                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 19a0200n.06

                                                  No. 18-3119

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

                                                                                             FILED
 JEFFREY SAUNDERS,                                        )                            Apr 23, 2019
                                                          )                       DEBORAH S. HUNT, Clerk
            Plaintiff-Appellee,                           )
                                                          )
                   v.                                     )
                                                                           ON APPEAL FROM THE
                                                          )
                                                                           UNITED STATES DISTRICT
 CUYAHOGA      METROPOLITAN                       HOUSING )
                                                                           COURT     FOR     THE
 AUTHORITY, et al.,                                       )
                                                                           NORTHERN DISTRICT OF
                                                          )
                                                                           OHIO
            Defendants                                    )
                                                          )
 OFFICER HARUN ABDUL-ALI,                                 )
                                                          )
            Defendant-Appellant.                          )


BEFORE: SILER, SUTTON, and WHITE, Circuit Judges.

        HELENE N. WHITE, Circuit Judge.

        Defendant-Appellant Officer Harun Abdul-Ali (Officer Ali) appeals the district court’s

denial of his motion for summary judgment based on qualified immunity in this action arising from

his use of a taser and pepper spray on Plaintiff-Appellee Jeffrey Saunders (Saunders). We affirm.

                                         I.       BACKGROUND1

        Officer Ali is a police officer for the Cuyahoga Metropolitan Housing Authority Police

Department (CMHA PD). During the afternoon of January 20, 2014, he was dispatched to Unit




        1
            In considering Officer Ali’s motion for summary judgment, the district court was required to view the
evidence and draw all reasonable factual inferences in favor of Saunders. Accordingly, we recite Saunders’s version
of the facts, except where otherwise noted.
No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


612 of an apartment complex to respond to a noise complaint. Saunders, a custodian at the

apartment complex, was inside Unit 612 delivering a soda to the tenant’s sister, Jamila Williams

(Williams), when Officer Ali arrived. There was no music playing, nor was the TV on. When

Saunders opened the door, Officer Ali asked where the leaseholder was. Saunders identified

himself as the custodian of the apartment complex, told Officer Ali that the leaseholder was not in

the apartment, and asked what was going on. Officer Ali then asked to enter the apartment, which

Williams and Saunders allowed, and requested identification from Williams and Saunders.

Williams did not have identification but provided Officer Ali with identifying information and

informed Officer Ali that she was the leaseholder’s sister. As Williams was providing Officer Ali

her information, Saunders attempted to show his driver’s license to Officer Ali, who gestured for

Saunders to wait. Saunders tried again, but again Officer Ali motioned for him to wait, so Saunders

put his driver’s license back into his jacket.

       Once Officer Ali finished with Williams, he turned to Saunders, cracked his knuckles and

rolled his head around—“as if he was preparing for combat”—and asked for Saunders’s

identification. (R. 61 at 162, 166.) Saunders asked why Officer Ali was trying to intimidate him,

and Officer Ali responded that he was going to call his supervisor. Saunders then placed his hands

in his pockets while waiting for Officer Ali’s supervisor to arrive. Officer Ali told Saunders to

remove his hands from his pockets and to come towards him. Saunders responded by placing his

hands in the air. Saunders did not move toward Officer Ali because “[a]fter [Officer Ali was]

cracking his knuckles and rolling his head around, the way his aggression was going on, I didn’t

need to have anything to do with Officer Ali at that time.” (R. 61 at 164, 199.) He said to Officer

Ali, “I am not going to come over there towards you[;] I don’t need to come over there towards

you, Officer.” (Id. at 199.) According to the dispatch log, Officer Ali reported a “male claiming



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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


to be maintenance refusing to show ID,” and, three minutes later, a “male refusing to give ID and

take his hands out of his pockets.” (R. 62-5, PID 1093, 1097-1098.)

         Saunders was standing in the entryway by the door, looking down. When he looked up,

Officer Ali was holding his taser. Saunders asked, “Well what are you going to do with that?” (R.

