               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0793n.06

                                         No. 10-2392

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


ALAN COLE, JORDAN COLE, VINCENT                        )
COLE,                                                  )
                                                       )
       Plaintiffs-Appellees,                           )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
v.                                                     )       COURT FOR THE EASTERN
                                                       )       DISTRICT OF MICHIGAN
CITY OF DEARBORN, EDWARD                               )
VILLEMAIRE, RICHARD MICHALSKI,                         )                OPINION
RICHARD CONRAD, SERGEANT & OTHER                       )
UNKNOWN DEFENDANTS,                                    )
                                                                           FILED
                                                       )
       Defendants-Appellants.                          )              Nov 28, 2011
                                                                LEONARD GREEN, Clerk



BEFORE:       KEITH, SUTTON, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. In this civil rights action, Plaintiffs-Appellees Alan Cole,

Jordan Cole, and Vincent Cole (“the Coles”) claim that Defendant-Appellant Police Officers

(“Defendants”) used excessive force in apprehending them for questioning regarding an armed

robbery. Defendants appeal the district court’s denial of their motion for summary judgment on

qualified immunity grounds. For the reasons that follow, we REVERSE in part and AFFIRM in part,

and REMAND to the district court for further proceedings in conformity with this opinion.

                                     I. BACKGROUND

       On the evening of March 24, 2007, the Coles drove to Fairlane Town Center Mall (located

in Dearborn, Michigan), accompanied by their brother, Vincent Cole, and friend Antoine Badey, to
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watch a movie at the Star Theater. Vincent Cole wore a white hooded sweatshirt, while Alan Cole

wore a blue jacket. The group was joined by two females, and after seeing a movie they walked

across the street to a TGI Friday’s restaurant. They arrived at the restaurant at approximately 9:55

p.m., but were refused service because some members of their group were under the age of twenty-

one. While the six of them walked from the restaurant back to the Coles’ car, the group was

confronted by the Dearborn Police.

       At 10:05 p.m. on that same day, the City of Dearborn Police Department Dispatch received

a call from Officer Kassim of the Fairlane Town Center Security Police. Officer Kassim was

reporting an armed robbery that allegedly took place in the parking lot of the theater. Officer Kassim

stated that the suspects were four black males, one wearing a white hooded sweater and one wearing

a black jacket. Officer Kassim also stated that one suspect possibly had a gun.

       Officer Kassim told the dispatcher that he was watching the suspects walk through the

parking lot near the mall’s food court on the Fairlane Town Center’s closed-circuit security camera

system. While still on the phone with the dispatcher, Officer Kassim stated that he watched the

suspects meet with two females and continue to walk towards the bus stop located in the Fairlane

Town Center’s parking lot near the Star Theater. Officer Kassim continued to give specific

directions to the dispatcher in order to lead responding Dearborn police officers directly to the

suspects. The Dearborn Police Department’s dispatch services relayed this information to all

Dearborn police cars in the city.

       The first responding officers were Defendant-officers Edward Villemaire and Richard

Michalski. The officers had received information about the armed robbery from the dispatcher on

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their radio. The officers were informed of Officer Kassim’s description of the suspects’ physical

appearance and location. Defendants Villemaire and Michalski ordered the suspects to make their

hands visible and to lie down on the ground, and according to the Coles, they immediately complied.

Defendants claim that the Coles and their companions did not immediately comply, but did so only

after a period of 5–15 seconds, during which the officers issued several more verbal commands. At

that point, the Coles and their companions laid down on the ground while making their hands visible.

However, while the officers were securing the scene, Defendants contend that Vincent Cole began

to slide his hands underneath his chest, stopping only after several additional verbal commands from

the officers. According to the Coles, Vincent was moving his hands over his head in order to remove

his hood, which was covering his head as he lay down. Defendants also state that the Coles and their

companions were not actively resisting and were not physically aggressive.

       Villemaire and Michalski began placing handcuffs on the suspects and frisking them for

weapons as they lay on the ground. Other Dearborn police officers also arrived at the scene and

assisted in this process. At that point, the Coles contend that Jordan Cole was asked where the gun

was, and he purportedly told the officers that none of them had a gun. Alan Cole alleges that as he

lay on his stomach with his chin on the ground, one of the officers stomped on his back and held his

boot on his neck while another officer placed handcuffs on him, which caused a scrape on his chin.

Alan Cole also alleges that one of the officers drove his knee into his back while applying handcuffs,

and that the officer then dragged him to a police car. Jordan Cole alleges that, as he lay on the

ground, an officer stomped on his lower back and left him handcuffed on the ground. Finally,



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Vincent Cole contends that one of the officers deliberately and intentionally stepped on his hand and

ground it into the cement, prompting one of the officers to ask him if he needed a bandage.

