                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                       File Name: 16a0328n.06

                                            Case No. 14-4066

                            UNITED STATES COURT OF APPEALS
                                                                                                FILED
                                                                                         Jun 16, 2016
                                 FOR THE SIXTH CIRCUIT
                                                                                     DEBORAH S. HUNT, Clerk
 SANDRA WILLIAMS,                                         )
                                                          )
        Plaintiff-Appellee,                               )
                                                          )
                  v.                                      )     ON APPEAL FROM THE
                                                          )     UNITED STATES DISTRICT
 JON MORGAN,                                              )     COURT FOR THE NORTHERN
                                                          )     DISTRICT OF OHIO
        Defendant-Appellant.                              )
                                                          )

Before: BATCHELDER and STRANCH, Circuit Judges; and HOOD, District Judge.*

        ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from a denial

of a motion for summary judgment, the defendant police officer, Jon Morgan, argues that the

plaintiff’s evidence did not create a genuine dispute of material fact so as to overcome his

assertion of qualified immunity. We establish our appellate jurisdiction and AFFIRM.

                                                     I.

        The defendant-appellant in this appeal, Officer Jon Morgan, is an Akron (Ohio) Police

Officer, assigned as the School Resource Officer (SRO) at the Jennings Community Learning

Center (CLC), a public middle school. The plaintiff-appellee, Sandra Williams, is the mother of

a female minor, T.W., who claims that Officer Morgan used excessive force when physically

restraining and bodily seizing T.W. in response to T.W.’s misbehavior at the school. At the time

of the incident, October 26, 2012, T.W. was a 13-year-old, eighth grade student, who had just

transferred to Jennings CLC the day before, due to disciplinary problems at her prior school.

Officer Morgan had been an SRO at the Jennings CLC since 2010. Two additional facts bear
        *
           The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 14-4066
Sandra Williams v. Jon Morgan

mention: (1) during this incident, Officer Morgan broke T.W.’s arm; and (2) much of the

incident was captured by video surveillance, albeit without sound, and that video was properly

before the district court and is before us here. This appeal concerns Officer Morgan’s claim of

qualified immunity in response to T.W.’s accusations of unlawful use of excessive force.

        On the morning of Friday, October 26, 2012, T.W. and a classmate got into an argument

sufficiently serious that their teacher sent them both to the principal’s office. The principal met

with each of them and suspended T.W. from school for five days, but did not discipline the other

student. T.W. was admittedly upset, apparently enraged, by this outcome and, after leaving the

principal’s office, tore several paper posters from the school’s walls.           Officer Morgan

characterized this tantrum as having “crossed the line to criminal disorderly conduct” and later

that day confronted T.W. in a school stairwell. Deciding that T.W. was being defiant (by putting

one foot behind her and her hands on her hips), Officer Morgan decided to seize her physically

by pushing her up against the hallway lockers, bending her left arm behind her back, and

eventually compelling her submission via this restraint. According to T.W., during this time,

Officer Morgan was making threatening comments, whereas T.W. was pleading to be let go due

to the pain in her arm. Eventually, still holding her by that arm, Officer Morgan escorted her to

the principal’s office. According to T.W., while they were waiting in the principal’s office,

Officer Morgan continued to hold her by that arm and to threaten her verbally.

        The video captured the activity in the hallway, and though it lacks sound, the picture is

reasonably clear. The stationary camera is affixed near the ceiling, recording the length of a

hallway with lockers along the left and barren wall along the right, both interrupted by the

occasional doorway or hallway. The video time stamp depicts the recording as beginning at

12:16 p.m., which appears to coincide with a class change as there are numerous students

walking up or down the hallway (toward or away from the camera). Immediately to the right of

                                                2
No. 14-4066
Sandra Williams v. Jon Morgan

the camera, mostly out of view, is a doorway which apparently opens to the stairwell where the

confrontation began. Before T.W. and Officer Morgan enter the view, the stream of students

entering this doorway can be seen pausing and gawking, though they all continue on their way.

