                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                       File Name: 09a0352p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                                                  -
 WILLIAM HARRIS, JR.,
                                                  -
                                   Plaintiff-Appellee,
                                                  -
                                                  -
                                                       No. 08-3252
           v.
                                                  ,
                                                   >
                                                  -
                      Defendants-Appellants. -
 CITY OF CIRCLEVILLE, et al.,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Southern District of Ohio at Columbus.
                No. 04-01051—John D. Holschuh, District Judge.
                                     Argued: March 13, 2009
                              Decided and Filed: October 2, 2009
                                                                                                   *
  Before: BATCHELDER, Chief Judge; CLAY, Circuit Judge; COX, District Judge.

                                       _________________

                                            COUNSEL
ARGUED: John T. McLandrich, MAZANEC, RASKIN, RYDER & KELLER CO.,
L.P.A., Cleveland, Ohio, for Appellants. Charles H. Cooper, Jr., COOPER & ELLIOTT,
LLC, Columbus, Ohio, for Appellee. ON BRIEF: John T. McLandrich, Frank H.
Scialdone, MAZANEC, RASKIN, RYDER & KELLER CO., L.P.A., Cleveland, Ohio,
for Appellants. Charles H. Cooper, Jr., John C. Camillus, COOPER & ELLIOTT, LLC,
Columbus, Ohio, for Appellee.
       COX, D. J., delivered the opinion of the court, in which BATCHELDER, C. J.,
joined. CLAY, J. (pp. 20-25), delivered a separate concurring opinion.




         *
           The Honorable Sean F. Cox, United States District Judge for the Eastern District of Michigan,
sitting by designation.


                                                   1
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                      Page 2


                                  _________________

                                        OPINION
                                  _________________

       COX, District Judge. Plaintiff William R. Harris, Jr. (“Harris”) filed state law
claims and claims under 42 U.S.C. § 1983 alleging that he was subjected to excessive
force and inadequate medical care, and discriminated against on account of his race, in
violation of his constitutional rights, while being booked at the Circleville City Jail on
April 3, 2004. The issue before this Court is whether the district court properly denied
the Defendant-Officers’ motion for summary judgment as to Harris’s excessive force,
deliberate indifference to serious medical needs, equal protection and assault and battery
claims. For the reasons that follow, we AFFIRM the district court’s judgment.

                                              I.

       On April 3, 2004, Ohio State Highway Patrol Trooper Helen McManes stopped
Harris, an African-American, for speeding in Pickaway County, Ohio. Harris’s fiancee
at the time, now his wife, was following his car.

       When speaking with Harris, Trooper McManes smelled the odor of alcohol. She
administered some field sobriety tests and ultimately administered a breathalyzer test.
Trooper McManes told Harris that although he was close to the legal limit she was not
going to charge him with a DUI, but that she was going to issue him a speeding ticket.
Harris then went and sat in his wife’s car and waited for his speeding ticket.

       While he was waiting for his ticket, however, Trooper R.A. Cooper arrived at the
scene. Trooper Cooper approached Harris and told him he was being charged with a
DUI. He also told Harris that there was a “misdemeanor warrant out of Reynoldsburg
Mayor’s Court” outstanding for him. Thus, Harris was informed that the Troopers were
arresting him for DUI, speeding and the outstanding warrant.
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                      Page 3


        Harris acknowledges that he was upset about being arrested and that he cursed
at the Troopers. Trooper McManes handcuffed Harris and placed him in her vehicle for
transport to the Circleville City Jail.

        Police officers Glenn R. Williams, Phillip Roar, and Robert Gaines (collectively
“Defendants” or “the Officers”) were on duty at the Circleville City Jail when Harris
arrived with Troopers McManes and Cooper.

        Surveillance cameras at the Circleville City Jail captured some of the events and
the videotape is part of the record. The events that occurred inside Cell No. 3 were
outside of the view of the cameras. The area just outside of Cell No. 3, however, was
within view of a camera.

        Once inside the jail, Officer Williams directed that Harris be taken directly to
Cell No. 3, also known as the “drunk tank.” In the cell, the Officers began the booking
process by attempting to take Harris’s jewelry and belt from him. Harris testified that
one of the Officers yanked at a necklace Harris was wearing using a ball point pen,
prompting Harris to say, “Man, you don’t even have to do that” and step back. (JA at
89, 703-05). One of the Officers then kicked Harris’s leg out from under him and
pushed him in the back, causing him to fall and hit the left side of his head. The Officers
said nothing to Harris before taking him to the ground. The next thing Harris knew was
that he was being lifted back on to his feet and the Officers then walked him out of the
cell backwards, back into the booking area.

        The videotape shows the Officers walking Harris back into the booking area. In
addition to the Officers, Troopers McManes and Cooper were also present and are
shown on the videotape.

        Harris testified that as they were walking, he was still handcuffed and one of the
Officers was “jacking my hands over my head.” (JA at 709). That is, an Officer was
lifting up on Harris’s hands behind his back. He states that there was an Officer on each
side of him, and that Officer Williams instructed him to “kneel down.” Harris claims
No. 08-3252           Harris, Jr. v. City of Circleville, et al.                              Page 4


that he could not comply with this instruction because he was handcuffed and one of the
Officers was pulling his arms up behind him.

        When Harris did not comply with the instruction to kneel, the Officers used a
“takedown” maneuver to get Harris down on the floor. Officer Gaines, who was behind
Harris at the time, struck Harris in the back of the knee, in an attempt to get his knee to
buckle. Officer Roar administered two peroneal strikes to the left side of Harris’s leg.

