       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Gaddis v. Redford Township, et al.          No. 02-1483
    ELECTRONIC CITATION: 2004 FED App. 0087P (6th Cir.)
                File Name: 04a0087p.06                                Decided and Filed: March 26, 2004

                                                              Before: BOGGS, Chief Judge; and KRUPANSKY and
UNITED STATES COURT OF APPEALS                                            CLAY, Circuit Judges.
              FOR THE SIXTH CIRCUIT                                           _________________
                _________________
                                                                                   COUNSEL
JOSEPH GADDIS , by his next        X
                                    -                     ARGUED: Mark R. Bendure, BENDURE & THOMAS,
friend and guardian, Erma                                 Detroit, Michigan, for Appellant.     Joseph Nimako,
Gaddis,                             -
                                    -  No. 02-1483        CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia,
           Plaintiff-Appellant,     -                     Michigan, Eric D. Smith, HOPKINS, CURRAN & SMITH,
                                     >                    Southfield, Michigan, John H. Dise, Jr., DISE &
                                    ,                     ASSOCIATES, Southfield, Michigan, for Appellees.
             v.                     -                     ON BRIEF: Mark R. Bendure, BENDURE & THOMAS,
                                    -                     Detroit, Michigan, Justin C. Ravitz, SOMMERS,
REDFORD TOWN SHIP , a               -                     SCHWARTZ, SILVER & SCHWARTZ, Southfield,
municipal corporation; CITY         -                     Michigan, for Appellant. Joseph Nimako, CUMMINGS,
OF DEARBORN HEIGHTS, a              -                     MCCLOREY, DAVIS & ACHO, Livonia, Michigan, Eric D.
                                    -                     Smith, Christine A. Fischer, HOPKINS, CURRAN &
municipal corporation;
                                    -                     SMITH, Southfield, Michigan, John H. Dise, Jr., DISE &
MATTHEW BAIN , in his               -                     ASSOCIATES, Southfield, Michigan, for Appellees.
official and individual             -
capacities; JOHN BURDICK, in        -                        BOGGS, C. J., delivered the opinion of the court, in which
his official and individual         -                     KRUPANSKY, J., joined. CLAY, J. (pp. 25-40), delivered
capacities; RICHARD                 -                     a separate dissenting opinion.
                                    -
DUFFANY, in his official and        -                                         _________________
individual capacities, jointly      -
and severally,                      -                                             OPINION
         Defendants-Appellees. -                                              _________________
                                   N
                                                            BOGGS, Chief Judge. Joseph Gaddis, a mentally ill man
       Appeal from the United States District Court       proceeding by his next friend, appeals from the district court’s
       for the Eastern District of Michigan at Flint.     grant of summary judgment to the defendants in his 42 U.S.C.
     No. 00-40375—Paul V. Gadola, District Judge.         § 1983 action. Mr. Gaddis claims that the individual
                                                          defendants, members of two Michigan municipal police
              Argued: September 17, 2003                  departments, violated his Fourth Amendment rights by

                            1
No. 02-1483         Gaddis v. Redford Township, et al.       3    4    Gaddis v. Redford Township, et al.          No. 02-1483

stopping his car without justification, and by using excessive    the tape tends to confirm this, as it shows other cars passing
force in an ensuing confrontation that culminated in two          Gaddis to the left on the sparsely trafficked road.
officers shooting Gaddis. The district court concluded that
Gaddis had failed as a matter of law to show that the                Bain also testified that he saw Gaddis slumping to the right
defendants violated his constitutional rights. For the            inside his car as he held the wheel. The videotape neither
following reasons, we affirm.                                     reinforces nor throws doubt on this testimony. The interior of
                                                                  the car is dark on the tape and Gaddis’s posture cannot be
                              I                                   made out, but the resolution of the video image is not high,
                                                                  and the camera’s point of view is slightly different from the
   Summary judgment is proper when there is no genuine            vehicle driver’s. Bain pulled up alongside Gaddis’s car and
issue of material fact and the moving party is entitled to        confirmed to his satisfaction that Gaddis was leaning to the
judgment as a matter of law. Fed. R. Civ. P. 56(c). In our        right, toward the passenger’s seat. Bain testified that he
de novo review of the district court’s grant of summary           suspected Gaddis was driving while intoxicated, a crime in
judgment, we must resolve disputes of fact in favor of the        Michigan. See Mich. Comp. L. § 257.625.
nonmoving party, Gaddis, drawing all reasonable inferences
in his favor. Burchett v. Kiefer, 310 F.3d 937, 941-42, 945          Bain pulled behind Gaddis’s car and turned on his flashers
(6th Cir. 2002). The application of this standard is              and siren. When Gaddis failed to stop, Bain also employed
complicated here by the fact that Gaddis, the only witness to     his air horn. Gaddis kept driving until he reached a red light.
the events at issue apart from the defendant officers and their   Bain then left his patrol car and approached Gaddis’s stopped
colleagues, has been stipulated incompetent to testify due to     auto on foot. When the light changed to green, Gaddis turned
mental illness. As discussed below, the record on appeal          right and drove away. Bain ran back to his car and pursued
includes a videotape that captured many of the events at issue.   Gaddis again, and finally succeeded in pulling him over after
We have carefully examined this tape along with the               about a block.
witnesses’ testimony in reviewing the district court’s
judgment.                                                           Bain left his car again and walked over to Gaddis’s car.
                                                                  The officer had his sidearm drawn when he stepped out of the
                              II                                  car, but holstered it as he walked up to Gaddis’s driver side
                                                                  window. Bain asked Gaddis for his license and registration,
  Gaddis’s encounter with the police began shortly before         to which Gaddis replied that his license was suspended
4:00 a.m. on April 12, 1999, in Redford Township, Michigan.       (which turned out not to be true), and handed Bain an expired
Defendant Matthew Bain, a Redford Township officer,               Michigan driver’s license. By this time a number of other
spotted Gaddis’s car while patrolling alone on Telegraph          uniformed police officers had arrived on the scene, including
Road. (The mounted video camera on Officer Bain’s patrol          Dearborn Heights Officers John Burdick and Richard
car yielded the tape that is the chief visual record of the       Duffany, who had been eating at a nearby restaurant and
encounter. However, because the car’s audio recording             decided to assist Bain after hearing him drive by in pursuit of
system was not working, the tape is silent.) Bain saw Gaddis      Gaddis.
weaving within the right lane: his car edged to the left to
touch the divider line twice in a few hundred feet. Bain            Bain told Gaddis to get out of the car. Gaddis opened the
testified that Gaddis was also driving somewhat slowly, and       door and stepped out with his hands inside his pockets. Bain
No. 02-1483             Gaddis v. Redford Township, et al.              5    6    Gaddis v. Redford Township, et al.           No. 02-1483

testified that he ordered Gaddis to remove his hands from his                car and tried to grab Gaddis. Gaddis reacted violently: he
pockets. The tape shows that shortly after Gaddis emerged,                   wheeled and struck at Burdick with his right, then his left
Bain grabbed him by the collar and pulled him slightly away                  hand. Gaddis’s right-handed strike was a windmilling motion
from the car. Gaddis then removed his hands from his                         arguably suggestive of an attempt to stab with a knife. Bain
pockets, prompting a dramatic reaction: Bain jumped back,                    and Duffany testified that they saw Gaddis stab at Officer
visibly alarmed, and he and the other officers drew their                    Burdick with a knife. They both began shooting, firing a total
sidearms, pointing them at Gaddis. Officers Bain and                         of 16 shots at Gaddis in a single burst. Burdick first heard the
Burdick later testified that Gaddis had a knife in his hand,                 shots as he was falling backward over the back of Gaddis’s
while Duffany saw something shiny but wasn’t sure what it                    car. Gaddis was struck in the torso, right arm, buttocks, and
was. (The videotape image does not permit the viewer to                      left thigh, and fell to the ground. Champoux did not fire.
verify directly whether Gaddis was holding a knife, a point
we will discuss further in Part IV of this opinion.) At about                 Evidence technicians recovered a knife from the street near
this time a fourth officer arrived on the scene, Officer                     Gaddis’s car, but did not fingerprint it.
Champoux of the Redford Township department. Champoux
pointed a shotgun at Gaddis, but testified that he could not tell              Gaddis was charged with assault with intent to murder and
if Gaddis had anything in his hand.                                          with fleeing and eluding police. On June 8, 1999, he was
                                                                             found guilty in a bench trial of felonious assault (a lesser
   There ensued a standoff of two to three minutes’ duration.                included offense), and not guilty on the fleeing count.
The officers testified that they told Gaddis repeatedly to drop              Pursuant to a post-trial motion, however, Gaddis was later
his knife, and that Gaddis said something incoherent to Bain                 adjudged not guilty of the felonious assault charge as well.
along the lines of: “Why are you doing this to me, Chris, like
you did to me in California?” None of the officers was                          Gaddis filed suit under 42 U.S.C. § 1983 against Officers
named Chris or had ever encountered Gaddis in California.                    Bain, Burdick, and Duffaney, alleging that they illegally
Bain later testified that the “Chris” remark suggested to him                detained him and used excessive force against him in
that Gaddis was not acting rationally. Officer Burdick                       violation of the Fourth Amendment. (He also asserted a
testified that he did not hear the remark. On the tape, Gaddis               claim of discrimination on the basis of his race and his mental
can be seen apparently speaking to the officers during the                   illness, which he has abandoned on appeal.) He also sued the
standoff. He gestures with his hands, but keeps them fairly                  municipalities of Redford Township and Dearborn Heights,
low at his side.                                                             claiming that they maintained unlawful policies that caused
                                                                             the incident.
  Gaddis then stated that he wanted to leave.1 Bain stepped
forward and sprayed Gaddis in the face with pepper spray.                      Plaintiff introduced the affidavit of James Fyfe, Ph.D., a
Meanwhile, Officer Burdick had been walking around to the                    former police officer and a professor of criminal justice. Prof.
passenger side of Gaddis’s car. Seconds after Bain used the                  Fyfe opined that the officers unreasonably deviated from
pepper spray, Burdick clambered over the trunk of Gaddis’s                   proper police techniques for dealing with emotionally
                                                                             disturbed persons (“EDPs”). In particular, he testified that
                                                                             officers using correct police techniques would recognize that
    1
                                                                             “techniques of intimidation and force” are not likely to work
     Officer Champo ux later testified that he believed he could have        on EDPs in the way they may work on rational persons. He
blocked Gaddis’s car with his own patrol car if Gaddis had tried to leave.
No. 02-1483         Gaddis v. Redford Township, et al.        7    8    Gaddis v. Redford Township, et al.          No. 02-1483

