer Shaw’s back. Although

Officer Shaw was able to shake him off, three more wedding guests joined the fight. Wisely, Officer

Shaw radioed for backup.

       In response to Officer Shaw’s call for help, the entire shift of the Warren Police Department,

as well as members of other nearby departments, arrived at the Banquet Center. One of the


       1
         The district court concluded that the wedding reception was that “of Kijowski’s brother[.]”
However, Kijowski’s affidavit appears to indicate that, though his brother was in attendance, he was
not the groom. Officer Aurilio’s brief suggests that the groom’s name was Robert Peyatt.
       2
        Exactly which man micturated and which confronted Officer Shaw is somewhat unclear.
The precise role of each in the altercation is, however, irrelevant.

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No. 09-3764
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responders was Officer Aurilio,3 a member of the City of Niles Police Department. According to

his affidavit, Officer Aurilio arrived to find that members of the Warren Police Department had

already taken several subjects into custody. He also alleges that police were attempting to arrest a

number of others “who were actively resisting.” Officer Aurilio’s affidavit indicates that he

proceeded to “assist[] Warren police officers in subduing a man who was extremely combative and

resisting the attempts of the Warren officers to handcuff him.” To do so, Officer Aurilio “deployed

[his] Taser in drive stun mode on [the] suspect male which allowed Warren officers to handcuff

him.” Officer Aurilio was later “informed by the Warren Police Department that the aforementioned

suspect was [Kijowski].”

       Kijowski’s account of the evening is quite different and begins in the Banquet Center.

Kijowski claims that, during the initial altercation involving Officer Shaw, he was inside cleaning

up. In his affidavit, Kijowski states that he then left the Banquet Center and got into a truck, where

he was joined by the groom. At that point, he alleges, “several members of various Trumbull County

police departments—probably Howland, Warren, and Niles—appeared at the Banquet Center” and

began spraying Mace into a crowd that had gathered outside. Because police were “beating and

[M]acing party-goers,” Kijowski claims that he reported what he saw, whereupon he was transferred

to Warren dispatch. After briefly conversing with Kijowski, the dispatcher contacted officers on the

scene, stating that Kijowski was on the phone “bothering [him].”4


       3
        With Officer Aurilio was Officer Jaisan Holland, who submitted an affidavit substantially
corroborating Officer Aurilio’s account.
       4
           This portion of the call was recorded, and it is consistent with Kijowski’s narrative.

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No. 09-3764
Joseph Kijowski v. City of Niles et al.

       As a result, Kijowski contends, a number of police officers, including Officer Aurilio,

approached the truck.5 Some of them “began pounding on the truck, yelling at [Kijowski] to hang

up the phone and get out of the truck.” Telling officers he was afraid to get out, Kijowski spotted

Officer Crank, a member of the City of Niles Police Department whom Kijowski knew. Kijowski

contends that he called Officer Crank over and that Officer Crank “told the other officers that

[Kijowski] was O.K. and that [he] was not making trouble[.]”

       Officer Crank then left, Kijowski claims, and just as he did, Kijowski “felt [him]self being

dragged out of the truck and thrown to the ground face first[.]” The officers then crushed Kijowski’s

phone, and “[t]he next thing he felt was a sudden jolt of electricity to [his] mid back, and boots

kicking [his] left side[.]” “As soon as [his] muscles turned weak,” he says, “[he] felt the jolt again.”

After he was shocked for a second time, “[t]he officers continued kicking [him][.]” According to

Kijowski, he then heard someone say, “the State boys are here,” at which point the “beating

stopped[.]”

       A report prepared by Officer Shaw indicates that, following the incident, Kijowski was

arrested for assault. However, Kijowski was never indicted on assault charges. He did face an

indictment for disorderly conduct, but neither party asserts that he was found guilty of any crimes

stemming from the episode.


       5
         Kijowski does not explicitly say that Officer Aurilio was one of the officers who came up
to the vehicle. Rather, he claims, “[W]ithin seconds of speaking with Warren dispatch, police
officers began pounding on the truck, yelling at me to hang up the phone . . . . That is, on finding
out from the 911 operator that I called emergency services, Craig Aurilio and the John Does sought
me out[.]” A natural implication of this statement is that Officer Aurilio was among the group of
officers who confronted Kijowski.

                                                 -4-
No. 09-3764
Joseph Kijowski v. City of Niles et al.