        About 15 seconds into the video, T.W. and Officer Morgan enter the picture from this

doorway (right side of the frame), as T.W. retreats backward and Officer Morgan pursues with

his hands either on or reaching for her neck or upper chest. Officer Morgan is wearing a police

uniform, including firearm, and he is significantly larger than T.W. As T.W. retreats into the

middle of the hall (center of the frame) apparently attempting to fend off his hands with her own,

Officer Morgan gets his hands on her enough to push her sharply against the lockers on the far

side of the hall (left side of the frame). As she bounces off the lockers, he takes hold of her and

turns her face-first into the lockers, leaning his weight against her and then taking hold of her left

arm and bending it behind her back. Students continue to walk past and gawk, but none stop.

        At this point, about 24 seconds into the recording, as Officer Morgan has T.W.’s left arm

bent severely behind her back, both of her feet come up off the floor. T.W. is squirming for

relief while Officer Morgan is leaning in with his face and mouth close to her ear and appears to

be talking to her. For the next 15 seconds, Officer Morgan holds her there, her face against the

lockers and left arm pinned behind her, apparently talking in her ear. Then he begins to walk her

roughly down the hall (away from the camera), still holding her arm behind her as she squirms.

        Officer Morgan directs her into the first doorway on the left, presumably the principal’s

office, and stands in that doorway for the next 60 seconds. He disappears fully into the doorway

for about 45 seconds and reemerges without T.W. The video concludes with Officer Morgan

walking up the hallway, toward the camera, until eventually passing beneath the camera.

        T.W.’s sister took T.W. to the hospital a short time later where a doctor diagnosed her as

having a broken arm (proximal humerus fracture). T.W. claims that Officer Morgan broke her

                                                  3
No. 14-4066
Sandra Williams v. Jon Morgan

arm when he applied such force that he physically lifted her off of the ground. Ultimately,

Officer Morgan did not actually arrest T.W. nor were criminal charges ever filed against her.

        In March 2013, Sandra Williams, as T.W.’s Next Friend, filed suit in federal court,

pursuant to 42 U.S.C. § 1983, claiming that Officer Morgan used excessive force during his

physical seizure, restraint, and manipulation of T.W.1                 Specifically, T.W. accused Officer

Morgan of needlessly accosting T.W. physically (ultimately breaking her arm) when she had

offered no resistance, was not fleeing, and posed no threat to him or anyone else on the scene.

Officer Morgan moved for summary judgment on grounds of qualified immunity, asserting that

his use of force was appropriate under the circumstances, not excessive, because the technique he

used was a low-level force, compliance tactic taught by the Akron Police Department.

        The district court denied the motion based on its assessment of the record and its

identification of genuine disputes of material fact for determination by a jury, concluding:

               Under the facts as viewed in a light most favorable to T.W., the [c]ourt
        cannot find that Morgan’s conduct, as a matter of law, falls into this ‘hazy border’
        [between excessive and acceptable force]. Herein, Morgan was confronted in a
        school setting with an unruly student—a situation handled by teachers on a
        routine basis without the use of any force. At the time of their encounter, T.W.
        posed no threat to the safety of Morgan or any other students. Accordingly, a
        reasonable jury could conclude that Morgan did not use reasonable force to bring
        T.W. under control. First, Morgan did not simply use an arm-bar to restrain T.W.
        He forced T.W. up against a stationary object—the metal lockers—to add to the
        force used. Moreover, given the huge massive size discrepancy [of Morgan over
        T.W.], Morgan physically lifted T.W. off the ground using the arm bar. This
        conduct, it would appear from the record, resulted in breaking T.W.’s arm.
                Moreover, there appears to exist a genuine issue of fact surrounding the
        immediate aftermath of the arm-bar. T.W. claims that she immediately asked
        Morgan to let go of her arm following the initial interaction because of the
        amount of pain she was in. Morgan, however, maintained his grip on T.W.’s arm
        and in fact directed her down the school hallway using that grip. Under those
        facts, a reasonable jury could conclude that such continued force was also

        1
            She also raised other claims against other defendants, which caused those defendants to move for
summary judgment on separate bases and the district court to rule on those motions. None of those claims, motions,
or rulings is before us in this interlocutory appeal and, therefore, we have omitted substantive reference to them.


