                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0425n.06

                                            No. 12-1295
                                                                                           FILED
                                                                                       Apr 29, 2013
                           UNITED STATES COURT OF APPEALS
                                                                                DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

KAHLIL LYTTLE,                                       )
                                                     )
       Plaintiff-Appellee,                           )        ON APPEAL FROM THE
                                                     )        UNITED STATES DISTRICT
v.                                                   )        COURT FOR THE EASTERN
                                                     )        DISTRICT OF MICHIGAN
REDFORD POLICE OFFICER RILEY,                        )
                                                     )
       Defendant-Appellant                           )
                                                     )
and                                                  )
                                                     )
REDFORD SUPERVISING POLICE                           )
OFFICER JOHN DOE; TOWNSHIP OF                        )
REDFORD,                                             )
                                                     )
       Defendants.                                   )




BEFORE: MERRITT, MARTIN, and CLAY, Circuit Judges.

       MERRITT, Circuit Judge. Defendant Kevin Riley, a Township of Redford police officer,

appeals the district court’s denial of qualified immunity and governmental immunity in this action

brought under 42 U.S.C. § 1983. For the reasons set forth below, we AFFIRM.

                                               I. Facts

       The facts of this case are clearly in dispute, and the appeal is frivolous. Both the magistrate

judge and the district court are in agreement that Riley is not entitled to immunity. The parties give

almost completely contradictory versions of the events that led to the tasering and arrest of plaintiff
Lyttle v. Riley
No. 12-1295

Kahlil Lyttle at his home. Although Riley claims in his brief that he accepts plaintiff’s version of

the facts for purposes of this appeal, he goes on to dispute nearly every factual statement put forth

by plaintiff. No audio or video of the encounter exists. We will briefly recite several of the

discrepancies. Shortly after midnight on May 19, 2009, Redford Township Police were sent to the

residence of plaintiff and his then-girlfriend, Sarah Thomas. Redford Police had received a 911 call

from a female at the residence stating that she was fighting with her boyfriend and then she hung up.

Thomas later testified that she made the 911 call because she was concerned for the safety of

plaintiff. Trial Tr. at 7-9, People v. Lyttle, 09-99770 OM (17th Dist. Ct. for the Cty. of Wayne

[Mich.] Aug. 24, 2009).1

        When police arrived, plaintiff and Thomas were standing on an enclosed porch at the front

of the house. The evidence is in dispute as to whether officers standing on the sidewalk could see

inside the enclosed porch where plaintiff and Thomas were standing. The police say they could see

into the porch and they saw plaintiff pulling Thomas against her will towards the inside of the house

from the porch. Plaintiff says they could not have seen anything because the blinds were drawn.

In any event, plaintiff and Thomas both testified that Thomas went into the house willingly with

plaintiff and that he did not force or threaten her. Trial Tr. at 13, 35-36. The police said they wanted

to talk to Thomas to make sure she was safe, so Thomas went outside and plaintiff went into the

house. Even though Thomas was in police custody, the police subsequently tried to force their way



        1
         Thomas testified at Lyttle’s criminal trial for domestic assault and battery and obstructing
and resisting a police officer arising out of the events that gave rise to this civil suit. Citations to the
transcript of this trial will be referred to as “Trial Tr.”.

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Lyttle v. Riley
No. 12-1295

into the house because they say that plaintiff refused to open the door. The police report of the

incident says that the police wanted to get into the house because they feared for the safety of others

in the house. The report, however, says that Thomas told them no one else was in the house. See

Redford Police Department Report at 1; Cracchiolo Case Supplemental Report at 1. The police

claim that as they were forcing open the front door, plaintiff fled out the back door. Defendant Riley

was stationed at the back of the house. He claims that plaintiff came out the back of the house with

his hands in his pockets and ignored Riley’s command to remove his hands from his pockets and lay

down. Riley then tasered plaintiff and he fell to the ground. Riley Case Supplemental Police Report;

Riley Aff. at ¶¶ 8-10. In contrast, plaintiff testified that he tried to unlock the door when the police

started breaking it down, but he could not open it because it became jammed when the police started

kicking it. Plaintiff claims he told the police through a window that he would come outside through

the back door. Plaintiff testified that he came out the back door shirtless and with his hands in the

air to show he was unarmed. Plaintiff agrees that Riley told him to get on the ground, but plaintiff

says that Riley tasered him before he could comply. Plaintiff says he was then tasered a second time

by Riley and did not fall to the ground until Riley tasered him a third time. Plaintiff says he lost

consciousness after the third taser and seriously injured his back and neck when he hit the ground.

