                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0439n.06

                                           No. 18-5748


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 FREDDIE E. JUDD,                                        )                         FILED
                                                         )                   Aug 21, 2019
        Plaintiff-Appellee,
                                                         )               DEBORAH S. HUNT, Clerk
                                                         )
 v.
                                                         )
                                                         )
 CITY OF BAXTER, TENNESSEE, et al.,                              ON APPEAL FROM THE
                                                         )
        Defendants,                                              UNITED STATES DISTRICT
                                                         )
                                                                 COURT FOR THE MIDDLE
                                                         )
                                                                 DISTRICT OF TENNESSEE
 ROBERT HANEY,                                           )
                                                         )
        Defendant-Appellant.                             )



BEFORE: BATCHELDER, SUTTON, and DONALD, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Freddie Judd—seventy-six years old at the

time—was eating dinner one evening in August 2015 when he was informed that the store where

he worked was on fire. Grabbing the keys to the store, he raced to the fire and tried to give the

keys to a nearby police officer so she could let in the firemen. Much of what happened next is in

dispute. What is not in dispute is that Judd ended up on the ground with a police officer trying to

handcuff him with the assistance of Robert Haney, a paramedic. By the end of the night Judd had

a broken right elbow, a severely bruised back, and a skinned nose and knees. Judd sued numerous

parties present at the scene, including, as relevant to this appeal, the paramedic Haney. Haney

invoked qualified immunity, which the district court denied, and Haney then filed this interlocutory

appeal. We AFFIRM.
No. 18-5748, Judd v. City of Baxter, Tenn., et al.


                                                         I.

        Appellee Freddie Judd is a self-described frail individual. He has difficulty walking due

to a bad knee, and he has heart problems that required a pacemaker to be implanted two weeks

before the event in question. He was seventy-six years old at the time. Late one evening in August

2015, Judd was eating dinner at his home when he was informed that L & J Market—a store he

worked at that was owned by his girlfriend—was on fire. Judd raced to the scene, and by the time

he arrived “at least two fire engines, two Putnam County ambulances . . . and [City of Baxter Police

Department Officer Maggie] Bennett were on the scene, along with a number of civilian

onlookers” and Robert Haney, a paramedic employed by Putnam County.

        Judd noticed the firefighters trying to force open a locked door. Judd approached Officer

Bennett and tried to give her his keys. Judd claims that, without any warning or justification,

Officer Bennett “grabbed [him] and [threw him] in the[] gravel.”1 Haney then “pounced on [him],

sticking his knee in [his] back.” Judd claims also that Haney beat him repeatedly in the back and

may have caused his broken elbow. In addition to the injuries to his elbow, Judd sustained skinned

knees, a bruised back, and cuts to his nose. Once he was on the ground, his injuries prevented him

from getting up or moving.

        Judd sued the City of Baxter, City of Baxter police chief Danny Holmes, City of Baxter

police officer Maggie Bennett, Putnam County, and Putnam County paramedic Robert Haney.

Judd later agreed to the voluntary dismissal of the City of Baxter, Danny Holmes, and Putnam

County, leaving, as relevant to this appeal, his individual capacity claims under 42 U.S.C. § 1983

against Officer Bennett and Haney for false arrest and excessive force. Both Haney and Officer


1
  As explained in Part II infra, when a defendant brings a summary judgment motion based on qualified immunity, we
adopt the plaintiff’s version of the facts unless they are blatantly contradicted by the record. Stoudemire v. Mich.
Dep’t of Corr., 705 F.3d 560, 565 (6th Cir. 2013). Therefore, although Haney disputes Judd’s account of the facts,
the only facts relevant in this appeal, and the only facts we discuss, are the facts as alleged by Judd.

                                                        -2-
No. 18-5748, Judd v. City of Baxter, Tenn., et al.


Bennett moved for summary judgment on qualified immunity grounds. The district court denied

qualified immunity to Bennett as to both claims. It granted qualified immunity to Haney on the

false arrest claim because Judd did not prove “that he has a right against false arrest when someone

assists the arresting officer.” But the court denied Haney’s motion for qualified immunity

regarding the excessive force claim because “[t]aking Judd’s version of facts as true, a reasonable

jury could find that Haney’s actions constituted excessive force.” This appeal concerns only the

denial of qualified immunity for the excessive force claim against Haney.

