                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0136n.06

                                            No. 17-3305

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Mar 15, 2018
WILLIAM STANFIELD,                                         )                   DEBORAH S. HUNT, Clerk
                                                           )
       Plaintiff-Appellant,                                )
                                                           )    ON APPEAL FROM THE
v.                                                         )    UNITED STATES DISTRICT
                                                           )    COURT FOR THE NORTHERN
CITY OF LIMA, et al.,                                      )    DISTRICT OF OHIO
                                                           )
       Defendants-Appellees.                               )
                                                           )

BEFORE: KEITH, KETHLEDGE and DONALD, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. During an interaction with three officers from the

Lima Police Department, Plaintiff-Appellant William Stanfield (“Stanfield”) was tripped and

taken to the ground by one officer, kneed repeatedly in the ribs by another officer, and struck

twice in the legs with a long flashlight by a third officer. Based on these three uses of force,

Stanfield brought suit against the three officers, the chief of police, and the City of Lima, Ohio

(“Defendants-Appellees”).     Stanfield sued the three officers for excessive use of force, in

violation of 42 U.S.C. § 1983, inter alia. Stanfield sued the City and its police chief for deficient

hiring and supervision of the three officers, alleging a custom or policy of deliberate indifference

to officers who violated the constitutional rights of others.

       Defendants-Appellees moved for summary judgment, arguing that the three officers are

entitled to qualified immunity, and therefore, neither the city nor its police chief can be held

liable for their actions. The district court granted Defendants-Appellees’ motion for summary

judgment. Stanfield appealed. For the reasons set forth below, we AFFIRM.
No. 17-3305, Stanfield v. Lima


                                           I. FACTS

       On the evening of October 4, 2013, Lima police officers received a report that a white

RV was driving erratically in their area. They located and began following a white RV, which

was being driven by Stanfield. The officers followed, but did not attempt to stop, Stanfield’s

vehicle.   Stanfield eventually pulled into an empty lot he owned, into which the officers

followed. A dashcam in one of the police vehicles recorded video of the events that ensued

thereafter. The body microphones worn by two of the officers recorded the accompanying audio.

A. Facts from the Video and Audio Recordings

       Officer Bryce Garman (“Garman”) approached the passenger side of the RV and began

speaking with Stanfield. A few seconds later, Stanfield exited the RV as Officers Aaron Rode

(“Rode”) and Aaron Montgomery (“Montgomery”) made their way toward the passenger side of

the RV. One of the officers asked Stanfield to keep his hands out of his pockets and inquired

whether he had anything on his person. Stanfield replied, “No.” The officers then asked

whether Stanfield had been drinking, to which Stanfield replied, “What makes the difference?”

       A few seconds later, Stanfield put his right hand in his pocket. This prompted Garman to

step forward and attempt to grab Stanfield’s right wrist. Stanfield quickly pulled his right hand

out of his pocket and moved it away from Garman. Montgomery stepped behind Stanfield. One

of the officers reminded Stanfield to keep his hands out of his pockets. Stanfield then turned his

body to the right, held up both hands, and said, “Now listen, I’m not gonna . . . .” As Stanfield

began to speak, Garman stepped behind him and said, “I’m gonna pat you down real quick.

Alright man.”

       Garman took hold of Stanfield’s left wrist and placed his left arm on top of his head.

As Stanfield raised his right arm toward his head to match the position of his left arm,



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No. 17-3305, Stanfield v. Lima


Montgomery took hold of Stanfield’s right wrist, brought his arm down, and started to put it

behind Stanfield’s back. Seeing this, Garman moved Stanfield’s left arm behind his back as

well. During this process, Stanfield turned his body to the left and lifted his right leg. Stanfield

then leaned forward, attempted to raise his right arm, and twisted his body to the left.

Montgomery reacted to this movement by forcefully shoving Stanfield from the rear while

simultaneously putting his leg in front of Stanfield’s legs to make him fall, performing a

“takedown” of Stanfield.