61 at 178.) Officer Ali gave no additional commands. Saunders decided to put his hands down

and turn around to open the door; when he did, Officer Ali deployed his taser, striking Saunders

in the right shoulder and lower waist of his jacket. The taser had no impact on Saunders, however,

likely because he was wearing a thick jacket. Saunders proceeded into the hallway with Officer

Ali following and deploying his taser. Officer Ali did not command Saunders to stop. As Saunders

was walking through the hallway, Officer Ali pulled out his pepper spray and began spraying it at

Saunders. Saunders called for help and knocked on neighbors’ doors before being allowed inside

Unit 616 by the tenant, Hoover Wilson (Wilson).

         Officer Ali asked for permission to enter Wilson’s apartment but was denied. A few

minutes later, without commanding him to exit the unit, two other officers, Officer Reynolds and

Officer Collins, entered Wilson’s unit and approached Saunders. Saunders put his hands out and

was handcuffed. At that point, Officer Ali entered the apartment and drive stunned Saunders with

his taser.2 Saunders asked, “Why is he tasering me?” (Id. at 213.) Officer Reynolds then

instructed Officer Ali to “[s]uspend tasing.” (Id.) The officers pulled Saunders out of Wilson’s

apartment and laid him face down on the carpet in front of Wilson’s door. Although Saunders was

not resisting, Officer Ali drive stunned Saunders several more times while the officers were giving




         2
           Sergeant James Neal stated in his declaration that “[a] drive stun is a secondary function of the taser that
delivers an isolated shock, similar to a bee sting, where the taser contacts the body. A drive stun does not incapacitate
a suspect but is for pain compliance.” (R. 62-5, PID 1093-94.) Saunders testified that the drive stuns he received
were not like a bee sting; rather, he felt like he was being shocked, and they caused him to jolt.

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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


commands and Saunders was saying, “You got me cuffed, you got me cuffed. Please tell him to

stop. Please tell him to stop.” (Id. at 214, 229-34.)

        A video recorded a twenty-five-second span near the end of this encounter. The video

shows four officers in a hallway. Two of the officers are bending down, and two are standing.

The officers are tending to Saunders, who is on the ground and not visible in the video. The

officers are talking, but it is not clear what they are saying. What is clear is Saunders screaming,

“You got me cuffed. You got me cuffed. Please tell him to stop it.” One of the officers then

calmly tells Saunders to “roll on your side, facing me. Roll on your side.” Saunders replies

frantically, “Which way, left or right?” and states that he works in the building as a custodian. An

officer then says in a louder voice, “Relax.” Saunders responds, “I’ve been relaxed.” An officer

then yells, “Hands down, head down.” The video cuts off shortly thereafter.

        CMHA PD ran a report on Officer Ali’s taser, which indicated that Officer Ali fired his

taser thirteen times. Eight firings occurred within forty-six seconds; four minutes later, five firings

occurred within one minute and eighteen seconds.

        Saunders was charged with assault, burglary, and obstructing official business. The

burglary charge was dismissed, and Saunders was found not guilty of assault, but guilty of

obstructing official business. That conviction was reversed on appeal because “the trial court []

committed reversible error by failing to conduct a Batson hearing and allowing the state to explain

its non-racial reasons for removing an African-American juror.” State v. Saunders, 58 N.E.3d 470,

475 (Ohio Ct. App. 2016). After remand, Saunders pleaded guilty to a misdemeanor charge of

disorderly conduct in violation of Ohio Revised Code § 2917.11(A)(2).3


        3
          Ohio Revised Code § 2917.11(A)(2) provides: “No person shall recklessly cause inconvenience, annoyance,
or alarm to another by . . . [m]aking unreasonable noise or an offensively coarse utterance, gesture, or display or
communicating unwarranted and grossly abusive language to any person.” Saunders pleaded to a specification that


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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


         Saunders brought this action against Officer Ali and CMHA, alleging excessive force

against Officer Ali in his individual and official capacity, failure to train and/or supervise under

42 U.S.C. § 1983 against CMHA, and negligent training and supervision against CMHA. Both

Defendants filed motions for summary judgment. The district court granted summary judgment

to CMHA and to Officer Ali for the claim against him in his official capacity, but denied summary

judgment to Officer Ali on the excessive-force claim brought against him in his individual

capacity. The district court reasoned in part that Officer Ali is not entitled to qualified immunity

because, accepting Saunders’s version of events, “a reasonable jury could conclude that Officer

Ali violated Plaintiff’s right to be free from the use of excessive force, and that the right was clearly

established as of January 20, 2014.” (R. 89, PID 1473-1505.) This appeal followed.