                                                        4
No. 14-4066
Sandra Williams v. Jon Morgan

        gratuitous. Accordingly, the [c]ourt declines to afford Morgan qualified
        immunity for his conduct.

Williams v. Nice, 58 F. Supp. 3d 833, 838 (N.D. Ohio 2014) (emphasis in original).

        Officer Morgan filed this interlocutory appeal.

                                                 II.

        Officer Morgan argues that he is entitled to qualified immunity. Specifically, he presses

four arguments in this appeal: (1) the district court improperly determined the facts and drew

improper inferences; (2) on the proper facts and inferences, the force he used was not excessive;

(3) the prohibition against such force was not clearly established; and (4) he is also entitled to

qualified immunity under state law. Because the district court based its denial of qualified

immunity on its determination that genuine disputes of material fact necessitated submission to a

jury and because Officer Morgan challenges that determination, his challenge invokes a question

concerning our jurisdiction. Thus we must first establish that we have appellate jurisdiction;

then we must determine the extent or limitations of that jurisdiction; and only then may we

exercise that jurisdiction to decide the merits of the argument that is properly before us.

                                                 A.

        Qualified immunity shields government officials in the performance of discretionary

functions from standing trial for civil liability unless their actions violate clearly established

rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff who brings a § 1983 action

against such an official bears the burden of overcoming the qualified immunity defense. Quigley

v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013). At the summary judgment stage, the

plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was

clearly established. Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient




                                                  5
No. 14-4066
Sandra Williams v. Jon Morgan

evidence to create a “genuine issue of fact,” that is, “evidence on which [a] jury could reasonably

find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986).

        If the district court determines that the plaintiff’s evidence would reasonably support a

jury’s finding that the defendant violated a clearly established right, it must deny summary

judgment. DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). The denial of

summary judgment is ordinarily not a final decision within the meaning of 28 U.S.C. § 1291 and

is not immediately appealable. But the “denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of [] § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

        Thus, we may decide an appeal challenging the district court’s legal determination that

the defendant’s actions violated a constitutional right or that the right was clearly established. Id.

We may also decide an appeal challenging a legal aspect of the district court’s factual

determinations, such as whether the district court properly assessed the incontrovertible record

evidence. See Plumhoff v. Rickard, 572 U.S. --, 134 S. Ct. 2012, 2019 (2014); Roberson v.

Torres, 770 F.3d 398, 402 (6th Cir. 2014). And we may decide, as a legal question, an appeal

challenging the district court’s factual determination insofar as the challenge contests that

determination as “blatantly contradicted by the record, so that no reasonable jury could believe

it.” Scott v. Harris, 550 U.S. 372, 380 (2007); Plumhoff, 134 S. Ct. at 2020.

        We may not, however, decide an appeal challenging the district court’s determination of

“‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.”

Johnson v. Jones, 515 U.S. 304, 313 (1995). Because such a challenge is purely fact-based,

lacking any issue of law, it “does not present a legal question in the sense in which the term was

used in Mitchell,” Plumhoff, 134 S. Ct. at 2019, and is therefore not an appealable “final

decision” within the meaning of 28 U.S.C. § 1291.            These types of prohibited fact-based

                                                  6
No. 14-4066
Sandra Williams v. Jon Morgan

(“evidence sufficiency”) appeals challenge only the plaintiff’s allegations (and the district court’s

acceptance) of “what [actually] occurred[] or why an action was taken or omitted,” Ortiz v.

