                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0286p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 BESSIE JONES, Administratrix of the Estate of X
                                                      -
                              Plaintiffs-Appellees, --
 Nathaniel Jeffrey Jones, et al.

                                                      -
                                                          No. 11-4174

                                                      ,
                                                       >
                                                      -
             v.

                                                      -
                                       Defendants, --
 CITY OF CINCINNATI, et al.,

                                                      -
                                                      -
                                                      -
 GUY ABRAMS; JAMES PIKE; JOEHONNY
                                                      -
 REESE; JAY JONSTONE; BARON OSTERMAN;
                                                      -
 THOMAS SLADE, Police Officers, Cincinnati
 Police Division, individually and in their           -
                                                      -
                                                     N
 official capacities,
                           Defendants-Appellants.
                       Appeal from the United States District Court
                      for the Southern District of Ohio at Cincinnati.
                No. 1:04-cv-616—Susan J. Dlott, Chief District Judge.
                                   Argued: October 12, 2012
                          Decided and Filed: November 29, 2012*
   Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.**

                                      _________________

                                           COUNSEL
ARGUED: Peter J. Stackpole, CITY OF CINCINNATI, Cincinnati, Ohio, for
Appellants. Randolph H Freking, FREKING & BETZ, LLC, Cincinnati, Ohio, for
Appellees. ON BRIEF: Peter J. Stackpole, CITY OF CINCINNATI, Cincinnati, Ohio,
for Appellants. Randolph H Freking, Tod J. Thompson, FREKING & BETZ, LLC,
Cincinnati, Ohio, for Appellees.



        *
         This decision was originally issued as an “unpublished decision” filed on November 29, 2012.
The court has now designated the opinion as one recommended for full-text publication.
        **
            The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.


                                                 1
No. 11-4174        Jones, et al. v. City of Cincinnati, et al.                      Page 2


                                  _________________

                                        OPINION
                                  _________________

       COOK, Circuit Judge. The survivors and estate of Nathaniel Jones, who died
after struggling with six Cincinnati police officers, brought a § 1983 action against those
officers, alleging Fourth and Fourteenth Amendment violations and Ohio tort claims.
The district court denied the officers’ motion for summary judgment seeking qualified
immunity and state statutory immunity, leaving pending four claims: (1) an excessive-
force claim against two officers for repeated baton strikes and jabs prior to handcuffing
Jones; (2) an excessive-force claim against one officer for refusing to remove Jones’s
handcuffs despite a firefighter’s request; (3) a failure-to-provide-adequate-medical-care
claim stemming from all six officers’ delay in rolling Jones over; and (4) an Ohio
wrongful death claim based on the foregoing conduct. The officers challenge by
interlocutory appeal the district court’s denial. Because the record demonstrates that the
officers did not act objectively unreasonably, we REVERSE.

                                             I.

       A party may appeal a district court’s denial of qualified immunity to the extent
that the denial turns on legal issues. Johnson v. Jones, 515 U.S. 304, 310–12 (1995).
On interlocutory appeal, we thus “take, as given, the facts that the district court assumed
when it denied summary judgment.” Id. at 319. Where video evidence “blatantly
contradict[s]” this version of events, however, we “view[] the facts in the light depicted
by the videotape.” Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 493 (6th Cir.
2012) (internal quotation marks omitted) (quoting Scott v. Harris, 550 U.S. 372, 380–82
(2007)). In support of their motion for summary judgment, the officers submitted a
video recording from one officer’s in-car camera. Because this video does not blatantly
contradict the facts assumed by the district court, we adopt those facts and draw all
inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at
381; Johnson, 515 U.S. at 319. Under this standard, the record establishes the following.
No. 11-4174        Jones, et al. v. City of Cincinnati, et al.                     Page 3


       Shortly before 6:00 a.m. on November 30, 2003, Cincinnati firefighters sought
police assistance for a disorderly person at a restaurant parking lot. Officers James Pike
and Baron Osterman arrived and spotted Jones marching, squatting, and shouting
profanities outside. Both officers approached and spoke to Jones, who weighed 348
pounds and was 5 feet 11 inches tall. Pike radioed the dispatcher, reporting that Jones
may be violent and require a mental health response team. Pike also requested a
supervisor and turned on the video recording system (“MVR”) in his patrol car. The
MVR recorded the subsequent encounter, but Pike’s car hood partially obstructed the
view of Jones’s and the officers’ actions on the ground:

       6:00:07–6:00:12 a.m.: Upon arrival, Pike tells Jones, “You gotta tell me
       what’s going on.” Jones responds, “Get this little nappy haired white boy
       redneck!”