        Officer Williams testified that when Harris was told to kneel down, Harris was
just standing there. In other words, other than not complying with the command to kneel
down, Harris was not doing anything to resist. In addition, Harris does not appear to be
resisting on the videotape.

        Harris testified that the strikes by the Officers caused all three of them to go
down to the ground:

        Okay. When I go down, when they take me down to the ground, I felt a
        knee on my left side in my back, a knee on the right side in my back. My
        arms are being pushed up by both officers, up over my head backwards.
        At the same time I felt a hand on my forehead, and I’m down on the
        ground, and then I heard pop, pop, pop and that’s when I started
        screaming.
(JA at 711). Harris screamed out in pain and cried “you broke my neck” to the Officers.
He also told the Officers to stop shocking him1 because it felt like electricity was
running through his arms and legs and he could not move. Harris told the Officers, “I
can’t move. I can’t move. I think y’all did something. I can’t move.” (JA at 716).

        The Officers ignored his statements and, after removing Harris’s jewelry and
belt, told him to stand up. When Harris continued telling them that he could not move,
the Officers removed his shirt and pants, leaving Harris in his t-shirt, underwear and
socks, and literally dragged him back into Cell No. 3. When the Officers left him in the
jail cell at 10:18 p.m., Harris was still yelling “Help. Help. I can’t move. I can’t move.”



        1
         On the videotape, Harris is heard asking the Officers to stop shocking him several times, and
one or more of the Officers can be heard telling him that no one is shocking him.
No. 08-3252              Harris, Jr. v. City of Circleville, et al.                                  Page 5


        Harris continued to cry out in pain after the Officers left him in Cell No. 3. He
testified as follows:

        Q.          So the officers leave and you continue to moan and groan in the
                    cell; is that fair?
        A.          Yes, sir.
        Q.          And then at some point in time someone comes and checks on
                    you?
        A.          Well, even – I wouldn’t say check on me. You know, I’m laying
                    there in pain, I can’t move, I’m hollering and screaming, “I need
                    help. Somebody help me. Help.” I could hear people out in the
                    hallway walking by and I’m still there screaming “Help. I can’t
                    move.”
                             Now, the feeling, man, I thought I was going to die right
                    there because I had trouble breathing. I couldn’t breathe. I
                    couldn’t move. The electric shocks is still going up and down
                    my body, through my hands, through my legs. And then the door
                    opens and it was this – another officer came in and told me to get
                    up. I’m still telling him “I can’t move. I can’t move.” So he
                    said, “Yes, you can,” and he kicked me in my left side of my ribs.
                    I was telling him – I’m screaming, that part you can hear on the
                    tape, No. Stop.”
                             ....
                             And at this time after he kicks me he said, “Looks like we
                    got us a broke nigger here.” And he looked at me and then he just
                    walked out . . . .

(JA at 97-98, 718-19). In addition, at some point while Harris was in Cell No. 3,2
Trooper McManes approached the cell and, via the opening in the cell door, read the
“BMV 2255” to Harris.3 Harris was lying on the cell floor when this occurred. Harris
testified that, while Trooper McManes was at his cell, he continued “hollering ‘Help
me. Help me.’” (JA at 99).

        Patricia Rice (“Rice”) is a civilian employee who was working at the jail that
night. Rice testified that after the Officers took Harris to the ground they “drug him like
an animal into the jail cell” and left him lying there, with Harris “screaming the whole


        2
            Harris testified that this occurred either before or after the Officer entered his cell and kicked
him.
        3
            McManes can be seen doing this on the videotape.
No. 08-3252             Harris, Jr. v. City of Circleville, et al.                                  Page 6


time, ‘You broke my back, you broke my back,’ and they totally ignored him.” (JA at
560, 565). She testified that Harris’s screams continued after he was left in the cell, that
the screaming was fairly constant, and that it clearly indicated he was in pain. Rice
testified that Harris’s screams, including his screams that his back was broken and that
he could not move, could clearly be heard in the communications center – yet she did not
see anyone check on Harris. Rice ultimately entered the control center and asked the
Officers to check on Harris:

        I went in and I told them, I told the people that was in the communication
        office, and I believe I directed it to Corporal Kinser – I don’t remember.
        There was several people in there, the officers that were involved or
        whatever – that he had not moved since they had put him in the cell and
        that – I don’t know if I told them they needed to call someone or if I just
        went in and said “You need to check on him. He hasn’t moved since you
        put him in the cell.” And it was at that point they called the squad.
(JA at 569). Rice testified that the population of Circleville is “primarily white,”
estimating that only two to five percent of detainees at the jail are African-American.
(JA at 50-51).

        When Corporal Stephanie Kinser checked on Harris, she heard him request
medical attention, say that his back was broken, and say, “Help; I can’t move.” She then
contacted the sergeant on duty, Sergeant Barton. When Sergeant Barton arrived and saw
Harris, he requested an ambulance at 11:39 p.m.

        After EMS arrived and examined Harris, they transported him to a local
hospital.4 Harris later was transferred by helicopter to Grant Medical Center, where tests
determined that Harris had sustained a spinal cord injury. At that time, Harris learned
for the first time that he had been born with a congenital stenosis – a narrowing of the
spinal canal. Harris underwent surgery three days later.

        Harris filed suit against the City of Circleville (“the City”), and Officers
Williams, Gaines, and Roar,5 alleging violations of 42 U.S.C. § 1983, in addition to

        4
            The videotape reflects that McManes remained at the jail until Harris left the jail with the EMS.
        5
            Other defendants also were named but were dismissed voluntarily.
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                      Page 7


various state law claims. Following discovery, the parties filed motions for summary
judgment. Harris filed a motion seeking partial summary judgment on his § 1983 claim
of deliberate indifference to serious medical needs. The City and the Officers moved
for summary judgment as to all claims asserted against them.