testified that the police should instead have picked a single        Gaddis timely appealed to this court, appealing only the
officer to talk calmly to the EDP, and should have refrained       grant of summary judgment on his Fourth Amendment
from unnecessary displays of force. Fyfe criticized Bain’s         claims.
use of pepper spray, and described Burdick’s attempt to tackle
Gaddis by surprise from behind as a “terrible tactic.”                                          III

  The defendants moved for summary judgment, and the                 The first issue is whether the initial stop of Gaddis’s car
district court granted summary judgment on all claims on           violated the Fourth Amendment.
February 20, 2002. While the individual defendants had all
raised the defense of qualified immunity, the district court did                                 A
not reach the qualified immunity issue, but held that the
defendants were entitled to summary judgment on the merits.          At the outset, we must determine the legal standard that
Gaddis v. Redford Township, 188 F. Supp. 2d 762 (E.D.              governs a brief stop of a car for suspected drunk driving in a
Mich. 2002).                                                       jurisdiction where, as in Michigan, such conduct is a criminal
                                                                   offense. See Mich. Comp. L. § 257.625(9)(a) (defining
   As to Gaddis’s claim that the initial stop of his car was       driving while intoxicated as a misdemeanor punishable by
unlawful, the court held that reasonable suspicion was all that    imprisonment).      Unfortunately, this proves to be a
was required to justify an investigative stop of a car. Id. at     complicated question, because different published opinions of
768. It further held that Gaddis’s weaving in the lane and         this court have given inconsistent answers at different times.
leaning over the seat provided reasonable suspicion. Indeed,
it stated that the weaving, “simpliciter,” would be enough to        By contrast, the Supreme Court has not wavered in this
establish reasonable suspicion. Id. at 768-69.                     area. It has consistently articulated a clear governing rule:
                                                                   when officers have reasonable suspicion that occupants of a
   As to the excessive force claim, the district court held that   vehicle are engaged in criminal activity, they may briefly stop
there was no genuine issue of material fact as to whether the      the vehicle to investigate. E.g., United States v. Arvizu, 534
officers’ use of force was reasonable. Id. at 772. It reasoned     U.S. 266, 273 (2002); Alabama v. White, 496 U.S. 325, 328-
that the threat posed by Gaddis was quite high, as he had          32 (1990); United States v. Hensley, 469 U.S. 221, 226
stabbed Officer Burdick. Id. at 770. The court also                (1985).
concluded that the officers’ “overall handling of the incident”
did not violate the Fourth Amendment. Id. at 770-72. It              This court’s earlier case law was consistent with this
noted that the “officers fired only one volley at Plaintiff, and   teaching. In United States v. Roberts, 986 F.2d 1026 (6th Cir.
. . . did so immediately after Plaintiff had stabbed a             1993), we held that police may perform an investigatory stop
policeman.” Id. at 771. The “unconstested evidence” showed         of a vehicle when they have reasonable suspicion that the
that “when the police shot Plaintiff, he had just stabbed          occupant is committing the crime of drunk driving. Id. at
Defendant Burdick, still appeared to be holding a knife, and       1029-30.
was in close proximity to Defendant Burdick.” Id. at 772.
The court also rejected Gaddis’s equal protection claims.             However, two later cases potentially departed from this
Ibid.                                                              standard. Both arose in Tennessee, where, as in Michigan,
                                                                   driving while intoxicated is a crime. In United States v.
No. 02-1483               Gaddis v. Redford Township, et al.             9    10       Gaddis v. Redford Township, et al.                    No. 02-1483

Palomino, 100 F.3d 446 (6th Cir. 1996), the court upheld the                    Our published decisions following Palomino contained no
stop of a vehicle where police had grounds to suspect both                    suggestion that Palomino had abrogated the bedrock rule
drunk driving2 and the traffic violation of failure to stay                   permitting an investigatory vehicle stop when there is
within lanes.3 Id. at 448-49. Palomino argued that the stop                   reasonable suspicion of a crime. See Houston v. Clark
was pretextual. He claimed that police had really stopped his                 County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813 (6th
car because he was Mexican and fit certain characteristics of                 Cir. 1999) (“Police may briefly stop an individual for
a drug courier profile. Id. at 448. The court held that even if               investigation if they have a reasonable suspicion that the
true, this was irrelevant, because the police “ha[d] probable                 individual has committed a crime. . . . The same Fourth
cause to believe that a traffic violation had occurred,”                      Amendment test applies to vehicle stops.”) (punctuation
justifying the stop. Ibid. This reasoning, while otherwise                    omitted) (citing, inter alia, Palomino, 100 F.3d at 449).5
unexceptionable, could be read to lump criminal drunk
driving together with failure to stay in lanes as a “traffic                     However, four years after Palomino, a panel of this court
violation.” Ibid.                                                             decided United States v. Freeman, 209 F.3d 464 (6th Cir.
                                                                              2000), which held that Tennessee police were not justified in
  Palomino cited as authority the Supreme Court’s then-                       stopping the defendants’ mobile home after watching the
recent decision in Whren v. United States, 517 U.S. 806                       vehicle veer out of its lane on a windy day. 209 F.3d at 465-
(1996). See 100 F.3d at 448. The cautiously worded opinion                    66. The court held that this behavior was insufficient to
in Whren was consistent with the result in Palomino, but it                   justify a stop, whether it was viewed as evidence of failure to
did not support a general requirement of probable cause for                   stay in lanes, or as evidence of drunk driving, which was a
stops based on suspicion of any offense, criminal or                          crime, though the court’s opinion did not discuss the
otherwise, involving a vehicle. Whren simply held that, when                  violation/crime distinction. Ibid. At one point, the court
a defendant argued that his vehicle was stopped for improper
reasons on the pretext of violating a traffic regulation, the
officer’s improper motivations would not render the stop a
violation of the Fourth Amendment if “the police ha[d]                        Amendment purposes.
probable cause to believe that a traffic violation had                             However, as the dissent points out, this court’s opinion in United
                                                                              States v. Ferguson, 8 F.3d 385 (6th Cir. 1993) (en banc), which rejected
occurred.” 517 U.S. at 810. Whren did not involve a criminal                  a “pretextual stop” challenge like the one in Whren, went on to state that
offense. Rather, the defendants were stopped for speeding                     probab le cause would be necessary for a stop premised on a civil traffic
and failing to signal a right turn, in violation of municipal                 violation. See id. at 391 (“We hold that so long as the officer has
regulations. Ibid.4                                                           pro bab le cause to believe that a traffic violation has occurred or was
                                                                              occurring, the resulting stop is not unlawful and does not violate the
                                                                              Fourth Amendment. . . . If an officer testifies . . . that he . . . did not have
                                                                              probab le cause to believe a violation had occurred . . . [s]uch a stop would
    2                                                                         be unreaso nable under the Fourth Amendment.”).
        See Tenn. Code Ann. § 55-10-401.
                                                                                   5
    3                                                                                See also United States v. Hu gue nin, 154 F.3d 547 , 557 (6th Cir.
        See Tenn. Co de A nn. § 5 5-8-1 23.                                   1998) (“[T]he Supreme C ourt emphasized . . . in Whren . . . [that] there
    4
                                                                              is a significant differenc e betw een a pretextual stop based o n pro bab le
       Indeed, Whren did not even hold that all stop s prem ised on a civil   cause that a traffic violation has occurred, and a stop that is not based on
traffic violation require probable cause – only that if police do have        probable cause or even reasonable suspicion”) (emphasis added).
probable cause, then any claim of pretext is irrelevant for Fourth
No. 02-1483          Gaddis v. Redford Township, et al.         11    12       Gaddis v. Redford Township, et al.                 No. 02-1483