                                               II.      DISCUSSION

    A. Jurisdiction

         The court’s jurisdiction of this appeal is limited to issues of law. Stoudemire v. Mich. Dep’t

of Corr., 705 F.3d 560, 564 (6th Cir. 2013). “A defendant raising a qualified immunity defense

‘may not appeal a district court’s summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a “genuine” issue of fact for trial.’” Kennedy v. City

of Cincinnati, 595 F.3d 327, 333 (6th Cir. 2010) (quoting Johnson v. Jones, 515 U.S. 304, 319-20

(1995)).

         Saunders initially raises a jurisdictional challenge to Officer Ali’s appeal. He points out

that Officer Ali’s brief recites at length facts that flatly contradict Saunders’s version of events and

argues that Officer Ali’s appeal must be dismissed because he failed to concede the most favorable



he “persisted in the disorderly conduct after reasonable warning or a request to desist.” (R. 62-6, PID 1104.) There
is nothing in the record to indicate at what point in his interaction with Officer Ali Saunders engaged in disorderly
conduct and, as the district court held and Officer Ali does not challenge on appeal, the elements of this misdemeanor
do not necessarily constitute active resistance.

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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


view of the facts for purposes of this appeal.               “Language in our earlier decisions

interpreting Johnson [v. Jones, 515 U.S. 304 (1995)] suggests that where, as here, the appellant

fails to concede the facts as alleged by the appellee, this court is completely deprived of jurisdiction

over the appellant’s interlocutory appeal.” Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403

(6th Cir. 2007) (citing Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)). However, our later

cases rejected that approach. See Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir.

2005) (“If, however, aside from the impermissible arguments regarding disputes of fact, the

defendant also raises the purely legal question of whether the facts alleged support a claim of

violation of clearly established law, then there is an issue over which this court has jurisdiction.”

(internal quotation marks, citations, and alterations omitted)).         This court will ignore the

defendant’s failure to accept the facts in the light most favorable to the plaintiff and resolve the

legal issue. Id. (citing Phelps v. Coy, 286 F.3d 295, 298-99 (6th Cir. 2002); Beard v. Whitmore

Lake Sch. Dist., 402 F.3d 598, 602 n.5 (6th Cir. 2005)); see also Kennedy, 595 F.3d at 334;

Livermore ex rel. Rohm, 476 F.3d at 403.

        In any event, Officer Ali clarified in his Reply Brief “that the Court can and should accept

the Plaintiff’s record-supported allegations as true to the extent that they are properly supported

by competent evidence in the record,” but he is also requesting that we “take into account certain

admissions made by Saunders at his deposition and to consider other evidence in the record that

was not disputed or contradicted by Plaintiff’s deposition or affidavit” as well as the video

evidence. (Reply Br. at 3-4.) This approach is supported by our caselaw. See Thomas v. City of

Eastpointe, 715 F. App’x 458, 460 (6th Cir. 2017) (“And if any of those facts are disputed, we

look first to the dash-cam recording.” (citing Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir.

2015))); Chappell v. City of Cleveland, 585 F.3d 901, 910-12 (6th Cir. 2009) (considering the



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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


officers’ testimony that was not “refuted by physical or circumstantial evidence” or “disputed by

contrary testimony” even though the officers’ testimony was not included in the district court

opinion).

          Accordingly, we have jurisdiction to consider the legal issue whether Officer Ali is entitled

to qualified immunity, considering the disputed evidence in the light most favorable to Saunders

as well as the video evidence and other undisputed evidence.