       On January 23, 2008, the district court issued a“Memorandum Opinion & Order”
denying Harris’s Motion for Partial Summary Judgment and granting in part, and
denying in part, Defendants’ Motion for Summary Judgment.

       With respect to Harris’s excessive force claims, the district court concluded that
they were to be analyzed under the Fourth Amendment’s objective reasonableness
standard because Harris was in the joint custody of Troopers McManes and Cooper (the
arresting officers) and Defendants (the booking officers) when the incidents occurred.
In making that determination, the district court noted that: 1) throughout the incidents
in question, Harris was restrained by handcuffs placed on him by the Troopers; 2) the
Troopers remained at the jail for over an hour after his arrest; 3) Trooper McManes
interacted with Harris in the jail cell when she read the BMV’s administrative license
suspension form to him; and 4) Trooper McManes remained at the jail until Harris was
taken to the hospital.

       The district court then analyzed the three incidents of alleged excessive force and
concluded, with respect to all three incidents, that: 1) a reasonable jury could conclude
that the Officers’ conduct was not objectively reasonable, and therefore a constitutional
violation occurred; and 2) the law was clearly established. The district court therefore
ruled that the Officers were not entitled to qualified immunity with respect to the
excessive force claims.

       The district court then analyzed the §1983 claims against the Officers involving
their alleged deliberate indifference to Harris’s serious medical needs. It found that the
objective component was satisfied because it would have been obvious to any layperson
that Harris needed prompt medical attention and that no reasonable jury could find
otherwise. With respect to the subjective component, the district court found that
genuine issues of material fact existed such that a reasonable jury could find in favor of
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                        Page 8


Harris or the Officers. It therefore denied Harris’s request for summary judgment on this
claim. The district court also ruled that the Officers were not entitled to qualified
immunity because, viewing the evidence in the light most favorable to Harris, his
constitutional rights were violated when the Officers failed to seek timely medical
assistance and that right was clearly established at the time the incident occurred.

        The district court granted the City’s request for summary judgment on Harris’s
§ 1983 claim against the City based on Monell v. New York Dept. of Social Services, 436
U.S. 658 (1978).

        The district court denied the Officers’ request for summary judgment with
respect to Harris’s equal protection claim. The Officers claimed to be entitled to
summary judgment on this claim on the ground that Harris produced no evidence that
the Officers’ actions were motivated by racial bias. The district court disagreed and
concluded that a reasonable jury could find that, because of a racial animus, the Officers
used excessive force and were deliberately indifferent to Harris’s serious medical needs.

        The district court denied the Officers’ request for summary judgment as to
Harris’s assault and battery claim. The Officers had sought summary judgment on the
ground that they are statutorily immune under Ohio Revised Code § 2744.03(A)(6). The
district court found that there was an issue of fact as to whether the Officers acted with
malice, or in a wanton or reckless manner. Thus, it concluded that there was an issue of
fact as to whether an exception to statutory immunity applied.

        Finally, the district court granted the Officers summary judgment on Harris’s
claim for intentional infliction of emotional distress, based on statutory immunity.

        Thereafter, the Officers filed this interlocutory appeal.

                                              II.

        As an initial matter, we address whether we have jurisdiction over this
interlocutory appeal. Title 28 U.S.C. § 1291 limits appellate jurisdiction to “final
decisions of the district courts.” A district court’s denial of qualified immunity is a final
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                        Page 9


decision for purposes of § 1291 only to the extent that it turns on an issue of law. Kirby
v. Duva, 530 F.3d 475, 480 (6th Cir. 2008); Livermore v. Lubelan, 476 F.3d 397, 402
(6th Cir. 2007).     “Consequently, this court cannot hear an interlocutory appeal
challenging ‘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.’” Kirby, 530
F.3d at 480-81 (quoting Johnson v. Jones, 515 U.S. 304, 319-20 (1995)). The Court,
however, retains jurisdiction over the legal question of qualified immunity, i.e., whether
a given set of facts violates clearly established law. Id. To the extent that Defendants
make such arguments, there is jurisdiction over their interlocutory appeal.

        To the extent that Defendants challenge the accuracy of Harris’s factual
statements, however, this Court is without jurisdiction. Kirby, 530 F.3d at 481. “A
defendant who files an interlocutory appeal after the denial of qualified immunity ‘is
required to limit [his] argument to questions of law premised on facts taken in the light
most favorable to the plaintiff.’” Id. (quoting Meals v. City of Memphis, 493 F.3d 720,
726-27 (6th Cir. 2007)). That the Defendants here “make the occasional factual
argument” does not, however, destroy jurisdiction over the legal issues presented. Id.
This court may simply ignore Defendants’ attempts to dispute plaintiffs’ version of the
facts, obviating the need to dismiss the entire appeal for lack of jurisdiction. Id.

                                              III.

        When no facts are in dispute, whether an official receives qualified immunity is
a question of law. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.
2004). We review the district court’s denial of summary judgment de novo. Williams
v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Summary judgment is warranted
where “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 considering a motion for
summary judgment, we view the factual evidence and draw all reasonable inferences in
favor of the non-moving party. Williams, 186 F.3d at 689.
No. 08-3252           Harris, Jr. v. City of Circleville, et al.                     Page 10


                                                IV.

          Defendants’ first argument on appeal is that the district court erred in denying
their Motion for Summary Judgment because they are entitled to qualified immunity
from Harris’s excessive force claims, brought under § 1983.