specifically stated that the police were not justified in             criminal activity may be afoot.” 534 U.S. at 273 (punctuation
stopping Freeman for drunk driving because his weaving path           omitted); accord Weaver v. Shadoan, 340 F.3d 398, 407 (6th
“did not give [the officers] . . . probable cause to stop the         Cir. 2003).
motor home.” 209 F.3d at 467 (emphasis added). Gaddis
argues that Freeman is now the law of the circuit, and                  We therefore hold that a standard of reasonable suspicion
requires probable cause to stop a car for suspicion of criminal       governs the stop of Gaddis’s vehicle for suspicion of driving
drunk driving. Freeman appears to conflict with our earlier           while intoxicated. This conclusion is also consistent with
decision in Roberts, as well as our many decisions, such as           extensive authority from other circuits. E.g., United States v.
Houston, which affirm the bedrock rule that reasonable                Sanchez-Pena, 336 F.3d 431, 436 & n.2 (5th Cir. 2003);
suspicion of a crime justifies a brief stop.                          United States v. Colin, 314 F.3d 439, 442, 444 (9th Cir.
                                                                      2002); United States v. Wheat, 278 F.3d 722, 727-29 (8th Cir.
  We have a settled procedure for resolving cases of intra-           2001); see also United States v. Chanthasouxat, 342 F.3d
circuit conflict. “[A] panel of this [c]ourt cannot overrule the      1271, 1275 (11th Cir. 2003) (“a [vehicle] stop is a
decision of another panel. The prior decision remains                 constitutional detention if it is justified by reasonable
controlling authority unless an inconsistent decision of the          suspicion under Terry or probable cause to believe a traffic
United States Supreme Court requires modification of the              violation has occurred”).6
decision or this Court sitting en banc overrules the prior
decision.” Darrah v. City of Oak Park, 255 F.3d 301, 309
(6th Cir. 2001).                                                           6
                                                                             In the hope of providing gu idanc e to the district courts in this
                                                                      circuit, we summarize the state of our Fourth Amendment jurisprudence
  Roberts squarely held that a stop for criminal drunk driving        on vehicle stops.
requires only reasonable suspicion. As the earliest decision               Police may make an investigative stop of a vehicle when they have
on point, it must control, unless the intervening Supreme             reaso nable suspicion of an ongoing crime, whether it be a felony or
                                                                      misdemeanor, including drunk driving in jurisdictions where that is a
Court decision in Whren “require[d] modification” of its              criminal offense. Arvizu, 534 U.S. at 273 ; Shadoan, 340 F.3d at 407;
holding by a later panel. We do not read Palomino as so               Roberts, 986 F.2d at 1029-30. Police may also make a stop when they
holding. At most, Palomino held that probable cause was               have reasonable suspicion of a completed felony, though not of a mere
sufficient to justify a stop for drunk driving, not that probable     completed misde meanor. Hensley, 469 U.S. at 229 ; Roberts, 986 F.2d at
cause was necessary for such a stop. See 100 F.3d at 448-49.          103 0.
                                                                           Next, police may make a stop w hen they have p robable cause to
Nor did Freeman purport to modify past precedent in light of          believe a civil traffic violation has occurred, even if the defendant raises
Whren; indeed, Freeman did not even cite Whren or                     a claim that the stop was pretextual. Whren, 517 U.S. at 810 ; Palomino,
Palomino. See 209 F.3d at 466-67.                                     100 F.3d at 448; Ferguson, 8 F.3d at 391. Whether they may also stop a
                                                                      vehicle based on mere reasonable suspicion o f a traffic violation is the
  Thus, at a minimum, applying the Darrah rule to our                 subject of another co nflict in our case law. Compare Shadoan, 340 F.3d
precedents yields grave doubt about the current authority of          at 407-08 (upholding stop where police had “reaso nable suspicion” of a
                                                                      violation of vehicle registration and window tinting regulations) with
Freeman. Any lingering questions are resolved by the                  Freeman, 209 F.3d at 466 (invalidating stop where police lacked
Supreme Court’s intevening decision in Arvizu, which                  “probab le cause” to stop vehicle for failure to stay in lane); and Ferguson,
explicitly reaffirmed the traditional rule that police may make       8 F.3d at 391 (stating in dictum that probable cause is required for a stop
“brief investigatory stops of . . . vehicles . . . if the officer’s   prem ised on traffic violation).
action is supported by reasonable suspicion to believe that                Gaddis’s case does no t require us to resolve this last issue. We note,
                                                                      though, that the issue appears to be co ntrolled by Freeman, the earlier
No. 02-1483            Gaddis v. Redford Township, et al.             13    14    Gaddis v. Redford Township, et al.            No. 02-1483

                                   B                                        once, and there were no other significant facts to suggest
                                                                            drunk driving.
   Measured by the standard of reasonable suspicion, the stop
was constitutional. Reasonable suspicion to stop a vehicle                    Thus, summary judgment for all defendants was proper as
depends on a contextual inquiry that considers, in the well-                to the legality of the initial vehicle stop.
known phrase, “the totality of the circumstances – the whole
picture.” United States v. Cortez, 449 U.S. 411, 417 (1981).                                               IV
Here, Gaddis weaved twice to the left to touch the dividing
line in a fairly short span. Bain’s testimony that Gaddis was                  The more difficult issue in this case is the legality of the
leaning over to the right inside his car must also be accepted              various officers’ uses of force in their confrontation with
for summary judgment purposes, because it was                               Gaddis. The sole constitutional standard for evaluating
uncontradicted by other testimony and the videotape does not                excessive force claims is the Fourth Amendment’s criterion
tend to contradict it.7                                                     of reasonableness. Graham v. Connor, 490 U.S. 386, 395
                                                                            (1989). Courts must apply an objective standard, looking to
   These facts establish reasonable suspicion of drunk driving.             “the facts and circumstances of each particular case, including
Indeed, the Tenth Circuit held an investigatory stop for drunk              [1] the severity of the crime at issue, [2] whether the suspect
driving justified on comparable facts in United States v.                   pose[d] an immediate threat to the safety of the officers or
Ozbirn, 189 F.3d 1194 (10th Cir. 1999), where an officer saw                others, and [3] whether he was actively resisting arrest or
the defendant’s motor home “drift onto the shoulder twice                   attempting to evade arrest by flight.” Russo v. City of
within a quarter mile without any adverse circumstances like                Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992) (quoting
road or weather conditions to excuse . . . the deviation.” Id.              Graham, 490 U.S. at 396) (brackets added). At the same
at 1199. Gaddis argues that our analysis should be controlled               time, they must bear in mind that the Fourth Amendment
by Freeman, discussed above, and United States v. Gregory,                  “prohibits unreasonable seizures, not unreasonable or ill-
79 F.3d 973 (10th Cir. 1996), which held that officers did not              advised conduct in general.” Dickerson v. McClellan, 101
obtain a reasonable suspicion of drunk driving when they                    F.3d 1151, 1162 (6th Cir. 1996) (quoting Cole v. Bone, 993
witnessed the defendant’s truck veer once in to the right                   F.2d 1328, 1333 (8th Cir. 1993)).
emergency lane of the interstate. Id. at 975-76, 978-79.
However, both cases are readily distinguished. In both                         In this circuit, courts faced with an excessive force case that
Freeman and Gregory, the suspect vehicle swerved only                       involves several uses of force must generally “analyze the . . .
                                                                            claims separately.” Ibid. They should “identif[y] the seizure
                                                                            and procee[d] to examine whether the force used to effect that
                                                                            seizure was reasonable in the totality of the circumstances,
panel holding on point, a conclusion reinforced by this court’s embrace     not whether it was reasonable for the police to create those
of the probable cause requirement for traffic violations in dictum its en
banc opinion in Ferguson. See Darrah, 255 F.3d at 309.                      circumstances.” Id. at 1161 (quotation marks omitted)
                                                                            (emphasis added). However, they may consider “the
    7
      It is also mo destly relevant tha t Gad dis was driving slowly        moments preceding [a] shooting” as part of the context of that
compared to the other traffic. W hile this fact is obviously capable of     shooting. Id. at 1162.
many innocent explanations, it nevertheless co ntributes to the o verall
picture created by the other evidence o f drunk driving. See A rvizu, 534
U.S. at 277.
No. 02-1483         Gaddis v. Redford Township, et al.       15    16        Gaddis v. Redford Township, et al.                   No. 02-1483

