                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                                 File Name: 06a0461p.06

                         UNITED STATES COURT OF APPEALS
                                           FOR THE SIXTH CIRCUIT
                                             _________________


                                                        X
                                                         -
 TROY BAKER, and GLENN SNADER, as Father and

                                Plaintiffs-Appellants, -
 Next Friend of Jesse Snader,
                                                         -
                                                         -
                                                             No. 05-4390

                                                         ,
           v.                                             >
                                                         -
                                                         -
                               Defendants-Appellees. -
 CITY OF HAMILTON, OHIO, and ERIC TAYLOR,

                                                         -
                                                        N
                         Appeal from the United States District Court
                        for the Southern District of Ohio at Cincinnati.
                     No. 03-00881—S. Arthur Spiegel, Sr., District Judge.
                                             Argued: October 30, 2006
                                    Decided and Filed: December 18, 2006
                         Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
                                                _________________
                                                      COUNSEL
ARGUED: Christopher J. Pagan, REPPER, POWERS & PAGAN, Middletown, Ohio, for
Appellants. Jay D. Patton, SCHROEDER, MAUNDRELL, BARBIERE & POWERS, Cincinnati,
Ohio, for Appellees. ON BRIEF: Christopher J. Pagan, REPPER, POWERS & PAGAN,
Middletown, Ohio, for Appellants. Jay D. Patton, SCHROEDER, MAUNDRELL, BARBIERE &
POWERS, Cincinnati, Ohio, for Appellees.
                                                _________________
                                                    OPINION
                                                _________________
         GRIFFIN, Circuit Judge. Plaintiffs Troy Baker and Jesse Snader1 appeal an order of the
district court granting summary judgment in favor of defendants Eric Taylor and the City of
Hamilton on plaintiffs’ constitutional claims of excessive force and Ohio common-law claim for




         1
           Jesse Snader was a minor at the time this complaint was filed, and, accordingly, this suit was filed on his behalf
by his father, Glenn Snader.


                                                             1
No. 05-4390                Baker v. City of Hamilton, Ohio, et al.                                                   Page 2


assault and battery.2 On appeal, plaintiffs have abandoned their claims against the City of Hamilton
and argue only that the district court erred in concluding that Officer Taylor did not violate their
constitutional rights, in holding that Officer Taylor is entitled to qualified immunity from plaintiffs’
claims, and in dismissing their claims of assault and battery against Officer Taylor. For the reasons
below, we reverse the district court’s entry of summary judgment in favor of defendant Taylor and
remand for further consideration. We affirm the summary judgment entered in favor of defendant
City of Hamilton.
                                                              I.
        The parties dispute many of the underlying facts that led to plaintiffs’ claims. Because
plaintiffs appeal the district court’s entry of summary judgment in favor of defendants, the court
must “view the evidence and draw all reasonable inferences therefrom in the light most favorable
to the non-moving party.” Little v. BP Exploration & Oil Co., 265 F.3d 357, 361 (6th Cir. 2001).
       This case and appeal regards separate incidents involving Officer Taylor and plaintiffs Baker
and Snader.
                                                             A.
        On December 15, 2002, Troy Baker spent the day drinking and smoking crack cocaine with
friends in Hamilton, Ohio. After drinking approximately six beers and smoking more than one rock
of crack while at his friend’s house, Baker went to the Village Bar in Hamilton to continue drinking.
Baker drank four or five more beers at the Village Bar before leaving. After leaving the bar, Baker
encountered a drug dealer from whom Baker had previously purchased drugs. The dealer offered
to sell Baker crack, but Baker declined because he was already in possession of enough crack.
        During Baker’s conversation with the drug dealer, Hamilton Police Officer Eric Taylor and
his partner passed by in a police cruiser. After noticing the cruiser, Baker continued to walk down
the street. Officer Taylor pulled up next to Baker and asked him to stop, but Baker kept walking.
When Officer Taylor opened his car door, Baker took off running. Baker ran for approximately two
blocks before hiding in bushes. What happened next is disputed by the parties and is the basis of
Baker’s complaint.
        According to Baker, when Officer Taylor discovered where he was hiding, Baker stood out
from the bushes with his arms straight up to indicate that he had surrendered. Officer Taylor then
hit Baker in the left side of his head with his asp (i.e., baton), knocking Baker down and opening a
wound that eventually required stitches. When Baker asked why Officer Taylor had struck him,
Officer Taylor responded by striking Baker across the knees and yelling “[t]hat’s for running from
me.” Officer Taylor then subdued Baker, handcuffed him, placed him under arrest, and escorted
Baker to the hospital. Officer Taylor discovered a crack pipe and three crack rocks on Baker. Baker
later pled guilty to possession of cocaine, possession of drug paraphernalia, obstruction of official
business, and resisting arrest in connection with this incident.