          To state a claim under § 1983, a plaintiff must set forth facts that, when construed
favorably, establish: 1) the deprivation of a right secured by the Constitution or laws of
the United States; 2) caused by a person acting under the color of state law. Dominguez
v. Correctional Medical Services, 555 F.3d 543, 549 (6th Cir. 2009). Under the doctrine
of qualified immunity, government officials performing discretionary functions generally
are shielded from liability from civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known. Id.; Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008).

          Determining whether government officials are entitled to qualified immunity
generally requires two inquiries: 1) whether, viewing the facts in the light most favorable
to the plaintiff, the plaintiff has shown that a constitutional violation occurred; and
2) whether the right was clearly established at the time of the violation. Dominguez, 555
F.3d at 549.

          The Officers assert that the Fourteenth Amendment’s “shocks the conscience”
standard is the appropriate standard under which to analyze Harris’s excessive force
claims.      Harris urged the district court to apply the Fourth Amendment’s
“reasonableness” standard.

          On appeal, Harris asserts that when the facts are viewed in the light most
favorable to him, a constitutional violation occurred under either standard. We agree.

          The “standards of liability vary significantly according to which amendment
applies.” Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002). “A substantially higher
hurdle must be surpassed to make a showing of excessive force under the Fourteenth
Amendment than under the ‘objective reasonableness’ test of Graham, in which
excessive force can be found if the officer’s actions, in light of the totality of the
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                     Page 11


circumstances, were not objectively reasonable.” Darrah v. City of Oak Park, 255 F.3d
301, 306 (6th Cir. 2001).

        “The substantive component of Fourteenth Amendment due process protects
citizens against conduct by law enforcement officers that ‘shocks the conscience.’”
United States v. Budd, 496 F.3d 517, 529 (6th Cir. 2007) (quoting County of Sacramento
v. Lewis, 523 U.S. 833, 846 (1998)). This circuit has held that the Due Process Clause
protects a pretrial detainee from “excessive force that amounts to punishment.’” Budd,
496 F.3d at 530; Phelps v. Coy, 286 F.3d 295, 300 (6th Cir. 2002).

        Defendants are not entitled to qualified immunity because we conclude that the
facts taken in a light most favorable to Harris are sufficient to establish a violation of
Harris’s constitutional rights under either standard. Therefore, we need not decide which
standard applies.

        Applying a Fourth Amendment analysis to Harris’s excessive force claims, it is
clear that the facts, taken in a light most favorable to Harris, are sufficient to establish
a violation of his constitutional rights. The “objective reasonableness standard” depends
on the facts and circumstances of each case viewed from the perspective of a reasonable
officer on the scene. Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008). Relevant
considerations in determining the reasonableness of force used are: 1) the severity of the
crime at issue; 2) whether the suspect posed an immediate threat to the safety of the
police officers or others; and 3) whether the suspect actively resisted arrest or attempted
to evade arrest by flight. Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

        In assessing the reasonableness of the Officers’ actions, we analyze the events
in segments. Phelps, 286 F.3d at 301. There are three segments: 1) the initial incident
in Cell No. 3; 2) the takedown maneuver in the booking area; and 3) the kicking incident
in Cell No. 3. Considering the relevant factors, with respect to each of these three
segments, Harris’s version of the events supports a holding that Defendants violated
Harris’s Fourth Amendment right to be free from excessive force.
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                     Page 12


       Under Harris’s version of the facts, in the first segment, the Officers began the
booking process by attempting to take Harris’s jewelry and belt from him. When one
of the Officers yanked at a necklace he was wearing using a ball point pen, Harris said,
“Man, you don’t even have to do that” and stepped back. The Officer then kicked
Harris’s leg out from under him and pushed him in the back, causing him to fall and hit
his head. The Officers said nothing to Harris before taking him to the ground.

       In the second segment, as the three Officers were walking Harris back into the
booking area he was still handcuffed and one of the Officers was lifting up on his hands
behind his back. There was an officer on each side of Harris when Officer Williams
instructed Harris to “kneel down.” Harris could not comply with the instruction,
however, because he was handcuffed and one of the officers was pulling his arms up
behind him. When Harris did not comply with the instructions to kneel, the Officers
used a “takedown” maneuver to get Harris down on the floor. Officer Gaines, who was
behind Harris at the time, struck Harris in the back of the knee, in an attempt to get his
knee to buckle. Officer Roar administered two peroneal strikes to the left side of
Harris’s leg. Harris testified that the strikes by the officers caused all three of them to
go down on the ground, that he felt knees striking his back, that his arms were being
pushed up by both officers over his head.

       In the third and final segment, after the Officers had ignored Harris’s cries for
help and left him on the floor of Cell No. 3, one of the Officers entered the cell. Rather
than respond to Harris’s cries for help, that Officer told Harris to get up. When Harris
responded that he could not move, that Officer kicked Harris in the ribs and said “Looks
like we got us a broke nigger here.”

       We conclude that the Graham factors weigh against the Officers. Harris was
accused of “speeding, DUI and failing to appear in mayor’s court.” Relatively speaking,
these are not particularly serious crimes and none of them involve violence. In addition,
Harris did not pose an immediate threat to the Officers or anyone else at the Circleville
City Jail. It is undisputed that Harris was handcuffed during each of the incidents in
question. During the first segment he was surrounded by the three Officers and during
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                     Page 13


the second segment he was surrounded by the Officers and Troopers McManes and
Cooper. Indeed, the Officers testified that they did not feel threatened by Harris or that
they were in any imminent danger from him. Finally, under Harris’s version of the facts,
he did not actively resist at any time.