  Here, Gaddis challenges four different events as                 unquestionably go on to find that shooting him was
constituting unreasonable force: Bain’s initial shoving or         unconstitutionally excessive force, see Tennessee v. Garner,
handling of Gaddis as Gaddis emerged from his car; Bain’s          471 U.S. 1, 11 (1985) (holding that “[a] police officer may
spraying of Gaddis as he stood in his car doorway; Burdick’s       not seize an unarmed, nondangerous suspect by shooting him
almost simultaneous grappling of Gaddis; and the ultimate          dead”), and the grant of summary judgment would have to be
volley of 16 shots fired at Gaddis after he struck at Burdick.     reversed. The presence or absence of a knife also affects our
We consider these uses of force in turn.                           analysis of the officers’ uses of nonlethal force – Bain’s
                                                                   decision to mace Gaddis and Burdick’s attempt to grapple
                              A                                    Gaddis from behind. We review de novo the district court’s
                                                                   holding that no factual dispute existed. Burchett v. Kiefer,
   The district court did not examine Officer Bain’s brief         310 F.3d 937, 941-42 (6th Cir. 2002).
initial grab of Gaddis as the latter emerged from his car.
However, we hold that this act was not unconstitutionally             Since Gaddis could not testify, the only relevant evidence
excessive force. Bain was dealing with a suspect who had           is the videotape and the testimony of the four officers. Bain
previously refused to stop for police, suggesting that he might    and Burdick both testified that they saw a knife in Gaddis’s
be disoriented or intent on avoiding arrest. Bain testified that   hand; Officer Duffany testified that he saw something shiny
he grabbed Gaddis because he wanted to keep him from               in Gaddis’s hand; and Officer Champoux, who was further
fleeing and to perform a pat-down search on Gaddis, who had        from the scene, could not tell whether or not Gaddis had a
his hands in his pockets. The record cannot be construed to        knife. Bain saw a fairly small knife in Gaddis’s hand;
cast doubt on this claim. The Supreme Court has instructed         Burdick described it as a “large” knife. Only Bain’s and
that “the right to make an arrest or investigatory stop carries    Burdick’s testimony could be said to conflict. This sort of
with it the right to use some degree of physical coercion or       minor conflict of perception is common, and is not sufficient
threat thereof to effect it.” Graham, 490 U.S. at 396. “Not        by itself to create a material dispute of fact as to the officers’
every push or shove, even if it may later seem unnecessary in      credibility.8
the peace of a judge’s chambers . . . violates the Fourth
Amendment.” Ibid. We acknowledge that even minor uses
of force are unconstitutionally excessive if they are “totally          8
gratuitous.” McDowell v. Rogers, 863 F.2d 1302, 1307 (6th                   As the Fo urth Circuit ob served about a similar evidentiary conflict:
Cir. 1988). Here, however, Bain’s reasonable need to prevent            In a rapidly evolving scenario such as this one, a witness’s
Gaddis from fleeing and to discern whether he was armed                 account of the event will rarely, if ever, coincide perfectly with
justified his action.                                                   the officers’ perceptions b ecause the witness is typically viewing
                                                                        the event from a different angle than that of the officer. For that
                               B                                        reason, minor discrepancies in testimony do not create a material
                                                                        issue of fact in an excessive force claim, particularly when, as
  Before we consider the officers’ later actions, we must               here, the witness views the event from a worse vantage point that
                                                                        of the officers. . . . Thus, the discrepancies between the officers’
decide whether the district court rightly held that there was no        testimony and Williams’s testimony about the positioning and
material dispute of fact on the critical question of whether            speed at which Anderson was lowering his hands do not raise an
Gaddis drew a knife from his pocket. If a reasonable jury               issue of triable fact.
could find that Gaddis did not have a knife, then it could
                                                                   Anderso n v. R ussell, 247 F.3d 12 5, 130-31 (4th Cir. 2001).
No. 02-1483          Gaddis v. Redford Township, et al.       17    18       Gaddis v. Redford Township, et al.                 No. 02-1483

   Gaddis argues, however, that the inability to see a knife on     this time Gaddis made an incoherent remark to Bain, calling
the videotape does create such a material dispute of fact.          him “Chris” and referring to a nonexistent prior confrontation
Because this argument has some force, we will explain our           with him in California. Gaddis then announced that he
reasons for rejecting it in some detail. The videotape image        wanted to leave. It was at this point that Bain stepped
is of low quality. It readily discloses the movements and           forward and sprayed him. Gaddis argues that on the facts of
postures of Gaddis and the officers, but not the details of their   this encounter, the use of pepper spray was unconstitutionally
appearances. Gaddis’s hand is a vague blur. While the tape          excessive.
would not enable a juror to verify the presence of a knife by
direct observation of Gaddis’s hand, it equally would not             One of the main purposes of nonlethal, temporarily
permit the juror to conclude that there was no knife there. (If     incapacitating devices such as pepper spray is to give police
it did, summary judgment would obviously be inappropriate.)         effective options short of lethal force that can be used to take
Instead, the viewer’s sole clue is the body language of the         custody of an armed suspect who refuses to be lawfully
actors during the encounter. And in this respect, the officers’     arrested or detained. As a general matter, this court has
reactions powerfully corroborate their testimony that Gaddis        expressed doubt “that the use of non-lethal force against an
produced a knife. On the tape, when Gaddis removes his              armed and volatile suspect constitutes excessive force.”
hands from his pockets, Bain jumps back in obvious alarm.           Ewolski v. City of Brunswick, 287 F.3d 492, 508 (6th Cir.
He pulls out his service pistol and covers Gaddis with it, and      2002).9 Gaddis’s case falls in or near this category: he was
the other officers follow suit. The reaction is inexplicable        armed with a knife and his conduct was at least somewhat
unless something threatening was in Gaddis’s hands. In              “volatile,” as he was refusing to submit to arrest. Moreover,
addition, Gaddis later uses a windmilling motion to strike at       we have also held that in sufficiently pressing circumstances,
Burdick, which is suggestive of a knife stab. Thus the tape as      officers may use pepper spray to take custody of unarmed
a whole tends to reinforce the officers’ testimony that there       suspects. In Monday v. Oullette, 118 F.3d 1099 (6th Cir.
was a knife, not to contradict it.                                  1997), we upheld judgment as a matter of law for police
                                                                    officers who used spray to subdue an unarmed individual they
  All admissible evidence in the case points to the conclusion      feared would injure himself or commit suicide by overdosing
that the knife was present. At most, the poor quality of the        on pills if not taken into custody. Id. at 1104-05. Of course,
tape might be said to raise a “scintilla of evidence” in support    there must exist an objective justification for the use of
of Gaddis’s position, but that is not enough to withstand           pepper spray. In Adams v. Metiva, 31 F.3d 375 (6th Cir.
summary judgment. Anderson v. Liberty Lobby, Inc., 477              1994), we held that police who repeatedly sprayed mace in
U.S. 242, 252 (1986). We conclude that there was no                 the face of an unarmed plaintiff who was not resisting and
material dispute as to whether Gaddis had a knife.
                               C                                         9
                                                                          See also Russo , 953 F.2d at 1044-45 (holding officer entitled to
                                                                    qualified immunity desp ite his using T aser gun multiple times on knife-
  We turn next to Bain’s decision to use pepper spray to try        wielding suspect who was no longer an immediate threat; noting that
to incapacitate Gaddis. As noted before, after Gaddis drew          officer’s “actions were intended to avoid having to resort to lethal force”);
his knife, there followed a standoff of about two minutes,          Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 315 (S.D.N.Y. 1998)
during which Gaddis stood in the doorway of his car and the         (dismissing excessive force claim against officer who used a single stream
officers repeatedly ordered him to drop his weapon. During          of pepper spray to prevent unarmed suspect from destroying evidence of
                                                                    a crime).
No. 02-1483           Gaddis v. Redford Township, et al.          19    20    Gaddis v. Redford Township, et al.                No. 02-1483

was not subject to lawful arrest would be liable for excessive          Gaddis argues that a reasonable officer, suspecting Gaddis’s
force as a matter of law. Id. at 384-87.                                disability, would not have responded to the brandishing of a
                                                                        knife by pointing a gun at Gaddis. Nor would he have
   Measured by this case law and the three factors outlined by          “provoked” Gaddis by using an irritating and disorienting
the Supreme Court in Graham, we cannot say that Officer                 device such as pepper spray against him, as Bain did. Instead,
Bain’s decision to use pepper spray could be found to be                a reasonable officer would have used a nonconfrontational
objectively unreasonable. The amount of force Bain used,                manner that would ensure that Gaddis was not provoked to
though not trivial, was moderate. At the time he acted, the             violence. To support this argument, Gaddis offered the
officers had probable cause to suspect Gaddis of two crimes             affidavit of Prof. James Fyfe, a law enforcement expert. Fyfe
that were also moderate in severity: driving while intoxicated,         testified that in his opinion, the officers’ tactics in the
a misdemeanor for first offenders under Michigan law, and               encounter with Gaddis were “terrible” and were not in
fleeing an officer.10 While Gaddis arguably did not pose an             keeping with optimal police procedures for dealing with
immediate threat to the officers’ safety as he stood next to his        mentally or emotionally disturbed persons.
car brandishing a knife (since the officers were able to keep
their distance), Bain could have reasonably concluded from                We acknowledge that a suspect’s apparent mental state is
Gaddis’s erratic driving and behavior that he would pose a              one of the “facts and circumstances of [the] particular case,”
danger to other motorists if allowed to flee. Gaddis had                Graham, 490 U.S. at 396, that should be considered in
announced his desire to leave the scene, and this statement             weighing an excessive force claim. Moreover, the opinions
prompted Bain to spray him. That fact is also relevant to the           of properly qualified experts such as Mr. Fyfe are often
final Graham factor, namely whether the suspect was                     entitled “to be given . . . weight” in this determination.
resisting arrest. Gaddis’s remarks indicated an intent to               Russo, 953 F.2d at 1047.11 In Russo, we drew partially upon
continue evading arrest, and his brandishing of a knife was             such testimony in concluding that the inadequate training
reasonably interpreted as a sign of intent to resist, perhaps           procedures of the Cincinnati police department may have
violently.                                                              contributed to the shooting death of the plaintiff’s suicidal,
                                                                        mentally ill decedent. See id. at 1046-47.
  In sum, Bain used an intermediate degree of nonlethal force
to subdue a suspect who had previously attempted to evade                 However, Gaddis’s arguments here are weakened by the
arrest, was brandishing a knife, showed signs of intoxication           fact that Bain had only fragmentary evidence that Gaddis was
or other impairment, and posed a clear risk of leaving the              mentally disturbed. This distinguishes the case from Russo,
scene behind the wheel of a car. It cannot be said that this            where officers knew from the outset that the suspect was
action was unconstitutionally excessive.                                mentally disturbed because the initial call to the police came
                                                                        from the mental institution the suspect had left. Id. at 1039.
  Gaddis disputes this reasoning, arguing that his incoherent           Here, Gaddis’s incoherent conduct was arguably as consistent
remark about “Chris” put Bain on notice that Gaddis was
disturbed, and that this made special tactics appropriate.
                                                                             11
                                                                                However, we note that the weight of such expert testimony is
                                                                        diminished to the extent that the expert draws near to op ining on the
    10
                                                                        ultimate legal question of whether the officers’ challenged conduct was
       The officers also knew that Gaddis was driving with an expired   reasonable. See Samples v. City of Atlanta , 916 F.2d 154 8, 15 51 (11th
license.                                                                Cir. 19 90); Burger v. Mays, 176 F.R.D. 153 , 157 (E.D. Pa. 19 97).
No. 02-1483          Gaddis v. Redford Township, et al.       21    22    Gaddis v. Redford Township, et al.                  No. 02-1483