       Defendant-Appellant Sergeant Richard Conrad contends that, by the time he arrived to the

scene, the suspects had been handcuffed and separated from one another—some sitting on the

ground in the parking lot, and some sitting in the back seats of police cars. The Coles have not

contested this assertion, and have not identified Sergeant Conrad as one of the individuals who was

on the scene when force was allegedly applied. Upon arriving to the scene, Sergeant Conrad

instructed the officers to search the immediate area for the handgun reportedly involved in the armed

robbery. After no handgun was found, Sergeant Conrad requested that the Fairlane Town Center

Security Police bring the victims of the armed robbery to the scene of the stop in order to determine

whether Plaintiffs were the actual perpetrators of the robbery. The victims told the officers that

Plaintiffs were not the people who had robbed them. The Coles were then released from custody.

The entire stop lasted between fifteen and twenty minutes.

       Shortly after the incident, the Coles returned home and informed their mother, Adrian

Dupree, what had occurred. According to Dupree, she observed that Jordan had a footprint on his

shirt and Alan’s chin was scraped and cut. Dupree also states: (1) Alan’s neck was sore for 1 and

1/2 weeks; (2) Jordan’s back was sore for a few days; and (3) she treated Alan’s and Jordan’s injuries

with ice and moist heat. Both Jordan and Alan Cole allege that they experienced neck and back pain

for a couple of weeks after the incident, and that this caused them to be absent from school and work,

respectively. The Coles further allege that they consulted a doctor for treatment on March 24, 2007.



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However, their medical records indicate that this visit may not have taken place until over two years

after the incident.

        The Coles filed suit under 42 U.S.C. § 1983 for unreasonable search and seizure and

excessive force, and against Defendant City of Dearborn for municipal liability based on its alleged

failure to train and supervise its officers. The district court found that Defendants were entitled to

qualified immunity as to the unreasonable search and seizure claim, and granted summary judgment

as to municipal liability. However, the district court denied summary judgment on the basis of

qualified immunity as to the Coles’ claim of excessive force. Cole v. City of Dearborn, 2010 WL

4260109 *7 (E.D. Mich. Oct. 22, 2010). Defendants appeal the denial of summary judgment on the

basis of qualified immunity.

                                           I. ANALYSIS

        We review the district court’s denial of summary judgment de novo. Harrison v. Ash, 539

F.3d 510, 516 (6th Cir. 2008). Summary judgment is appropriate where there is “no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Defendants bear the burden of showing the absence of a genuine issue of material fact as to

at least one essential element of the Coles’ claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The Coles must then present sufficient evidence from which a jury could reasonably find

in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We then consider

whether, drawing all reasonable inferences in favor of the Coles, Defendants must prevail as a matter

of law. Harrison, 539 F.3d at 516.



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        An order denying summary judgment on the basis of qualified immunity, to the extent it turns

on a question of law, is an immediately appealable collateral order. Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). Conversely, to the extent that the district court’s denial of qualified immunity was

based on a factual dispute, such a denial falls outside the narrow jurisdiction of this Court.

Harrison, 539 F.3d at 516. It follows that our jurisdiction is limited to the question of whether the

evidence, considered in the light most favorable to the Coles, meets the legal standard for

overcoming summary judgment on the basis of qualified immunity.

        In claims of excessive force, we employ a two-step inquiry to decide whether a defendant is

entitled to qualified immunity:1 “[a] defendant is entitled to qualified immunity on summary

judgment unless the evidence, viewed in the light most favorable to the plaintiff, ‘would permit a

reasonable juror to find that (1) the defendant violated a constitutional right; and (2) the right was

clearly established.’”2 Coble v. City of White House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011)

(quoting Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010)).


       1
         We note that, ordinarily, analysis of a qualified immunity claim would entail a third step,
in which the Court would determine whether the plaintiff offered sufficient evidence to indicate that
what the officers allegedly did was objectively unreasonable in light of a clearly established
constitutional right. E.g., Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). However, in an
excessive force case, the Court must decide that defendant’s conduct was objectively unreasonable
in order to find a constitutional violation. This renders the third step redundant. “Thus, qualified
immunity in excessive force cases is a two-step analysis.” Grawey v. Drury, 567 F.3d 302, 309 (6th
Cir. 2009).
       2
        As a result of the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223 (2009),
we are no longer compelled to take up the qualified immunity considerations in the sequence
described here, i.e., considering first whether the facts alleged make out violation of a constitutional
right and then whether that right was clearly established at the time of defendant’s alleged
misconduct. Id. at 242.