         2
           In their complaint, plaintiffs also alleged that the City of Hamilton maintained a policy, practice, or custom
of deliberate indifference to Officer Taylor’s alleged repeated use of excessive force. The district court dismissed this
claim, concluding that “Baker and Snader have not presented evidence to substantiate their claim of a pattern or practice
of ineffective training on the part of the City.” Plaintiffs did not address this claim in their appellate brief and therefore
have abandoned their claims against the City of Hamilton. Renkel v. United States, 456 F.3d 640, 642 n.1 (6th Cir.
2006).
No. 05-4390              Baker v. City of Hamilton, Ohio, et al.                                             Page 3


                                                         B.
       On October 23, 2003, at 3:30 a.m., seventeen-year-old Jesse Snader was visiting his friend’s
house in Hamilton, Ohio. While he and two other companions waited to receive permission to spend
the night at the friend’s home, the group walked around the block. At approximately 3:50 a.m.,
Hamilton City Police Officer Schuster, on patrol, spotted the group crossing the street in an area
where several cars had recently been broken into. Officer Schuster stopped the group, told them that
they had been stopped because of the recent break-ins, asked each person for identification, and
inquired why Snader and his friends were out at that late hour.
        Neither Snader nor his companions were able to provide Officer Schuster with any
identification. Officer Schuster patted down each individual, finding no weapons, drugs, or evidence
of criminal behavior. Officer Schuster then asked for Snader’s name; Snader provided the false3
name “Tom Bellamy” and gave a false birth date so that he would appear to be eighteen years old.
As Officer Schuster was taking down each person’s name, a second officer – later identified as
Officer Alatore – appeared and performed another pat-down. After Officer Schuster took each
person’s name, he escorted Snader’s two companions to the back seat of the police cruiser. Snader
then ran away from the cruiser and Officers Schuster and Alatore. Officer Schuster gave chase.
        After Snader ran two streets away from the cruiser, he believed that he had lost Officer
Schuster and began walking. Snader then spotted several police officers, including Officer Taylor.
Officer Taylor and his partner, Officer Kiep, had received word through radio traffic that Officer
Schuster was chasing a fleeing suspect who had been stopped and questioned about possible break-
ins. After spotting the officers, Snader started to run again and the officers, including Officer Eric
Taylor, gave chase. After Officer Taylor yelled “Stop or I’ll shoot,” Snader responded by slowing
down and screamed “I’m stopping[,] I’m stopping.” According to Snader, Officer Taylor then hit
Snader on the back of his head with his asp, tackled him, and sat on his back, keeping Snader still
with a choke hold. Other unidentified officers then caught up and began hitting Snader in his legs
with their batons. Snader was then handcuffed and taken to the hospital, and later transported to the
Juvenile Detention Center where he was detained for ten days.
         In connection with these incidents, Baker and Snader filed a complaint against Officer Taylor
and the City of Hamilton in federal court on December 12, 2003. Baker and Snader allege that
Officer Taylor used excessive force in conducting their respective arrests, in violation of their Fourth
and Fourteenth Amendment rights, and is liable for assault and battery under Ohio law. On
October 5, 2005, the district court granted defendants’ motion for summary judgment, dismissing
all of plaintiffs’ claims.
         This timely appeal followed.
                                                         II.
        This court reviews de novo the district court’s entry of summary judgment. Brainard v. Am.
Skandia Life Assur. Corp., 432 F.3d 655, 660 (6th Cir. 2005). Summary judgment is proper when
there are no genuine issues of material fact in dispute and the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c). A genuine issue for trial exists only when there is
sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). In deciding a motion for summary judgment, “the court must
view the evidence and draw all reasonable inferences in favor of the non-moving party.” Brainard,