       6:00:13–6:00:17: Pike warns Jones three times to back up. Jones lunges
       at Pike and throws a punch at his head. Osterman arrives with his PR-24
       baton (“baton”) in hand.

       6:00:28–6:00:35: Osterman tackles Jones. Jones, Pike, and Osterman
       fall to the ground in front of Pike’s car. Pike stands up and draws his
       baton. The officers shout several times, “Put your hands behind your
       back!” Jones does not comply and struggles aggresively.

       6:00:36–6:00:55: Pike starts jabbing and striking Jones with his baton.
       Pike and Osterman continue to jab and strike Jones with their batons
       while shouting, “Put your hands behind your back!”

       6:00:40–6:00:59: Jones continues struggling. While getting to his knees,
       Jones grabs Osterman’s neck [6:00:41] and reaches toward Osterman’s
       waist area [6:00:46]. He also grabs Pike’s baton for approximately six
       seconds [6:00:53–6:00:59].
No. 11-4174       Jones, et al. v. City of Cincinnati, et al.                         Page 4


      6:01:00–6:01:11: Pike and Osterman continue to shout, “Put your hands
      behind your back!” Jones says, “No way, no way,” and “I’ll take all that.
      Give it to me.” Officer Abrams arrives.

      6:01:16–6:01:25: Jones cries “Mama!” several times. Officer Thomas
      Slade arrives and pepper-sprays Jones.

      6:01:38: The jabs and strikes end. Pike, Osterman, Abrams, and Slade
      then try to handcuff Jones.

      6:01:50–6:02:22: Officers Jay Johnstone and Joehonny Reese arrive.
      All six officers try to handcuff Jones. The audio captures Jones moaning.

      6:02:23: Jones moans loudly and then falls silent.

      6:02:32: Officer Slade asks, “How ‘bout we roll him?”

      6:02:22–6:02:54: Officers continue to handcuff Jones. Both arms are
      cuffed at 6:02:54 when an officer says, “There we go.”

      6:03:24–6:03:34: Officer Slade asks, “We have to get him rolled, don’t
      we?” Pike bends down to look at Jones and voices that the firefighters
      should come over.

      6:03:36–6:03:40: Officers start rolling Jones. He is on his back by
      6:03:40.

      6:03:45–6:04:00: Pike checks Jones’s breathing. Another officer shouts
      “Fire!” to request firefighters. They then realize that the firefighters left
      the parking lot. Someone calls the dispatcher to request the firefighters’
      return.

      6:04:02–6:04:14: Pike checks on Jones, calling “Sir, sir!” several times,
      but Jones does not respond. Pike comments, “The guy still has a pulse.
      But I don’t see him breathing.” Someone says, “Turn him on his side.”

      6:04:28–6:04:30: Dispatcher confirms officers’ request for a rescue unit.
No. 11-4174        Jones, et al. v. City of Cincinnati, et al.                      Page 5


       6:04:21–6:04:40: One officer rubs Jones’s sternum area. Another officer
       observes that Jones has a pulse but is not breathing.

       6:04:40–6:04:50: Someone orders the officers to turn Jones on his side,
       and they do so by 6:04:50.

       6:05:38–6:05:47: Officers wave and shout at the firefighters to hurry up.
       One of them stands up, holding a white first-aid box in his hands.

       6:05:50: Firefighters come to Jones’s side and administer CPR.

       6:07:53: The video ends.

Thirty-five minutes later, Jones was pronounced dead. The coroner attributed Jones’s
death to abnormal cardiac rhythms resulting from a violent struggle and positional
asphyxia.

       The district court denied qualified and statutory immunity on four claims. It held
that the objective reasonableness of Pike’s and Osterman’s baton blows depends on
“whether the jury accepts the view that Jones was resisting arrest or was struggling to
get upright to breathe.” [R. 150, Summ. J. Order at 24, ID #3588.] Because “Pike and
Osterman repeatedly hit Jones with barely a pause in between strikes,” a reasonable jury
could conclude that “Jones did not have an opportunity to submit to their demands to put
his hands behind his back.” [Id.] The district court also found that a genuine issue of
material fact existed regarding whether all six officers acted with deliberate indifference
because “at least one officer . . . drew the inference from the facts that a risk of
substantial harm existed even before Jones was handcuffed, saying ‘How ‘bout we roll
him?’” [Id. at 35, ID #3599.] On review, we assume that (1) Jones started struggling
to breathe at some point during the fifty-nine-second period of strikes and jabs, and (2)
all six officers inferred that Jones had a serious medical need by 6:02:32 a.m., when
Officer Slade first asked, “How ‘bout we roll him?”
No. 11-4174        Jones, et al. v. City of Cincinnati, et al.                     Page 6


                                             II.