                                                  II.

        “Qualified immunity shields government officials in the performance of discretionary

functions from standing trial for civil liability unless their actions violate clearly established

rights.” DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 608 (6th Cir. 2015). There are two steps to

analyzing a qualified immunity claim at the summary judgment stage.                    First, did “the

facts . . . alleged or shown [by the plaintiff] make out a violation of a constitutional right”?

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citations omitted). And second, if a constitutional

right was violated, was “the right at issue . . . ‘clearly established’ at the time of [the] defendant’s

alleged misconduct”? Id. (citation omitted). The plaintiff bears the burden of showing that a

clearly established right was violated and “must, at a minimum, offer sufficient evidence to create

a ‘genuine issue of fact.’” DiLuzio, 796 F.3d at 608–09 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986)). Because at the summary judgment stage an appellate court “view[s]

all facts and draw[s] all reasonable inferences in the light most favorable to the nonmoving party,”

in the qualified immunity context “‘this usually means adopting . . . the plaintiff’s version of the

facts,’ unless the plaintiff’s version is ‘blatantly contradicted by the record, so that no reasonable




                                                  -3-
No. 18-5748, Judd v. City of Baxter, Tenn., et al.


jury could believe it.’”2 Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 565 (6th Cir. 2013)

(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). If the plaintiff meets his or her burden, “the

court must deny summary judgment.” DiLuzio , 763 F.3d at 609.

         Judd is alleging Haney violated his constitutional right to be free from excessive force. See

Brown v. Lewis, 779 F.3d 401, 418 (6th Cir. 2015) (holding that “the Fourth Amendment . . .

protects individuals from the use of excessive force during an arrest or investigatory stop”). Judd’s

first burden, therefore, is to provide evidence from which a jury could find that Haney used

excessive force. The test for whether an officer’s actions count as excessive force is as follows:

                  Whether an officer’s use of force in effecting an arrest violates the
                  Fourth Amendment is a question of whether his actions are
                  “‘objectively reasonable’ in light of the facts and circumstances
                  confronting [him], without regard to [his] underlying intent or
                  motivation.” The test is “reasonableness at the moment” force is
                  used, “judged from the perspective of a reasonable officer on the
                  scene, rather than with the 20/20 vision of hindsight.”

Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (citations omitted). If

Judd prevails on this step, he moves to the second step in qualified immunity analysis and must

show that the right was clearly established at the time it was violated. Here, the test is “whether


2
  A plaintiff’s account is “blatantly contradicted by the record,” for example, when the plaintiff’s version of the facts
is contradicted by video evidence:
                  There is one limited exception to the requirement that a defendant seeking
                  qualified immunity must concede the plaintiff’s factual account—the plaintiff’s
                  account can be disregarded where the evidence is “‘so utterly discredited by the
                  record’ as to be rendered a ‘visible fiction.’” In [Scott v. Harris, 550 U.S. 372
                  (2007)] the plaintiff’s account was totally discredited because it was contradicted
                  by video evidence of the incident. Here, the [defendant] officers challenge
                  [plaintiff’s] account and some statements of his witness . . . based on their own
                  testimony and that of the “independent” witness . . . who initially called the
                  police. The officers’ testimony about the incident is not the type of evidence in
                  the record which “utterly discredit[s]” [plaintiff’s] version of the facts and
                  therefore the officers must accept the plaintiff's version of the facts . . . .
Younes v. Pellerito, 739 F.3d 885, 889 (6th Cir. 2014) (citations omitted); see also Jennings v. Fuller, 659 F. App’x
867, 868 (6th Cir. 2016) (“Here, the heart of the dispute regarding excessive force is not about whose version of
events to believe, but about whether [plaintiff’s] version, insofar as it is not contradicted by video evidence of the
altercation, satisfies the standard for denying qualified immunity. That is a legal question.”).