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A. Constitutional Violation

        The Fourth Amendment governs law enforcement investigative seizures—even those that

do not result in a prosecution—and protects individuals from excessive force during these

encounters. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006). We review the use of force

for reasonableness, from the perspective of a reasonable law-enforcement officer at the scene.

Saucier v. Katz, 533 U.S. 194, 209 (2001), overruled in part by Pearson, 555 U.S. at 242; Graham

v. Connor, 490 U.S. 386, 396–97 (1989). We also consider the non-exhaustive list of factors

described in Graham, which are (1) the severity of the crime; (2) whether the suspect poses a threat

to the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade

arrest by flight. See id. at 396. This analysis is to be conducted objectively, under the totality of the

circumstances. Graham, 490 U.S. at 397. Finally, our analysis must “allow[] 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.

        We have repeatedly held that “the use of force after a suspect has been incapacitated or

neutralized is excessive as a matter of law.” Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir.

2006) (denying qualified immunity where plaintiff was struck after surrendering to police); see also,

e.g., Shreve v. Jessmine County Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006) (finding it

objectively unreasonable for an officer to strike and jump on a suspect who was already on the

ground and “out of it” due to the officer’s application of pepper spray). The reason for this is self

evident: where a suspect is passive and compliant with police orders, force is unnecessary to

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accomplish the officer’s task, and thus is objectively reasonable. See Phelps v. Coy, 286 F.3d 295,

301 (6th Cir. 2002) (stating that there is “simply no governmental interest in continuing to beat

[plaintiff] after he had been neutralized, nor could any reasonable officer have thought there was”).

       Construing the evidence in the light most favorable to the Coles, the record indicates that by

the time Defendants allegedly applied force against them, the Coles and their companions were

laying passively on the ground. The Coles claim that Defendants applied force against them in the

following ways: (1) stomping on Alan Cole’s back and stepping on his neck, causing scrapes on his

chin; (2) driving a knee into Alan Cole’s back and dragging him to a squad car; (3) stomping on

Jordan Cole’s back; and (4) stepping on Vincent Cole’s hand and grinding it into the ground. These

allegations all come within the protective reach of the Fourth Amendment.

       The factors laid out in Graham also point to a Fourth Amendment violation under these facts.

Although the Coles were believed to have committed an armed robbery, which is a severe crime, the

violent nature of that offense was mitigated by the group’s passive, vulnerable position at the time

that force was allegedly applied. Given the rapidly evolving nature of these events, Defendants may

well have believed the Coles posed a threat because the officers were outnumbered. Defendants,

however, failed to offer any reason why the amount of force allegedly employed here was required

under these particular circumstances. It is not our role to speculate as to what might have prompted

such a show of force. While Defendants do question the severity of the Coles’ injuries, this goes to

the issue of damages rather than the reasonableness of Defendants’ use of force.




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B. Clearly Established

       For a right to be clearly established, its contours “must be sufficiently clear that a reasonable

official would understand what he is doing violates that right.” Saucier, 533 U.S. at 202. As a

general matter, the right to be free from excessive force by law-enforcement personnel is a clearly

established Fourth Amendment right. Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001). The

contours of that general right are dictated “in light of the specific context of the case” based on the

behavior of both the officer and the suspect. Saucier, 533 U.S. at 201.

       Here, the line of demarcation is well defined: once a suspect is passively complying with an

officer’s commands, that suspect has a clearly established right to be free from force beyond what

is necessary to carry out the arrest. E.g., Baker, 471 F.3d at 608. “Cases in this circuit clearly

establish the right of people who pose no safety risk to the police to be free from gratuitous violence

during arrest.” Shreve, 453 F.3d at 688. A reasonable officer would understand that, after

compliance is secured and a threat is no longer posed, force should not be employed. See Baker, 471

F.3d at 608. Under the Coles’ version of the events, Defendants had reason to know at a

particularized level that the conduct they allegedly engaged in during this apprehension violated the

Coles’ Fourth Amendment rights.

       As a general matter, the Coles plead facts that make out a Fourth Amendment violation

because they were allegedly subjected to force after they had passively complied with Defendants’

orders. Thus, a reasonable juror could find that the Coles had a clearly established right to be free

from force at the time that excessive force was allegedly applied to them. We now test the Coles’

claims with regard to each Defendant individually.

