               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0567n.06

                                       Case No. 16-2594

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                             FILED
DERRICK THOMAS,                                    )                    Oct 06, 2017
                                                   )               DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
CITY OF EASTPOINTE,                                )      MICHIGAN
                                                   )
       Defendant,                                  )
                                                   )
MARK BARR,                                         )
                                                   )
       Defendant-Appellant.                        )


       BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. The camera may not lie, but it does not always tell the whole

story. In this case, police dashboard cameras captured an encounter between Derrick Thomas

and Officer Mark Barr. But the grainy footage depicts only some of the story, and the parties

dispute the rest.   When Thomas filed a Section 1983 action alleging that the police used

excessive force, Officer Barr moved for summary judgment on qualified-immunity grounds. The

district court denied Officer Barr’s motion and determined that a reasonable jury could find that

he had violated Thomas’s clearly established constitutional rights. Officer Barr now appeals.
Case No. 16-2594
Thomas v. City of Eastpointe

                                                I.

       It was an ordinary day: Derrick Thomas and his cousin, Antoine Clements, relaxed,

played cards, and watched television with their girlfriends. But sometime after midnight, things

took a turn for the worse. Clements’s girlfriend accused him of being unfaithful, and the two

began to argue. The lovers’ quarrel escalated when Clements stormed out of the house. In

response, his girlfriend tore off her shirt as though “she was ready to fight.” R. 32-6, at 48. And

when Clements returned to the living room, he mistook her rage for infidelity: His topless

girlfriend stood next to his cousin. The argument soon spilled outside.

       Neighbors heard the commotion. And four of them made emergency calls to report the

“crazy fight” in the middle of the street. R. 30, Pg. ID 520, 05-04-2013_04.00.40.8a_-_911-

1_(Voice).WAV, at 00:14–15. Officers Mark Barr and Jeffery Menzer responded to the scene

with their dash cams rolling and spotlights illuminated. As the officers exited their vehicles,

Clements and Thomas were still yelling at one another. The officers believed they had been

fighting. Both officers repeatedly ordered Clements and Thomas to “get on the ground,” but the

men did not comply. Officer Barr says Clements and Thomas “acted like [the officers] weren’t

even there.” R. 32-3, at 15.

       So the officers split up: Officer Menzer walked toward Clements and Officer Barr

toward Thomas. Officer Barr continued to order Thomas to the ground, but Thomas did not

comply. And when Officer Barr was about ten feet away from Thomas, he realized he could not

see Thomas’s hands. Concerned that Thomas might be armed, Officer Barr fired his projectile

taser without warning.

       Thomas collapsed to the ground. He felt some part of Officer Barr’s body collide with

his back and then felt handcuffs on his elbow and wrist. He says the cuffs were painful and that


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Thomas v. City of Eastpointe

he later complained about them to Officer Barr. Officer Barr disputes this account. But the

dash-cam audio reveals that as Thomas sat in the back of Officer Barr’s patrol car, he said

something that sounds like, “Sir, my arms hurt. My arms are tired.” See R. 30, Pg. ID 522, at

4:26:45. Later, Thomas appears to ask, “Can you take these cuffs off? My wrist is bleeding.”

Id. at 4:42:48. One way or another, Thomas was ultimately taken to the hospital and treated for a

fractured elbow.

       Thomas filed suit, alleging that Officer Barr used excessive force in tasing and

handcuffing him. Officer Barr claimed he was entitled to qualified immunity. The district court

disagreed, and Officer Barr now appeals. This court has jurisdiction to review the district court’s

judgment only to the extent that “it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). But to the extent that Officer Barr disputes the facts that Thomas may or may not be

able to prove at trial, and whether those facts were sufficient to survive summary judgment, we

lack jurisdiction. Johnson v. Jones, 515 U.S. 304, 313 (1995).

                                                II.

       In this qualified-immunity case, we have two questions to consider: (1) whether Officer

Barr violated Thomas’s constitutional rights when he tased and handcuffed him; and, if so,

(2) whether those rights were clearly established at the time of Officer Barr’s actions (here, May

2013). Pearson v. Callahan, 555 U.S. 223, 232 (2009). We consider these issues de novo.

O’Malley v. City of Flint, 652 F.3d 662, 667 (6th Cir. 2011). But the facts we may take into

account are limited. We can consider only the facts that were knowable to Officer Barr at the

time of the incident. White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam). And if any of

those facts are disputed, we look first to the dash-cam recording. Rudlaff v. Gillispie, 791 F.3d

638, 639 (6th Cir. 2015). If the recording does not clear things up, we then construe disputed


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Case No. 16-2594
Thomas v. City of Eastpointe

facts in the light most favorable to Thomas, the non-moving party. Scott v. Harris, 550 U.S. 372,

378–80 (2007).

