                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 15a0184p.06

                    UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 JOSHUA CLAY,                                           ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                        │       No. 14-2351
        v.                                              │
                                                         >
                                                        │
 MICHAEL EMMI, Hazel Park Police Officer,               │
                               Defendant-Appellant, │
                                                        │
                                                        │
 RICHARD STORY, Hazel Park Firefighter/Medic; │
 MICHAEL SHARROW, Hazel Park Firefighter/Medic; │
 PAUL VANDENADELLE, Security Personnel at St. │
 John Oakland Hospital; KEVIN MITCHELL, Security │
 Personnel at St. John Oakland Hospital; ST. JOHN │
 PROVIDENCE HEALTH SYSTEM,                              │
                                         Defendants. │
                                                        │
                                                        ┘
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                   No. 2:13-cv-11555—Victoria A. Roberts, District Judge.

                             Decided and Filed: August 13, 2015
             Before: COLE, Chief Judge; GIBBONS and STRANCH, Circuit Judges.
                                     _________________

                                         COUNSEL

ON BRIEF: Marcelyn A. Stepanski, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C.,
Farmington Hills, Michigan, for Appellant. Trevor J. Zaborsky, ROMANO LAW, P.L.L.C.,
Pleasant Ridge, Michigan, for Appellee.




                                               1
No. 14-2351                           Clay v. Emmi, et al.                     Page 2

                                      _________________

                                           OPINION
                                      _________________

       STRANCH, Circuit Judge. This appeal addresses Joshua Clay’s § 1983 claim that Police
Officer Michael Emmi used excessive force while restraining him during a mental health
commitment.     Officer Emmi moved for summary judgment, arguing that the Fourteenth
Amendment rather than the Fourth Amendment applies to the use of force claim here, and that he
is entitled to qualified immunity because the force he used was appropriate under the
circumstances and not prohibited by clearly established law. The district court determined that
the Fourth Amendment applies because the force was used in the context of a seizure, and held
that Officer Emmi was not entitled to qualified immunity because there exists a genuine dispute
of material fact about the amount of force used. Officer Emmi appealed and we AFFIRM.

                                      I. BACKGROUND

       On April 8, 2010, Clay, who has been diagnosed with schizophrenia and bipolar disorder,
spoke on the phone with his Easter Seals caseworker about his depression. The caseworker then
called Hazel Park Police dispatch to report that Clay had told her he had a present plan to commit
suicide by slitting his wrists. She asked that the police investigate the situation and explained
that Clay had attempted suicide in the past, had been repeatedly hospitalized for expressing
suicidal ideations, and might have left his home on foot after she told him she was obligated to
report his statements. Police dispatch assigned Officer Emmi to the job and summoned fire
department paramedics to the scene as well.

       Officer Emmi and another officer arrived first and spoke with Clay’s mother, who was
unaware that Clay had called Easter Seals. Clay was found hiding in a minivan in the driveway.
He explained that he was there because he did not want to go to the hospital. After the other
officer and the paramedics spoke with Clay about going to the hospital, he agreed to go to “just
go talk to somebody.” Clay got into the ambulance of his own accord and was driven to the
hospital, with Officer Emmi following behind in his vehicle. Clay was not handcuffed at any
point during the journey.
No. 14-2351                            Clay v. Emmi, et al.                      Page 3

       Upon arrival, Clay walked with the paramedics to the emergency department and was
placed in a curtained-off area without incident. Someone from the hospital put a gown next to
where Clay was sitting and a doctor told him to take off his clothes and put it on. Clay did not
want to take his clothes off but he cannot remember if he told anyone that at the time. He does
recall that after he made no move to put on the gown, either a doctor or a police officer said,
“[Y]ou going to do it the easy way or the hard way?” R. 26-2, Clay Dep., PageID# 356. He
believes that at this time two officers, hospital security, a doctor, and possibly some other people
were in the room with him. After Clay didn’t put the gown on, people in the room “wrestled”
him to the ground. Id. at 357. According to Clay, “[i]t was just like I’m being jumped. I got
took to the ground with a lot of force.” Id. He cannot remember whether he got up to leave
before force was used against him, but testified that because of the number of people in the room
he would not have been able to get up and walk out even if he had tried to do so.