        Stanfield landed on his back, and Garman and Montgomery wrestled with him until they

succeeded in turning him over so he was lying on his stomach. Montgomery knelt on Stanfield’s

back. The officers continued to wrestle with Stanfield while repeatedly telling him to remove his

hands from under him and put them behind his back. Stanfield replied, “I can’t. Quit (kneeing

or beating) me.” While Stanfield was on the ground, Rode struck him twice on the leg with his

flashlight.

B. Undisputed Facts

        Stanfield was intoxicated on the evening of the altercation. Stanfield was arrested for

operating a vehicle under the influence of alcohol and resisting arrest. While Stanfield was on

the ground, Garman kneed him in the ribs at least twice. When he was taken to the hospital,

medical staff noted that Stanfield had swelling and redness on his eye and face, and that one of

his ribs was fractured.

C. Disputed Facts

        The officers argue that, when they had Stanfield’s arms behind his back, his movements

(i.e., leaning forward, attempting to raise his right arm, and twisting his body to the left)

constituted active resistance. Stanfield argues that he, being intoxicated, lost his balance while



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No. 17-3305, Stanfield v. Lima


the officers were putting his hands behind his back, which resulted in the movements the officers

perceived as resistance.

                                  II. STANDARD OF REVIEW

       Courts should grant a motion for summary judgment “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]he inferences to be drawn from the underlying facts contained

in [the record] must be viewed in the light most favorable to the party opposing the motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). “In qualified immunity cases, this

usually means adopting . . . the plaintiff’s version of the facts.” Scott v. Harris, 550 U.S. 372,

378 (2007). However, when a recording of the event exists, courts should not adopt any of the

plaintiff’s alleged facts that are blatantly contradicted by the recording. Id. at 380.

       This court applies de novo review to a district court’s grant of summary judgment, “using

the same standards applied by the district court.” Smith v. Wal-Mart Stores, Inc., 167 F.3d 286,

289 (6th Cir. 1999). “Under de novo review, we draw our own inferences and legal conclusions

from the record.” Id.

                                        III. DISCUSSION

       Stanfield claims that the three officers violated his Fourth Amendment right to be free

from the use of excessive force in his arrest. The three officers argue that they are entitled to

summary judgment because the facts here, even construed in the light most favorable to

Stanfield, entitle them to qualified immunity from suit.

       “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.’” Pearson v. Callahan, 555 U.S. 223,



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No. 17-3305, Stanfield v. Lima


231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Once raised, it is the

plaintiff’s burden to show that the defendants are not entitled to qualified immunity.” Burgess v.

Fischer, 735 F.3d 462, 472 (6th Cir. 2013).

         When resolving government officials’ qualified immunity claims, courts conduct a two-

pronged inquiry, asking: (1) “whether the facts that a plaintiff has alleged or shown make out a

violation of a constitutional right”; and (2) “whether the right at issue was ‘clearly established’ at

the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (internal citations

omitted). These two prongs, which a court can address in whichever order it deems appropriate,

must both be answered in the affirmative in order for a plaintiff to defeat a defendant’s claim of

qualified immunity. Id. at 236. Each prong of the qualified immunity inquiry is analyzed in turn

below.

A. Whether the Three Officers Violated Stanfield’s Constitutional Rights

         “[A]ll claims that law enforcement officers have used excessive force—deadly or not—in

the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S.

386, 395 (1989) (emphasis omitted).        “[T]he right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of physical coercion or threat thereof to

effect it.” Id. at 396. “But the question is . . . whether [officers] could reasonably use the degree

of force employed against [the suspect].” Martin v. City of Broadview Heights, 712 F.3d 951,

958 (6th Cir. 2013) (emphasis in the original).

         “[T]he ‘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.”



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No. 17-3305, Stanfield v. Lima


Graham, 490 U.S. at 397. Because this is a summary judgment motion, we determine the facts

and circumstances at issue by first construing the alleged facts in the light most favorable to the

non-moving party (here, Stanfield). Because this is a qualified immunity case, we then view the

non-moving party’s facts “from the perspective of a reasonable officer on the scene” to

determine if the use of force at issue was reasonable on those facts. Id. at 396.

