                                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                                        Pursuant to Sixth Circuit Rule 206
                                                File Name: 04a0410p.06

                           UNITED STATES COURT OF APPEALS
                                            FOR THE SIXTH CIRCUIT
                                              _________________


                                                            X
                                       Plaintiff-Appellant, -
 ELOIS DUNIGAN,
                                                             -
                                                             -
                                                             -
                                                                 No. 03-1304
           v.
                                                             ,
                                                              >
 SCOTT NOBLE, Public Safety Officer, and PERCY               -
                                                             -
                                    Defendants-Appellees. -
 JENKINS, Public Safety Officer, Jointly and Severally,

                                                             -
                                                            N
                             Appeal from the United States District Court
                         for the Western District of Michigan at Kalamazoo.
                        No. 02-00039—Joseph C. Scoville, Magistrate Judge.
                                               Argued: June 10, 2004
                                    Decided and Filed: November 29, 2004
                         Before: SILER, MOORE, and BALDOCK, Circuit Judges.*
                                                _________________
                                                     COUNSEL
ARGUED: Douglas A. Merrow, LAW OFFICE OF DOUGLAS A. MERROW, Portage, Michigan, for
Appellant. Mary Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Appellees.
ON BRIEF: Douglas A. Merrow, LAW OFFICE OF DOUGLAS A. MERROW, Portage, Michigan, for
Appellant. Mary Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Appellees.
        BALDOCK, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 9-
11), delivered a separate opinion concurring in part and dissenting in part.
                                                _________________
                                                    OPINION
                                                _________________
        BALDOCK, Circuit Judge. Around 9:30 a.m. on March 8, 2001, Police Officers Scott Noble and
Percy Jenkins arrived at Plaintiff Elois Dunigan’s home in Kalamazoo, Michigan. The officers sought
to arrest Plaintiff’s son, Quincy Dunigan, for failure to report to his parole officer. During the ensuing
melee, Officer Jenkins’ K-9, Kojak, bit Plaintiff. Plaintiff thereafter filed this § 1983 action alleging, among
other things, excessive force against Officers Noble and Jenkins in violation of the Fourth Amendment.

    *
     The Honorable Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by
designation.


                                                            1
No. 03-1304                  Dunigan v. Noble, et al.                                                                         Page 2


The district court granted the officers summary judgment based on qualified immunity. Plaintiff appeals.
We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.1
                                                                  I.
        The following relevant facts are undisputed or taken in the light most favorable to Plaintiff: Quincy
Dunigan is a convicted felon. He failed to report to his parole officer in violation of the terms of his release.
For a year, Leslie Willson, Quincy’s parole officer, visited Plaintiff’s home on numerous occasions looking
for Quincy. A week prior to his arrest, Willson had seen Quincy outside Plaintiff’s Kalamazoo residence
removing trash. Quincy disappeared before she could speak with him. On the morning of March 8, 2001,
Willson received a phone tip suggesting Quincy was at his mother’s home. Willson requested police
assistance to apprehend Quincy. Officer Noble responded to the call. Willson informed Officer Noble
that Quincy was a “runner” and might attempt to evade arrest. Officer Noble called for backup, but did
not specifically request a K-9 unit. Officer Jenkins and Kojak arrived soon thereafter. Sergeants Joseph
O’Connor and Mark Laster and Officers Scott Block and Mike Skurski also arrived on the scene to secure
the home’s perimeter. Dispatch informed all responding officers that Quincy might run.
        Willson, with Officers Noble and Jenkins at her side, knocked on Plaintiff’s back door. Kojak stood
with Jenkins wearing a body harness and leash used for tracking. Plaintiff opened the back interior door and
remained behind the locked screen door. Willson informed Plaintiff she had “come to get Quincy.”
Plaintiff responded “just a minute” and shut the interior door. Plaintiff proceeded to the basement’s
living area where Plaintiff’s two sons, Quincy and Tory, and grandson, Shawn, were located. Plaintiff
informed Quincy of the officers’ presence. When Plaintiff returned and began opening the door, three
officers rushed in. Officer Noble entered the home first. Sergeant O’Connor also entered. Officer Jenkins
and Kojak proceeded onto the landing directly inside the back door of the home. The landing measures
approximately three and one- half square feet. The basement stairs extend down from the landing directly
behind the back door. Four stair steps to2 the right of the back door extend up the landing into the kitchen.
See Joint App. at 348 (attached hereto).
        Officer Noble proceeded to the top step of the kitchen stairs. Sergeant O’Connor proceeded to the
basement stairs. Officer Jenkins entered the landing and looked down into the basement. Plaintiff remained
on the second step of the kitchen stairs. Officer Jenkins announced that someone was in the basement. He
ordered the individual to show his hands, but to no avail. After announcing police presence, Officer Jenkins
alerted Kojak to begin barking. At this point, Tory proceeded up the basement stairs through the landing
and into the kitchen, passing 3Kojak and the officers without incident. Immediately thereafter, Officer Noble
pushed Plaintiff in the back. The force caused Plaintiff to stumble and move from the second to the first
step of the kitchen staircase. When asked what happened when Officer Noble pushed her, Plaintiff