       Once Clay was brought to the floor, people held his arms, their knees pressed down on
his back, and there was a foot in his face, so he could not move. He testified that he did not
resist and that he knew he “couldn’t resist” because there were “too many people.” He thought it
wasn’t “worth it” to fight because “I can get in trouble for one. And I’m not about to fight with
the law.” Id. at 358. At his deposition, he was asked to clarify his statement that he was
“wrestled” to the ground, and he explained that “I went [down] willingly but at the same time
they was pulling me like they was wrestling me.” Id. at 370. He testified that he was not
thrashing around or trying to prevent himself from being brought to the ground.

       Clay testified that after he was handcuffed he heard someone say, “I’m going to taser
you.” Id. at 358. He laughed because he was already down and secured in handcuffs at that
point, but Officer Emmi then used his Taser on Clay’s back and everyone else backed off. Clay
started yelling and crying when he felt the pain of the electricity running through him. After
Officer Emmi stopped, Clay was picked up and put on a hospital bed, still in handcuffs. Later,
someone removed the handcuffs and restrained Clay to the bed. He spent the night in the
hospital’s psychiatric ward, and was released after a day or two. During his stay, he tested
positive for cocaine and marijuana.
No. 14-2351                              Clay v. Emmi, et al.                     Page 4

       At his deposition, Clay testified that he had experienced memory problems in the last few
years. But despite not being able to remember various details about the events of the day at issue
and other life events, he recalled being handcuffed and on the ground before being tasered and
testified to that at three separate points during his deposition.

       Officer Emmi’s account of the facts differs from Clay’s in two fundamental respects.
First, it includes witness testimony indicating that Clay tried to get up and leave after being told
to put the gown on, and that he was “flailing” and trying to get away from hospital staff (though
not punching or kicking at them). Appellant’s Br. 10-17. Officer Emmi argues that though Clay
denied resisting during the incident, his use of the term “wrestled,” belies compliance and
suggests he struggled against a counter-force or opposition. Officer Emmi’s account fails to
acknowledge that when directly asked about the word “wrestle,” Clay said he “went [down]
willingly” but “they was pulling me like they was wrestling me.”

       Second, Officer Emmi introduces testimony from several witnesses that Clay was placed
in restraints only after Emmi warned him that a Taser would be applied and then actually applied
it. He refuses to concede Clay’s assertion that he was first handcuffed and then tasered.

                                           II. ANALYSIS

A. Jurisdiction and standard of review

       This court has jurisdiction to hear an appeal from a “final decision” of the lower court.
28 U.S.C. § 1291. A district court’s denial of qualified immunity is an appealable final decision
under § 1291, “but only to the extent that it turns on an issue of law.” Austin v. Redford Twp.
Police Dept., 690 F.3d 490, 495 (6th Cir. 2012) (internal quotation marks removed).                A
defendant may not appeal a denial of qualified immunity “insofar as that order determines
whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones,
515 U.S. 304, 319-20 (1995). There is a limited exception to this rule—where the district court’s
determination that a dispute of fact exists is “blatantly and demonstrably false.” Romo v. Largen,
723 F.3d 670, 674 n.3 (6th Cir. 2013). An appellate court may exercise jurisdiction to hear and
reverse such holding where “the plaintiff’s version of the facts, which the district court accepted,
No. 14-2351                              Clay v. Emmi, et al.                       Page 5

was ‘so utterly discredited by the record . . . that no reasonable jury could have believed him.’”
Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007))

       Here, the issue raised on appeal—as presented by Officer Emmi—is:

       Did the district court improperly deny qualified immunity and summary judgment
       to Officer Emmi for a single deployment of his Taser where the mentally ill,
       physically imposing, and reportedly suicidal plaintiff appeared to continue
       wrestling with hospital personnel and others who were attempting to prevent him
       from leaving?
Appellant Br. 3 (emphasis added). This is a dispute about the facts as presented by Clay and
accepted by the district court, not a question of law. Clay testified that (1) he did not resist at all,
and (2) was already in handcuffs and lying face down on the ground when Officer Emmi tasered
him. Emmi concedes neither of these material facts. As explained in Section II.C below, these
facts do not fit into the exception discussed in Scott and Romo. Accordingly, if this factual
dispute were the only issue before us, we would dismiss the case for lack of jurisdiction.

       But in his argument that the level of force used was appropriate, Officer Emmi raised a
second issue: he argues that the district court erred by determining that the Fourth Amendment
rather than the Fourteenth Amendment governs the use of force in this case. This legal issue
turns on facts that are not in dispute: the parties’ actions at Clay’s house, on the way to the
hospital, and at the hospital before any force was used on Clay. The court must determine—
based on these undisputed facts—whether the use of force against Clay constituted (1) a seizure
governed by the Fourth Amendment, or (2) a use of force after the initial seizure had been
completed and Clay was already in custody, which is governed by the Fourteenth Amendment.

       “If . . . aside from the impermissible arguments regarding disputes of fact, the defendant
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.” Estate of
Carter v. City of Detroit, 408 F.3d 305, 309-10 (6th Cir. 2005) (internal quotation marks and
citations removed). Accordingly, we have jurisdiction over the appeal insofar as we must
determine which amendment governs.

       We review the denial of summary judgment on qualified immunity grounds de novo
because the application of this doctrine is a question of law. Morrison v. Bd. of Trustees of
No. 14-2351                                   Clay v. Emmi, et al.                         Page 6

Green Twp., 583 F.3d 394, 399 (6th Cir. 2009). In considering the record, the reviewing court
“must view the facts and any inferences reasonably drawn from them in the light most favorable
to the nonmoving party,” Clay in this case. Griffith v. Coburn, 473 F.3d 650, 655 (6th Cir.
2007). We begin with the legal issue, then turn to the factual dispute and discuss why it is not
“blatantly and demonstrably false” within the limited exception acknowledged in Scott.

B. The Fourth Amendment applies

       Officer Emmi argues that the district court mistakenly applied the Fourth Amendment’s
objective use of force standard to this case rather than the Fourteenth Amendment’s subjective
use of force standard. Following the parties’ briefing on appeal, the Supreme Court rendered this
issue purely academic in Kingsley v. Hendrickson by holding that a pretrial detainee’s excessive
force claim brought under the Fourteenth Amendment’s Due Process Clause is subject to the
same objective standard as an excessive force claim brought under the Fourth Amendment. 135
S. Ct. 2466 (2015). In light of Kingsley, under either amendment, the court would employ the
same objective test for excessive force. Id. at 2472-73.

       The district court’s application of the Fourth Amendment rather than the Fourteenth
Amendment, moreover, is warranted based on the facts in this record. The Fourth Amendment
applies to the seizure of individuals due to mental health concerns, Ziegler v. Aukerman, 512
F.3d 777, 783-84 (6th Cir. 2008), and to excessive force claims alleged within the context of that
seizure, Monday v. Oullette, 118 F.3d 1099, 1104 (6th Cir. 1997). As with pretrial detainees,
once a plaintiff finds himself in ongoing state custody after an initial mental health seizure, his
excessive force claims generally1 fall under the Fourteenth Amendment rather than the Fourth
Amendment. Lanman v. Hinson, 529 F.3d 673, 683 (6th Cir. 2008). Here, there is no indication
that Clay was seized before he refused to put on the dressing gown because he voluntarily rode
to the hospital to “talk to somebody” and was not restrained.