        On October 24, 2008, Kijowski filed a complaint against Officer Aurilio, the City of Niles,

the City of Niles Police Department, and several unnamed officers, raising, inter alia, an excessive

force claim under 42 U.S.C. § 1983. The suit was filed in the Trumbull County Court of Common

Pleas, but on November 24, 2008, it was removed to the United States District Court for the

Northern District of Ohio.

        The district court held a case management conference, at which it directed the parties to brief

the issue of qualified immunity, and discovery was stayed pending resolution of the matter. One

month later, Officer Aurilio moved for summary judgment, and Kijowski opposed. Despite

Kijowski’s opposition, the district court granted Officer Aurilio’s motion, precipitating this appeal.

                                                   II

        “We review a district court’s decision granting summary judgment de novo.” Vance v. Wade,

546 F.3d 774, 781 (6th Cir. 2009) (quoting Burchett v. Kiefer, 310 F.3d 937, 941 (6th Cir. 2002)).

Summary judgment is warranted “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In deciding a motion for summary

judgment, this court views the factual evidence and draws all reasonable inferences in favor of the

nonmoving party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000) (citing

Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 616 (6th Cir. 1998)). “In qualified

immunity cases, this usually means adopting . . . the plaintiff’s version of the facts.” Scott v. Harris,

550 U.S. 372, 378 (2007).

        With respect to the issue of qualified immunity, the proper standard of review is also de novo.

                                                  -5-
No. 09-3764
Joseph Kijowski v. City of Niles et al.

See Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 346 (6th Cir. 2001) (“Qualified immunity

is a question of law . . . to be reviewed de novo by this [c]ourt.”); Dickerson v. McClellan, 101 F.3d

1151, 1157 (6th Cir. 1996) (“We conduct de novo review because the issue whether qualified

immunity is applicable to an official’s actions is a question of law.”).

                                                   III

        To prevail on his § 1983 claim, Kijowski “must establish that a person acting under color of

state law deprived [him] of a right secured by the Constitution or laws of the United States.” Smoak

v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (citing Waters v. City of Morristown, 242 F.3d 353,

358–59 (6th Cir. 2001)). A defendant may assert “the defense of qualified immunity, which shields

government officials from ‘liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’” Ibid.

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Indeed, “[i]n qualified immunity cases,

the plaintiff bears this burden; he must show that the defendant is not entitled to qualified

immunity.”6 Wysong v. City of Heath, 260 F. App’x 848, 852 (6th Cir. 2008) (citing Wegener v. City

of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).

        When determining whether the allegedly injured party has met this burden, “this court

typically employs a two-step analysis,” asking: “‘(1) whether, considering the allegations in a light

most favorable to the party injured, a constitutional right has been violated, and (2) whether that right



        6
       Of course, if Officer Aurilio had not invoked the defense of qualified immunity, Kijowski
would be under no obligation to refute it. See Harlow, 457 U.S. at 815 (“Qualified or ‘good faith’
immunity is an affirmative defense that must be pleaded by a defendant official.”).

                                                  -6-
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Joseph Kijowski v. City of Niles et al.

was clearly established.’” Smoak, 460 F.3d at 777 (quoting Estate of Carter v. City of Detroit, 408

F.3d 305, 310-11 (6th Cir. 2006)).7 We may consider either step first. See Pearson v. Callahan, 129

S. Ct. 808, 818 (2009).

                                                   A

        Kijowski alleges that, in twice shocking him with a Taser, Officer Aurilio violated his Fourth

Amendment rights.8 “The Fourth Amendment prohibits the use of excessive force by arresting and

investigating officers.” Smoak, 460 F.3d at 783. In evaluating whether this prohibition has been

violated, we employ an “objective reasonableness” test, which requires consideration of the totality

of the circumstances. See Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he question is whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting


        7
         As we noted in Grawey v. Drury, “[s]ome panels of the Sixth Circuit have employed a third
step requiring the court to determine whether the plaintiff has offered sufficient evidence to indicate
that what the official allegedly did was objectively unreasonable in light of the clearly established
constitutional right.” 567 F.3d 302, 309 (6th Cir. 2009). “In excessive force cases, however, because
the defendant’s conduct must have been objectively unreasonable to find a constitutional violation,
the third step is redundant. Thus, qualified immunity in excessive force cases is a two-step analysis.”
Ibid. (internal citations omitted).
        8
         Kijowski suggests that the police also violated his rights by pulling him from the truck,
slamming him to the ground, and kicking him. See Appellant’s Br. at 22. However, the only conduct
he specifically attributes to Officer Aurilio is use of the Taser. Because “[e]ach defendant’s liability
must be assessed individually, based on his or her own actions[,]” Dorsey v. Barber, 517 F.3d 389,
399 n.4 (6th Cir. 2008), we confine our analysis to the actions Officer Aurilio is claimed to have
taken. Admittedly, “[t]his court has held . . . that a police officer who fails to act to prevent the use
of excessive force [by another officer] may still be held liable[.]” Floyd v. City of Detroit, 518 F.3d
398, 406 (6th Cir. 2008). But liability for failure to prevent the use of force only attaches “where
‘(1) the officer observed or had reason to know that excessive force would be or was being used, and
(2) the officer had both the opportunity and the means to prevent the harm from occurring.’” Ibid.
(quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)). As Kijowski has alleged none of the
requisite elements, he cannot rely on this theory.