Jordan, 562 U.S. 180, 190 (2011), who did it, Johnson, 515 U.S. at 307, or “nothing more than

whether the evidence could support a [jury’s] finding that particular conduct occurred,” Behrens

v. Pelletier, 516 U.S. 299, 313 (1996). We have also explained that the defendant-appellant may

not challenge the inferences the district court draws from those facts, as that too is a prohibited

fact-based appeal. See Romo v. Largen, 723 F.3d 670, 673-74 (6th Cir. 2013).

        In the event that legal and factual challenges are confused or entwined, “we must separate

an appealed order’s reviewable determination (that a given set of facts violates clearly

established law) from its unreviewable determination (that an issue of fact is ‘genuine’).”

Roberson, 770 F.3d at 402 (citing Johnson, 515 U.S. at 319) (quotation marks omitted).

Similarly, we can separate an appellant’s reviewable challenges from its unreviewable. DiLuzio,

796 F.3d at 610. That is, we can “ignore the defendant’s attempts to dispute the facts and

nonetheless resolve the legal issue, obviating the need to dismiss the entire appeal for lack of

jurisdiction.” Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005).

        When we accept the district court’s factual determinations and rely on the plaintiff’s

record evidence for the purpose of deciding the interlocutory appeal, we do not ourselves make

any findings of fact or declare any inferences for purposes of any subsequent proceedings.

DiLuzio, 796 F.3d at 611; see also Nelson v. Shuffman, 603 F.3d 439, 448 (8th Cir. 2010)

(“Whether [the plaintiff] is ultimately able to prove the alleged factual bases for his claims is a

matter left for the finder of fact [on remand]—not the appellate court on interlocutory appeal.”).

                                                 B.

        Officer Morgan’s first argument is that the district court misconstrued the evidence and

drew improper inferences. He challenges the sufficiency of the plaintiff’s evidence to prove her

                                                 7
No. 14-4066
Sandra Williams v. Jon Morgan

claims, the district court’s assessment of the events depicted in the video recording, and the

inferences the district court drew from the evidence. Thus, as just explained, because we have

no appellate jurisdiction over purely factual (evidence sufficiency) disputes, we must begin by

separating his reviewable challenges from his unreviewable. See DiLuzio, 796 F.3d at 610.

                                                1.

        At her deposition, T.W. testified to her version of events. According to T.W., after the

principal issued her a suspension, she waited in his office until the end of that class period and

then proceeded to her next class on her understanding that she would finish the school day and

begin the suspension the next day. R. 30-3 at 37-38; PageID # 592-93. Sometime later, but

while class was in session and the hallways were otherwise empty, the principal located her and

told her to return to his office to get her paperwork, at which point she ripped the posters from

the wall, while still in the presence of the principal. R. 30-3 at 40-41; PageID # 595-96. She

went to her locker and retrieved her cell phone, went downstairs to the main office and called her

sister to pick her up, and then headed back upstairs to get the paperwork from the principal. R.

30-3 at 41-44; PageID # 596-99. At that point, she encountered Officer Morgan in the stairwell:

        T.W. He looked at me, I looked at him. He asked me what I was looking at. I
             said I’m looking at you. Then he was like, I was trying to ignore you.
             Then he was like - - he just grabbed me and threw me into the lockers.

R. 30-3 at 46; PageID # 601. Upon some clarification and further questioning, she reiterated:

        T.W. Like he grabbed me, like up here (indicating), and he like grabbed me by
             the arm and then like threw me against the locker. And then the bell had
             rung, people was coming out, and then I was just telling him like please let
             go of my arm, my arm is hurting. My arm cracked. I heard it pop.