Lyttle Dep. at 20-30.

        Plaintiff was charged with domestic assault and battery, as well as resisting and obstructing

police. He was bound over for trial and subsequently acquitted of all charges. He then filed the

complaint below, asserting claims of excessive force, false arrest and false imprisonment under

Section 1983, and malicious prosecution, assault and battery, intentional infliction of emotional

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Lyttle v. Riley
No. 12-1295

distress and gross negligence under state law. He also brought a claim of municipal liability against

Redford Township for failure to train its police officers. The district court denied Riley’s motion

for summary judgment on plaintiff’s claims of excessive force, false arrest and false imprisonment,2

and it also denied qualified and governmental immunity to Riley. Riley filed this interlocutory

appeal, contending that the district court erred in denying him qualified immunity and governmental

immunity on the facts alleged by plaintiff.

                                              II. Analysis

        The doctrine of qualified immunity protects government officials from liability when “their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). We

cannot grant qualified immunity to Riley because disputed issues of material fact preclude a

determination of whether a constitutional violation occurred.

        Riley seeks qualified immunity from plaintiff’s false arrest and false imprisonment claims

under Section 1983 and governmental immunity under Michigan law. Riley contends that he had

probable cause to arrest plaintiff for (1) resisting arrest because plaintiff did not surrender peacefully,

and (2) domestic assault and battery because plaintiff was observed by police to grab his girlfriend’s

hand in an “aggressive” manner. However, plaintiff disputes those these assertions. As to the

obstructing and resisting charge, plaintiff testified that he surrendered peacefully by coming out of

the house with his hands in the air and that Riley tasered him before he had a chance to comply with


        2
          Plaintiff’s malicious prosecution and gross negligence claims, as well as the municipal
liability claim against the Township of Redford, are not at issue in this appeal.

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No. 12-1295

the command to lay down. As for the domestic violence charge, plaintiff and Thomas testified that

plaintiff did not touch Thomas in an aggressive or forceful manner. Plaintiff and Thomas also both

provided testimony that officers could not have seen into the enclosed porch in any event because

the blinds were closed. Riley argues that the district court’s analysis erroneously failed to take the

officer’s point of view into account. While the officer’s perspective is relevant, if a jury were to

believe plaintiff’s version of the facts, even taking into consideration Riley’s point of view, there

would have been no probable cause to arrest plaintiff, making a grant of qualified immunity

inappropriate at this stage.

        Riley also seeks qualified immunity as to plaintiff’s excessive force claim. As with the false

arrest claim, if a jury were to believe plaintiff’s version of the facts, even taking into consideration

Riley’s perspective, there would have been no reason to taser plaintiff, and therefore no qualified

immunity for Riley, because plaintiff says he emerged from the house with his hands raised in the

air and peacefully surrendered to the police. Riley points to several cases in this circuit and others

that he argues support his claim for qualified immunity for use of the taser. However, in each of the

cases, there was some additional evidence that supported use of the taser, such as the suspect

struggling with police, evading arrest or attempting to flee or putting others in danger. See Pleasant

v. Zamieski, 895 F.2d 272, 276 (6th Cir. 1990) (In determining reasonableness, the court should look

at “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.” (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Under plaintiff’s version of the

facts, none of those circumstances were present here and the cases are distinguishable.

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Lyttle v. Riley
No. 12-1295

        Riley contends that the district court erred in not granting him summary judgment on

plaintiff’s surviving state law claims (assault and battery and intentional infliction of emotional

distress) on the ground of governmental immunity. To establish governmental immunity, a

defendant must show that (1) the acts were undertaken during the course of employment while the

employee was acting, or reasonably believed that he was acting, within the scope of his authority;

(2) the acts were undertaken in good faith or in the absence of malice; and (3) the acts were

discretionary as opposed to ministerial. Odom v. Wayne Cty., 482 Mich. 459, 760 N.W.2d 217

(2008). Whether a tortfeasor acted in good faith is a question of fact generally left to the jury. A jury

could find that Riley acted in bad faith if he tasered a cooperative, unarmed man trying to surrender.

As with the other claims, Riley relies on facts that are in dispute and if a jury were to believe

plaintiff’s version, Riley would not be entitled to governmental immunity for his intentional tort state

law claims.

        For the foregoing reasons, the judgment of the district court is AFFIRMED.




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