    1
     Prior to the district court’s ruling, Plaintiff voluntarily dismissed her claims against four other officers and the City of
Kalamazoo with the exception of a state law claim against the City under the Michigan Dog Bite Statute. See Mich. Comp. Laws
§ 287.351. The district court declined to exercise supplemental jurisdiction over Plaintiff’s state law claim. See
28 U.S.C. § 1367(c)(3).
    2
      Page 348 of the Parties’ Joint Appendix sets forth Exhibits 7 and 8 in Support of Defendants’ Motion for Summary
Judgment. Exhibit 7 is a view from directly inside the back screen door of Plaintiff’s home looking down into the basement. The
interior back door, visible on the left side of the exhibit, is open. A shirt or other cloth object hangs on the basement stair railing
on the right side of the exhibit. Exhibit 8 is a view from the top of the kitchen stairs leading down to the landing. Again, the
interior back door is open. The back screen door is partially visible to the left of the interior door.
    3
     In their respective depositions, the two officers stated that prior to the contact Officer Noble was between Plaintiff
and Kojak. Plaintiff proceeded to jump on Officer Noble’s back in an hysterical effort to get at Officer Jenkins and Kojak to
protect her son. The officers stated Plaintiff climbed over and around Noble from the kitchen area above and moved towards
Officer Jenkins. Plaintiff repeatedly yelled at the officers not to hurt her son. Neither officer places Sergeant O’Connor inside the
home at that point.
No. 03-1304                 Dunigan v. Noble, et al.                                                                      Page 3


answered: “That is when the dog attacked me.” Kojak bit Plaintiff three times on her leg. Officer Jenkins
promptly restrained Kojak by the collar. According to Plaintiff, Officer Noble then “grabbed me by the
neck, threw me outside and made me lay face down on the cement sidewalk.”4
        Plaintiff’s friend, Kim Marshall, witnessed the entire event. Marshall explained the situation
“was pretty chaotic, so there was a lot of yelling and screaming and hysterics going on.” Marshall described
Plaintiff’s emotional state at various points as “very upset,” “crying” and “concerned about the dog being in
the home and very much concerned about her son.” Once the officers entered the home, Plaintiff tried “to
explain to them that [Quincy] wanted to turn his self [sic] in, not to–not to hurt him and she was kind of
begging them, please, you know, don’t hurt her son.” Tory was yelling at the officers to leave his mother
alone. When asked to describe the push, Marshall responded:
         [Plaintiff] was standing on top of the steps that was right by the kitchen and one of the
         officers pushed her, so there is three or four steps that lead back to the back door landing
         area, she lost her footing and at that point she raised herself back up and that is when the dog
         bit her right in the thigh area.
        The district court granted Officers Noble and Jenkins’ motion for summary judgment based on
qualified immunity. The court first noted Plaintiff characterized the question of excessive force with regard
to both officers as arising solely under the Fourth Amendment’s proscription against unlawful seizures. As
to Officer Jenkins, the court held the evidence failed to establish the requisite seizure through means of
force intentionally applied. The district court next held Officer Noble did not use excessive force
when pushing Plaintiff aside in a rapidly-evolving, highly volatile situation. The court noted nothing in the
record provided a basis for inferring Officer Noble had any intent to injure Plaintiff. On appeal, Plaintiff
renews her argument that Officers Jenkins and Noble employed unlawful force in effecting a seizure of her
person. Notably, Plaintiff has not challenged the officers’ entry into her home or her actual arrest.
Defendant Officers again respond with the defense of qualified immunity.
                                                                II.
       “Qualified immunity is a government official’s ‘entitlement not to stand trial or face the other
burdens of litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). Such immunity is “‘an expression of policy designed to aid in the effective functioning
of government.’” Schuer v. Rhodes, 416 U.S. 232, 242 (1974) (quoting Barr v. Matteo, 360 U.S. 564,
572-73 (1959)). Implicit in the qualified immunity doctrine is a recognition that police officers, acting
reasonably, may err. Id. The concept of immunity thus acknowledges that “it is better to risk some error
and possible injury from such error than not to decide or act at all.” Id.5