R. 30-3 at 48; PageID # 603.

        Q.      . . . did you turn into Officer Morgan and chest bump him?
        T.W. No, I didn’t chest bump him or nothing.

R. 30-3 at 48-49; PageID # 603-04.

                                                8
No. 14-4066
Sandra Williams v. Jon Morgan

        Q.      . . . when Officer Morgan had you, I’ll say restrained up against the
                lockers, did you say anything to Officer Morgan at that point?
        T.W. No, I was just like can you let go of my arm, my arm hurts. He still
             having it. He said when I heard you was here I told you I was going to
             jack your ass up.
        Q.      Again, are those the exact words you remember him saying?
        T.W. He whispered in, I told you I was going to jack your ass up.
        Q.      Did you say anything in response to that?
        T.W. I was just like, can you let go of my arm? My arm aching, like it hurt.

R. 30-3 at 50; PageID # 605. To summarize, according to T.W., as she was innocuously making

her way back to the principal’s office, as instructed, Officer Morgan needlessly confronted her

and, even though she offered no resistance, was not fleeing, and posed no threat to anyone at that

point, he grabbed her physically, slammed her into the lockers, and broke her arm. Furthermore,

as she pled for relief due to the pain in her arm, Officer Morgan continued the pressure on her

arm and whispered menacing comments into her ear. All this, she claims, was excessive.

        The district court, properly considering the evidence in the light most favorable to T.W.,

drew certain inferences in reaching its conclusion that genuine disputes of material fact

warranted consideration and determination by a jury. These were inferences such as: on whole,

this was merely an unruly student in a school setting (a commonplace occurrence that teachers

handle routinely, without the use of any force); at this moment, T.W. posed no safety threat to

Officer Morgan or any other students; and Officer Morgan did more than just restrain T.W. with

an “arm-bar,” he forced her up against the lockers to add to the force and used his “massive” size

advantage to physically lift her off the ground by the arm, which apparently broke her arm. The

district court also recognized that Officer Morgan refused to let her go, despite her pleading, and

instead escorted her using that continued pressure, which a jury could deem gratuitous.

        Officer Morgan would have us reject T.W.’s evidence and the district court’s inferences

and undertake a plenary review of the record, using his preferred view of the facts. According to

                                                9
No. 14-4066
Sandra Williams v. Jon Morgan

Officer Morgan’s version of events, his intervention with T.W. was necessary, proper, and

justified. In his brief, he offers five factual allegations in support of this argument:

        (1)     “the teachers and administrators had attempted to ‘handle’ the situation
                prior to Officer Morgan’s involvement, and their efforts seemingly failed”;
        (2)     “T.W. had truly committed criminal offenses (criminal damaging and
                disorderly conduct)”;
        (3)     “T.W. displayed no signs of calming her defiant and aggressive behavior”;
        (4)     “use of a control hold on an aggressive person, who breaches the officer’s
                reactionary gap, is proper” and “immobilizing the aggressor against a
                stationary object [such as the hallway lockers] for stabilization purposes,
                is also proper”; and
        (5)     “There is no direct evidence that T.W. did not pose a threat to other
                students with her defiant and hostile behavior.”

Apt. Br. at 19-21. More to the point, Officer Morgan insists that the district court misconstrued

the evidence and erred by drawing the opposite inference on each of these assertions.

        While we are certainly skeptical about the truth of Officer Morgan’s assertions, our

assessment of the evidence at this point is irrelevant. Simply put, this is exactly the type of

factual dispute for which we have no interlocutory appellate jurisdiction.           See, e.g., Ortiz,

562 U.S. at 190; Johnson, 515 U.S. at 307; Romo, 723 F.3d at 673-74; DiLuzio, 796 F.3d at 611.

                                                  2.

        Alternatively, Officer Morgan argues that the district court misconstrued the events

depicted in the video, such that its determination was “blatantly contradicted by the record, so

that no reasonable jury could believe it,” see Scott, 550 U.S. at 380. As we have explained,

whether the district court properly assessed incontrovertible record evidence is a legal challenge

over which we have appellate jurisdiction on interlocutory appeal. Plumhoff, 134 S. Ct. at 2019.