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No. 09-3764
Joseph Kijowski v. City of Niles et al.

them, without regard to their underlying intent or motivation.”); Summerland v. County of

Livingston, 240 F. App’x 70, 76 (6th Cir. 2007) (“The ultimate question is ‘whether the totality of

the circumstances justified a particular sort of search or seizure.’” (quoting Tennessee v. Garner, 471

U.S. 1, 8–9 (1985))). “The test is fact specific, not mechanical, and the three most important factors

for each case are: (1) the severity of the crime at issue; (2) the threat of immediate danger to the

officers or bystanders; and (3) the suspect’s attempts to resist arrest or flee.” Wysong, 260 F. App’x

at 854.

          Furthermore, “[t]he ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. This inquiry must be conducted with sufficient respect for the fact that

police officers often confront exceedingly perilous situations where detached rumination risks loss

of life. See id. at 396–97 (“The calculus of reasonableness must embody allowance for 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.”).

          “With these considerations in mind, we slosh our way through the factbound morass of

reasonableness.” Davenport v. Causey, 521 F.3d 544, 552 (6th Cir. 2008) (quoting Scott, 550 U.S.

at 383) (internal quotation marks omitted). We must first examine a critical factual issue—whether

Kijowski was resisting arrest—as we cannot undertake the reasonableness analysis without assessing

the circumstances confronting Officer Aurilio. See Scott, 550 U.S. at 378 (“The first step in assessing

the constitutionality of [an officer’s] actions is to determine the relevant facts.”). In piecing together

                                                  -8-
No. 09-3764
Joseph Kijowski v. City of Niles et al.

the evening’s events, we are of course required to apply the deferential summary judgment standard

outlined above.

       That said, it can reasonably be inferred from Kijowski’s account that he did not resist arrest.

According to Kijowski, a number of officers, including Officer Aurilio, accosted him while he was

seated in a truck. As Kijowski tells it, he then summoned Officer Crank, who explained that

Kijowski was not causing any trouble.9 Kijowski asserts that Officer Crank departed shortly

thereafter. “As soon as Crank left,” Kijowski claims, “[h]e felt [him]self being dragged out of the

truck and thrown to the ground face first[.]” If the officers truly laid hands on him immediately after

Officer Crank walked away, then there was no intervening window of time during which to resist.

       Similarly, drawing reasonable inferences in his favor, Kijowski’s affidavit provides evidence

that, after he was tossed to the earth, he was shocked at once. Following his removal from the truck,

he claims, “[t]he next thing [he] felt was a sudden jolt of electricity to [his] mid back[.]” Like

Kijowski’s previous statement, this language appears to foreclose the possibility of intervening

physical struggle. As a consequence, we may reasonably infer that no resistance was offered prior

to Officer Aurilio’s initial use of his Taser. There simply was no time.

       Nor was there an opportunity for Kijowski to struggle between the first and second Taser

shocks. “As soon as my muscles turned weak,” he says, “I felt the jolt again[.]” If the second shock



       9
        While it is true that “evidence submitted in opposition to a motion for summary judgment
must be admissible,” U.S. Structures, Inc. v. J.P. Structure, Inc., 130 F.3d 1185, 1189 (6th Cir.
1997), this rule does not bar our consideration of Officer Crank’s out-of-court statement, as the
statement would not be offered to prove the truth of the matter asserted. Rather, the statement would
be relevant to assessing the perceptions of the officers who heard it.

                                                 -9-
No. 09-3764
Joseph Kijowski v. City of Niles et al.

actually followed on the heels of the first, the only tenable conclusion is that it would have been

impossible for Kijowski to muster any fight. Thus, given our obligation to draw all reasonable

inferences in his favor, we must assume that at no time during his encounter with Officer Aurilio did

Kijowski resist arrest.

