                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0051n.06

                                               No. 16-6202

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


PATTY JELSMA; SHANE JELSMA,                              )                        FILED
                                                         )                   Jan 20, 2017
       Plaintiffs-Appellees,                             )               DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )
                                                         )
KNOX COUNTY, TENN.; J.J. JONES,                          )
Individually and in his official capacity as             )   ON APPEAL FROM THE UNITED
Sheriff of Knox County, Tenn.,                           )   STATES DISTRICT COURT FOR
                                                         )   THE EASTERN DISTRICT OF
       Defendants,                                       )   TENNESSEE
                                                         )
and                                                      )
                                                         )
BRADLEY COX, Individually and in his                     )
official capacity as officer of the Knox County          )
Sheriff’s Department,                                    )
                                                         )
       Defendant-Appellant.                              )


       BEFORE: MERRITT, MOORE, and STRANCH, Circuit Judges.

       PER CURIAM. Officer Bradley Cox brings this interlocutory appeal from the district

court’s order denying him qualified immunity on Patty Jelsma’s excessive force claim filed

under 42 U.S.C. § 1983.

       On July 28, 2013, Officer Cox and another officer responded to a report of a domestic

disturbance at the home of Jelsma’s mother. When the officers arrived, Jelsma came out of the

house and stood next to her vehicle. Officer Cox interviewed Jelsma, who began to record their

interaction with her cell phone. Jelsma asserted that, without provocation, Officer Cox grabbed

her and forced her to the ground, causing severe pain in her arms and wrists and injuries to her
No. 16-6202, Jelsma v. Knox Cty., Tenn.

hip and ankle. Officer Cox charged Jelsma with domestic assault, disorderly conduct, and

resisting arrest. Those charges were later dismissed.

       Jelsma subsequently filed this action asserting § 1983 claims for excessive force and false

arrest and state-law tort claims for reckless infliction of emotional distress and assault and

battery against Officer Cox, as well as § 1983 and state-law tort claims against Sheriff J.J. Jones

and Knox County. Jelsma’s husband brought a loss of consortium claim. After the district court

dismissed Jelsma’s claims against Sheriff Jones, Officer Cox and Knox County filed a motion

for summary judgment. Granting the motion in part, the district court concluded that Officer

Cox was entitled to qualified immunity on Jelsma’s false arrest claim.           The district court

otherwise denied the motion, determining in relevant part that a triable issue of fact existed as to

whether Officer Cox used excessive force in arresting and handcuffing Jelsma and that he was

not entitled to qualified immunity on her excessive force claim. This interlocutory appeal

followed.

       “A denial of a claim of qualified immunity is immediately appealable only if the appeal is

premised not on a factual dispute, but rather on ‘neat abstract issues of law.’” Phillips v. Roane

Cty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)).

“Accordingly, a defendant must essentially ‘concede the most favorable view of the facts to the

plaintiff for purposes of the appeal,’ and limit his argument to questions of law premised on facts

taken in the light most favorable to the plaintiff.” Id. (quoting Berryman v. Rieger, 150 F.3d

561, 563 (6th Cir. 1998)). To the extent that a defendant’s arguments regarding qualified

immunity “rely exclusively on a disputed version of the facts, this court does not have

jurisdiction to consider [the] appeal.” McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th

Cir. 2006).



                                               -2-
No. 16-6202, Jelsma v. Knox Cty., Tenn.

       On appeal, Officer Cox argues that Jelsma’s cell phone video contradicts her assertion

that he used force without provocation. Officer Cox contends that the video establishes that

Jelsma was not complying with his lawful orders to produce identification and that she turned

away from him after placing her cell phone near his chest. According to Officer Cox, Jelsma’s

conduct in turning away from him and toward her vehicle could be interpreted by a reasonable

police officer as an effort to leave the scene, to prevent or obstruct his investigation, or to

retrieve a weapon. However, the video does not conclusively show that Jelsma turned away

from Officer Cox and toward her vehicle. The video, after focusing on Officer Cox’s name tag

on his chest, shows Officer Cox stepping toward the camera.            The video moves, shakily

recording the ground and a vehicle, and eventually goes dark. The video shows that the camera

turned toward the vehicle; it does not necessarily establish that Jelsma turned away from Officer

Cox and toward her car.1      To the extent that Officer Cox’s first argument hinges on our

acceptance of his version of the facts, we lack jurisdiction over his appeal. See id. at 561–62.

       Even under Jelsma’s version of the facts, Officer Cox argues that he is entitled to

qualified immunity because he did not violate any “clearly established” right. See Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011). Jelsma claims that Officer Cox violated her right to be free

from excessive force during her arrest when he forced her to the ground “without any

provocation.” The district court correctly held that a reasonable officer would have been “on

notice” that such an act amounted to a constitutional violation. This court has repeatedly

acknowledged that “people who pose no safety risk to the police [have a right] to be free from


1
  In a footnote addressing Jelsma’s false arrest claim, the district court found that Officer Cox
had probable cause to arrest Jelsma for resisting arrest, stating: “When viewing the evidence in
the light most favorable to plaintiff, Officer Cox still had reasonable grounds to believe that
plaintiff, in turning toward her vehicle when Officer Cox moved toward her, was attempting to
prevent him from arresting her.” Again, the video does not conclusively show that Jelsma turned
toward her vehicle.
                                               -3-
No. 16-6202, Jelsma v. Knox Cty., Tenn.

gratuitous violence during arrest” absent extenuating circumstances. Shreve v. Jessamine Cty.

Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006); see also Harris v. City of Circleville, 583 F.3d

356, 367 (6th Cir. 2009) (“Under this circuit's existing case law, there undoubtedly is a clearly

established legal norm precluding the use of violent physical force against a criminal suspect

who already has been subdued and does not present a danger to himself or others.”); Solomon v.

Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir. 2004); Burchett v. Kiefer, 310 F.3d 937,

946 (6th Cir. 2002) (“We have long recognized, for instance, that the Fourth Amendment permits

detention using only ‘the least intrusive means reasonably available.’” (quoting United States v.

Sanders, 719 F.2d 882, 887 (6th Cir. 1983)). Since we are reviewing denial of a motion for

summary judgment, we assume the truth of Jelsma’s allegation that Officer Cox acted without

provocation. See Phillips, 534 F.3d at 538. Accordingly, we reject Officer Cox’s argument and

hold that his actions—as alleged by Jelsma—were contrary to clearly established law at the time

of the arrest.

        For these reasons, we AFFIRM the district court’s order denying Officer Cox’s motion

for summary judgment on Jelsma’s § 1983 claim for excessive force.




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