        In his appellate brief, Officer Morgan makes five specific factual allegations, based on

his interpretation of the video recording, which he offers as support for this argument:




                                                  10
No. 14-4066
Sandra Williams v. Jon Morgan

        (1)     “the video depicts T.W. ratcheting up her defiant behavior by grabbing at
                Officer Morgan and completely disregarding Officer Morgan’s
                authoritative posture”;
        (2)     “the video depicts T.W. well within Officer Morgan’s reactionary gap and
                grabbing at his arm”;
        (3)     “the video clearly depicts T.W. as defiant and uncooperative to police
                authority, i.e., reaching toward Officer Morgan and kicking her feet”;
        (4)     “There is no reasonable dispute that T.W. was uncooperative based on the
                school surveillance video”; and
        (5)     “the video clearly depicts T.W. displaying confrontational behavior.”

Apt. Br. at 24-28 (emphases omitted). We described this video fully at the outset of this opinion.

In the video, Officer Morgan is the clear aggressor; he pursues T.W. into the hallway, reaching

for her neck or upper chest; when he catches her, he pushes her sharply against the lockers,

physically turns her body towards the lockers, bends her left arm behind her back, and leans in

close, apparently pressing his body against hers and speaking into her ear. He is significantly

larger than T.W. and either lifts her or holds her off the floor by that arm, as both of her feet are

off the floor while he holds her by the arm, which is bent severely behind her back. While T.W.

does appear to squirm or writhe in response to the pressure on, and likely pain in, her arm, she

does not necessarily appear defiant, uncooperative, or confrontational. She appears scared and

wounded. Early in the video, as Officer Morgan attempts to grab her by the throat or upper

chest, T.W. does attempt to fend off his hands as she retreats from him into the hallway, but such

an instinctive defensive response does not, at least in this video, demonstrate a need for physical

restraint. At no point does T.W. appear to be grabbing or kicking at Officer Morgan.

        Given our review of the incontrovertible video recording evidence, we cannot say that the

district court’s determination or inferences were “blatantly contradicted by the record, so that no

reasonable jury could believe it,” see Scott, 550 U.S. at 380. Thus we reject this portion of the

appeal and affirm the district court’s determination. See Plumhoff, 134 S. Ct. at 2019.



                                                 11
No. 14-4066
Sandra Williams v. Jon Morgan

                                                  3.

        One final aspect of this factual dispute bears mention, as it is the predicate for Officer

Morgan’s principal theory of qualified immunity, which is that “Officer Morgan’s control hold

tactic is considered low level force . . . consistent with the defensive tactics training of the Akron

Police Department,” Apt. Br. at 8 (citations omitted), and “[a] single, brief and limited act of

placing T.W., an uncooperative minor, against the lockers (or any stationary object) for control

purposes does not rise to the level of an unreasonable use of force,” Apt. Br. at 25. That being a

true statement, standing on its own, we are compelled to point out two qualifiers.

        First, the mere fact that this particular hold, when executed properly, is considered low-

level force and is a recommended tactic, is meaningless in a circumstance of misuse or

misapplication, as is alleged here. For example, a handshake, in and of itself, can hardly be

considered force at all, let alone excessive force; but if the larger, stronger participant were to

squeeze so hard or twist so far as to break the other’s bones, we would not hold as a matter of

law that the force was not excessive just because the interaction was “merely a handshake.” Nor

could we reasonably conclude that the prohibition against such bone-crushing force was not

clearly established because the case law is devoid of cases specifically forbidding handshakes.

See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that “officials can still be on

notice that their conduct violates established law even in novel factual circumstances”). This

argument, premised as it is on faulty or omitted facts, is as irrelevant as it is misguided.