       The reasonableness standard “requires a careful balancing of ‘the nature and quality of

the intrusion on the individual’s Fourth Amendment interests’ against the countervailing

governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

Among the factors to be considered and balanced by the court are: “[(1)] the severity of the

crime at issue, [(2)] whether the suspect poses an immediate threat to the safety of the officers or

others, and [(3)] whether he is actively resisting arrest or attempting to evade arrest by flight.”

Id. After balancing these factors, “the question is whether the totality of the circumstances

justified a particular sort of seizure.” Id. (quoting Garner, 471 U.S. at 8-9) (internal quotation

marks omitted).

       1. Severity of the Crime

       The three officers followed Stanfield’s RV and confronted him because they suspected

that he was driving under the influence of alcohol, and they ultimately arrested him for that

crime. This court has described driving under the influence as “moderate in severity.” Gaddis

ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 774 (6th Cir. 2004); see also Laury v. Rodriguez,

659 F. App’x 837, 843 (6th Cir. 2016) (holding that operating a car while intoxicated is “not a

severe offense”).




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No. 17-3305, Stanfield v. Lima


       2. Immediate Threat Posed by Stanfield

       The three officers offer a handful of reasons to explain why they perceived Stanfield as a

threat and therefore needed “to pat him down for weapons.” Among these reasons, the only ones

confirmed by the recordings or agreed to by Stanfield are: (1) he put his hand into his pocket

after being told not to do so; (2) he was intoxicated; and (3) he had an argumentative demeanor.

Each reason is explored individually below.

       Soon after Stanfield exited the RV, the officers told him to keep his hands out of his

pockets. Only 10-15 seconds later, Stanfield put his right hand in his pocket. When Garman

reached for Stanfield’s right wrist, Stanfield quickly pulled his right hand out of his pocket,

turned his body away from Garman, held up both hands, and said, “Now listen, I’m not gonna

. . . .” It was at this point that Garman stated he was going to perform a pat down. Viewing this

activity “from the perspective of a reasonable officer on the scene,” Graham, 490 U.S. at 396, it

would have been reasonable for the officers to perceive that Stanfield was possibly carrying a

weapon. However, a reasonable officer on the scene should have also considered the fact that

Stanfield raised his hands, and the absence of more indicia that he was carrying weapons (e.g.,

no bulge in his pocket, etc.), when assessing his threat level.

       The second reason cited by the officers, Stanfield’s intoxicated state, may have

reasonably caused the officers to perceive Stanfield as a higher-than-normal threat because, as

we have noted, “heavy intoxication [can] create[] a volatile situation.” Marvin v. City of Taylor,

509 F.3d 234, 246 (6th Cir. 2007). However, “while heavy intoxication may, on its own, render

it reasonable to handcuff an individual, the reasonableness of the force used to effectuate the

seizure . . . will generally depend upon other circumstances, such as the individual’s resistance

and hostility.” Solovy v. Morabito, 375 F. App’x 521, 525 n.4 (6th Cir. 2010) (citing Marvin,



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No. 17-3305, Stanfield v. Lima


509 F.3d 234) (emphasis added). Stanfield’s resistance is analyzed below as the third factor of

the Graham test. Stanfield’s hostility is analyzed in this section because it is subsumed under the

third reason given by the officers to explain why they perceived Stanfield as a threat: his

“argumentative demeanor.”

       The audio and video recordings reveal that Stanfield was not completely cooperative with

the officers before they employed the use of force. When Garman asked if Stanfield had been

drinking, he replied, “What makes the difference?” Then, when Garman attempted to remove

Stanfield’s right hand from his pocket, Stanfield quickly yanked his hand out of his pocket and

turned away from Garman. Later, when the officers attempted to put Stanfield’s arms behind his

back, he stated, “Hey, wait a minute. Don’t do this.”         While not completely cooperative

behavior, this alleged “argumentative demeanor” was not threatening or hostile, either verbally

or physically. Therefore, Stanfield’s intoxicated state, coupled with his demeanor, would not

have led a reasonable officer to conclude that Stanfield was a materially greater threat than any

non-intoxicated person.