    4
     An ambulance arrived shortly thereafter. A paramedic advised Plaintiff: “Mrs. Dunigan, don’t talk, don’t try to speak
because you’re on the verge of a heart attack or a stroke. Your blood pressure is 220 over 180.” The medical center’s
“Emergency and Trauma Report” on Plaintiff reads:
    The patient said that she was feeling more comfortable and felt like she wanted to go home. Because this patient’s pain
    was clearly stress induced and it responded immediately with nitroglycerin this appears to be an angina episode for the
    patient which would not be classified as unstable. . . . Her wound on her leg will not require stitches and because it is
    not a puncture wound we will not give her antibiotics at this time. . . .
In her deposition, Plaintiff stated her wound subsequently became infected and required surgery. Plaintiff says she has suffered
nerve and muscle damage, is in chronic pain, and “might get crippled as I get older.” Plaintiff also states she may have contacted
Hepatitis-C. Aside from the trauma report, however, the record is devoid of any medical evidence establishing the exact nature
and extent of Plaintiff’s injuries.
    5
     Prior to Saucier, a majority of Circuits, including our own, held the question of whether an officer was entitled to qualified
immunity from an excessive force claim was identical to the inquiry on the merits of the claim. See, e.g., Bass v. Robinson,
167 F.3d 1041, 1051 (6th Cir. 1999); Katz v. United States, 194 F.3d 962, 968 (9th Cir. 1999) (collecting cases). Thus, under prior
No. 03-1304                 Dunigan v. Noble, et al.                                                                     Page 4


        In Saucier, the Court carefully delineated a two-fold inquiry to determine an officer’s entitlement
to qualified immunity in the context of an excessive force claim:
         A court required to rule upon the qualified immunity issue must consider . . . this threshold
         question: Taken in the light most favorable to the party asserting the injury, do the facts .
         . . show the officer’s conduct violated a constitutional right? This must be the initial
         inquiry. . . .
                                                      ...
         [I]f a violation could be made out on a favorable view of the parties’ submissions, the next,
         sequential step is to ask whether the right was clearly established. This inquiry, it is vital to
         note, must be undertaken in light of the specific context of the case, not as a broad general
         proposition . . . .
Id. at 201.6 In other words, where a constitutional violation exists, an officer’s personal liability turns on
the “objective legal reasonableness” of the action in view of the circumstances the officer confronted
assessed in light of “clearly established” legal rules. Id. at 202; Anderson v. Creighton, 483 U.S. 635, 639
(1987).
                                                               III.
        As Saucier directs, we turn first to the question of whether Officer Jenkins and/or Noble violated
Plaintiff’s Fourth Amendment right to be free from excessive force. We review this question de novo,
applying the same summary judgment standard as the district court. We view the evidence in a light most
favorable to Plaintiff. At the same time, we are mindful that “the mere existence of some factual dispute”
will not frustrate an otherwise proper summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Considering the evidence “through the prism of the substantive evidentiary burden,”
id. at 254, we must determine “not whether there is literally no evidence, but whether there is any upon
which a jury could properly proceed to find a verdict for the party producing it upon whom the onus of proof
is imposed.” Improvement Co. v. Munson, 81 U.S. 442, 448 (1872); accord Anderson, 477 U.S. at 252;
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
                                                               A.
       A seizure must occur before an excessive force claim is cognizable under the Fourth Amendment.
See County of Sacramento v. Lewis, 523 U.S. 833, 844-45 & n.7 (1998).7 Plaintiff contends Officer Jenkins
seized her when he knowingly brought a dangerous animal, Kojak, into the narrow entranceway of


