            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS



SERGIO LOVE,                                                        UNPUBLISHED
                                                                    November 7, 2019
               Plaintiff-Appellee,

v                                                                   No. 344227
                                                                    Wayne Circuit Court
MICHAEL NOTORIANO,                                                  LC No. 16-008118-NO

               Defendant-Appellant,

and

DAVID POMEROY, CITY OF DETROIT, and
CITY OF ST CLAIR SHORES,

               Defendants.


Before: FORT HOOD, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

         Defendant Michael Notoriano, a former St. Clair Shores police officer, appeals as of right
the trial court’s order granting in part and denying in part his motion for summary disposition
under MCR 2.116(C)(10). The court denied summary disposition with respect to plaintiff’s
claim under 42 USC 1983 (“§ 1983”) for violation of plaintiff’s Fourth Amendment rights on the
basis of excessive force and with respect to plaintiff’s claims for conversion, intentional
infliction of emotional distress, and ethnic intimidation. On appeal, defendant1 argues that the
trial court erred by finding that a genuine issue of material fact existed to defeat defendant’s
claim of qualified immunity. We disagree, and therefore affirm the trial court’s order.




1
 Defendant Notoriano is the only party-defendant participating in this appeal. As used in this
opinion, all references to “defendant” refer to defendant Notoriano only.



                                                -1-
                                I. FACTS AND PROCEEDINGS

        On July 20, 2013, defendant’s 16-year-old daughter was the victim of a robbery in which
an African-American man pushed her off her bicycle and stole her cell phone. According to
plaintiff, Dwayne Weathington committed the robbery and sold the phone to plaintiff’s friend,
Robert Cureton. Plaintiff denied having any knowledge of the robbery or the phone’s origin.

        On July 21, 2013, defendant was preparing to start his afternoon shift as a St. Clair
Shores police officer when he received a Find-My-Phone alert indicating that the stolen phone
was at a Citgo gas station in Detroit. Defendant took personal leave time from his employment
to follow up with the alert. While accompanied by his friend, David Pomeroy, a city of Detroit
police officer, the two drove to the Citgo station in defendant’s Ford F-150 pickup truck.
Plaintiff, Cureton, and plaintiff’s brother were present at the gas station in a GMC Denali sport
utility vehicle (SUV). When defendant and Pomeroy arrived, Cureton was pumping gas and
plaintiff was walking out of the gas station store, carrying a bottle of water that he had
purchased. Pomeroy approached Cureton, and defendant approached plaintiff. According to
plaintiff, defendant drew his gun and addressed plaintiff using a racial slur. Defendant then
grabbed plaintiff by the back of his shirt, held his gun directly against the back of plaintiff’s
head, and pushed plaintiff against the SUV. Defendant conducted a pat-down search of plaintiff,
returned his gun to the back of plaintiff’s neck, and pushed him against the F-150. Meanwhile,
Pomeroy searched Cureton and found a gun concealed behind his back. Pomeroy seized the gun
and pushed Cureton against the truck. Pomeroy took a phone from Cureton’s pocket. Defendant
and Pomeroy then released plaintiff and Cureton. According to plaintiff, Pomeroy told
defendant “to get rid of the plate,” following which defendant bent the license plate on the F-150
to obscure its view. Defendant and Pomeroy then left the station in the F-150. According to
plaintiff, defendant attempted to back the F-150 over him and Cureton before he drove away
from the station.

        Plaintiff and Cureton brought this action asserting multiple claims against defendant,
Pomeroy, and the cities of Detroit and St. Clair Shores. The trial court dismissed Cureton’s
claims and plaintiff’s claims against the municipal defendants. The trial court granted in part and
denied in part defendant’s motion for summary disposition. As relevant to this appeal, the trial
court denied defendant’s motion with respect to plaintiff’s § 1983 claim alleging a Fourth
Amendment violation on the basis of excessive force. The sole issue on appeal is whether the
trial court erred by finding that a genuine issue of material fact existed to defeat defendant’s
entitlement to qualified immunity. 2



2
  The trial court also denied summary disposition with respect to plaintiff’s common-law claims
against defendant for conversion and intentional infliction of emotional distress, and also
plaintiff’s statutory claim for ethnic intimidation. Defendant filed this claim of appeal pursuant
to MCR 7.202(6)(a)(v), which defines a “final order” for purposes of an appeal of right under
MCR 7.203(A)(1) as including “an order denying governmental immunity to a governmental
party, including a governmental agency, official, or employee . . . or an order denying summary
disposition under MCR 2.116(C)(10) based on a claim of governmental immunity[.]” Although