       3. Active Resistance

       The officers argue that, based on the perceived threat explained above, they needed to

handcuff Stanfield so they could pat him down for weapons. It was in pursuit of this goal that

the three officers used the force challenged in this case. The video shows that, while Garman

and Montgomery held Stanfield’s hands behind his back, Stanfield leaned forward, attempted to

raise his right arm, and twisted his body to the left. This movement prompted Montgomery’s

takedown.

       While Stanfield was on the ground, Montgomery and Garman struggled to remove his

arms from underneath him. The video shows Montgomery kneeling and laying on Stanfield’s



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No. 17-3305, Stanfield v. Lima


back as he used rough “muscling techniques” to gain control of Stanfield’s arms. In response to

the officers’ orders to remove his hands from beneath his body, Stanfield replied, “I can’t. Quit

(kneeing or beating) me.” It was during this struggle that Garman kneed Stanfield in the ribs at

least twice, fracturing one of his ribs. This is also when Rode struck Stanfield twice in the legs

with his flashlight. In arguing that their actions were not objectively unreasonable, the officers

rely heavily on this court’s holdings in Rudlaff v. Gillispie, 791 F.3d 638 (6th Cir. 2015) and

Marvin v. City of Taylor, 509 F.3d 234 (6th Cir. 2007).

       In Rudlaff we stated, “Active resistance includes physically struggling with, threatening,

or disobeying officers. And it includes refusing to move your hands for the police to handcuff

you, at least if that inaction is coupled with other acts of defiance. . . . A simple dichotomy thus

emerges: When a suspect actively resists arrest, the police can use a taser (or a knee strike) to

subdue him; but when a suspect does not resist, or has stopped resisting, they cannot.” Rudlaff,

791 F.3d at 641-42 (internal quotation marks and citations omitted).

       The instant case is distinguishable from Rudlaff in several meaningful ways. In Rudlaff,

the plaintiff admitted to being verbally defiant, he twice swung his arms in one officer’s

direction, and he admittedly refused to give the officers his hands to avoid being handcuffed.

Rudlaff, 791 F.3d at 642. Here, Stanfield maintains that he was not resisting and that the only

reason he did not produce his hands while on the ground was because the officers prevented him

from doing so by kneeing him repeatedly and kneeling or laying on him. He cites his statement,

“I can’t. Quit (kneeing or beating) me,” as evidence of this.

       Accepting Stanfield’s factual assertions, we assume that Stanfield was attempting to

comply but could not because of the force being used on him. In that case, it would not have




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No. 17-3305, Stanfield v. Lima


been reasonable for an officer on the scene to have perceived the struggle as the same “active

resistance” contemplated by Rudlaff.

       In Marvin, an elderly plaintiff told the officer that he could not place his arms behind his

back to be handcuffed because it was too painful to do so. Marvin, 509 F.3d at 246. The officer

forced his arms behind his back anyway, causing the plaintiff to suffer a fractured shoulder. Id.

This court held, “While Marvin’s alleged physical disability weighs against [the officer’s]

actions, the fact remains that Marvin was resisting arrest.” Id. However, in considering the full

context of the situation, we added, “Arguably, Marvin’s method of resisting could be

characterized as passive such that the resistance was not so great as to require [the officer’s]

allegedly rough treatment.” Id.

       Stanfield’s case, while similar to Marvin, is materially distinct because he alleges that he

was not refusing to produce his hands. Rather, according to him, he was prevented from

producing his hands by the officers themselves.

       4. Whether the Force was Reasonable under the Totality of the Circumstances

       Combining the analysis from the three aforementioned Graham factors, we must

determine whether each individual officer’s use of force was objectively reasonable under the

totality of the circumstances.

               a. Officer Montgomery

       Stanfield argues that his leaning and twisting prior to Montgomery’s takedown was the

result of him losing his balance, not active resistance. However, as we are required to view the

plaintiff’s factual allegations from the perspective of a reasonable officer on the scene, these

movements could reasonably have been perceived as resistance.