law the existence of a genuine factual dispute always precluded summary judgment. In Saucier, the Supreme Court criticized
the approach of denying summary judgment “any time a material issue of fact remains on the excessive force claim” as
undermining “‘the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many
insubstantial claims on summary judgment.’” Saucier, 533 U.S. at 202 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Supreme Court held “the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether
unreasonable force was used in making the arrest.” Id. at 197.

    6
      Despite Saucier’s direction, some panels of this Court have continued to rely on a three step analysis of qualified immunity
claims grounded in our pre-Saucier en banc decision in Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc). See, e.g.,
Dean v. Byerley, 354 F.3d 540, 557 (6th Cir. 2004); Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). Other panels
acknowledge Saucier as binding. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1042 (6th Cir. 2003); Weaver v. Shadoan, 340
F.3d 398, 406-07 (6th Cir. 2003); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002); Bell v. Johnson, 308 F.3d 594, 601-02
(6th Cir. 2002). We take the latter approach.
    7
     Absent a seizure, an individual injured as a result of police misconduct may pursue a substantive due process claim. See
Lewis, 523 U.S. at 844. Plaintiff does not claim a violation of her substantive due process rights in this case.
No. 03-1304                Dunigan v. Noble, et al.                                                                   Page 5


her home.8 A seizure within the meaning of the Fourth Amendment, however, “requires an intentional
acquisition of physical control.” Brower v. Inyo County, 489 U.S. 593, 596 (1989). “[O]nly when there is
a governmental termination of freedom of movement through means intentionally applied” is the Fourth
Amendment implicated. Id. at 597. “[T]he Fourth Amendment addresses ‘misuse of power,’ . . . not the
accidental effects of otherwise lawful government conduct.” Id. at 596.
        Accepting Plaintiff’s version of events, nothing in the record suggests Officer Jenkins introduced
Kojak into the home intending to seize Plaintiff or that he actually seized Plaintiff “through means
intentionally applied.” Officer Jenkins, unaware of Quincy Dunigan’s precise whereabouts, lawfully
brought Kojak into the home. Despite Plaintiff’s contrary assertion, the circumstances undoubtedly
justified Kojak’s presence. Kojak was trained to “track.” Quincy Dunigan was a fugitive from law and had
been “on the run” for nearly a year. Officer Jenkins legitimately believed Quincy might attempt to flee.
Kojak’s presence served the legitimate purpose of curtailing that possibility.
        Officer Jenkins did not command Kojak to bite Plaintiff and was not responsible for the contact
which caused Plaintiff to stumble towards the dog. According to Officer Jenkins, Kojak perceived a threat
when Plaintiff stumbled one step down the kitchen stairs into the dog’s defensive perimeter. Kojak
responded, as trained, by defending its handler. Officer Jenkins quickly restrained and refocused Kojak
once the dog began biting Plaintiff. Additionally, Plaintiff stated her son, Tory, came up from the basement
into the kitchen immediately preceding the attack without incident. This fact gives rise to the reasonable
inference that Officer Jenkins was exercising control over Kojak. As a result, a reasonable jury could only
conclude Kojak’s actions were a spontaneous response to Plaintiff’s “threatening” movement into the dog’s
defensive perimeter. The district court properly held Officer Jenkins did not seize Plaintiff “through
means intentionally applied,” and thus, Plaintiff had no cognizable Fourth Amendment claim against Officer
Jenkins.
                                                              B.
        Although for different reasons, we also conclude Officer Noble did not violate Plaintiff’s Fourth
Amendment rights. Unlike Officer Jenkins, Officer Noble seized Plaintiff when he arrested her. Viewing
the evidence in a light most favorable to Plaintiff, however, we conclude Officer Noble did not act
unreasonably in making that arrest. The reasonableness inquiry in a Fourth Amendment excessive force
case is objective. In Graham v. Connor, 490 U.S. 386, 397 (1989), the Supreme Court explained the
relevant
         question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
         circumstances confronting them, without regard to the underlying intent or motivation. . . .
         An officer’s evil intentions will not make a Fourth Amendment violation out of an
         objectively reasonable use of force; nor will an officer’s good intentions make an objectively
         unreasonable use of force constitutional.
(emphasis added).
       Whether an officer’s use of force was reasonable turns on the facts of each case. Relevant to the
inquiry are (1) the severity of the crime at issue, (2) the immediate threat the suspect poses to the safety of