   B. Qualified Immunity

          “The qualified immunity doctrine protects 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.” Goodwin v. City of Painesville, 781 F.3d

314, 320–21 (6th Cir. 2015) (internal quotation marks omitted) (quoting Pearson v. Callahan, 555

U.S. 223, 231 (2009)). To determine whether Officer Ali is entitled to qualified immunity on

Saunders’s excessive-force claim, the court analyzes “(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.” Kent v. Oakland County, 810 F.3d 384,

390 (6th Cir. 2016) (citing Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 508 (6th Cir.

2012)).

          In determining whether a right is clearly established, the Supreme Court has repeatedly

cautioned courts “not to define clearly established law at a high level of generality.” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation omitted). “Although

[the Supreme] Court’s caselaw does not require a case directly on point for a right to be clearly

established, existing precedent must have placed the statutory or constitutional question beyond

debate.” Id. (internal quotation marks and citation omitted). However, “[i]f it defeats the



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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


qualified-immunity analysis to define the right too broadly (as the right to be free of excessive

force), it defeats the purpose of § 1983 to define the right too narrowly (as the right to be free of

needless assaults by left-handed police officers during Tuesday siestas).” Kent, 810 F.3d at 396

(internal quotation marks omitted) (quoting Hagans, 695 F.3d at 508-09).

       1. Excessive Force

       Officer Ali argues that the district court applied the wrong legal standard and erroneously

denied him qualified immunity. Although Officer Ali’s brief focuses on the second prong of the

analysis—whether he violated any clearly established right—he does briefly dispute the district

court’s finding that he used excessive force. Officer Ali argues that “the undisputed evidence in

the record shows that Saunders was engaged in criminal conduct, that he presented a danger after

he refused to show identification and comply with Officer Ali’s commands, and that he resisted

and attempted to evade arrest by fleeing from Officer Ali.” (Appellant’s Br. at 28-29.) In a

footnote, Officer Ali elaborates that he had been called to the same location—it is unclear if he is

referring to the same unit or just the same apartment complex—a week earlier in response to a

report of alleged drug activity, a fact that he did not mention to the district court. He argues that

the combination of this previous report of drug activity, the fact that neither occupant was a

leaseholder, and Saunders’s defiance, could reasonably lead Officer Ali to believe that Saunders

was engaged in criminal activity and could be armed and dangerous.

       The determination whether Officers Ali’s actions constitute excessive force in violation of

the Fourth Amendment “requires careful attention to the facts and circumstances of each particular

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.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner,



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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


471 U.S. 1, 8-9 (1985)). “The inquiry assesses ‘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).

       We agree with the district court that the first Graham factor—the severity of the crime at

issue—weighs in favor of Saunders because Officer Ali was called to the apartment for a mere

noise complaint, and the disorderly conduct charge to which Saunders eventually pleaded guilty

does not qualify as a serious crime. See Goodwin, 781 F.3d at 322 (noting that a jury could

conclude that disorderly conduct is not a violent or serious crime for the purpose of effectuating

an arrest). Officer Ali’s belated attempt to point to a previous report of drug activity does not

change the analysis because there is nothing in the record suggesting that drug activity occurred

or that it involved Saunders or Unit 612. Further, as the district court reasoned, although Saunders

was initially charged with obstruction of official business, burglary, and assault, “nothing about

the unsuccessful attempts to pursue convictions against Plaintiff for those three crimes forecloses

a jury from finding that a reasonable officer at the time of the incident would not have considered

Plaintiff to be engaged in ‘severe’ criminal activity.” (R. 89, PID 1489 (citation omitted).)