       A two-step inquiry steers decisions on a defendant’s entitlement to qualified
immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). First, did the officer’s
conduct violate the plaintiff’s constitutional right? Saucier v. Katz, 533 U.S. 194, 201
(2001). Second, was that right clearly established at the time of the incident? Brosseau
v. Haugen, 543 U.S. 194, 198 (2004). A court need not address these steps sequentially.
Pearson, 555 U.S. at 236.

A. Excessive Force

       We analyze claims of excessive force during arrest under the Fourth
Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395
(1989). This standard encompasses “a built-in measure of deference to the officer’s
on-the-spot judgment about the level of force necessary in light of the circumstances of
the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citing
Graham, 490 U.S. at 396). It “allow[s] 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.”
Graham, 490 U.S. at 396–97.

       1. Baton Strikes and Jabs

       Officers Pike and Osterman argue that under the rapidly evolving circumstances
of that morning, they did not act objectively unreasonably in using their batons to strike
and jab Jones. We agree. It was Jones—a very large individual—who initiated the
physical struggle by lunging at Pike and swinging at his head, despite repeated warnings
from Pike to back away. [MVR at 6:00:13–6:00:17.] Both officers repeatedly ordered
Jones to put his hands behind his back, but he refused, responding instead, “No way, no
way” and “I’ll take all that. Give it to me.” [MVR at 6:01:00–6:01:11.] At no time did
Jones comply with the officers’ orders. As Jones got to his knees, he also grabbed
Osterman’s neck [MVR at 6:00:41], reached toward Osterman’s waist area [MVR at
6:00:46], and grabbed Pike’s baton for almost six seconds [MVR at 6:00:53–6:00:59].
No. 11-4174             Jones, et al. v. City of Cincinnati, et al.                   Page 7


Significantly, Pike and Osterman directed all jabs and strikes to non-critical areas of
Jones’s body, such as the arms, torso, back, and legs. They did not hit his head, throat,
neck, heart, or groin.

        Jones’s survivors argue that the reasonableness of Pike’s and Osterman’s blows
depends on a disputed factual issue: when Jones ceased resisting arrest and started
struggling to breathe. Even assuming that Jones started struggling to breathe during the
fifty-nine-second period of strikes and jabs, we still conclude that the officers did not act
objectively unreasonably. Under the rapidly evolving circumstances of that morning,
an objectively reasonable officer could not have discerned whether Jones resisted in an
attempt to breathe or in defiance of commands. “An officer should be entitled to
qualified immunity if he made an objectively reasonable mistake as to the amount of
force that was necessary under the circumstances with which he was faced.” Solomon
v. Auburn Hills Police Dep’t., 389 F.3d 167, 175 (6th Cir. 2004) (citation omitted).

        2. Refusal to Remove Handcuffs

        Officer Abrams argues that his refusal to unhandcuff Jones despite a firefighter’s
request to do so was not objectively unreasonable. We agree. The video shows that
approximately three minutes elapsed from the time when officers handcuffed Jones
[MVR at 6:02:54] to when firefighters arrived by his side [MVR at 6:05:50]. Some time
later, Firefighter Gregory Adams asked that Jones’s handcuffs be removed.1 An
objectively reasonable officer—given the short time to transition from handcuffing Jones
to understanding his medical condition—could have thought that Jones’s breathing
problems did not warrant the removal of his handcuffs. Abrams testified that he did not
remove Jones’s handcuffs because putting them on was difficult, and he did not know
if Jones was feigning injury. Abrams and Pike also testified that after a physical
struggle, officers usually leave on handcuffs until the suspect is in jail. Although courts
eschew considering an officer’s subjective intent when applying the objective
reasonableness test, see Graham, 490 U.S. at 397, an officer’s explanation of his


        1
            The video does not capture Adams asking this question.
No. 11-4174            Jones, et al. v. City of Cincinnati, et al.                                Page 8


motivations inform a court’s understanding about what an objectively reasonable officer
would have done under such circumstances.

         Moreover, nothing in the record suggests that Adams or any other firefighter told
Abrams that CPR could not be performed while Jones was handcuffed. In fact, the
firefighters performed CPR on a handcuffed Jones immediately after they arrived by his
side. Adams testified that he asked only once for the handcuffs to be removed because
“we had to go to work.” [R. 79, Adams Dep. at 91, ID #755].2 Without notice that
performing CPR on a handcuffed person is ineffective or less effective, Abrams did not
act objectively unreasonably in refusing to remove Jones’s handcuffs. Cf. Dudley v.
Eden, 49 F. Supp. 2d 581, 589 (N.D. Ohio 1999) (“There was no reason for [the officer]
to believe that removal of [plaintiff’s] handcuffs was necessary to avoid a substantial risk
of harm. For example, the paramedic did not indicate that [plaintiff] would suffer
additional harm if the handcuffs were not removed.”).