    8
     Plaintiff has continually maintained Kojak is an instrument of deadly force. Notably, Plaintiff does not claim or present
evidence that Kojak was improperly trained. No federal appeals court has held a properly trained police dog is an instrument of
deadly force. See Kuha v. City of Minnetonka, 365 F.3d 590, 597-98 (8th Cir. 2003) (citing cases). Instead, we explained
in Robinette v. Barnes, 854 F.2d 909, 913 (6th Cir. 1988):
    We do not dispute the fact that trained police dogs can appear to be dangerous, threatening animals. The dogs’ ability
    to aid law enforcement would be minimal if they did not possess this trait. However, the mere recognition that a law
    enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force.
No. 03-1304                Dunigan v. Noble, et al.                                                                  Page 6


the officer or others, (3) the suspect’s resistance, if any, and (4) the possibility of flight. Id. at 396. The
objective reasonableness inquiry is well-established:
        The ‘reasonableness’ of a particular use of force must be judged from the perspective of a
        reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every
        push or shove, even if it may later seem unnecessary in the peace of a judge’s chamber,
        violates the Fourth Amendment. The calculus of reasonableness must embody allowance
        for the fact that police officers are often forced to make split-second judgments–in
        circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that
        is necessary in a particular situation.
Id. at 396-97 (internal quotation and citation omitted) (emphasis added); accord Saucier 533 U.S. at 204-05.
The relevant question, then, is whether a reasonable officer on the scene could have believed Officer
Noble’s push of Plaintiff from one step to the next in the close confines of the stairwell and landing while
in the presence of a police dog was unlawful. Officer Noble’s subjective intentions are irrelevant.
        In her brief, Plaintiff admits she was “understandably upset” over the situation, but claims she posed
no threat whatsoever to anyone. Plaintiff is mistaken. Kim Marshall, Plaintiff’s own witness, stated
the situation “was pretty chaotic, so there was a lot of yelling and screaming and hysterics going on.”
Marshall stated Plaintiff “was begging” the officers not to hurt her son. As the officers entered the home,
Plaintiff was necessarily standing in front of them given the small confines of the landing. See Joint App.
at 348. Plaintiff knew for certain Quincy was in the basement when Officers Jenkins and Noble entered the
home. The officers did not possess such knowledge as Plaintiff had closed the inside back door blocking
the officer’s view before she went to the basement to inform Quincy of the officers’ presence. Instead
of moving out of the officers’ path, Plaintiff made the decision to remain close by on the kitchen steps.
        Perhaps Officer Noble moved up the stairs past Plaintiff to cut off an escape route or get a view of
his back side. Regardless, we will not second guess Officer Noble’s actions.9 Officer Noble was confronted
with a rapidly-evolving, highly-volatile situation which precluded the luxury of calm and reflective pre-
response deliberation. See Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). Officer Noble had
no opportunity to ponder or debate his reaction to the potentially explosive situation. Simply stated,
Plaintiff’s insistence on remaining in the middle of a chaotic, tense, and rapidly evolving situation posed
a risk to herself, to Quincy, the officers seeking to arrest Quincy, and the other individuals present.
Moreover, Plaintiff’s presence in the midst of this situation interfered with Officer Noble’s efforts
to perform his duties.
       Plaintiff points out she is not a felon and was not fleeing or attempting to evade arrest. She misses
the point. At the time the push occurred, Officer Noble’s focus was on Quincy Dunigan. Officer Noble
knew (1) Quincy had been a fugitive from the law for nearly a year and might attempt to flee, (2) at least one
unidentified individual was in the basement directly below, and (3) that individual posed a potential threat
by refusing to show his hands as ordered. See Graham, 490 U.S. at 396. Moreover, Officer Noble did not
have cover on his back side and did not know who else was in the home. He could not see into the basement
from his location on the kitchen stairs. See Joint App. at 348. Amidst all these uncertainties, Officer Noble
applied force to Plaintiff’s back or shoulder in closely confined quarters causing her to momentarily lose her
balance and stumble down one step of stairs towards Kojak.
       That Kojak responded as trained does not change our analysis. Kojak’s presence on the landing was
undoubtedly lawful. The evidence further reveals that Officer Noble had no control over Kojak. Officer
Noble stated without contradiction that he did not call for a police dog, is not trained in handling police
dogs, and does not know their commands. He further testified the policy of the City of Kalamazoo, by