                                                -2-
                                          II. ANALYSIS

        Whether a defendant is entitled to qualified immunity is a question of law that this Court
reviews de novo. Thomas v McGinnis, 239 Mich App 636, 644; 609 NW2d 222 (2000). “A
motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of
the complaint.” Stock Bldg Supply, LLC v Crosswinds Communities, 317 Mich App 189, 198;
893 NW2d 165 (2016) (citation and quotation marks omitted). “In evaluating a motion for
summary disposition brought under this subsection, a trial court considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the
light most favorable to the party opposing the motion.” Id. (citation and quotation marks
omitted). Summary disposition under MCR 2.116(C)(10) is proper when there is no “genuine
issue regarding any material fact.” Id. (citation omitted).

        “Any person who, under color of state law, deprives another of rights protected by the
constitution or laws of the United States is liable under 42 USC 1983.” Morden v Grand
Traverse Co, 275 Mich App 325, 332; 738 NW2d 278 (2007). “Section 1983 itself is not the
source of substantive rights; it merely provides a remedy for the violation of rights guaranteed by
the federal constitution or federal statutes.” York v Detroit, 438 Mich 744, 757-758; 475 NW2d
346 (1991).

         Qualified immunity is a recognized defense against claims for damages under § 1983 for
alleged violations of federal rights. Morden, 275 Mich App at 340. “An official has qualified
immunity from suits under 42 USC 1983 when the official’s conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’ ”
Holeton v City of Livonia, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket Nos. 341624
and 341847); slip op at 6, quoting Kisela v Hughes, ___ US ___, ___; 138 S Ct 1148, 1152; 200
L Ed 2d 449 (2018). “The doctrine of qualified immunity 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.” Holeton, ___ Mich App
at ___; slip op at 6, quoting Pearson v Callahan, 555 US 223, 231; 129 S Ct 808; 172 L Ed 2d
565 (2009). “The protection of qualified immunity applies regardless of whether the government
official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of
law and fact.” Pearson, 555 US at 231 (quotation marks and citation omitted). The doctrine of
qualified immunity “applies an objective standard to the conduct of defendants, not to their state
of mind.” Morden, 275 Mich App at 340. The doctrine “shields an officer from suit when [he]
makes a decision that, even if constitutionally deficient, reasonably misapprehends the law
governing the circumstances [he] confronted.” Brosseau v Haugen, 543 US 194, 198; 125 S Ct
596; 160 L Ed 2d 583 (2004).



the trial court denied summary disposition of plaintiff’s common-law and statutory claims on
grounds unrelated to immunity, an appeal from an order described in MCR 7.202(6)(a)(v) “is
limited to the portion of the order with respect to which there is an appeal of right,” MCR
7.203(A)(1), and defendant acknowledges in his brief that he filed his claim of appeal only from
the portion of the trial court’s order that denied him qualified immunity.



                                                 -3-
        To defeat qualified immunity, the court must find that the plaintiff can establish two
elements. First, “a court must decide whether the facts that a plaintiff has alleged or shown make
out a violation of a constitutional right.” Second, “if the plaintiff has satisfied this first step, the
court must decide whether the right at issue was clearly established at the time of defendant’s
alleged misconduct.” Holeton, ___ Mich App at ___; slip op at 7, quoting Pearson, 555 US at
232. In the first prong of this two-prong test, the court “must concentrate at the outset on the
definition of the constitutional right and [then] determine whether, on the facts alleged, a
constitutional violation could be found.” Solomon v Auburn Hills Police Dep’t, 389 F3d 167,
172-173 (CA 6, 2004) (quotation marks and citation omitted). “After the constitutional right has
been defined, [the court] still must inquire whether a violation of [the plaintiff’s] right to be free
from excessive force could be found.” Id. at 173. “The focus of the inquiry is on whether the
official had ‘fair notice that her conduct was unlawful;’ and, for that reason, the reasonableness
of the act must be judged against the backdrop of the law at the time of the conduct.” Holeton,
___ Mich App at ___; slip op at 7, quoting Kisela, ___ US at ___; 138 S Ct at 1152. “The
allegations and facts must show that it would have been clear to a reasonable official in the
defendant’s position that his or her conduct was unlawful under the situation that he or she
confronted.” Id. Courts are permitted “to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 US at 236.