                                             A.

       Before asking whether Officer Barr violated Thomas’s rights, it makes sense to ask

whether those rights were clearly established at the time of the incident. The reason is simple: If

Thomas’s rights were not clearly established, Officer Barr is entitled to qualified immunity. So

we turn first to a “particularized” determination based on the facts at hand. Pauly, 137 S. Ct. at

552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). May an officer tase someone he

reasonably perceives to be ignoring his commands and walking away?

       This circuit—and several others—have drawn the line at the suspect’s “active resistance.”

Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509–10 (6th Cir. 2012) (noting the law in

the Sixth, Eighth, Tenth, and Eleventh Circuits). If the suspect was actively resisting, use of a

taser to subdue him was reasonable. If not, then tasing was unreasonable. Id.; see also Cockrell

v. City of Cincinnati, 468 F. App’x 491, 495–96 (6th Cir. 2012) (collecting cases showing the

active resistance distinction).   We have found active resistance where a suspect physically

struggles with police, threatens or disobeys officers, or refuses to be handcuffed. Cockrell,

468 F. App’x at 495; see, e.g., Hagans, 695 F.3d at 511 (“out of control” suspect that forcefully

resisted arrest); Foos v. City of Delaware, 492 F. App’x 582, 589 (6th Cir. 2012) (suspect

behaved “erratically and irrationally”); Caie v. W. Bloomfield Twp., 485 F. App’x 92, 96–97 (6th

Cir. 2012) (suspect physically resisted handcuffs). But when a suspect is “compliant or ha[s]

stopped resisting,” the law is clearly established that using a taser constitutes excessive force.

Hagans, 695 F.3d at 509; see, e.g., Kijowski v. City of Niles, 372 F. App’x 595, 599–600 (6th

Cir. 2010) (suspect sitting in his truck “not causing any trouble”); Roberts v. Manigold, 240 F.


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Case No. 16-2594
Thomas v. City of Eastpointe

App’x 675, 676 (6th Cir. 2007) (one officer had suspect “completely pinned” while other officer

used taser).

       This case does not fit cleanly into either camp. Officer Barr arrived on the scene to

respond to emergency calls reporting an assault. He did not personally witness any violence.

But following the officers’ arrival, Thomas walked away from the officers without saying a

word. The dash-cam video shows that Officers Barr and Menzer told Thomas to “get on the

ground” several times prior to tasing him. R. 30, Pg. ID 521, 601_Front Camera 00:25–38; see

also id., 494_Front Camera 00:28–40. And though Thomas claims he never heard the officers’

commands, we review only those facts that were “knowable” to Officer Barr at the time of the

incident. Pauly, 137 S. Ct. at 550. Officer Barr’s commands were clearly audible, and Thomas’s

purported inability to hear him was not knowable. So we are left to consider whether, under the

circumstances as they appeared to Officer Barr, clearly established law made it unreasonable for

him to tase Thomas. Graham v. Connor, 490 U.S. 386, 396 (1989) (“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.”).

       On the one hand, Thomas was not verbally or physically aggressive toward Officer Barr.

So this case differs from the active-resistance cases in which we found that tasing the suspect did

not constitute excessive force. On the other hand, the facts indicate that Thomas was not entirely

compliant either: He appeared to ignore police commands to get on the ground and instead

walked away. Thomas’s actions thus fall somewhere in the middle.

       We do not stand in this gray area alone. In Cockrell, this court concluded that nonviolent

flight does not fit neatly into the active-resistance camp. 468 F. App’x at 496–97. One might

argue that Thomas was not fleeing—he was simply walking in a direction opposite the officers.


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Thomas v. City of Eastpointe

But a suspect who ignores an officer’s order to stop and walks away can “reasonably” be

considered to flee, even where the suspect does not run. United States v. Stittiams, 417 F. App’x

530, 535 (6th Cir. 2011); see also United States v. Davis, 331 F. App’x 356, 360 (6th Cir. 2009)

(concluding that a suspect attempted to flee, even though he did not run, because he “pick[ed] up

the pace” and ignored police commands). So even though Thomas’s actions may not look like

flight in the ordinary sense of the word, they constitute “flight” under the law. And this court has

not yet addressed whether tasing a suspect in flight violates his clearly established rights. But

see Goodwin v. City of Painesville, 781 F.3d 314, 326 (6th Cir. 2015) (suggesting that a

command to “get on the ground” would make it clear to a suspect that the officer intended to

apprehend him). This unresolved question provides all the answer that we need: How the law

applied to this set of facts was not “beyond debate” in May 2013. Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011) (holding that officers are entitled to qualified immunity unless “existing

precedent . . . placed the statutory or constitutional question beyond debate”).