with Bain’s initial hypothesis that Gaddis was driving while                                           E
intoxicated as it was with mental disturbance. The Supreme
Court has instructed that we are to judge officers’ conduct            Gaddis reacted to Burdick’s attempt to grapple with him by
from the “perspective of a reasonable officer on the scene,         stabbing at Burdick with his knife. Our last issue for
rather than with the 20/20 vision of hindsight.” Graham, 490        consideration is the constitutionality of Officers Bain and
U.S. at 396. There may be more than one reasonable                  Duffany’s decision to respond to this attack with lethal force,
response to a given situation, and when this is so, the Fourth      by shooting Gaddis several times.
Amendment does not require officers to use “the most prudent
course of action” to handle it. See Cole, 993 F.2d at 1334. In         Lethal force is justified in order to protect a fellow officer
light of the circumstances and our reasoning above, we              or a civilian from a threat of serious physical harm.
conclude Fyfe’s affidavit is not sufficient to create a material    Brandenburg v. Cureton, 882 F.2d 211, 215 (6th Cir. 1989).
issue of fact as to the reasonableness of Bain’s use of pepper      An attack with a knife certainly meets this criterion.12 See
spray.                                                              Pirsein v. Village of Berrien Springs, No. 92-1258, 1992 WL
                                                                    348944 (6th Cir. Nov. 24, 1992) (unpublished opinion). Bain
                               D                                    and Duffany saw Gaddis strike at Burdick with a knife in his
                                                                    right hand. It was reasonable for them to respond with lethal
  Similar reasoning leads us to conclude that Officer               force.
Burdick’s decision to grapple with Gaddis in order to subdue
him was not unconstitutionally excessive force. Burdick did           Gaddis relies upon Samples v. City of Atlanta, cited supra,
not strike Gaddis or employ any weapons; his actions                and Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993),
involved a degree of force comparable to Bain’s use of pepper       to argue that his use of a knife did not necessarily render the
spray. Moreover, Gaddis’s argument that a different response        officers’ actions justified. In Samples, the Eleventh Circuit
was required because of his emotional disturbance does not          denied qualified immunity to an officer who fatally shot
apply to Burdick. It was uncontroverted that Burdick did not        Samples as Samples approached him with a three-inch folding
hear the “Chris” remark that most strongly tended to suggest        knife. 846 F.2d at 1331-33. Zuchel involved a suspect who
Gaddis’s incoherence or emotional disturbance. As we have           was believed to have a knife, and who was fatally shot by an
noted, the reasonableness of his response must be gauged in         officer shortly after he turned to face the officer. 997 F.2d at
terms of the information available to him, not with hindsight.      735-36. The Tenth Circuit held that these facts were
And “reasonableness” does not require that an action be             sufficient to support a verdict for the plaintiff against the
“prudent” or the “best suited” to the situation, only that it not   officer’s municipal employer. Ibid.
be unconstitutionally disproportionate in degree to the
circumstances. Given that Bain’s use of nonlethal force               Both cases are distinguishable from Gaddis’s. In Samples,
against Gaddis was reasonable, as we held at pp. 17-21,             the officer shot a suspect who was, at most, merely opening
supra, it follows that Burdick’s decision to grapple with
Gaddis was reasonable as well.
                                                                         12
                                                                           That conclusion does not change when we take into consideration
                                                                    the “moments preced ing the shooting,” as pre cedent req uires. Dickerson,
                                                                    101 F.3d at 1162. We have previously held that Bain’s and Burdick’s
                                                                    uses of nonlethal force to apprehend Gaddis did not raise a jury issue as
                                                                    to excessiveness und er the Fourth Amendment.
No. 02-1483         Gaddis v. Redford Township, et al.       23    24   Gaddis v. Redford Township, et al.       No. 02-1483

a knife, and had not yet attacked anyone with it. 846 F.2d at                                  V
1332. Moreover, Samples was shot once in the back – a
detail that was highly salient to his case, because there was        For the foregoing reasons, the district court’s grant of
only one officer confronting Samples. The back wound               summary judgment to the officers is AFFIRMED. Because
suggested that the officer might have used lethal force against    there was no underlying constitutional violation by the
Samples at a time when he clearly did not pose a threat to the     officers, the municipal defendants cannot be held liable to
officer. Ibid. Here, Gaddis had not only extended the blade        Gaddis. Monday, 118 F.3d at 1105. The grant of summary
of his knife but had attacked Officer Burdick with it.             judgment to the municipal defendants is therefore also
Moreover, while Gaddis, like Samples, also received a wound        AFFIRMED.
from the back from the shots fired at him, the fact was that
multiple officers were firing at Gaddis from different vantage
points after his attempt to stab Burdick. Thus Gaddis’s back
wound does not tend to undercut the officers’ testimony
(corroborated by the videotape) that they fired only in
response to the knife attack.
   In Zuchel, the facts suggested that Zuchel was not
threatening anyone or brandishing a weapon aggressively
when police shot him. Indeed, the only evidence that Zuchel
even had a knife came from one bystander’s shouted warning
to the police. 997 F.3d at 735-36. Here, again, Gaddis had a
knife and used it.
   Gaddis finally suggests that even if his actions justified a
lethal response, the officers crossed the constitutional line by
firing sixteen shots at him. We disagree. While the two
officers fired a total of sixteen shots at him, it was a single
volley. That distinguishes Gaddis’s case from precedents
such as Russo, where police went on to fire a second and third
volley at the suspect even though there was a factual dispute
as to whether he still posed a serious threat. See 953 F.2d at
1045. Bain’s and Duffany’s decisions to use their weapons to
respond to Gaddis’s attack were individually justifiable, and
the fact that there were two of them responding
simultaneously, thereby producing a larger volley, does not
change the reasonableness of their conduct.
No. 02-1483         Gaddis v. Redford Township, et al.      25    26   Gaddis v. Redford Township, et al.         No. 02-1483