        With respect to the first inquiry, whether the facts alleged or proved establish violation of
a constitutional right, plaintiff argues that defendant violated his right to be free from excessive
force by law enforcement officers. A police officer may conduct an investigatory stop and brief
detention of a person if the officer has reasonable suspicion that a crime is in progress or has
been committed. Terry v Ohio, 392 US 1, 21-22, 30-31; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
The Fourth Amendment of the United States Constitution protects a person from being subject to
excessive physical force by law enforcement officers. Latits v Phillips, 878 F3d 541, 547 (CA 6,
2017). “Within reasonable limits, officers enjoy the discretion to determine the amount of force
required by the circumstances and they are not guilty of wrong unless they arbitrarily abuse the
power confided in them.” Alexander v Riccinto, 192 Mich App 65, 69; 481 NW2d 6 (1991).

        Excessive-force claims are analyzed under an “objective reasonableness” standard.
Graham v Connor, 490 US 386, 388; 109 S Ct 1865; 104 L Ed 2d 443 (1989). “The
‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at 397.
Recognizing that the test of reasonableness under the Fourth Amendment is not capable of
precise definition, the Supreme Court offered guidance in Graham, noting that its application
“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.” Id. at 396. Further, “[t]he 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.” Id. at 396-397. The conduct must be reviewed under the totality of the
circumstances confronting the officers. Dunigan v Noble, 390 F3d 486, 493 (CA 6, 2004). “An



                                                  -4-
officer’s evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable
use of force constitutional.” Id., quoting Graham, 490 US at 397.

        The second inquiry is whether the plaintiff’s right to be free from excessive force “was
clearly established at the time of defendant’s alleged misconduct.” Holeton, ___ Mich App at
___; slip op at 7, quoting Pearson, 232 US at 232. The United States Supreme Court stated in
White v Pauly, 580 US ___, ___; 137 S Ct 548, 552; 196 L Ed 2d 463 (2017):

                Today, it is again necessary to reiterate the longstanding principle that
       “clearly established law” should not be defined “at a high level of generality.”
       Ashcroft v al–Kidd, 563 US 731, 742, 131 S Ct 2074, 179 L Ed 2d 1149 (2011).
       As this Court explained decades ago, the clearly established law must be
       “particularized” to the facts of the case. Anderson v Creighton, 483 US 635, 640,
       107 S Ct 3034, 97 L Ed 2d 523 (1987). Otherwise, “[p]laintiffs would be able to
       convert the rule of qualified immunity . . . into a rule of virtually unqualified
       liability simply by alleging violation of extremely abstract rights.” Id., at 639,
       107 S Ct 3034.

The Court in White concluded that the circuit court “misunderstood the ‘clearly established’
analysis” where the court “failed to identify a case where an officer acting under similar
circumstances as Officer White was held to have violated the Fourth Amendment.” White, 137 S
Ct at 552.

        In Dorsey v Barber, 517 F3d 389 (CA 6, 2008), the defendant officer observed that the
plaintiffs matched the description of subjects in a be-on-lookout (BOLO) broadcast. Id. at 391-
392. The plaintiffs did not comply with the defendant’s initial instructions to stop and lie on the
ground. The defendant “drew his service weapon from its holster to control the situation until a
back-up unit arrived.” The defendant kept his gun out until backup arrived. Id. at 392. Later
events proved that the plaintiffs were not the suspects in the BOLO. Id. at 393. After
concluding that the defendant had sufficient reasonable suspicion to detain the plaintiffs in a
Terry stop, the court addressed the plaintiffs’ excessive-force claim. Id. at 398. The court
concluded that the defendant was entitled to qualified immunity because he did not become
aware that the plaintiffs were not the suspects in the BOLO during the time he had his gun on
display. The court remarked that the officer used “a mere show of force” that did not result in
touching the plaintiffs. Id. at 402. The court remarked that the means used by the defendant
“were more intrusive than necessary,” but found that a reasonable officer in his situation could
believe that “brandishing a firearm and ordering two suspects . . . to lie on the ground for a
period of two minutes, without firing the weapon or physically injuring them in any way or even
touching them—were not violative of the suspects’ constitutional rights.” Id.