       Proceeding from this assumption and taking into account the totality of the circumstances,

we cannot say that Officer Aurilio’s conduct was objectively reasonable as a matter of law.10 In

Casey v. City of Federal Heights, the Tenth Circuit remarked:

       [W]e have held that it was not excessive for officers to use an “electrical stun gun” on a man
       after grabbing him and wrestling him to the ground. But we noted that what justified this
       conduct was his active resistance to arrest—[the man] was kicking and biting the officers and
       had shoved one of them to start the fight.

509 F.3d 1278, 1285 (10th Cir. 2007) (citing Hinton v. City of Elwood, 997 F.2d 774, 776–77 (10th

Cir. 1993)). Without active resistance, the equation is different. “[A] stun gun inflicts a painful and

frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim

helpless.” Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993).             Absent some compelling

justification—such as the potential escape of a dangerous criminal or the threat of immediate

harm—the use of such a weapon on a non-resistant person is unreasonable. See Wysong, 260 F.

App’x at 855 (“There is no government interest in striking someone who is neither resisting nor

trying to flee.”); cf. Casey, 509 F.3d at 1285 (declining to “rule out the possibility that there might



       10
         We are mindful that “[s]ome of our cases analyze excessive force claims in segments,”
Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir. 1996), an approach that potentially requires
us to evaluate the Taser shocks independently. We nonetheless refer to the shocks collectively, as
our analysis is applicable to both.

                                                - 10 -
No. 09-3764
Joseph Kijowski v. City of Niles et al.

be circumstances in which the use of a Taser against a nonviolent offender is appropriate”).

Consequently, because Kijowski offered no resistance, Officer Aurilio’s use of his Taser cannot be

considered reasonable without some other indication that Kijowski posed a threat.

       But there was no such indication. True, the scene at which Officer Aurilio arrived was

chaotic, but general bedlam does not necessarily justify the use of force against any particular

individual. When police approached Kijowski, he was inside a truck, talking to a 911 operator.

Nothing in the record suggests that he was attempting to drive the truck or that he had any kind of

weapon on his person. Furthermore, assuming the veracity of Kijowski’s account, Officer Crank

assured the other officers that Kijowski was not causing any trouble. Under these circumstances,

a reasonable officer on the scene would not have perceived Kijowski as presenting a risk of harm.

       Accordingly, we conclude that, if Kijowski’s version of events is correct, Officer Aurilio

deployed his Taser unreasonably, thereby violating Kijowski’s Fourth Amendment right to be free

from the use of excessive force.

                                                   B

       Even if Officer Aurilio’s actions were objectively unreasonable, he is still entitled to qualified

immunity unless it is shown that the right he violated was clearly established. “For a right to be

clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’” Feathers v. Aey, 319 F.3d 843, 848 (6th

Cir. 2003) (quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992)). “The

relevant, dispositive inquiry in determining whether a right is clearly established is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier

                                                - 11 -
No. 09-3764
Joseph Kijowski v. City of Niles et al.

v. Katz, 533 U.S. 194, 202 (2001). “Although it need not be the case that ‘the very action in question

has previously been held unlawful, . . . in the light of pre-existing law the unlawfulness must be

apparent.’” Russo, 953 F.2d at 1042 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

“[A]n action’s unlawfulness can be apparent from direct holdings, from specific examples described

as prohibited, or from the general reasoning that a court employs.” Feathers, 319 F.3d at 848.

       In this case, we find little difficulty in concluding that the right Officer Aurilio allegedly

violated was clearly established. As we observed in Wysong, “the right to be free from physical force

when one is not resisting the police is a clearly established right.” 260 F. App’x at 856. “Even

without precise knowledge that the use of the [T]aser would be a violation of a constitutional right,”

Officer Aurilio “should have known based on analogous cases that [his] actions were unreasonable.”

Landis v. Baker, 297 F. App’x 453, 463 (6th Cir. 2008). Relevantly, “our court has repeatedly found

that a totally gratuitous blow with a policeman’s nightstick may cross the constitutional line[.]”

McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988). We have also held that “[a]n officer has

used excessive force when he pepper sprays a suspect who has not been told she is under arrest and

is not resisting arrest.” Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (citing Atkins v. Twp.

of Flint, 94 F. App’x 342, 349 (6th Cir. 2004)). Against the backdrop of existing law, Officer

Aurilio could not reasonably have believed that use of a Taser on a non-resistant subject was lawful.

                                                 IV.

       For the foregoing reasons, we REVERSE the district court’s grant of summary judgment on

the issue of qualified immunity and REMAND for further proceedings.



                                                - 12 -