                    _________________                             has simply paid lip service to this bedrock principle of
                                                                  summary judgment law.
                        DISSENT
                    _________________                                The failings of the majority opinion begin with its
                                                                  description of the allegedly undisputed facts that preceded
   CLAY, Circuit Judge, dissenting. Because the majority,         Officer Bain’s initial traffic stop of Gaddis. This much is
like the district court below, usurps the role of the jury and    undisputed: Gaddis was driving his car shortly before 4:00
violates the plain dictates of Federal Rule of Civil              a.m. on April 12, 1999, in Redford Township, when Officer
Procedure 56, I dissent.                                          Bain spotted Gaddis’ car while patrolling alone on Telegraph
                                                                  Road. It is also undisputed that Officer Bain’s patrol car
                              I.                                  created a video, but not an audio, record of Bain’s counter
                                                                  with Gaddis. It is not undisputed, however, that Bain saw
  My disagreement begins with the majority’s holding that         Gaddis “weaving” within his traffic lane. Op. at 3.
Officer Matthew Bain’s initial traffic stop of Joseph Gaddis      According to the Oxford English Dictionary, “weave” means
complied with the Fourth Amendment as a matter of law.            to “move repeatedly from side to side; to toss to and fro; to
Most appellate review of a district court’s determination         sway the body alternately to one side and the other; to pursue
about the propriety of a traffic stop arises on direct criminal   a devious course, thread one’s way amid obstructions.”
appeal after a district court has denied a motion to suppress     Oxford English Dictionary Online Edition (taken from second
evidence discovered after the stop. In that procedural posture,   print edition 1989) (emphasis in original). Webster’s
the Court upholds the district court’s findings of fact           Dictionary defines “weave” to mean “to direct (as the body)
regarding the existence of probable cause “unless clearly         in a winding or zigzag course esp. to avoid obstacles.”
erroneous,” and the district court’s legal conclusion as to the   Webster’s Third New Int’l Dictionary 2591 (1993). The
existence of probable cause is reviewed de novo. United           videotape evidence does not show – or at least a reasonable
States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999); see also       jury would not be compelled to conclude – that Gaddis moved
Ornelas v. United States, 517 U.S. 690, 699 (1996). By            repeatedly side to side or that he was driving his car on a
contrast, in a § 1983 action on appeal from the grant of a        zigzag course. Rather, the tape shows Gaddis gradually
summary judgment against the plaintiff, the Court reviews         veering within his lane on two occasions, barely touching (but
both the district court’s factual assessments (i.e., whether      not crossing) the white line separating his lane from the lane
there are genuine issues of material fact) and the legal          traveling in the same direction. Thus, there is a significant
conclusions under a de novo standard. See Pyles v. Raisor, 60     dissonance between Bain’s characterization of Gaddis’
F.3d 1211, 1215 (6th Cir. 1995) (“In general, the existence of    driving (weaving) and what the videotape actually reveals (a
probable cause in a § 1983 action presents a jury question,       gradual drifting to the lane marker on two occasions).
unless there is only one reasonable determination possible.”)
(citing Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th          Bain’s credibility regarding Gaddis’ alleged weaving is
Cir.1989)). Although the majority opinion states that “we         undermined not only by the videotape, but also by his 1999
must resolve disputes of fact in favor of the nonmoving party,    conviction for third degree criminal sexual conduct for which
Gaddis, drawing all inferences in his favor,” Op. at 3 (citing    Bain currently is serving a prison term of 42 months to 15
Burchett v. Kiefer, 310 F.2d 937, 941-42, 945 (6th Cir.           years. See Fed. R. Evid. 609(a)(1) (providing that evidence
2002)), the remainder of the opinion reveals that the majority    that a witness has been convicted of a crime punishable by
No. 02-1483         Gaddis v. Redford Township, et al.       27    28    Gaddis v. Redford Township, et al.            No. 02-1483

imprisonment in excess of one year shall be admitted if its           The majority next states that Bain testified that he “saw
probative value outweighs its prejudicial effect). Although        Gaddis slumping to the right inside his car as he held the
ultimately it is within the district court’s discretion to admit   wheel.” Op. at 4. The Oxford English Dictionary defines
evidence of a prior criminal conviction for impeachment            “slump” to mean to “slide off heavily; to plump down; to fall
purposes, Bain’s conviction arguably tends to undermine the        or collapse clumsily or heavily.” Oxford English Dictionary
testimony of the most significant defense witness in this case     Online Ed. (emphasis in original). However, Bain did not
as to all material issues.                                         testify that Gaddis was slumping or that he appeared to be in
                                                                   a state of fall or collapse. He actually testified that he saw
  The majority next accepts as undisputed fact Bain’s              Gaddis “leaning over to the right,” but that he “couldn’t see
testimony that Gaddis had been “driving somewhat slowly,”          into the car to see what he was doing.” (J.A. 567.) Although
a fact the majority declares to be supported by the cars           “leaning” and “slumping” arguably fall along the same
passing Gaddis in the other lane. Op. at 3-4. There is no          continuum, there is a world of difference between the two
evidence, however, that Gaddis was traveling under the speed       physical states. Drivers frequently lean in their cars when
limit, nor is it undisputed that his speed was so slow as to       adjusting the radio or reaching for a cigarette lighter or a
suggest that he may have been under the influence of alcohol.      cellular telephone. Some drivers are just more comfortable or
Cf. United States v. Little, No. 97-6200, 1999 WL 196515, at       may even enjoy driving with a leaning posture. Although
*1 (6th Cir. Mar. 24, 1999) (noting that trooper suspected         such leaning is not inconsistent with intoxication, it also is not
defendant was a drunk driver “[b]ecause intoxicated drivers        inconsistent with a host of other innocent causes. By
commonly travel at excessively high or low speeds”)                transforming Gaddis’ lean into a “slump,” the majority
(emphasis added). In fact, Bain testified that he has no           continues its incremental stacking of the “undisputed” facts
recollection of what the other cars were doing on the night in     against Gaddis. Moreover, as acknowledged by the majority
question, suggesting that the relative speed of Gaddis’ car did    and the district court below, the tape does not show Gaddis’
not inform Bain’s decision to stop Gaddis at all. See United       posture at all, another fact that bears directly on the credibility
States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc)      of Bain, who testified not only that he saw Gaddis leaning,
(“We note that this probable cause determination, like all         but that the tape “could pick that up.” It is inexplicable, then,
probable cause determinations, is fact-dependent and will turn     why the majority not only ignores the absence of “leaning”
on what the officer knew at the time he made the stop.”)           evidence on the videotape but also embellishes Bain’s
(emphasis in original). Further, it reasonably could be            testimony. The far more judicious tact would be to
inferred from the videotape that cars were passing Gaddis          acknowledge that a reasonable inference from the absence of
because he was traveling at or near the speed limit and the        “leaning” evidence is that Gaddis was not leaning at all.
other drivers were exceeding the speed limit. Consistent with
this inference, Officer Bain admits that he never saw Gaddis         According to the majority, Bain’s purported observation of
violate any provision of the Michigan Motor Vehicle Code.          Gaddis’ “weaving,” slow driving speed and “slumping” led
Thus, there is a genuine issue of material fact as to whether      Bain to suspect that Gaddis had been driving drunk. Op. at 3-
Gaddis was traveling at an excessively slow speed that             4. This is only partially true. Bain testified that he thought
reasonably would have suggested drunk and/or careless              Gaddis “was driving carelessly, and [he] thought [Gaddis]
driving.                                                           might be intoxicated.” (J.A. 568.) (emphasis added). Thus,
                                                                   Bain suspected that Gaddis might be violating two provisions
                                                                   of the Michigan Motor Vehicle Code – Mich. Comp. Laws
No. 02-1483         Gaddis v. Redford Township, et al.       29    30    Gaddis v. Redford Township, et al.           No. 02-1483

§ 257.625 (prohibiting operation of vehicle while under the        applies. To the contrary, at the conclusion of its opinion, the
influence of alcoholic liquor) and § 257.626b (prohibiting         Court stated:
careless or negligent driving).
                                                                     For the run-of-the-mine case, which this surely is, we
   In Whren v. United States, 517 U.S. 806 (1996), the               think there is no realistic alternative to the traditional
Supreme Court held, “As a general matter, the decision to            common-law rule that probable cause justifies a search
stop an automobile is reasonable where the police have               and seizure. Here the District Court found that the
probable cause to believe that a traffic violation has               officers had probable cause to believe that petitioners had
occurred.” Id. at 810 (citations omitted). The Court further         violated the traffic code. That rendered the stop
characterized the probable cause standard for suspected traffic      reasonable under the Fourth Amendment….
law violations as “the normal one,” the “traditional
justification” and “the usual rule.” Id. at 810, 817 (emphasis     Id. at 818-19. Because it is settled that probable cause is
omitted), 818. Our Court, sitting en banc, similarly held that     required for suspected civil violations of the traffic laws,
“so long as the officer has probable cause to believe that a       Officer Bain clearly needed probable cause to stop Gaddis on
traffic violation has occurred or was occurring, the resulting     suspicion of careless driving. Cf. United States v. Ervin, 59
stop is not unlawful.” Ferguson, 8 F.3d at 391; accord             Fed. Appx. 631, 635 (6th Cir. 2003) (holding that officer
United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000)        needed probable cause to stop driver for violating Florida’s
(following Ferguson); Hill, 195 F.3d at 264 (“[A]n officer         careless driving statute).
may stop a vehicle for a traffic violation …as long as the
officer had probable cause to initially stop the vehicle.”)           Ignoring Officer Bain’s careless driving justification for the
(citing Whren). Despite these clear statements by the              stop, the majority holds that Bain needed only a reasonable
Supreme Court and our own en banc Court, the majority              suspicion that criminal activity was afoot before he could stop
opines that it is unsettled in this circuit as to whether the      Gaddis on suspicion of drunk driving because drunk driving
police need probable cause to stop a vehicle for a suspected       is a criminal offense in Michigan. Op. at 8-9. See also Mich.
traffic law violation. Op. at 12 n.6. The majority appears to      Comp. Laws § 257.625(9)(a) (providing that a person who
base its reasoning on the ground that the Whren opinion fails      operates a vehicle while intoxicated “is guilty of a
to state explicitly that the decision to stop an automobile is     misdemeanor”). As support, the majority opinion cites
reasonable only when the police have probable cause to             United States v. Arvizu, 534 U.S. 266 (2002), Alabama v.
believe that a traffic violation has occurred. See Op. at 9 n.4    White, 496 U.S. 325 (1990) and United States v. Hensley, 469
(“Indeed, Whren did not even hold that all stops premised on       U.S. 221, (1985). Op. at 8. None of these cases is relevant,
a civil traffic violation require probable cause ….”). This        however, because none of the suspected crimes in those cases
reading of Whren, however, ignores the context of the              bore an inherent connection to the operation of a motor
Supreme Court’s above-quoted statement, which was a                vehicle, and none involved a suspected violation of the traffic
response to the petitioner’s argument that “‘in the unique         laws. See Arvizu, 534 U.S. at 272, 273 (minivan stopped on
context of civil traffic regulations’ probable cause is not        suspicion that narcotics were being smuggled); White, 496
enough.” Whren, 517 U.S. at 810. Although the Court                U.S. at 327 (vehicle stopped due to anonymous tip that driver
refused to adopt a more stringent constitutional standard than     had been transporting drugs); Hensley, 469 U.S. at 677-78
probable cause for suspected traffic law violations, the Court     (vehicle stopped on suspicion that the driver was wanted for
gave no indication that in fact a lesser constitutional standard   armed robbery). By contrast, drunk driving necessarily
No. 02-1483          Gaddis v. Redford Township, et al.       31    32   Gaddis v. Redford Township, et al.           No. 02-1483