    9
     Given the situation, no reasonable jury could conclude Plaintiff stood between Officer Jenkins and Noble for “five to ten
minutes” as she claims before Officer Noble made contact with her.
No. 03-1304               Dunigan v. Noble, et al.                                                                 Page 7


which he abides, is to follow the directions and orders of the dog handler when a canine is present.
Plaintiff’s case is further undermined by her own statement that immediately preceding the push Tory ran
past Kojak in the narrow confines of the landing and stairwell without incident. Under Plaintiff’s version
of events, Officer Noble could not have missed observing Tory. Thus, Officer Noble had no reason to
believe his minimal use of force which caused10Plaintiff to momentarily stumble would cause Kojak to react.
Nor would any reasonable officer so believe.
        A contrary conclusion would invite any third party who is unhappy about an arrest to resist that
arrest, however mildly, hoping an officer would simply desist rather than chance violating that party’s
constitutional rights. This is simply an unacceptable alternative. For us to “fine-tune” the situation arising
in Plaintiff’s home on the morning of March 8, 2001, from the warm comfort of our chambers would
undercut the necessary element of judgment inherent in Officer Noble’s attempt to control a volatile chain
of events. See Brown v. Gilmore, 278 F.3d 362, 369-70 (4th Cir. 2002). “[J]udged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Graham, 490 U.S. at
396, Officer Noble’s actions did not violate Plaintiff’s Fourth Amendment rights.
                                                           IV.
        For the foregoing reasons, the district court properly held Officer Noble and Officer Jenkins were
entitled to qualified immunity. Because we decide this case under the first prong of Saucier’s two part
qualified immunity inquiry, we do not reach the second prong of that inquiry. The judgment of the district
court is–
         AFFIRMED.




    10
       Because the Fourth Amendment does not duplicate state tort law, we make no judgment as to whether under the facts of
this case Officer Jenkins or Noble exercised reasonable care in the “tort sense.” Michigan state law may or may not afford
Plaintiff a remedy.
No. 03-1304   Dunigan v. Noble, et al.   Page 8
No. 03-1304             Dunigan v. Noble, et al.                                                      Page 9