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C. Liability of Individual Officers

         Although the district court concluded, as we have, that the Coles have alleged sufficient facts

to overcome qualified immunity on summary judgment, that court neglected to apply its analysis to

each of the officers involved and consider their individual liability. See Binay v. Bettendorf, 601

F.3d 640, 650 (6th Cir. 2010). Accordingly, we now assess each defendant’s liability in turn. “As

a general rule, mere presence at the scene of [the alleged constitutional violation], without a showing

of direct responsibility for the action, will not subject an officer to liability.” Id. (quoting Ghandi

v. Police Dep’t of Detroit, 747 F.2d 338, 352 (6th Cir. 1984)). To hold an individual officer liable

for the use of excessive force, the Coles must show that the officer “(1) actively participated in the

use of excessive force, (2) supervised the officer who used excessive force, or (3) owed the victim

a duty of protection against the use of excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir.

1997).

         1. Officers Villemaire and Michalski

         Officers Villemaire and Michalski were the first responding officers from the Dearborn

Police Department. Taking the facts as the Coles have plead them, the Coles have shown that both

Villemaire and Michalski fit into the first prong of our analysis. Alan Cole alleged that, toward the

beginning of the encounter, one officer was stepping on his neck, and when his brother alerted the

officers that Alan could not breathe, another officer drove his knee into Alan’s back in order to

handcuff him.      Although Alan could not identify which officer engaged in what behavior,

Defendants claim that, at that point, “Villemaire provided cover and Michalski began handcuffing

the suspects as they lay on the ground.” Appellant Br. at 7. This allows the inference that Villemaire

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could have stepped on Alan’s neck while Michalski drove his knee into Alan’s back to handcuff him.

Further, Vincent Cole claims that one of these two officers intentionally stepped on his hand and

ground it into the cement. It can be reasonably inferred that this alleged display of force could have

been committed by either Villemaire or Michalski.

        Construing the facts in the light most favorable to the Coles, it could be inferred that both

the handcuffing officer and the cover officer were directly involved in the excessive force that was

allegedly applied to them. In Binay, we held that plaintiffs had raised a genuine issue of material fact

as to whether a defendant officer—who could not be identified by plaintiffs but was present and

could have been involved in the application of excessive force—was personally involved in the

Fourth Amendment violation. 601 F.3d at 651. Because the evidence indicates that the handcuffing

and cover officers were Villemaire and Michalski, respectively, a reasonable juror could find that

both Villemaire and Michalski were personally involved in the alleged excessive force.

        At a minimum, even if Officer Michalski was only involved in handcuffing and all allegedly

excessive force could be attributed to Officer Villemaire, then Michalski would still have a duty to

intervene to protect the Coles from excessive force under these facts. Generally, a police officer may

be held liable for failure to intervene in the face of excessive force when “(1) the officer observed

or had reason to know that excessive force would be or was being used; and (2) the officer had both

the opportunity and the means to prevent the harm from occurring.” Turner, 119 F.3d at 429 (citing

Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). Here, even if the record provided sufficient

information to differentiate between the actions of the cover officer and the handcuffing officer,

Michalski had reason to know that force was being applied, and had the opportunity and means to

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stop his partner from engaging in further force. Thus, even if Michalski did not actively participate

in the application of force, he at least acquiesced to the alleged force, and is not entitled to summary

judgment.

       2. Sergeant Conrad

       The facts set forth by the Coles lack any allegation that Sergeant Conrad was present at the

time of the alleged application of excessive force. The Coles claim that a number of additional,

unidentified Dearborn Police Department cars arrived to the scene at some point during their stop.

But the Coles do not specify the precise time at which they allege that Conrad arrived. Further, the

Coles do not challenge Sergeant Conrad’s assertion that, by the time he arrived on the scene, all

alleged application of force had concluded. In fact, the Coles’ brief concedes that Conrad arrived

after officers Michalski and Villemaire. The record shows that Conrad did supervise officers

Villemaire and Michalski, but only by (1) ordering a search of the premises for the gun that was used

in the armed robbery; and (2) having the victims of the armed robbery come over and try to identify

the suspects. None of these activities happened during the alleged application of force. Thus,

Conrad was neither personally involved in, nor did he supervise the application of, the alleged

excessive force.

       Once again, in order to be liable for failing to protect the Coles, Sergeant Conrad must have

either observed or had reason to know of the force, and have had the opportunity to intervene.

Turner, 119 F.3d at 429. Here, the facts, even construed in the light most favorable to the Coles,

show neither that Sergeant Conrad knew of the force nor that he had the ability to stop it. It follows

that Conrad cannot be held liable on these facts, and is entitled to summary judgment.

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                                       III. CONCLUSION

       For the foregoing reasons, the decision of the district court is AFFIRMED in part and

REVERSED in part. We REMAND to the district court for further proceedings in conformity with

this opinion.




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