involves the operation of a motor vehicle and constitutes a         drunk driving); United States v. Palomino, 100 F.3d 446, 448
violation of the traffic laws. Under Michigan law, the drunk        n.1 (6th Cir. 1996) (applying Whren’s probable cause
driving prohibition, like the civil prohibition against speeding,   standard to challenge to traffic stop for suspected drunk
is located within Chapter VI of the Michigan Motor Vehicle          driving; affirming district court’s holding that the officer had
Code, entitled in conspicuous type, “OBEDIENCE TO AND               probable cause to believe that the traffic violation of driving
EFFECT OF TRAFFIC LAWS.”                                            while intoxicated had occurred); accord United States v.
                                                                    Carlton, 44 Fed. Appx. 720, 722 (6th Cir. 2002) (holding that
   Subjecting careless driving and drunk driving to different       officer had probable cause to suspect drunk driving based on
constitutional standards makes no sense legally and                 “erratic driving”); United States v. Little, No. 97-6200, 1999
practically. Stops for both types of violations generally are       WL 196515, at *4 (6th Cir. Mar. 24. 1999) (holding that the
premised on an officer’s observations, “which afford the            totality of the circumstances created probable cause to believe
‘quantum of individualized suspicion’ necessary to ensure           that the defendant had been driving drunk). To the extent
that police discretion is sufficiently constrained.” Whren, 517     United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir. 1993)
U.S. at 817-18 (quoting Delaware v. Prouse, 440 U.S. 648,           adopted a reasonable suspicion standard for drunk driving
654-55 (1979); internal quotation marks and citation omitted).      stops, Whren and Ferguson have abrogated that case.
The mere fact that the respective penalties for careless driving
versus drunk driving deem the former a civil violation and the         As previously discussed, there is a genuine issue of material
latter a crime has no bearing whatsoever on the manner in           fact as to whether Gaddis had been leaning in his car and, if
which police officers detect these violations. Moreover,            so, to what extent. There also is a genuine issue of material
different standards for these two traffic violations might          fact as to whether Gaddis had been driving at a speed so
encourage police officers to avoid the higher constitutional        excessively slow as to be indicative of impaired driving.
standard applicable to stops for careless driving, speeding,        Thus, the only undisputed fact is that Gaddis’ car gradually
failing to signal, etc. by “tacking on” a drunk driving             drifted toward and eventually touched the painted hashes on
suspicion. In many instances, the majority’s reasonable             two occasions. This fact alone does not create probable cause
suspicion standard for drunk driving could swallow the              to suspect, or even a reasonable suspicion of, drunk driving as
probable cause standard applicable to all other traffic law         a matter of law. Cf. Freeman, 209 F.3d at 466 (“If failure to
violations.                                                         follow a perfect vector down the highway or keeping one’s
                                                                    eye on the road were sufficient reasons to suspect a person of
  Because the Supreme Court (in Whren) and this Court (en           driving while impaired, a substantial portion of the public
banc decision in Ferguson) clearly have held that a stop for        would be subject each day to an invasion of their privacy.”)
suspected traffic violations must be premised on probable           (internal quotation marks and citations omitted). Cases
cause and because there is no legal or practical basis to           finding probable cause to arrest for drunk driving have
subject drunk driving to a different constitutional standard        required more indicia of impaired driving than two instances
than other suspected traffic violations, this Court should          of a gradual drifting onto a lane marker. See, e.g., Palomino,
follow the panel decisions of our Court that relied on Whren        100 F.3d at 448 (holding drunk driving stop to be
and/or Ferguson in applying a probable cause standard to            constitutional where driver had been traveling significantly
suspected drunk driving. See Freeman, 209 F.3d at 467               under the speed limit, had crossed two lanes of traffic at once,
(applying Ferguson’s probable cause standard in holding that        had straddled the right lane, and had been weaving back and
officer lacked probable cause to stop vehicle for suspected         forth between the right lane and the emergency lane);
No. 02-1483         Gaddis v. Redford Township, et al.       33    34       Gaddis v. Redford Township, et al.             No. 02-1483

Carlton, 44 Fed. Appx. at 722 (holding drunk driving stop to       toward him. Shortly thereafter, Gaddis removed his hands
be constitutional where driver had “weaved from side to side       from his pockets. According to Bain and Burdick, they saw
at least three times on” two different streets); Little, 1999 WL   a knife in Gaddis’ hand. Burdick described the knife as
196515, at *4 (holding drunk driving stop to be constitutional     “large,” “long,” and “the biggest knife [he] had ever seen.”
where driver had been traveling at “an unusually slow speed,”      Bain’s testimony conflicts with Burdick’s in that Bain saw
had allowed her speed to fluctuate, and had weaved on the          only a small knife. Duffany saw something shine, but he did
highway’s shoulder). I do not foreclose the possibility that a     not know what it was. Bain then pulled his gun on Gaddis, as
jury might find probable cause if it were to find that Gaddis      did Burdick. Duffany pulled his gun in response to Bain’s
was not in control of his vehicle, as evidenced by leaning,        reaction in pulling his gun. Officer Paul Champoux, who had
slouching and/or an excessively slow speed. It simply is my        arrived on the scene around this time, testified that he could
position that this Court lacks the authority to usurp the jury’s   not tell if Gaddis had anything in his hand. Nevertheless, he
role in finding the facts that may support such a legal            “racked” a shell into the chamber of his shotgun and leveled
conclusion.                                                        it at Gaddis in order to “startle” Gaddis.1 The knife that
                                                                   Defendants claimed to have recovered from Gaddis was less
                              II.                                  than three inches long.
   Gaddis’ excessive force claim centers around the batteries        If all of the officers had seen Gaddis with a knife, but
he suffered after Officer Bain had pulled him over for             happened to disagree about the knife’s length, there would be
suspected traffic violations, most significantly the 16 bullets    no genuine dispute as to whether Gaddis had been
that Officers Bain and Duffany fired at Gaddis. The key            brandishing a knife. Here, however, two of the officers could
circumstance that precipitated the shooting was the alleged        not determine what Gaddis had been holding, even though
belief of at least two of the officers that Gaddis had had a       another officer testified that Gaddis had wielded a large and
knife in his hand. As the majority opinion notes, “If a            long knife. Thus, the officers’ credibility is open to question,
reasonable jury could find that Gaddis did not have a knife,       particularly that of Bain, a convicted criminal. Moreover, as
then it could unquestionably go on to find that shooting him       discussed below, there are several additional pieces of
was unconstitutionally excessive force … and the grant of          evidence that further undermine the officers’ claim that
summary judgment would have to be reversed.” Op. at 15-16          Gaddis had been holding a knife.
(citation omitted; emphasis in original). As discussed below,
a reasonable jury should be permitted to make just such a            First, there is no physical evidence of the stab wound
finding and, therefore, the summary judgment should be             Gaddis allegedly inflicted on Officer Burdick. Officer
reversed.                                                          Burdick testified that Gaddis had stabbed him in the back
                                                                   while Burdick had been attempting to place Gaddis in a
  After Gaddis finally stopped his car, Officer Bain drew his      headlock. Burdick, who had been wearing a flak jacket at the
gun and approached. Bain then re-holstered his gun and             time, claims to have suffered a cut on his back that resulted
pulled out his flashlight. After a delay, Gaddis passed a piece    in a circle of blood soiling his white t-shirt. The bloody t-
of paper to Bain who looked at it and stuffed it in his pocket.
Soon, Officers Burdick and Duffany arrived in their car.
Gaddis then exited his car and put his hands in his pockets.            1
Bain briefly grabbed Gaddis by the collar and pulled Gaddis             Champo ux is no longer a police officer. He resigned allegedly for
                                                                   personal reasons after pleading guilty to impaired driving.
No. 02-1483             Gaddis v. Redford Township, et al.             35     36    Gaddis v. Redford Township, et al.           No. 02-1483