       Accordingly, these facts taken in a light most favorable to Harris are sufficient
to establish a violation of his constitutional rights under a Fourth Amendment analysis.

       Even if we were to apply the “shocks the conscience” test, the more difficult
standard for the plaintiff to meet, we would still affirm the district court’s decision
denying qualified immunity to Defendants. The above facts, taken in a light most
favorable to Harris, are sufficient to establish at least a genuine issue of fact as to
whether Defendants applied excessive force that amounts to punishment.

       Thus, regardless of the standard that applies, viewing the facts in the light most
favorable to Harris, Harris has shown that a constitutional violation occurred.

       Next, we must determine whether the right was clearly established at the time of
the violation. For a right to be clearly established, the contours of the right must be
sufficiently clear that a reasonable officer would understand that what he is doing
violates that right. Dominguez, 555 F.3d at 552.

       Defendants contend that the law was not clearly established because the law was
unclear about what standard applies to Harris’s excessive force claims (i.e., the Fourth
or Fourteenth Amendment). We reject that argument because even if there were some
lingering ambiguity as to whether the Fourth or the Fourteenth Amendment applies in
this precise context, the “legal norms” underlying Harris’s claims nevertheless were
clearly established.

       A defendant is not entitled to summary judgment on the basis of qualified
immunity simply because the courts have not “agreed upon the precise formulation of
the [applicable] standard.” Saucier v. Katz, 533 U.S. 194, 202-03 (2001). Under this
circuit’s existing case law, there undoubtedly is a clearly established legal norm
precluding the use of violent physical force against a criminal suspect who already has
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                     Page 14


been subdued and does not present a danger to himself or others. See Grawley v. Drury,
__ F.3d __ (6th Cir. May 28, 2009) (“The general consensus among our cases is that
officers cannot use force . . . on a detainee who has been subdued” and “is not resisting
arrest.”); see also Bultema v. Benzie County, 146 F. App’x 28, 37 (6th Cir. 2005)
(unpublished) (“when a suspect has already been restrained, the officer’s constitutional
authority to use force is significantly more circumscribed”). As we noted in Bultema,
it is clearly established in this circuit that “the gratuitous use of force on a suspect who
has already been subdued and placed in handcuffs is unconstitutional.” Id. at *35.
Although Bultema is an unpublished opinion, this Court has reached the same conclusion
in a number of reported opinions. See, e.g., Champion v. Outlook Nashville, Inc., 380
F.3d 295, 302 (6th Cir. 2004) (holding that “no reasonable officer would have continued
to spray a chemical agent in the face of a handcuffed and hobbled . . . arrestee”); Phelps,
286 F.3d at 302 (holding that no reasonable officer would strike a handcuffed arrestee
in the head); Adams v. Metiva, 31 F3d 375, 387 (6th Cir. 1994) (“A reasonable person
would know that spraying mace on an . . . incapacitated person . . . would violate the
right to be free from excessive force”); McDowell, 863 F.2d at 1307 (holding that a
“totally gratuitous blow with a policeman’s nightstick” to a handcuffed, unresisting
suspect was constitutionally unreasonable); Lewis v. Downs, 774 F.2d 711, 714 (6th Cir.
1985) (holding that beating and kicking restrained suspects who are in the control of the
police is “plainly excessive” force). Thus, even if it were unclear whether the Fourth or
Fourteenth Amendment governs Harris’s excessive force claims, the legal norms
underlying those claims were nevertheless clearly established.

        Accordingly, we affirm the district court’s denial of qualified immunity with
respect to Harris’s excessive force claims.

                                              V.

        Defendants also contend that the district court erred in denying them qualified
immunity with respect to Harris’s claim that they were deliberately indifferent to his
serious medical needs.
No. 08-3252              Harris, Jr. v. City of Circleville, et al.                                Page 15


         For the failure to provide medical treatment to constitute a constitutional
violation, Harris must show that Defendants acted with “deliberate indifference to
serious medical needs.” Dominguez, 555 F.3d at 550 (citing Estelle v. Gamble, 429 U.S.
97, 104 (1976)). A constitutional claim for deliberate indifference contains both an
objective and a subjective component. Id.

         Here, the Officers contend that neither the objective nor the subjective
components are satisfied. We disagree.

         “The objective component requires a plaintiff to show the existence of a
‘sufficiently serious’ medical need.” Id. A medical need is objectively serious where
a plaintiff’s claims arise from an injury or illness “so obvious that even a layperson
would easily recognize the necessity for a doctor’s attention.”6 Blackmore v. Kalamazoo
County, 390 F.3d 890, 897-900 (6th Cir. 2004).

         Viewing the facts in the light most favorable to Harris, Harris exhibited
manifestations of pain and injury that would have been obvious to a lay person. Upon
taking Harris to the ground, there was an audible popping sound. Then, immediately
after the takedown maneuver, Harris began crying out in pain. Harris repeatedly
exclaimed, “you broke my neck” and “I can’t move.” He also cried out for help
numerous times and repeatedly asked the Officers to “stop shocking him,” although the
Officers were aware that Harris was not being shocked. Rather than investigating the
validity of Harris’s continuous complaints and requests for help, the Officers instead
dragged him into Cell No. 3 and left him face-down on the cell floor. With these facts,
a jury could reasonably find that Harris had a serious need for medical care that was so
obvious that even a layperson would easily recognize the need for a doctor’s attention.7
Id. at 899. Thus, the objective component is satisfied.