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No. 17-3305, Stanfield v. Lima


       Notwithstanding, Montgomery’s takedown was objectively unreasonable. Slight twisting

and leaning by a portly, elderly man while two young officers hold his arms behind his back does

not justify the tackle executed by Montgomery. Stanfield’s crime was moderately severe and

there was little reason to suspect he presented an immediate threat. Therefore, Montgomery’s

conduct was objectively unreasonable and violated Stanfield’s constitutional rights.

               b. Officer Garman

       Garman’s knee strikes were administered in an attempt to secure Stanfield’s arms while

he was on the ground. Again, Stanfield’s crime was moderately severe and there was little

reason to suspect he presented an immediate threat. This is especially true for Garman, who,

after Stanfield was handcuffed but before he was searched, told his fellow officers that he was

“sure” Stanfield was not carrying a gun.

       For the reasons explained above, Stanfield’s failure to produce his arms while he was on

the ground is not the sort of “active resistance” addressed in Rudlaff. Garman saw Montgomery

on top of Stanfield and heard Stanfield say, “I can’t [produce my hands].” Even if Garman did

not believe him and perceived the struggle to be a form of resistance, “the resistance was not so

great as to require [the officer’s] allegedly rough treatment.”      Marvin, 509 F.3d at 246.

Therefore, considering the totality of the circumstances, it was objectively unreasonable for

Garman to administer the kind of force that fractured Stanfield’s rib.          Garman violated

Stanfield’s constitutional rights.

               c. Officer Rode

       The analysis for Rode is very similar to that for Garman. Although the level of force

used was not as aggressive as Garman’s, it was nevertheless objectively unreasonable to strike

Stanfield for not producing his hands in view of the two officers kneeling on him and kneeing



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No. 17-3305, Stanfield v. Lima


him, and after Stanfield had expressed his inability to produce his hands.          Rode violated

Stanfield’s constitutional rights.

B. Whether the Rights Violated were “Clearly Established”

       To defeat a defendant’s claim of qualified immunity, a plaintiff must show that the right

violated is “sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation

marks and citation omitted). “We do not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate. Put simply, qualified

immunity protects all but the plainly incompetent or those who knowingly violate the law.” Id.

(internal quotation marks and citations omitted).

       At first blush, it may seem counterintuitive that a government official can violate a

person’s constitutional rights but still receive qualified immunity from suit because those rights

were not sufficiently “clearly established.” In an attempt to explain that distinction, we have

stated, “Officials are not liable for bad guesses in gray areas; they are liable for transgressing

bright lines.” Rudlaff, 791 F.3d at 644 (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th

Cir. 1992)).

       When determining whether a particular law or right is “clearly established,” courts should

not define it “at a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal

quotation marks and citation omitted). “[T]he clearly established law must be ‘particularized’ to

the facts of the case.” Id. “The dispositive question is whether the violative nature of particular

conduct is clearly established. . . .   Such specificity is especially important in the Fourth

Amendment context, where the Court has recognized that it is sometimes difficult for an officer

to determine how the relevant legal doctrine, here excessive force, will apply to the factual



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No. 17-3305, Stanfield v. Lima


situation the officer confronts.” Mullenix, 136 S. Ct. at 308 (internal quotation marks and

citations omitted).

       Even so, “[a]n action’s unlawfulness can be apparent even in novel factual circumstances

‘so long as the prior decisions gave reasonable warning that the conduct then at issue violated

constitutional rights.’” Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 607 (6th Cir. 2005)

(quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)). “[A] right can be clearly established even if

there is no case involving ‘fundamentally similar’ or ‘materially similar’ facts.” Feathers v. Aey,

319 F.3d 843, 850 (6th Cir. 2003) (quoting Hope, 536 U.S. at 741). “[A] right is clearly

established when ‘[t]he reasoning, though not the holding,’ of a prior court of appeals decision

puts law enforcement officials on notice, or when the ‘premise’ of one case ‘has clear

applicability’ to a subsequent set of facts.” Id. (quoting Hope, 536 U.S. at 743).

       Broadly speaking, “[t]his court has held that the right to be free from excessive force is a

clearly established Fourth Amendment right.” Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir.

2001). Stanfield cites several cases that, according to him, “clearly establish” that the three

officers’ particular conduct was in violation of the law.

       1. Officer Montgomery

       Although Stanfield argues that he lost his balance and was not trying to resist the

officers’ attempts to handcuff him, it was reasonable for Montgomery to perceive Stanfield’s

movements as resistance, albeit slight resistance. Two of the cases Stanfield cited, Lawler v.