shirt, however, was not preserved as evidence at the crime                       Despite the manifest importance of this second knife,
scene, and its whereabouts are unknown. The police shirt that                 Wanbaugh did not collect it until he had been on the scene for
Burdick wore over the t-shirt was preserved in evidence, but                  a half an hour. And although Wanbaugh took the second
had no blood on it.2 The back of the flak jacket, where                       knife into evidence, he made no attempt to determine whether
Burdick allegedly had been stabbed bore only a “speck”-sized                  it bore the fingerprints of Gaddis or the police officers. He
hole, and Burdick has no scar from the alleged knife attack.                  simply took the word of an officer on the scene that Gaddis
This utter lack of physical evidence of a stab wound,                         had used the knife to strike Burdick. Wanbaugh’s failure to
particularly when combined with the fact that no officer                      fingerprint and establish a reliable chain of custody for this
preserved Burdick’s purported blood-soaked t-shirt, in                        second knife, combined with the fact that he never took the
derogation of proper investigative practice,3 tends to                        first knife into evidence, can support the reasonable
undermine Burdick’s testimony that he had suffered a stab                     inferences that (1) Gaddis actually had possessed only one
wound from Gaddis. A reasonable inference from the lack of                    knife, the one recovered from inside of his car, and (2) the
a stab wound is that Gaddis had not been holding a knife                      second knife, which was neither fingerprinted nor tested for
when he struck Burdick.                                                       blood, may have been planted at the scene by one of the
                                                                              officers.
   Second, there is no reliable physical evidence linking
Gaddis to the knife that Defendants attribute to Gaddis.                         Third, a reasonable jury could conclude that the videotape
Jeffrey Wanbaugh, the evidence technician who arrived on                      does not show Gaddis holding a knife. The majority opinion
the scene after Gaddis had been shot, was apprised by an                      concedes that, when viewing the videotape, a knife cannot be
officer that Gaddis allegedly had been wielding a knife and                   discerned in Gaddis’ hand. Op. at 17 (“While the tape would
had stabbed Burdick. Wanbaugh testified that he discovered                    not enable a juror directly to verify the presence of a knife, it
a set of car keys and a leather sheath lying on the front                     equally would not permit him or her to conclude that there
driver’s seat of Gaddis’ car, but that he did not know when                   was no knife.”). Combined with the other evidence that
either of those items had been placed on the seat, nor by                     undermines the officers’ credibility, one reasonable inference
whom. He also testified that he had wanted to see what was                    is that Gaddis did not have a knife in his hand at the time.
inside of the sheath and discovered a knife inside. Although                  The majority explains away this inference as well.
Wanbaugh photographed this knife, he did not take it into                     Employing colorful descriptions that could be more
evidence. Wanbaugh further testified that he collected a                      appropriately presented in Defendants’ closing argument to
second knife on the ground and about four feet from Gaddis’                   the jury, the majority zeroes in on “the body language of the
car. An officer on the scene told Wanbaugh that Gaddis had                    actors during the encounter,” concluding that “the officers’
used this knife to strike Burdick.                                            reactions powerfully corroborate” the conclusion that Gaddis
                                                                              had a knife. Id. The majority first points to the fact that Bain
                                                                              jumped back “in obvious alarm” after Gaddis had removed
                                                                              his hands from his pocket and argues that this reaction is
    2                                                                         “inexplicable unless something threatening was in Gaddis’
      It is unclear whether the shirt bears any evidence of having been       hands.” Id. I agree that the tape arguably supports such an
pierced or cut. The parties have not discussed the issue.
                                                                              inference, but it is not the only inference that explains Bain’s
    3                                                                         body language. The tape also supports the inference that Bain
      At deposition, Burdick testified that he had been trained to preserve
evide nce o f blood-soiled clothing.                                          was concerned that Gaddis was going to strike him with his
No. 02-1483         Gaddis v. Redford Township, et al.       37    38   Gaddis v. Redford Township, et al.         No. 02-1483

empty fist or with his car keys or with a stick of foil-wrapped    concerned that Gaddis would try to get in his car and drive
chewing gum or any other harmless object that might glisten        away. The videotape, however, does not evidence any “body
in the dark. Bain’s movements also would support the               language” on Gaddis’ part that is consistent with a desire to
inference that Bain was not alarmed at all, but that he had        leave the scene. Moreover, as Dr. Fyfe notes, the tactically
become angry or frustrated with Gaddis and wanted to               more appropriate decision would have been to position the
escalate the confrontation by drawing his gun.                     police vehicles around Gaddis’ car so that it would have been
                                                                   impossible for him to escape. Officer Champoux testified
   As additional “body language” evidence, the majority            that he could have blocked Gaddis’ car with his patrol car if
opinion points to the “windmilling motion” that Gaddis used        Gaddis had tried to leave.
to strike at Burdick after Burdick had attempted to jump
Gaddis from behind. Op. at 17. Without citation and without           The pepper spray blast was only the prelude to the most
the benefit of any expert testimony, the majority concludes as     egregious examples of improper police tactics. According to
a matter of law that this motion is “suggestive of a knife         Dr. Fyfe, the confrontation with Gaddis “unfolded as a series
stab.” Id. This windmilling motion, however, also is               of surprises” because “nobody was in charge, there was no
suggestive of striking someone with a fist or of an                central plan, and there was no attempt to assure that officers
involuntary, reflexive attempt to protect oneself from a           knew what each other was doing and what it was expected to
surprise attack. It is wholly inconsistent with Rule 56 for my     accomplish.” (J.A. 745.) Most notably, without any warning
colleagues to adjudicate this issue against Gaddis simply          to his colleagues, Officer Burdick scrambled over the back of
because he did not swing his arm in a manner consistent with       Gaddis’ car in an attempt to ambush Gaddis. Dr. Fyfe points
their imaginations. The inference that Gaddis had threatened       out that officers are instructed to keep their distance from
the officers with a knife is not the only reasonable inference     people who are armed with knives, unless there is absolutely
from the officers’ body language depicted on the videotape.        no way to protect an individual from an imminent threat to
Cf. Headwaters Forest Def. v. County of Humboldt, 211 F.3d         life. It is clear that, prior to Burdick engaging in his ill-
1121, 1132 n.5 (9th Cir. 2000) (“The videotape evidence here       advised tactic, no one’s life was in danger. As the tape
appears to raise more questions than it answers, which in the      shows, Gaddis became aware of Burdick’s presence on his car
context of a motion for judgment as a matter of law must be        and reacted predictably by swinging his hand at Burdick,
resolved in favor of the plaintiffs as the nonmoving parties.”),   allegedly stabbing Burdick with a knife. Thus, Burdick
vacated on other grounds, 534 U.S. 801 (2002).                     unreasonably created a foreseeable circumstance in which the
                                                                   other officers were forced to take action to protect him from
                              III.                                 Gaddis.
  Even assuming, arguendo, that Gaddis had been wielding             According to Defendants, the officers had no choice but to
a knife, there is a genuine issue of material fact as to the       open fire on Gaddis. Burdick’s testimony and the videotape,
reasonableness of the officers’ use of force. Gaddis’ expert       however, strongly indicate that the officers shot Gaddis after
witness on law enforcement matters, Dr. James Fyfe, points         he no longer posed a danger to Burdick. Burdick testified that
out several deviations from accepted police practice that          he was on the ground at the back of Gaddis’ car at the time
resulted in the officers’ unnecessary escalation of the            the other officers began shooting Gaddis. Based on this
confrontation with Gaddis. For example, Bain testified that        evidence, Dr. Fyfe opines that Burdick was well out of
he blasted Gaddis with pepper spray because he was                 Gaddis’ range at the time Gaddis was being shot, and,
No. 02-1483         Gaddis v. Redford Township, et al.       39    40   Gaddis v. Redford Township, et al.       No. 02-1483

therefore, Gaddis presented no danger to Burdick or anybody        Gaddis. The responsible thing to do would be to reverse the
else at that time. Indeed, it would have been extremely            district court’s grant of summary judgment.
reckless for the officers to have shot at Gaddis while Burdick
was near Gaddis. Accordingly, even assuming that Gaddis
had been wielding a knife and that it was reasonable for
Burdick to jump him from behind, there is a genuine issue of
material fact as to whether it was reasonable for Officers Bain
and Duffany to have shot at Gaddis 16 times.
                              IV.
   It appears that at every turn my colleagues have taken great
pains to construe each factual dispute as immaterial and/or
draw inferences from the evidence that favor only
Defendants. This approach is inconsistent with both the letter
and the spirit of Rule 56. It is disputed whether Bain had
probable cause, or even reasonable suspicion, to stop Gaddis
for careless driving or drunk driving, since all that is
undisputed is that Gaddis’ car gradually veered and touched
the painted hashes on the road on two occasions. It is
disputed whether Officers Bain and Duffany acted reasonably
in firing 16 gun shots at Gaddis because it cannot be
concluded as a matter of law that Gaddis had been
brandishing a knife or any other dangerous object. The
officers’ testimony is inconsistent as to the presence and size
of the purported knife; there remain serious questions about
the authenticity of the knife the officers’ attribute to Gaddis;
the officers failed to preserve any physical evidence that
would have proven that Gaddis had wounded Officer Burdick
with the knife; and the videotape is consistent with the
inference that Gaddis had not wielded a knife. Moreover,
even assuming that Gaddis had been holding a knife, the
purported need to shoot him was precipitated by Officer
Burdick’s bumbling attempt to subdue him. And although the
officers justified their shooting as necessary to protect
Burdick, the evidence strongly indicates that Burdick was out
of harm’s way at the time the shooting had begun. From these
facts, it reasonably could be inferred that the officers who
fired at Gaddis did not intend to protect Burdick, but to kill