         3
          Because Snader was seventeen years old at the time of the incident, he was in violation of Hamilton’s curfew
for minors. Snader was later convicted of violating the curfew in connection with this incident.
No. 05-4390           Baker v. City of Hamilton, Ohio, et al.                                    Page 4


432 F.3d at 661 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
                                                  III.
        Defendants argue that, as a matter of law, Officer Taylor did not use excessive force in
arresting Baker and Snader. Defendants argue further that, assuming arguendo that Officer Taylor
did use excessive force, he is protected from liability by qualified immunity because his actions
arose in the course of performing his official duties.
                                       A. Qualified Immunity
        “Through the use of qualified immunity, the law shields ‘governmental officials performing
discretionary functions . . . from civil damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.’” Solomon v. Auburn
Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635,
638 (1987)). The Supreme Court instructs lower courts to perform a two-tiered inquiry to determine
whether a defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Courts should first determine whether “the facts alleged show the officer’s conduct violated a
constitutional right.” Id. If the plaintiff establishes that a constitutional violation occurred, a court
must next consider “whether the right was clearly established.” Id. When a defendant raises a
defense of qualified immunity, the plaintiff bears the burden of demonstrating that the defendant is
not entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
        The Court has emphasized that the qualified immunity analysis “must be undertaken in light
of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201.
Thus, in the excessive force context, it is not enough that a plaintiff establishes that the defendant’s
use of force was excessive under the Fourth Amendment; to defeat qualified immunity, the plaintiff
must show that the defendant had notice that the manner in which the force was used had been
previously proscribed:
        [T]here is no doubt that [precedent] clearly establishes the general proposition that
        use of force is contrary to the Fourth Amendment if it is excessive under objective
        standards of reasonableness. Yet that is not enough. Rather, we emphasized in
        Anderson [v. Creighton,] “that the right the official is alleged to have violated must
        have been ‘clearly established’ in a more particularized, and hence more relevant,
        sense: The contours of the right must be sufficiently clear that a reasonable official
        would understand that what he is doing violates that right.” 483 U.S. 635, 640
        (1987). The relevant, dispositive inquiry in determining whether a right is clearly
        established is whether it would be clear to a reasonable officer that his conduct was
        unlawful in the situation he confronted.
Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (quoting Saucier, 533 U.S. at 201-02).
        “In inquiring whether a constitutional right is clearly established, we must look first to
decisions of the Supreme Court, then to decisions of this court and other courts within our circuit,
and finally to decisions of other circuits.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902
(6th Cir. 2004) (quoting Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002)), cert. denied sub
nom. Dickhaus v. Champion, 544 U.S. 975 (2005).
                                         B. Excessive Force
       As Saucier and Brosseau instruct, we must first determine whether Officer Taylor violated
Snader’s or Baker’s constitutional rights when arresting them. It is well-established that individuals
No. 05-4390               Baker v. City of Hamilton, Ohio, et al.                                              Page 5


have a constitutional right to be free from excessive force during an arrest. See, e.g., Graham v.
Conner, 490 U.S. 386, 388 (1989); Solomon, 389 F.3d at 173. A claim of excessive force in the
context of “an arrest, investigatory stop, or other ‘seizure’” is analyzed under the Fourth4
Amendment’s “objective reasonableness” standard. Graham v. Conner, 490 U.S. 386, 388 (1989).
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth
Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396.
In considering whether a police officer acted reasonably while performing an arrest, the court must
pay “careful attention to the facts and circumstances of each particular case,” id. at 396, and
“consider the difficulties of modern police work,” Smith v. Freland, 954 F.2d 343, 346 (6th Cir.
1992).
         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. . . . The calculus of reasonableness must embody allowance 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 346-47 (quoting Graham, 490 U.S. at 396-97).
        The Court has identified three factors that lower courts should consider in determining the
reasonableness of force used: (1) the severity of the crime at issue; (2) whether the suspect posed
an immediate threat to the safety of the police officers or others; and (3) whether the suspect actively
resisted arrest or attempted to evade arrest by flight. Graham, 490 U.S. at 396; Smoak v. Hall, 460
F.3d 768, 783 (6th Cir. 2006). These factors are not an exhaustive list, as the ultimate inquiry is
“whether the totality of the circumstances justifies a particular sort of seizure.” St. John v. Hickey,
411 F.3d 762, 771 (6th Cir. 2005) (quoting Graham, 490 U.S. at 396).
                                  C. Analysis Applied to Baker and Snader
                                                   1. Troy Baker
        Viewing the record in the light most favorable to Troy Baker, we hold that he has set forth
facts sufficient to establish a genuine issue of material fact as to whether Officer Taylor used
excessive force in arresting him on December 15, 2002. Baker alleges that when Officer Taylor
followed him to the bushes, he came out from behind the bushes with his hands straight up in the
“surrender” position. At this point, according to Baker, Officer Taylor struck Baker in the head with
his asp, knocking Baker to the ground. Officer Taylor then struck Baker in the knee, yelling
“[t]hat’s for running from me.”
        Because Baker had surrendered before being struck, a reasonable jury could conclude that
Officer Taylor’s strike to Baker’s head was unjustified and excessive. By raising his hands in the
surrender position, Baker arguably showed that he was unarmed, was compliant, and was not a
significant threat to Officer Taylor’s safety. A reasonable factfinder could therefore find that Officer
Taylor’s strike to Baker’s head was unwarranted and unreasonably severe. Moreover, a jury could
find that Officer Taylor acted unreasonably in striking Baker’s knee after Baker had fallen to the
ground. We have held repeatedly that the use of force after a suspect has been incapacitated or