City of Taylor, 268 F. App’x 384 (6th Cir. 2008) and Malory v. Whiting, 489 F. App’x 78 (6th

Cir. 2012), are somewhat analogous to this case. However, the reasoning in those cases does not

apply here because neither of those cases involved a plaintiff who could reasonably have been




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No. 17-3305, Stanfield v. Lima


perceived to be resisting when he was tackled. See Lawler, 268 F. App’x at 386; Malory, 489 F.

App’x at 80.

       Stanfield has cited no case that “clearly establishes” that it is a violation of the law for an

officer to “take down” a suspect who is resisting arrest.          Therefore, despite the fact that

Montgomery violated Stanfield’s constitutional rights, he is nevertheless entitled to qualified

immunity on the excessive force claim because Stanfield has not demonstrated that it was

“clearly established” that such conduct was in violation of the law.

       2. Officer Garman

       Garman fractured Stanfield’s rib in an attempt to secure his hands, even as Montgomery

was on top of Stanfield’s back and Stanfield was saying that he was incapable of removing his

arms from under himself. Of the cases Stanfield cited to demonstrate that the unlawfulness of

this conduct was “clearly established,” the most analogous is Lawler.

       In Lawler, an officer tackled a suspect in the booking room, kneed him in the back twice,

and elbowed him, resulting in a broken arm. Lawler, 268 F. App’x at 386. This court found

that, even though the suspect resisted being handcuffed while on the ground, the plaintiff’s “right

to be free from such force was clearly established.” Id. at 388.

       However, Lawler is readily distinguishable from the instant case because its reasoning

was premised on the fact that the force took place “in a booking room—beyond the point at

which any threat could have been reasonably perceived.” Id. (“[O]ur cases clearly established

Lawler’s right to be free from gratuitous force during booking”). As such, a reasonable officer

would not be on notice that the reasoning in Lawler applied to situations outside of a booking

room or in a context in which “any threat could have been reasonably perceived.” Therefore,




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despite the fact that Garman violated Stanfield’s constitutional rights, he is nevertheless entitled

to qualified immunity on the excessive force claim.

        3. Officer Rode

        Rode struck Stanfield in the leg twice with his flashlight in an attempt to coerce Stanfield

into giving Montgomery and Garman his hands. Of the cases Stanfield cited to demonstrate that

the unlawfulness of this conduct was “clearly established,” the most analogous is Harris v. City

of Circleville, 583 F.3d 356 (6th Cir. 2009). In Harris, the plaintiff was handcuffed with his

hands behind his head when officers ordered him to kneel down. The plaintiff told them that he

could not comply because one of the officers was pulling his arms behind him. Harris, 583 F.3d

at 360. In response, that officer “struck Harris in the back of the knee, in an attempt to get his

knee to buckle. [Another officer] administered two peroneal strikes to the left side of Harris’s

leg.”   Id.   In Harris, we held 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.” Id. at 367.

        The important distinction here is the fact that the plaintiff in Harris was clearly subdued

when the second officer administered the peroneal strikes.         In the instant case, from the

perspective of Rode, there was still a struggle taking place between the other two officers and

Stanfield. As such, a reasonable officer would not be on notice that the reasoning in Harris

applied to situations where a suspect was not subdued, or at least in handcuffs, like the plaintiff

in Harris. Therefore, despite the fact that Rode violated Stanfield’s constitutional rights, he is

nevertheless entitled to qualified immunity on the excessive force claim.




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No. 17-3305, Stanfield v. Lima


C. Municipal Liability

       Stanfield’s claims against the City and its police chief are for deficient hiring and

supervision of the three officers, alleging the existence of a custom of tolerance for officers who

violated the constitutional rights of others. From the outset, it should be noted that the claim

against the police chief in his official capacity is properly deemed to be against the City. See

Harvey v. Campbell Cty., Tenn., 453 F. App’x 557, 564 (6th Cir. 2011).