                        _______________________________________________
                         CONCURRING IN PART, DISSENTING IN PART
                        _______________________________________________
       KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. Although I
concur in the majority’s opinion affirming summary judgment in favor of Officer Percy Jenkins (“Officer
Jenkins”), I respectfully dissent from the majority’s holding that qualified immunity shields Officer Scott
Noble (“Officer Noble”) from liability because I believe that Officer Noble’s use of force against Elois
Dunigan (“Dunigan”) was an objectively unreasonable violation of Dunigan’s clearly established Fourth
Amendment rights.
        Determining whether the actions of a police officer rise to the level of unconstitutionally excessive
force is often a difficult task, for police officers frequently must make on-the-spot decisions in the face of
chaotic, rapidly-evolving, and potentially dangerous situations. Indeed, we repeatedly draw upon, as if by
rote, the Supreme Court’s guiding maxims that “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment,” and that we should not
judge police officers’ conduct “with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396
(1989) (internal quotation marks omitted). However, acknowledging the fact that police officers operate
in a fast-paced, uncertain environment should not lead to our reflexive rubber-stamping of “every push or
shove” by a police officer. Rather, in each case we must determine whether, given similar circumstances,
a reasonable and prudent police officer would have acted in like fashion, taking into consideration such
factors as the severity of the crime involved and the immediate threat to safety posed by the seized person.
After reviewing the events that transpired at the Dunigan residence on the morning of March 8, 2001 in the
light most favorable to Dunigan, I believe that Officer Noble acted unreasonably and with excessive force
in pushing Dunigan, a fifty-nine-year-old woman, down a narrow stairway towards another police officer
and his police dog.
       First, Officer Noble and the other members of the Kalamazoo Police Department reported to the
Dunigan residence not in response to a violent crime, but rather simply to take Dunigan’s son, Quincy
Dunigan (“Quincy”), into custody for failing to report to his parole officer, Leslie Willson (“Willson”).
Although Willson enlisted the aid of several police officers to help effectuate Quincy’s arrest because
Quincy had a history of attempting to flee police custody, the record does not seem to indicate that Quincy
had a history of violent behavior. Indeed, Dunigan indicated that Willson and Officer Noble had come to
her home several times looking for Quincy and that they had walked through her home without incident just
a few weeks earlier. Joint Appendix (“J.A.”) at 158 (Elois Dunigan Dep.).
        Second, contrary to the majority’s suggestion, Dunigan did not pose a serious threat to the safety of
others present by being emotionally agitated, yelling, and screaming. According to Dunigan, she was not
upset and did not yell at the officers. J.A. at 158-59 (Elois Dunigan Dep.). However, even if Dunigan was
emotionally upset by the entry of police officers and a police dog into her home, a reasonable and prudent
police officer would not attempt to diffuse such a situation by pushing the upset bystander from behind and
down a stairway in the direction of other officers and a police dog.
        The majority also contends that Dunigan posed a threat to the police officers by remaining on the
kitchen steps and not moving out of the officers’ path. However, the record does not seem to indicate that
the officers asked Dunigan to step outdoors or to move to another part of the house while they executed the
search. Furthermore, because Dunigan claims to have been standing between Officers Noble and Jenkins
on the stairway, Dunigan could go nowhere without moving in the direction of at least one of the officers,
which itself could have been interpreted by the officers as a threatening or hostile act. Ultimately, if there
was a need to remove Dunigan from the main area of activity, pushing her downstairs further into the fray
in the direction of Officer Jenkins, police dog Kojak, and the primary ingress point for other officers was
not a reasonable means of accomplishing such an objective. J.A. at 225 (Scott Noble Dep.) (“Q. Other than
No. 03-1304             Dunigan v. Noble, et al.                                                     Page 10