        The evidence in the instant case, viewed in a light most favorable to plaintiff, showed that
defendant approached plaintiff as plaintiff was walking from the gas station store to the SUV.
Plaintiff was holding a plastic water bottle that he had purchased. When plaintiff asked what he
had done, defendant told him to “shut the f**k up.” Defendant grabbed plaintiff by his shirt,
shoved a gun against the back of his head, and pushed him against the vehicle. Plaintiff did not
know where defendant had the gun while defendant conducted a pat-down search of plaintiff’s


                                                -5-
person, but defendant returned the gun to plaintiff’s head after the search. After defendant and
Pomeroy released plaintiff and Cureton, defendant bent the license plate on his truck to conceal
the number. Defendant then attempted to back over plaintiff and Cureton with his truck.

        Considering the first of the three factors stated in Graham, 490 US at 396, the trial court
determined that the crime under investigation was relatively minor, viewing it as involving
possession of a stolen cell phone. Arguably, the crime under investigation was more serious,
because it also involved an unarmed robbery. The second factor considers whether the suspect
poses an immediate threat to the safety of others. On the one hand, defendant could reasonably
anticipate that the persons from the SUV might use physical force to challenge him because they
were suspects in the robbery of the phone. Additionally, Cureton was in possession of a gun.
Plaintiff, however, was separated from the other persons in the van. He was walking from the
store to the vehicle, carrying a bottle of water, while Pomeroy was detaining Cureton. Plaintiff
was not acting in a threatening manner before defendant approached him, and when defendant
approached plaintiff with his gun drawn, plaintiff did not react with anger or violence.
Regarding the third factor, plaintiff did not resist defendant.3

        Considering these factors, and defendant’s actions, objectively, defendant’s use of force
could be considered reasonable with respect to initially holding his gun in the low-ready
position, and also with respect to pushing plaintiff against the SUV for the pat-down search. But
the evidence supports a finding that defendant’s use of force became excessive under the
circumstances when he held his gun directly against the back of plaintiff’s head, especially after
the pat-down search was completed.

        Regarding the gun-pointing, “the use of guns in connection with a [Terry] stop is
permissible where the police reasonably believe they are necessary for their protection . . . .”
United States v Mosley, 743 F3d 1317, 1329 (CA 10, 2014). However, “pointing a loaded gun at
a suspect, employing the threat of deadly force, is use of a high level of force.” Espinosa v City
and Co of San Francisco, 598 F3d 528 (CA 9, 2010). Very generally, courts have “held that
pointing guns at persons who are compliant and present no danger is a constitutional violation,”
but “courts do not find constitutional violations for gun pointing when there is a reasonable
threat of danger or violence to police.” Baird v Renbarger, 576 F3d 340, 346 (CA 7, 2009).4


3
  If plaintiff had resisted defendant, his resistance would have arisen in a context in which
defendant had not identified himself as an officer. Defendant testified that he did not have time
to announce himself as an officer, but he stated that plaintiff addressed him as officer.
4
    The court in Baird, 576 F3d at 346-347, cataloged these cases:
                Other circuits have also held that pointing guns at persons who are
         compliant and present no danger is a constitutional violation. See, e.g., Motley v.
         Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc) (holding an infant at
         gunpoint constitutes excessive force); Robinson v. Solano County, 278 F.3d 1007,
         1015-16 (9th Cir. 2002) (en banc ) (pointing a gun at an unarmed suspect who
         poses no danger constitutes excessive force); Holland v. Harrington, 268 F.3d
         1179, 1192-93 (10th Cir. 2001) (holding children at gunpoint after the officers



                                                 -6-
The evidence supported a finding that defendant exceeded acceptable force by pointing his gun
at plaintiff and holding it against plaintiff’s head although plaintiff did not pose a threat of
danger. Switching the gun from the ready-low position to holding it directly against plaintiff’s
head exceeded the reasonable force used in Dorsey, 517 F3d 389, to control two suspects who
failed to comply with the officer’s commands. Further, plaintiff did not pose an imminent threat
of harm because he was compliant and not in possession of a weapon.