         Because Pike, Osterman, and Abrams’s actions were not objectively
unreasonable, we need not decide whether Jones’s rights under these circumstances were
clearly established at the time of the incident.

B. Failure to Provide Medical Care

         Qualified immunity also shields the officers from the Fourteenth Amendment
claim arising from a sixty-four-second delay in rolling Jones out of a prone position. To
prevail on a claim for failure to provide medical care, Jones’s survivors must show that
the officers were “deliberately indifferent” to Jones’s “sufficiently serious” medical
need. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); Spears v. Ruth, 589 F.3d
249, 254–55 (6th Cir. 2009). Deliberate indifference requires that an officer (1) “be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists,” (2) “draw the inference,” and (3) “act or fail to act in a manner



         2
            The firefighters testified that performing CPR on a handcuffed person is possible, albeit more
difficult, especially when the recipient is obese. [See R. 80, Harrison Dep. at 41, 45, ID ##772, 773; R.
79, Adams Dep. at 100, 102, ID #757; R. 81, Otten Dep. at 84–88, ID ##801–02.]
No. 11-4174        Jones, et al. v. City of Cincinnati, et al.                      Page 9


demonstrating ‘reckless or callous indifference’ toward the individual’s rights.” Ewolski
v. City of Brunswick, 287 F.3d 492, 513 (6th Cir. 2002) (internal citations omitted).

       The officers concede that Jones developed a sufficiently serious medical need.
We also assume that all six officers (1) were aware or could infer that Jones was at risk
for positional asphyxia and (2) inferred that Jones was at risk by 6:02:32 a.m. when
Officer Slade first asked, “How ‘bout we roll him?”

       Assuming these facts, we determine that the officers did not disregard Jones’s
substantial risk of positional asphyxia. By 6:03:34 (about one minute after Slade’s
question), the officers realized that Jones should be rolled and started rolling him. Six
seconds later, the officers had Jones on his back. They also realized that the firefighters
left and immediately called for a rescue unit. [MVR at 6:03:47–6:04:00.] During the
two-minute wait for the firefighters, the officers checked Jones’s breathing, monitored
his pulse, rubbed his sternum area, turned him on his side, and retrieved a first-aid box.
[MVR at 6:04:02–6:05:50.] The officers also shouted for the firefighters to hurry to
Jones’s side. [MVR at 6:05:38–6:05:41.] The officers’ attempts to aid Jones undermine
the claim that they deliberately disregarded Jones’s substantial medical risk. Their
actions distinctively differ from the officers’ inaction in Estate of Owensby v. City of
Cincinnati. 414 F.3d 596, 603 (6th Cir. 2005) (denying qualified immunity where the
evidence demonstrated that officers, after beating a suspect, locked him in the back of
a police cruiser, and observed him in significant physical distress, “yet made no attempt
to summon or provide any medical care” until six minutes later, after greeting each
other, preparing for their superiors’ arrival, and adjusting their uniforms).         Our
conclusion on deliberate indifference obviates any need to determine the clearly
established law at the time of the incident.

                                             III.

       The officers also claim immunity under Ohio Revised Code § 2744.03(A)(6)
against the wrongful death claim. Section 2744.03(A)(6) provides immunity from suit
to certain state employees when their activities concern governmental or proprietary
functions, except where they act with a “malicious purpose, in bad faith, or in a wanton
No. 11-4174        Jones, et al. v. City of Cincinnati, et al.                  Page 10


or reckless manner.” Id. § 2744.03(A)(6)(b). “[R]ecklessness is a perverse disregard
of a known risk” and requires that the actor “be conscious that his conduct will in all
probability result in injury.” O’Toole v. Denihan, 889 N.E.2d 505, 517 (Ohio 2008)
(citations and quotation marks omitted). As detailed in the qualified immunity context,
Pike and Osterman did not act objectively unreasonably in striking and jabbing an
aggressively resistant Jones before handcuffing him; Abrams did not act objectively
unreasonably in refusing to unhandcuff Jones where firefighters did not voice that CPR
on a handcuffed person could not be administered effectively; and no officer disregarded
Jones’s substantial medical risk. Satisfying the objective reasonableness standard
shields these officers under state statutory immunity as well.

                                            IV.

       For the foregoing reasons, we REVERSE the district court’s denial of qualified
immunity and Ohio statutory immunity.