        And that leads to the second qualifier: this argument relies entirely on facts that

contradict the plaintiff’s proffered evidence, the incontrovertible video recording, and the district

court’s determinations and inferences. Consequently, we must reject or ignore this argument.




                                                  12
No. 14-4066
Sandra Williams v. Jon Morgan

                                                  C.

        Officer Morgan next argues that, when considered in light of the proper facts and

inferences, the force he used was not excessive.          And, as explained, we may discard the

appellant’s fact-based or “evidence sufficiency” challenges and exercise the jurisdiction we do

have to reconsider the district court’s legal determinations, based on the plaintiffs’ version of the

facts and the inferences as articulated by the district court. See DiLuzio, 796 F.3d at 610.

        “It is axiomatic that individuals have a constitutional right not to be subjected to

excessive force during . . . [a police] ‘seizure’ of his [or her] person.” Chappell v. City of

Cleveland, 585 F.3d 901, 908 (6th Cir. 2009); Graham v. Connor, 490 U.S. 386, 388 (1989). In

measuring “excessiveness,” we ask whether the officer’s conduct was “objectively reasonable”

under the circumstances, considering the severity of the underlying crime, whether the suspect

posed an immediate threat to the safety of the officers or others, or whether the suspect was

actively resisting arrest or attempting to evade arrest by flight. Id.

        Here, according to T.W.’s version of the evidence, the irrefutable video recording

evidence, and the district court’s findings and inferences, Officer Morgan needlessly instigated

an altercation with this 13-year old girl, first verbally and then physically. Using his size

advantage and compliance-hold training, he aggressively pursued, seized, and manipulated her to

the point that he broke her arm. He then maintained this physical restraint and pressure on her

broken arm, despite her pleas for relief, all the while threatening or menacing her verbally.

        The underlying “crime” in this case was that T.W. tore some paper posters off the school

hallway wall, which the district court characterized as merely a temper tantrum or unruly student

behavior. Despite Officer Morgan’s contention that was a serious crime (criminal damaging and

disorderly conduct), we are doubtful that a court would convict her of such charges, a prosecutor

would pursue such charges, or a reasonable police officer would arrest her on such charges. In

                                                  13
No. 14-4066
Sandra Williams v. Jon Morgan

fact, Officer Morgan did not actually arrest her here, nor did the Jennings CLC administration

pursue any school discipline, let alone any criminal complaint.

        Under these facts, a jury could conclude that Officer Morgan’s conduct was not

objectively reasonable and the force he used on T.W. was excessive, in violation of her

constitutional right to be free of such force. His claim of qualified immunity must fail.

                                                  D.

        Officer Morgan also argues that the prohibition against this force was not clearly

established. That is, under the facts established for purposes of this appeal, Officer Morgan is

contending that he had no forewarning that it would be improper for him to accost a 13-year old

girl, without provocation or resistance, use his size advantage to place her physically against a

wall; verbally menace or threaten her while he twisted her arm behind her back and lifted her off

the floor until he broke that arm; and then maintain pressure on that broken arm, despite her

pleas for relief, as he forced her down the hall to the principal’s office with further verbal threats.

        We disagree. This was clearly established. See Norton v. Stille, 526 F. App’x 509, 513-

14 (6th Cir. 2013) (holding that the prohibition against gratuitous force was clearly established as

of October 2010). But, even lacking a specific case on point, we conclude that this conduct, as

alleged, was so gratuitous that Officer Morgan was nonetheless “on notice that [this] conduct

violate[d] established law even in novel factual circumstances.” See Hope, 536 U.S. at 741.

        Officer Morgan is not entitled to qualified immunity on this basis.

                                                  E.

        Finally, Officer Morgan argues that he is also entitled to qualified immunity under state

law on the assault charge, for the same reasons that he is entitled to qualified immunity under

federal law. Specifically, in his brief, he offers this pithy argument, without elaboration: “As




                                                  14
No. 14-4066
Sandra Williams v. Jon Morgan

Officer Morgan is entitled to qualified immunity on Williams’ excessive force claim, he is

likewise entitled to qualified immunity on the assault claim under state law.” Apt. Br. at 38.