       Thomas argues that Officer Barr should have warned him prior to deploying the taser.

But however prudent it may have been for Officer Barr to warn Thomas, no clearly established

law required him to do so. Cf. Cockrell, 468 F. App’x at 498–99 (Cole, C.J., concurring)

(acknowledging that no clearly established law required an officer to warn the suspect prior to

tasing but suggesting that a failure to do so amounts to excessive force). And in the absence of

clearly established law, Officer Barr is entitled to qualified immunity.

       In reaching the opposite conclusion, the district court relied on this circuit’s opinions in

Kent, Goodwin, and Eldridge. That reliance was problematic for two reasons. First, none of

these cases had been decided at the time Officer Barr tased Thomas. Judicial decisions cannot

serve as sources of “clearly established” law before they are written. Pearson, 555 U.S. at 232


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Thomas v. City of Eastpointe

(“[T]he court must decide whether the right at issue was ‘clearly established’ at the time of

defendant’s alleged misconduct.” (emphasis added)). Second, these cases are different from the

present case in important ways. Kent and Goodwin both involved plaintiffs who were tased in

their homes after verbally refusing to comply with officers’ commands. Kent v. Oakland Cty.,

810 F.3d 384, 387–89 (6th Cir. 2016); Goodwin, 781 F.3d at 318–19. And in both, the court

explicitly relied on the heightened protection that the Fourth Amendment accords to the “most

sacred of spaces”: the home.     Kent, 810 F.3d at 394; see Goodwin, 781 F.3d at 326–27.

Moreover, in Kent, the plaintiff had his hands up and his back against the wall when he was

tased, 810 F.3d at 391–92; and in Goodwin, the plaintiff simply refused the officer’s request to

come outside, 781 F.3d at 323–24. Here, the location and Thomas’s behavior distinguish the

facts in crucial ways. Thomas was in public, not at home. See Kyllo v. United States, 533 U.S.

27, 31 (2001) (“‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.’” (quoting

Silverman v. United States, 365 U.S. 505, 511 (1961))); Payton v. New York, 445 U.S. 573, 589–

90 (1980) (distinguishing between privacy protections in the home and in a public place). And

rather than merely refusing the officers’ commands, Thomas appeared to be walking away and

ignoring them.

       Eldridge is also different.   There, the officer tased a visibly “lethargic driver who

clutched his car’s steering wheel and provided unhelpful responses to the officers’ queries.”

Eldridge v. City of Warren, 533 F. App’x 529, 530 (6th Cir. 2013). It turned out that the driver

was diabetic and suffering a hypoglycemic episode. Id. at 531. The court found that tasing the

driver was unreasonable because the suspect’s “noncompliance was not paired with any signs of




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Case No. 16-2594
Thomas v. City of Eastpointe

verbal hostility or physical resistance.” Id. at 535. Not so here: Thomas’s noncompliance with

Officer Barr’s commands was paired with his physical act of walking away.

       The law is not clearly established that an officer cannot tase a suspect who refuses to

comply with a police officer’s commands and walks away. We cannot say then that “every

‘reasonable official would have understood’” that tasing Thomas under these circumstances

would violate his Fourth Amendment rights. Al-Kidd, 563 U.S. at 741 (quoting Anderson, 483

U.S. at 640). Officer Barr is entitled to qualified immunity on this claim.

                                                B.

       After Officer Barr tased Thomas, he handcuffed him.            Thomas says Officer Barr

fractured his elbow in the process and used excessive force in violation of the Fourth

Amendment. See Burchett v. Kiefer, 310 F.3d 937, 944–45 (6th Cir. 2002) (noting that applying

“too tight” handcuffs can constitute excessive force).         Officer Barr disagrees.   But his

disagreement boils down to a dispute with Thomas’s version of the facts. Specifically, Officer

Barr quibbles with four key facts: (1) whether Officer Barr handcuffed Thomas’s elbow;

(2) whether Thomas complained of pain; (3) whether Officer Barr ignored Thomas’s complaints;

and (4) whether Thomas was injured. He claims that the facts were insufficient to survive

summary judgment. But Officer Barr does not offer any legal grounds for reversing the district

court on this claim. And when we review a district court’s denial of qualified immunity on

interlocutory appeal, we lack jurisdiction over such fact-based challenges. Johnson, 515 U.S. at

313; DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609–10 (6th Cir. 2015). We therefore decline to

consider Officer Barr’s appeal of the handcuffing claim.




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Case No. 16-2594
Thomas v. City of Eastpointe

                                              III.


       We REVERSE in part. Officer Barr is entitled to qualified immunity with regard to his

use of the taser. But we DISMISS the remainder of the appeal for lack of jurisdiction.




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