                                                          -4-
No. 18-5748, Judd v. City of Baxter, Tenn., et al.


there was clearly established law at a sufficient level of specificity to put a reasonable officer on

notice that the conduct at issue was unconstitutional.” Brown, 779 F.3d at 417.

       We hold that Judd has provided evidence from which a reasonable jury could find that

Haney violated Judd’s constitutional right against the use of excessive force. We have held

repeatedly that an officer cannot place his knee on the back of a prone, unresisting suspect. See,

e.g., Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (It is “clearly

established that putting substantial or significant pressure on a suspect’s back while that suspect is

in a face-down prone position after being subdued and/or incapacitated constitutes excessive

force.”); Hopper v. Phil Plummer, 887 F.3d 744, 754 (6th Cir. 2018) (holding that “forcibly

restraining an individual in a prone position for a prolonged period of time when that individual

pose[s] no material threat” is unconstitutional) (quotation omitted); Jennings v. Fuller, 659 F.

App’x 867, 870 (6th Cir. 2016) (“Leaving a suspect in a situation where he will likely be

asphyxiated may be objectively unreasonable.”); Sweatt v. Doxtader, 986 F. Supp. 2d 886, 898

(E.D. Mich. 2013) (denying qualified immunity even though the plaintiff “did not suffer from

asphyxia,” because the plaintiff “was kneed after he surrendered and was . . . laying [sic] prone on

the ground”).

       Our cases primarily deal with instances where the victim was subdued and/or was not

resisting. Judd’s account is consistent with these cases because he claims that Haney “forcefully

jumped on top of [him]” while he “lay helplessly on the ground handcuffed.” We recognize that

Judd is not always internally consistent in his account. For example, in his deposition testimony

Judd implies that his arm was broken before Haney intervened, but states also that he believes

Haney is the one who broke his arm. However, we are required to draw all reasonable inferences

in Judd’s favor. Stoudemire, 705 F.3d at 565. Judd is an elderly man who, by his own admission,



                                                 -5-
No. 18-5748, Judd v. City of Baxter, Tenn., et al.


was not in good physical condition, was riled up, and was watching a store owned by his girlfriend

go up in flames. Given the circumstances, the discrepancies in his story do not rise to the level of

being “blatantly contradicted by the record.” Id. (quotation omitted). Indeed, the eyewitnesses

favor Judd’s account. See, e.g., Linda Shanks Deposition, RE 48-5 at 570 (stating Haney “was

sitting on [Judd] . . . [Haney] jumped on top of [Judd]”); Gary Shanks Deposition, RE 48-4 at 526

(stating that “after [Officer Bennett] throwed [Judd] on the ground, [Haney] pounced on [Judd]

too”). “[W]here the legal question of qualified immunity turns upon which version of the facts

one accepts, the jury, not the judge, must determine liability.” Champion, 380 F.3d at 900 (quoting

Pouillon v. City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000)). Judd therefore meets his burden

on the first step of qualified immunity analysis.

       In the second step of qualified immunity analysis, we ask whether Judd’s asserted right

was clearly established at the time of the incident. We find that it was. There are multiple cases

in our circuit holding that kneeing and/or jumping on top of a subdued suspect constitutes

excessive force. Although most of these cases involve police officers, not paramedics, we have

held that paramedics who act in a law enforcement capacity are held to the same standard as police

officers. See, e.g., Stephan v. Heinig, 676 F. App’x 466, 468 (6th Cir. 2017) (holding that the

defendant paramedic “acted reasonably by intervening, because a reasonable officer in her position

would have found the intervention necessary”) (emphasis added); Peete v. Metro. Gov’t of

Nashville., 486 F.3d 217, 220 (6th Cir. 2007) (holding that qualified immunity applied to

firefighters, paramedics, and EMTs because even though qualified immunity cases normally

involve police officers, “courts have held that the protection extends to actions by other

government officials”).




                                                -6-
No. 18-5748, Judd v. City of Baxter, Tenn., et al.


        Because Judd prevails on both steps of the qualified immunity analysis, Haney is not

entitled to qualified immunity at this stage of the litigation.

                                                  III.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




                                                  -7-