       The district court also found that the second Graham factor, asking whether Saunders

posed an immediate threat to the safety of the officers or others, favors Saunders:

       Plaintiff alleges that he attempted, several times, to offer his identification to
       Officer Ali, but Officer Ali repeatedly indicated for Plaintiff to wait. Later, when
       Officer Ali exhibited behaviors “as if he was preparing for combat,” Plaintiff asked
       what was going on. While Officer Ali called his supervisor, Plaintiff stood against
       the wall by the door with his hands in his coat pockets and his eyes down. At some
       point shortly thereafter, when Plaintiff looked back up, Officer Ali had drawn his
       taser. Confused, Plaintiff turned to move into the hall as Officer Ali fired. Officer
       Ali followed closely behind with pepper spray. Plaintiff then moved down the
       hallway calling out for help before eventually asking to wash his eyes off in Mr.
       Wilson’s apartment, Unit 616. Plaintiff also indicates that once the two other
       CMHA officers entered Mr. Wilson’s apartment to arrest him, Plaintiff placed his
       arms out in front of him so that his hands could be handcuffed. Finally, the partial

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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


       video depicts Plaintiff asking CMHA officers questions about their orders while he
       was on the ground outside of Mr. Wilson’s apartment being arrested. The video
       also depicts Plaintiff asking the two other CMHA officers to stop Officer Ali from
       tasering him since he was already handcuffed. On the basis of these facts, a jury
       could conclude that a reasonable officer in Officer Ali’s position would not have
       taken Plaintiff’s actions to pose an immediate threat to anyone’s safety.

(R. 89, PID 1489-90 (internal citations omitted).) We agree with the district court’s reasoning.

       Finally, the third Graham factor—whether Saunders was actively resisting arrest or

attempting to evade arrest by flight—also supports a finding of excessive force. As an initial

matter, it is undisputed that Saunders identified himself as the custodian of the building. Thus,

this was not a situation where Officer Ali needed to apprehend Saunders for a minor (if any) crime

at that moment or risk losing him forever, which weighs against using a taser or pepper spray to

apprehend the suspect.

       Further, as the district court noted, Officer Ali never told Saunders that he was under arrest

while he was in Unit 612 or in the hallway, and Saunders’s testimony—which the video evidence

does not definitively contradict—indicates that he was not actively resisting arrest while Officer

Ali continued to tase Saunders after he had been handcuffed. Although Officer Ali argues that

Saunders was attempting to flee when Saunders left Unit 612, accepting Saunders’s testimony as

true, Officer Ali never told Saunders that he was under arrest or to stop, Saunders had not even

begun to walk away when he was initially tased, and he walked away after he was tased to ask for

help from neighbors.

       Because each of the three Graham factors weighs in favor of Saunders, Officer Ali’s use

of force was objectively unreasonable. See Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009)

(“An 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.”); Atkins v. Twp. of Flint, 94 F. App’x 342, 349 (6th Cir.

2004) (denying qualified immunity where officer twice sprayed and three times hit the arrestee


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No. 18-3119, Saunders v. Cuyahoga Metro. Hous. Auth. et al.


with a baton without “inform[ing] [the] suspect either that he was being arrested where the charge

is making a 911 call for an improper purpose, or, at least, that making an improper 911 call is a

crime”); Adams v. Metiva, 31 F.3d 375, 385 (6th Cir. 1994) (“In regard to the third factor, whether

plaintiff was actively resisting arrest or attempting to evade arrest is contested as plaintiff alleges

he was never told he was under arrest or why he was being further detained after submitting to two

pat-down searches. Moreover, plaintiff’s alleged flight was an announced walking to his friend’s

house across the street. . . . In the present case, there was ample time for Metiva to inform plaintiff

that he wanted to cite plaintiff for a seat belt infraction, and that if he had no identification, he had

to provide Metiva with the necessary information and could not leave until he did so.”).

        2. Clearly Established

        Consistent with our analysis above, a reasonable jury could also find that Officer Ali

violated Saunders’s clearly established right to be free from excessive force when he tased or

pepper sprayed Saunders while Saunders was not resisting arrest. See Hagans, 695 F.3d at 509-

10; see also Kent, 810 F.3d at 392 (summarizing earlier case law as drawing this line: “When a

suspect actively resists arrest, the police can use a taser [ ] to subdue him; but when a suspect does

not resist, or has stopped resisting, they cannot.” (alteration in original) (quoting Rudlaff, 791 F.3d

at 642)). Accordingly, we affirm the district court’s denial of qualified immunity.

                                         III.    CONCLUSION

        For the reasons set out above, we affirm the district court’s decision.




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