        Given our holding that Officer Morgan is not entitled to qualified immunity on the

excessive force claim, this argument necessarily fails for lack of a valid premise. We reject this

challenge and affirm the district court’s judgment on this particular claim.

                                                III.

        We AFFIRM the judgment of the district court denying qualified immunity.




                                                15
No. 14-4066
Sandra Williams v. Jon Morgan

        STRANCH, Circuit Judge, concurring in the judgment. I agree with much of the

reasoning and the outcome of the majority opinion. I write separately to address how we have

jurisdiction over this case in light of the final judgment rule, reflected in 28 U.S.C. § 1291, and

its function of protecting the role of trial courts and the efficiency of the appellate system.

Specifically, my point concerns our jurisdiction over interlocutory appeals from denials of

qualified immunity that involve factual disputes.

        We have long recognized that we have jurisdiction to review neat legal questions on

interlocutory appeal. In Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005),

we explained that if “aside from [any] impermissible arguments regarding disputes of fact, [a]

defendant [appealing a qualified immunity denial] also raises the purely legal question of

whether the facts alleged . . . support a claim of violation of clearly established law, then there is

an issue over which this court has jurisdiction.” Id. (quoting Berryman v. Rieger, 150 F.3d 561,

562 (6th Cir. 1998)). But there we also noted another limited area of jurisdiction. Relying on

our precedent in two prior cases—Phelps v. Coy, 286 F.3d 295 (6th Cir. 2002), and Beard v.

Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005)—Estate of Carter noted that “this

court can ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal

issue, obviating the need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter,

408 F.3d at 310 (citing Phelps, 286 F.3d at 298–99; Beard, 402 F.3d at 602 n.5). Phelps and

Beard provide both the authority for and the parameters governing this proposition. Phelps

explains that we have jurisdiction to disregard defendants’ attempts to dispute plaintiffs’ facts

only in cases where “the legal issues are discrete from the factual disputes[.]” 286 F.3d at 298.

Beard holds that interlocutory jurisdiction over appeals from denials of qualified immunity

involving disputed facts only exists where “some minor factual issues are in dispute” and “it

does not appear that the resolution of [such] factual issues is needed to resolve the legal issues”

                                                 16
No. 14-4066
Sandra Williams v. Jon Morgan

also presented. 402 F.3d at 602 n.5; see also Claybrook v. Birchwell, 274 F.3d 1098, 1103 (6th

Cir. 2001).    If, on the other hand, disputed factual issues are “crucial to” a defendant’s

interlocutory qualified immunity appeal, we remain “obliged to dismiss it for lack of

jurisdiction.” Phelps, 286 F.3d at 298; see also McKenna v. City of Royal Oak, 469 F.3d 559,

561 (6th Cir. 2006). It is clear in the instant case that Officer Morgan disputes factual issues that

are crucial to his interlocutory appeal, therefore we do not have jurisdiction over this case under

the line of cases including Phelps, Beard, Estate of Carter, and McKenna.

        There is another limited exception to the final judgment rule, however, that is present in

this case. We have recognized that the Supreme Court’s opinion in Scott v. Harris, 550 U.S. 372

(2007), created a narrow exception to the jurisdictional limitations on interlocutory appeals,

allowing courts of appeal to assert interlocutory jurisdiction in qualified immunity appeals where

a defendant claims that a “trial court’s determination that a fact is subject to reasonable dispute is

blatantly and demonstrably false[.]” Moldowan v. City of Warren, 578 F.3d 351, 370 (citation

omitted). Because Officer Morgan has made such a claim here, I agree that this court has

jurisdiction to hear his appeal, and I respectfully concur in the outcome reached by the majority.




                                                 17