it would constitute an excessive use of force, what are all of the other reasons for which you would not want
to do that sort of thing? A. I would not want to push her down in the way of what is going on because she’s
going to interfere more with what is going on down there. I want to keep her out of the area. Q. So pushing
her down under that hypothetical scenario, Number 1, would pose a risk of— A. Risk to Percy. Q. It would
pose a risk of serious injury to her from the dog, correct? A. Correct. Q. It would pose a risk to Percy
Jenkins? A. Correct. Q. What else? A. Anybody else that is down there.”).
        The majority also justifies Officer Noble’s actions by explaining that he faced a situation fraught
with uncertainties in that the officers were attempting to arrest someone who had a history of evading
capture, there was an unknown person in the basement who refused to show his hands, and there might have
been other persons in the home who could attack the officers. To determine whether a police officer has
acted reasonably, we must evaluate the amount and type of force used in light of the particular uncertainties
facing the officer. In this case, Officer Noble acted unreasonably notwithstanding the general air of
uncertainty at the Dunigan residence because the force he used (pushing Dunigan down the stairs toward
Officer Jenkins and police dog Kojak) bears no reasonable relation to the specific uncertainties the majority
says Officer Noble faced (Quincy’s history of fleeing, the presence of an unidentified person in the
basement, and the possibility of other persons being in the house).
        Finally, the majority contends that Officer Noble had no reason to expect that Dunigan’s stumbling
down the stairway would cause Kojak to bite her because Officer Noble had previously witnessed one of
Dunigan’s sons run past Kojak without being attacked. However, Officer Jenkins testified that police dogs
are trained to protect their police handlers and agreed that it “wouldn’t be a reasonable use of force to push
somebody towards a police dog handler and a police dog . . . [b]ecause the dog could bite them.” J.A. at
256 (Percy Jenkins Dep.). Furthermore, even if it were reasonable for Office Noble to assume that Kojak
would not bite Dunigan if she were pushed in his direction, the fact that a fifty-nine-year-old woman could
be injured if pushed down a stairway should not have come as a surprise to Officer Noble. That Dunigan’s
injuries took the form of a dog bite rather than a broken hip or sprained ankle does not make Officer Noble’s
actions any more reasonable.
         Because pushing a fifty-nine-year-old female bystander from behind and without provocation down
a stairway in the direction of other police officers and a police dog amounts to unconstitutionally excessive
force, I believe that Officer Noble violated Dunigan’s Fourth Amendment rights. Moreover, I do not believe
that Officer Noble should be immune from liability, as his conduct was objectively unreasonable in light
of clearly established law at the time of the incident. The doctrine of qualified immunity is driven by the
notion that, although a government official may have violated a citizen’s rights, “‘[i]f the law at that time
was not clearly established, an official could not . . . fairly be said to ‘know’ that the law forbade conduct
not previously identified as unlawful.’” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.
2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (second alteration in Champion). Here,
however, Office Noble admitted during his deposition that, if Dunigan’s allegations were true, his actions
would constitute excessive force:
       Q.      . . . Let’s assume there is an eyewitness who says that you pushed Miss
               Dunigan, that she was not posing any sort of physical threat, nor was she
               antagonizing the dog, and that you pushed her from behind on the shoulder
               into the direction of the dog which was barking and which was located in
               close proximity, are you telling me that that is something that you didn’t do?
       A.      That is correct.
       Q.      Are you telling me is something that you wouldn’t do?
       A.      I would not do that.
       Q.      And one of the reasons you would not do that is because in your opinion that
               would be an excessive use of force under those circumstances, would it not,
               Officer?
       A.      Correct.
No. 03-1304             Dunigan v. Noble, et al.                                                     Page 11


       Q.      Okay. And that’s your opinion based on your 14 years experience on the
               Kalamazoo force, as well as your education and training —
       A.      That’s correct.
       Q.      — in-service academy, et cetera, correct?
       A.      Correct.
J.A. at 224-25 (Scott Noble Dep.). Moreover, at the time of the events in question, the right of bystanders
not to be attacked, particularly from behind and without provocation, was clearly established in this court
and others. See Dugan v. Brooks, 818 F.2d 513, 516-17 (6th Cir. 1987) (vacating district court’s order
dismissing suit for failure to state a claim, concluding that complaint which “not only alleges that [the
officer] arrested [the plaintiff] without probable cause but also alleges that, in doing so, with malice and
without warning or justification, struck [the plaintiff] on the head from behind, knocking him to the floor
and seriously injuring him . . . clearly alleges a deprivation of the rights secured by the fourth amendment
as made applicable to the states by the fourteenth amendment”); Teames v. Henry, No. Civ. 3:03-CV-1236-
H, 2004 WL 357961, *3-4 (N.D. Tex. 2004) (denying police officer’s motion for summary judgment on the
basis of qualified immunity in suit alleging that the officer violated the Fourth Amendment rights of a
seventy-nine-year-old woman by pushing her off a porch, and citing cases from 1998 and earlier in support
of its finding that “a bystander’s right to be free from an officer’s use of excessive force . . . was clearly
established in . . . 2002 when [the officer] allegedly used excessive force”); see also Kain v. Nesbitt, 156
F.3d 669, 670, 673 (6th Cir. 1998) (reversing grant of summary judgment for police officer on the basis of
qualified immunity because jury should resolve fact question of whether officer was reasonable in grabbing
mother and pushing her against the wall during search for her son).
        In sum, because I believe that Office Noble’s conduct violated Dunigan’s Fourth Amendment right
not to be seized with excessive force and was objectively unreasonable in light of clearly established law,
I respectfully dissent from the majority affirmance of summary judgment in favor of Officer Noble.