         6
            In such situations, the “plaintiff need not present verifying medical evidence to show that, even
after receiving the delayed necessary treatment, his medical condition worsened or deteriorated. Instead,
it is sufficient to show that he actually experienced the need for medical treatment, and that the need was
not addressed within a reasonable time.” Blackmore, 390 F.3d at 899-900.
         7
             Indeed, a layperson (Rice) did recognize the need for medical attention.
No. 08-3252          Harris, Jr. v. City of Circleville, et al.                    Page 16


          The subjective component “requires a plaintiff to ‘allege facts which, if true,
would show that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and that he then
disregarded that risk.’” Id. (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.
2001)).

          “Because government officials do not readily admit the subjective component of
this test, it may be ‘demonstrat[ed] in the usual ways, including inference from
circumstantial evidence . . . and a factfinder may conclude that a prison official knew
of a substantial risk from the very fact that the risk was obvious.’” Dominguez, 555 F.3d
at 550 (quoting Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th
Cir. 2002)).

          Viewing the facts in a light most favorable to Harris, we agree with the district
court that a reasonable jury could find that the subjective component is met. Officer
Williams testified that he was aware of various symptoms of a spinal cord injury, such
as shocking sensations and the inability to move the extremities, and that Harris
exhibited both of those symptoms. Officer Roar also acknowledged that there were
indications that Harris might need medical attention. He testified that he assumed
Officer Williams was going to get medical assistance, but that he cannot recall having
any discussions about it. Roar further acknowledged that in a situation such as this,
medical assistance should be summoned promptly.

          Officer Gaines acknowledged, during his deposition, that there were indicators
– such as what Harris was saying to the Officers– that Harris needed medical help.
Nevertheless, he testified as follows:

          Q.     Did you ask Officer Williams or Sergeant Reams to summon
                 medical assistance for Mr. Harris at any time?
          A.     No.
          Q.     Why not?
          A.     I don’t know. I can’t answer that. I don’t know.

(JA at 130).
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                     Page 17


         In addition, the Officers did not comply with stated jail policy. See Bertl v. City
of Westland, No. 07-2547, 2009 WL 247907, at *6 (6th Cir. Feb. 2, 2009) (noting, while
analyzing subjective component, that defendant did not comply with jail policy). During
his deposition, Officer Williams acknowledged that the Circleville Jail Operations
Manual states that “all persons involved in use of force incidents who complain of or
perceive injuries will receive medical attention as soon as possible.”             He also
acknowledged that Harris had been involved in a use of force incident and that Harris
was complaining of injury. Nevertheless, no one sought medical attention for Harris
until – approximately an hour and a half after Harris exhibited symptoms of a spinal cord
injury and started crying out that his back was broken – Sergeant Barton arrived and
requested an ambulance.

         We conclude that Harris submitted sufficient evidence for a jury to conclude that
the Officers were aware of facts from which the inference could be drawn that a
sufficiently serious medical need existed, and that they drew that inference. Thus,
viewing the evidence in a light most favorable to Harris, he can establish a constitutional
violation.

         Moreover, it is beyond dispute that the right to medical treatment for a serious
medical need was clearly established at the time of the incident. See e.g., Fitzke v.
Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972).

         Accordingly, we affirm the district court’s denial of qualified immunity on this
claim.

                                              VI.

         Defendants also challenge the district court’s denial of qualified immunity with
respect to Harris’s equal protection claim.

         Harris’s equal protection claim is set forth as Count III of Plaintiff’s Third
Amended Complaint. Harris alleges that, as an African-American, he is a member of a
protected class and entitled to equal protection under the law. He alleges that “[d]ue in
whole or in part to his membership in a protected class, defendants, who are Caucasian,
No. 08-3252           Harris, Jr. v. City of Circleville, et al.                             Page 18


deliberately discriminated against [him] by using excessive force against him, and/or by
denying him prompt medical treatment, in violation of his constitutional rights.”

        In their Motion for Summary Judgment, Defendants noted that under Bass v.
Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999), an individual bringing such a claim
under the Equal Protection Clause must show intentional discrimination against him
because of his membership in a particular class.8 Defendants sought summary judgment
on this claim on the ground that Harris “produced no evidence to demonstrate that the
use of force or alleged delay in medical treatment was in any way motivated by racial
animus.”

        The district court concluded that Harris had presented sufficient evidence of
racial animus to withstand summary judgment on this claim. The district court noted
that the evidence presented by Harris included that: 1) Rice estimated that only two to
five percent of detainees at the jail are African-American; 2) the Officers testified that
on no previous occasions had they administered peroneal strikes to a handcuffed
detainee; 3) Officer Williams could not recall any previous instance where a handcuffed
detainee was struck to obtain compliance with a verbal instruction; and 4) Harris
testified that while he was lying on the floor of Cell No. 3 following the takedown
maneuver, screaming and stating he could not move, one of the Officers entered the cell,
kicked him in the ribs and then stated “Looks like we got us a broke nigger here.”

        We agree that Harris has presented sufficient evidence from which a reasonable
jury could conclude that Defendants used excessive force and delayed medical treatment
because of Harris’s race, in violation of his constitutional rights. Moreover, it was
clearly established that such discriminatory conduct would be unlawful. See, e.g., Bell
v. Wolfish, 441 U.S. 520, 545 (1979).

        Accordingly, we affirm the district court’s denial of qualified immunity as to
Harris’s equal protection claim.


        8
           Subsequently, in Willowbrook v. Olech, 528 U.S. 562 (2000), the Supreme Court recognized
equal protection claims brought by a “class of one” where the plaintiff alleges that he or she has been
treated differently from similarly-situated individuals.
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                    Page 19


                                            VII.

       Finally, with respect to Harris’s assault and battery claim, Defendants assert that
the district court erred in denying immunity under OHIO REV. CODE § 2744.03.