        Defendant nonetheless argues that plaintiff posed a safety threat because of the possibility
that there was a weapon in the SUV. Defendant testified that when he and Pomeroy were
approaching the SUV they saw Cureton “bent forward within his seat and appeared to be
reaching towards the lower back area.” Defendant believed that this motion “was consistent with
somebody reaching for a gun.” However, defendant’s argument ignores his testimony that he did
not know when he first saw plaintiff that he had any connection with the SUV. Further, the mere
possibility that plaintiff may have been carrying a weapon did not justify defendant pressing a
gun against plaintiff’s head and pushing him against a vehicle. Significantly, that conduct
continued even after defendant had searched plaintiff and found no weapon.

         With respect to the second inquiry, a recent decision from the Sixth Circuit establishes
that it has long been clearly established that an officer may not point a gun at cooperating suspect
who does not pose a safety threat. In Vanderhoef v Dixon, ___ F3d ___ (CA 6, 2019) (No. 18-
5993), an off-duty officer was involved in an accident, after which he approached the other
vehicle with his gun drawn, directed the passengers out of the vehicle while yelling, “Let me see
your hands, get on the ground.” The officer pointed his gun at the plaintiff’s head for roughly 2
minutes. Id. at ___; slip op at 2. The Sixth Circuit held that the officer’s conduct was
unreasonable under the Fourth Amendment and that he was not entitled to qualified immunity.
After reviewing the relevant caselaw, the court concluded: “At the time of this accident and
confrontation defendant should have known that pointing his gun at plaintiff—a nonfleeing


       had gained complete control of the situation “was not justified under the
       circumstances”); Baker v. Monroe Township, 50 F.3d 1186, 1193-94 (3d Cir.
       1995) (detention at gunpoint violated the Fourth Amendment as there was
       “simply no evidence of anything that should have caused the officers to use the
       kind of force they are alleged to have used”) . . . .

               Conversely, courts do not find constitutional violations for gun pointing
       when there is a reasonable threat of danger or violence to police. See, e.g., Aponte
       Matos v. Toledo Davila, 135 F.3d 182, 191-92 (1st Cir. 1998) (individual
       attempted to enter house that was being searched for weapons); Sharrar v.
       Felsing, 128 F3d 810, 822 (3d Cir. 1997) (suspect was believed to have a
       handgun); Edwards v. Giles, 51 F.3d 155, 156-57 (8th Cir. 1995) (suspect fled
       police); Courson v. McMillian, 939 F.2d 1479, 1496 (11th Cir. 1991) (drug crime
       suspects outnumbered police officer, were intoxicated, and one was verbally
       aggressive); Collins v. Nagle, 892 F.2d 489, 495-97 (6th Cir. 1989) (individual
       approached scene in which officers were dealing with uncooperative suspects).




                                                -7-
teenager whom he did not reasonably suspect of any prior crime beyond speeding and reckless
driving—and holding him at gunpoint for roughly two minutes, violated plaintiff’s Fourth
Amendment rights.” Id. at ___; slip op at 11.

        Although the court framed the specific right at issue in relation to a traffic violation, the
caselaw supporting the court’s decision is not so confined. Vanderhoef first cited the general
principled established in Graham, 490 US 386, that a use of force violated the Fourth
Amendment “if it is excessive under objective standards of reasonableness.” Id. at ___ ; slip op
at 8 (quotation marks and citations omitted). The court then focused on caselaw establishing that
holding a suspect at gunpoint is unlawful in the absence of provocation. The court primarily
relied on Binay v Betterndorf, 601 F3d 640 (CA 6, 2010), in which officers executing a narcotics
search warrant forced the occupants onto the floor at gunpoint and handcuffed them for the
duration of the one-hour search that found no drugs. In that case, the court ruled that the alleged
conduct was excessive because the plaintiffs “had no criminal record, cooperated throughout the
ordeal, posed no immediate threat to the officers, and did not resist arrest or attempt to flee,” and
the officers did not anticipate that the occupants had firearms. Id. at 650. The court held that
the officers were not entitled to qualified immunity because “they were on notice that their
detention of Plaintiffs during the search using means that were more forceful than necessary
would constitute a Fourth Amendment violation.” Id. at 652. Vanderhoef also examined
caselaw from other federal court of appeals holding that officers were not entitled to qualified
immunity when they unnecessarily pointed guns at nonthreatening suspects:

       The First Circuit has held that “[a] reasonably competent officer also would not
       have thought that it was permissible to point an assault rifle at the head of an
       innocent, non-threatening, and handcuffed fifteen-year-old girl for seven to ten
       minutes, far beyond the time it took to secure the premises and arrest and remove
       the only suspect.” Mlodzinski v. Lewis, 648 F.3d 24, 37–38 (1st Cir. 2011).
       In Baird v. Renbarger, the Seventh Circuit ruled that it was unconstitutional when
       the defendant “pointed a submachine gun at various people when there was no
       suggestion of danger, either from the alleged crime that was being investigated or
       the people he was targeting. The Fourth Amendment protects against this type of
       behavior by the police.” 576 F.3d 340, 346 (7th Cir. 2009). [Vanderhoef, ___ F3d
       at ___; slip op at 10.]

        The events in this case took place in 2013, after the decision in Binay and nearly all of the
caselaw relied on in Vanderhoef. Thus, it was clearly established at the time of defendant’s
conduct that an officer may not hold a cooperating suspect at gunpoint unless the suspect
presents a threat of harm to the officer. As discussed, plaintiff did not present a safety threat to
defendant. Plaintiff was exiting a gas station with a water bottle in his hand. He complied with
all of defendant’s directives. And the crime that plaintiff was suspected of—unarmed robbery of
a cell phone—did not present an imminent threat to defendant. Even assuming that defendant
had reason to believe that plaintiff was carrying a gun, it would not justify the force that
defendant chose to employ, i.e., pushing plaintiff against a vehicle and pressing a gun against the
back of his head for an extended period of time. Nor was it objectively reasonable for defendant
to continue to use that force after he determined that plaintiff was not carrying a weapon.
Further, given that ample caselaw detailing how merely pointing a gun at a nonthreatening



                                                -8-
suspect can constitute excessive force, defendant had fair notice that the force he allegedly
employed in this case was unlawful.

        Plaintiff also had a clearly established right to not have an officer attempt to run him over
with a vehicle. This event occurred after defendant and Pomeroy released plaintiff, thus making
it gratuitous and unjustifiable. In McDonald v Haskins, 966 F2d 292, 295 (CA 7, 1992), the
court held that it should have been “obvious” to the defendant officer that holding a gun to the
head of a nine-year-old child and threatening to pull the trigger was “objectively unreasonable
given the alleged absence of any danger to Haskins or other officers at the scene and the fact that
the victim, a child, was neither a suspect nor attempting to evade the officers or posing any other
threat.” With respect to the second inquiry, the absence of a “precisely analogous case” did not
defeat the plaintiff’s claim because the defendant’s behavior was “so egregious that no like case
is on the books.” Id. at 295. Similarly, defendant’s conduct in attempting to run over suspects
that he decided to release rather than place under arrest is patently unreasonable. Further, the
evidence that defendant bent his license plate to conceal it from view before attempting to run
over the suspects and drive away supports an inference that defendant knew that his conduct was
unlawful.

        Defendant argues that plaintiff’s evidence of physical injury is insufficient to support his
claim of excessive force. In Morrison v Bd of Trustees of Green Twp, 583 F3d 394 (CA 6,
2009), the court observed that “an excessive use of force claim may be established through
evidence of severe injury or physical contact,” but held that it is “not required that this must be
the case.” Rather, “a plaintiff may ‘allege use of excessive force even where the physical contact
between the parties did not leave excessive marks or cause extensive physical damage.’ ” Id.,
quoting Ingram v City of Columbus, 185 F3d 579, 597 (CA 6, 1999). “ ‘Gratuitous violence’
inflicted upon an incapacitated detainee constitutes an excessive use of force, even when the
injuries suffered are not substantial.” Morrison, 583 F3d at 407. Additionally, pointing a gun
can constitute excessive force even where it is a mere show of force, not resulting in physical
contact with the plaintiff. Dorsey, 517 F3d 389. Therefore, the evidence of lack of injury to
plaintiff does not prevent him from prevailing on his claim.

       For these reasons, we conclude that the trial court did not err by ruling that there were
genuine issues of material fact sufficient to defeat defendant’s claim of qualified immunity.

       Affirmed.



                                                              /s/ Karen M. Fort Hood
                                                              /s/ David H. Sawyer




                                                -9-