       The City of Lima first argues that Stanfield cannot prevail on his municipal liability

claims because the three officers committed no constitutional violations. Indeed, we have held,

“If no constitutional violation by the individual defendants is established, the municipal

defendants cannot be held liable under § 1983.” Watkins v. City of Battle Creek, 273 F.3d 682,

687 (6th Cir. 2001) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). However,

having found that the three officers violated Stanfield’s constitutional rights, this argument is

unavailing.

       The City also argues that it is entitled to summary judgment because Stanfield has not

carried his burden of establishing the elements of his “custom of tolerance” claim. “A plaintiff

raising a municipal liability claim under § 1983 must demonstrate that the alleged federal

violation occurred because of a municipal policy or custom. A plaintiff can make a showing of

an illegal policy or custom by demonstrating . . . the existence of a custom of tolerance or

acquiescence of federal rights violations. A municipality may not be sued under § 1983 for an

injury inflicted solely by its employees or agents.” Burgess, 735 F.3d at 478 (internal quotation

marks and citations omitted).

       Stanfield claims that the City of Lima cultivated a custom of tolerance or acquiescence

toward uses of excessive force. To prove this, a plaintiff must show: “(1) the existence of a clear



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and persistent pattern of [illegal activity]; (2) notice or constructive notice on the part of the

[defendant]; (3) the [defendant’s] tacit approval of the unconstitutional conduct, such that their

deliberate indifference in their failure to act can be said to amount to an official policy of

inaction; and (4) that the [defendant’s] custom was the ‘moving force’ or direct causal link in the

constitutional deprivation.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)

(quoting Doe v. Claiborne County, 103 F.3d 495, 508 (6th Cir.1996)).

        On appeal, Stanfield attempts to establish the first element of this test, the pattern of

illegal activity, by referencing eight complaints filed against Montgomery in the years between

2008 and 2016—all for verbally aggressive or physically violent conduct. The investigation

reports in the record show that the police department investigated each of these complaints.

Montgomery was exonerated of wrongdoing following each complaint. Therefore, there is no

record of illegal activity by Montgomery, making it impossible for the City to have ignored a

pattern of it.

        Stanfield argues, “Logically, if the municipality is actually ignoring the problem of

repeated constitutional violations, there will be no record of repeated constitutional violations.

Any investigation will find no wrongdoing, since the municipality will be deliberately ignoring

any wrongdoing. Thus, the only evidence of a pattern . . . in a situation like this is the

complaints themselves.” While Stanfield’s point is well taken, the facts of this case do not allow

him to overcome Defendants-Appellees’ summary judgment motion. The mere existence of

complaints, without more, is not sufficient evidence to allow a reasonable jury to find the

existence of a clear and persistent pattern of illegal activity. See generally Thomas, 398 F.3d at

430-33. Therefore, Stanfield cannot establish that the City had a custom of tolerance for federal

rights violations. Accordingly, the City of Lima and its police chief are not liable under § 1983.



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No. 17-3305, Stanfield v. Lima


                                 III.   CONCLUSION

       For the abovementioned reasons, we AFFIRM.




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No. 17-3305, Stanfield v. Lima


       KETHLEDGE, Circuit Judge, concurring in part and concurring in the judgment.

For substantially the reasons stated by the majority, I agree that the officers here did not violate

Stanfield’s clearly established rights. But I would also hold that they did not violate Stanfield’s

rights at all. The officers received a report that Stanfield was driving an RV around the city

while intoxicated. They approached Stanfield in an unlit vacant lot, late at night. Stanfield was

in fact obviously drunk and kept putting his hand in his jeans pocket, despite the officers’

repeated demands that he not do that. Finally they told him they were going to pat him down.

At that point—as the cruiser’s dash-cam video makes clear—Stanfield resisted the pat-down

search and then forcibly resisted the officers’ attempts to handcuff him. In my view that

resistance continued well past the point that the majority thinks it stopped, since for another 20

seconds the video shows Stanfield rolling around on the ground and trying to keep the officers

from controlling his arms. And it was only after the fourth or fifth time that the officers told

Stanfield to “put your hands behind your back,” that he responded, “I can’t.” Under these

circumstances, the officers’ force—a knee to the ribs and a flashlight strike on his calf—was as

calibrated as it needed to be. See, e.g., Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015).




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