       Citing our decision in Lanman, 529 F.3d at 683, Officer Emmi argues that even though
Clay went to the hospital voluntarily, the Fourteenth Amendment must apply because this court
has applied it to both voluntary and involuntary committal cases. But the Lanman plaintiff was


       1
           Lanman contemplates exceptions that are not applicable here. 529 F.3d at 681.
No. 14-2351                            Clay v. Emmi, et al.                      Page 7

forcibly restrained after voluntarily committing himself by filling out the hospital’s Adult Formal
Voluntary Admission Application, which—as the opinion noted—enabled the hospital to keep
him in custody for three days after he gave notice of his desire to leave. Id. at 677, 683. This
three-day period was central to the court’s holding. Id. at 683. Clay never signed such form, so
the three-day holding provision was not in effect here.

       Officer Emmi also argues that he took Clay into custody under a Michigan Mental Health
Code provision that permits peace officers to place individuals who reasonably appear to require
mental health treatment in protective custody and transfer them to a hospital for screening by a
medical professional. See Mich. Comp. Laws § 330.1427. But the record does not show that
Officer Emmi had actually taken Clay into custody before the incident at the hospital, given that
the statute requires a peace officer who exercises this authority to inform the person being seized
that he is being held in protective custody and is not under arrest.                 Mich. Comp.
Laws § 330.1427a. Nothing in the record suggests that Emmi made any such statement to Clay.
Clay simply agreed to accompany the paramedics to the hospital. Officer Emmi’s police report
indicates that he eventually filled out the application for an involuntary commitment of Clay, but
it appears this was done after Emmi deployed the Taser on Clay.

       Here, the facts support the district court’s conclusion that the seizure occurred in the
hospital after Clay refused to change clothes, and it is therefore the Fourth Amendment that
applies.

C. Officer Emmi’s failure to concede genuine issues of material fact

       Under the Fourth Amendment—and since Kingsley, also the Fourteenth Amendment—
the test for whether officers’ use of force violated the Constitution is “whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397
(1989). Among the factors to be considered are whether the person being seized “poses an
immediate threat to the safety of officers or others” and “whether he is actively resisting.” Id. at
396.
No. 14-2351                            Clay v. Emmi, et al.                      Page 8

        Clay’s level of resistance and whether he was handcuffed before being tasered—the facts
Officer Emmi refuses to concede—are central to this inquiry. Emmi acknowledges that Clay
“suggests” he stopped resisting before being tasered, but argues that Clay’s testimony should not
be credited due to his mental illness and drug use, and the contrary testimony of others on the
scene. In doing so, Officer Emmi misconstrues Scott. There, based on a police videotape
depicting the events at issue, the Supreme Court reversed the district court’s denial of summary
judgment (due to a genuine dispute of material fact) because the plaintiff’s “version of events is
so utterly discredited by the record that no reasonable jury could have believed him.” 550 U.S.
at 380. Here, however, Officer Emmi’s arguments transgress the well-recognized standard of
Rule 56, that “at the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Decisions on the
credibility of a witness or the proper weight to be given to evidence are reserved to the trier of
fact.

        The district court correctly determined that there was a genuine issue of material fact
concerning the level of force the officers used and the level of resistance offered by Clay.
Though Clay indicated that he has some memory problems, both Clay and other witnesses recall
that Clay called Easter Seals, was on the floor of the van when Officer Emmi arrived, voluntarily
rode to the hospital, refused to put on gown that was given to him, and was eventually physically
restrained. Clay’s steadfast recollection that he was handcuffed before being tasered is not “so
utterly discredited by the record” as to be rendered a “visible fiction,” Scott, 550 U.S. at 380-81,
simply because other witnesses testified to the contrary. Rather, the existence of these differing
accounts of material facts supports the district court’s conclusion: Officer Emmi was not entitled
to qualified immunity at the summary judgment stage because these factual disputes must be
resolved by a jury. We lack jurisdiction to resolve them and refuse to usurp the place of the jury
by weighing the witnesses’ relative credibility here.

                                       III. CONCLUSION

        We AFFIRM the district court’s order denying qualified immunity to Officer Emmi and
remand the case to the district court for further proceedings.