       Defendants are not entitled to such immunity if their “acts or omissions were
with malicious purpose, in bad faith, or in a wanton or reckless manner.” OHIO REV.
CODE § 2744.03(A)(6)(b). The Ohio Supreme Court has held that “the issue of wanton
misconduct is normally a jury question.” Fabrey v. McDonald Village Police Dept., 70
Ohio St.3d 351, 356 (1994).

       We agree with the district court that, viewing the evidence in a light most
favorable to Harris, a reasonable jury could conclude that Defendant acted with a
malicious purpose or in a wanton or reckless manner. Thus, we affirm the district
court’s ruling with respect to statutory immunity.

                                            VIII.

       We therefore AFFIRM the judgment of the district court.
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                    Page 20


                             ________________________

                                 CONCURRENCE
                             ________________________

       CLAY, Circuit Judge, concurring. Although I concur in the judgment, and
concur with most aspects of the majority’s opinion, I write separately to clarify an
important issue regarding the nature of the inquiry required in cases such as this.

       As the majority explains, Defendants appeal from the district court’s denial of
their qualified immunity defenses. Because the qualified immunity privilege, if it
applies, entitles the Defendants to “immunity from suit rather than a mere defense to
liability,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), Defendants raised their
immunity claims as a basis for summary judgment. Guided by our decision in Phelps
v. Coy, 286 F.3d 295, 299 (6th Cir. 2002), which in turn relied on Graham v. Connor,
490 U.S. 386, 394 (1989), the district court assumed that it was required to determine
whether Harris’ excessive force claims should be analyzed under the Fourth or the
Fourteenth Amendment.         On appeal, Defendants challenge the district court’s
determination that the Fourth Amendment applies, as well as the court’s conclusion that
the application of the Fourth Amendment in this context was clearly established. In
rejecting the Defendants’ claims, the majority correctly notes that it need not delve into
whether the Fourth or Fourteenth Amendment applies in this context.

       In my opinion, the district court’s approach gave too much credence to
Defendants’ fundamentally flawed claims. Essentially, Defendants argue that any
lingering ambiguity regarding whether the Fourth or Fourteenth Amendment applies in
this context implies that they are entitled to summary judgment because the rights
implicated by Harris’ claims could not have been “clearly established.” That entire
premise is mistaken. As the majority properly concludes in rejecting this argument,
“even if there were some lingering ambiguity as to whether the Fourth or the Fourteenth
Amendment applies in this precise context, the ‘legal norms’ underlying Harris’ claims
nevertheless were clearly established.” Indeed, the Supreme Court has made absolutely
clear that the courts need not “have agreed upon the precise formulation of the
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                     Page 21


[applicable] standard” for a right to be “clearly established” for qualified immunity
purposes:

            Assuming, for instance, that various courts have agreed that
            certain conduct is a constitutional violation under facts not
            distinguishable in a fair way from the facts presented in the case
            at hand, the officer would not be entitled to qualified immunity
            based simply on the argument that courts had not agreed on one
            verbal formulation of the controlling standard.
Saucier v. Katz, 533 U.S.194, 202-03 (2001). Accordingly, even if it is unclear whether
the Fourth or Fourteenth Amendment governs Harris’ excessive force claims,
Defendants are not necessarily entitled to qualified immunity.

       The majority concludes, and I agree, that there “undoubtedly is a clearly
established legal norm precluding the use of violent physical force against a criminal
suspect who already has been subdued and does not present a danger to himself or
others.” In my opinion, that is all that is necessary to reject Defendants’ qualified
immunity claims. Because it is clearly established that officers may not use gratuitous
physical force against a criminal suspect who already has been subdued and who does
not present a danger to himself or others, Defendants are not entitled to qualified
immunity. That is true regardless of whether Harris’ claims should be analyzed under
the Fourth or the Fourteenth Amendment, and regardless of whether Harris remained in
the joint custody of the arresting officers and the booking officers. The district court
nevertheless tackled these questions. Although the district court will need to determine
the applicable standard before instructing the jury on Harris’ excessive force claims or
before determining whether Harris is entitled to summary judgment on these claims,
resolving that issue simply was not necessary to determine whether Defendants are
entitled to summary judgment on the basis of qualified immunity.

       Perhaps much of the confusion derives from our decision in Phelps where we
explained that “[t]o decide whether [a plaintiff] presented evidence that [a police officer
defendant] violated his constitutional right not to be subjected to unnecessary beating,
we must first ascertain the source of that right.” 286 F.3d at 299. In making that
pronouncement, we relied on the Supreme Court’s decision in Graham, where the Court
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                    Page 22


held that, “[i]n addressing an excessive force claim brought under § 1983, [our] analysis
begins by identifying the specific constitutional right allegedly infringed by the
challenged application of force.” 490 U.S. at 394. The problem is that although Graham
and Phelps both involved § 1983 excessive force claims, Graham, unlike Phelps, was
concerned with determining the applicable standard for resolving an excessive force
claim on the merits, not determining whether the Defendants are entitled to summary
judgment on the basis of qualified immunity.

       Although subtle, the distinction is critical. In the qualified immunity context, the
courts need not determine the “specific constitutional right” at issue to resolve whether
a defendant officer was sufficiently “on notice that his conduct would be clearly
unlawful.” Saucier, 533 U.S. at 202; see Mitchell, 472 U.S. at 528 (“An appellate court
reviewing the denial of the defendant’s claim of immunity need not . . . determine
whether the plaintiff’s allegations actually state a claim. All it need determine is a
question of law: whether the legal norms allegedly violated by the defendant were
clearly established at the time of the challenged actions . . . .” (emphasis added)).
Consequently, because our case law unequivocally establishes that it is unconstitutional
for police officers to gratuitously strike a restrained suspect who does not even remotely
present a danger to the officers, see Grawey v. Drury, 567 F.3d 302, 314 (6th Cir. 2009)
(“The general consensus among our cases is that officers cannot use force . . . on a
detainee who has been subdued . . . [and] is not resisting arrest.”), the Defendants were
sufficiently on notice that their conduct was unconstitutional, even if the courts “had not
agreed on one verbal formulation of the controlling standard.” Saucier, 533 U.S. at 203
(emphasis added).

       Clarifying the appropriate inquiry is particularly important in this case. As our
sister circuits have recognized, Graham expressly “left open the question of how to
analyze a claim concerning the use of excessive force by law enforcement ‘beyond the
point at which arrest ends and pretrial detention begins.’” Wilson v. Spain, 209 F.3d
713, 715 (8th Cir. 2000) (quoting Graham, 490 U.S. at 395 n.10). While this Court’s
more recent case law leaves no question that the Fourth Amendment applies throughout
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                     Page 23


the booking process, see Drogosch v. Metcalf, 557 F.3d 372, 378 (6th Cir. 2009),
Defendants nevertheless assert that there was some question in 2004 about the
application of the Fourth Amendment in this context. In confronting this question in
Lawler v. City of Taylor, 268 F. App’x 384 (6th Cir. 2008), we held that the Fourth
Amendment “applies to an officer’s use of force during a booking procedure,” id. at 386,
in addressing claims arising out of events that took place in February of 2004, two
months before the events at issue in this case occurred. Our decision in Lawler,
however, relied entirely on Phelps for that proposition, despite the fact that Phelps
acknowledged that it was unclear whether the Fourth Amendment applies to claims
concerning conduct that takes place before completion of the booking process that do
not involve the arresting officers. See Phelps, 286 F.3d at 302 (distinguishing our
decision in Holmes v. City of Massillon, 78 F.3d 1041, 1049 n.6 (6th Cir. 1996), which
observed that “the law of this Circuit is unclear as to whether a pretrial detainee can
bring a Fourth Amendment excessive force claim or even as to when an arrestee clearly
becomes a pretrial detainee”). And while Drogosch dictates that the Fourth Amendment
applies to a suspect’s excessive force claims throughout and even beyond the booking
process regardless of whether the suspect remains in the custody of the arresting officers,
see 557 F.3d at 378 (applying Fourth Amendment at least up until a detained criminal
suspect who is booked into jail is given “an initial determination of probable cause”),
Drogosch was decided in 2009 and involved events that took place in October 2004,
several months after the relevant conduct here. Although this argument is without merit,
Defendants have at least a plausible claim that the application of the Fourth Amendment
was not fully settled as of April 2004.

       Nevertheless, on my reading of the required inquiry, Defendants would not be
entitled to summary judgment regardless of whether the application of the Fourth
Amendment was unclear at the time, and regardless of whether Harris remained in the
joint custody of the arresting officers and the booking officers. By addressing those
issues, the district court wrongly implied that Defendants’ premise that they would be
entitled to qualified immunity if the application of the Fourth Amendment was not fully
settled at the time has some credence. It does not. The district court’s decision to
No. 08-3252         Harris, Jr. v. City of Circleville, et al.                      Page 24


address this issue also perpetuates the notion that the application of the Fourth
Amendment turns on whether the suspect remains in the continuing custody of the
arresting officers, a premise that our decision in Drogosch unequivocally put to rest.

        Simply put, because our case law makes clear that Defendants’ conduct was
unconstitutional under any standard, it is irrelevant for qualified immunity purposes
whether Harris’ claims are controlled by the Fourth or Fourteenth Amendment, and thus
it is irrelevant whether Harris remained in the joint custody of the arresting officers and
the booking officers. And, despite what we unintentionally may have suggested in
Phelps, it is not always necessary to determine the governing legal standard to resolve
a qualified immunity claim. That is especially true in this context because this circuit’s
case law gave the officers more than sufficient notice that criminal suspects who already
have been subdued and who present no possible threat to the officers or themselves have
a clearly established constitutional right not to be gratuitously struck by a police officer.

        Although it may be helpful to the district court for us to clarify what standard it
must apply when addressing the merits of Harris’ claims, because we need not reach that
constitutional question to resolve Defendants’ present appeal, well-established principles
counsel us to abstain from addressing the issue. See Nw. Austin Mun. Util. Dist. No. One
v. Holder, ___ U.S. ___, 129 S. Ct. 2504, 2513 (2009) (“It is a well-established principle
governing the prudent exercise of this Court’s jurisdiction that normally the Court will
not decide a constitutional question if there is some other ground upon which to dispose
of the case.’” (quoting Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per
curiam)); Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 821 (2009) (citing “the
older, wiser judicial counsel not to pass on questions of constitutionality unless such
adjudication is unavoidable” (quotation and editorial marks omitted)); United States v.
Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“Courts should avoid unnecessary
constitutional questions.”); Bowman v. Tenn. Valley Auth., 744 F.2d 1207, 1211 (6th Cir.
1984) (“[W]e follow the longstanding practice of the Supreme Court . . . [in declining]
to decide questions of a constitutional nature unless absolutely necessary to a decision
of the case.” (quotation marks and citation omitted)); Tower Realty v. City of East
No. 08-3252        Harris, Jr. v. City of Circleville, et al.                    Page 25


Detroit, 196 F.2d 710, 724 (6th Cir. 1952) (“It is the duty of federal courts to avoid the
unnecessary decision of the constitutional questions.”).