         4
           Although plaintiffs allege that Officer Taylor violated both their Fourth and Fourteenth Amendment rights to
be free from excessive force, we apply a Fourth Amendment analysis to their claims, as the allegations stem from force
used during the course of an arrest. See Ciminillo v. Streicher, 434 F.3d 461, 465-66 (6th Cir. 2006) (applying a Fourth
Amendment, rather than Fourteenth Amendment, analysis where plaintiff was “seized” by police during riot).
No. 05-4390               Baker v. City of Hamilton, Ohio, et al.                                                Page 6


neutralized is excessive as a matter of law. See, e.g., Shreve v. Jessamine Cty. Fiscal Court, 453
F.3d 681, 687 (6th Cir. 2006); Champion, 380 F.3d at 902 (citing cases); see also Phelps v. McCoy,
286 F.3d 295, 301 (6th Cir. 2002) (“[T]here was simply no governmental interest in continuing to
beat [plaintiff] after he had been neutralized, nor could a reasonable officer have thought there
was.”). At the time he was struck in the knee, Baker had surrendered and had been neutralized by
Officer Taylor; the strike to Baker’s knee was unjustified and gratuitous. Furthermore, Officer’s
Taylor alleged statement after striking Baker’s knee – “[t]hat’s for running from me” – shows that
the purpose of this hit was not to subdue Baker, but rather to punish him. See Pigram v. Chaudoin,
No. 06-0378, 2006 U.S. App. LEXIS 25073, at *10 (6th Cir. Oct. 5, 2006) (unpublished) (noting that
officer’s slap to plaintiff “cannot reasonably be construed as a means of subduing Pigram” where
the officer’s stated justification for the slap was because the plaintiff had a “smart-ass mouth”).
        That Baker was not handcuffed at the time he was struck does not preclude a finding of
unreasonableness. See Tapp v. Banks, 1 F. App’x 344, 350 (6th Cir. 2001) (unpublished) (“[I]t is
not objectively reasonable for an officer dealing with an essentially compliant person, to strike the
person’s legs twelve to fifteen times in the absence of resistance.”). Moreover, that Baker received
one strike to the head and one to the knee from Officer Taylor’s asp – in comparison to the
numerous punches and head slams at issue in Phelps or the repeated strikes to the leg in Tapp – does
not necessarily render Officer Taylor’s behavior reasonable. See Pigram, 2006 U.S. App. LEXIS
25073, at *9 (holding that a single slap, administered after the plaintiff had been subdued, under
specific circumstances, may constitute a Fourth Amendment violation). Finally, that Baker had
attempted to evade arrest does not preclude his claim of excessive force against Officer Taylor or
render Officer Taylor’s use of his asp reasonable. See Shreve, 453 F.3d at 687 (holding that strikes
to plaintiff’s back and knee are unreasonable where plaintiff was already incapacitated, despite
plaintiff’s prior attempt to avoid detection by police). A jury could therefore find that Officer Taylor
acted unreasonably in striking Baker’s head and knee and used excessive5 force in violation of
Baker’s Fourth Amendment rights during the arrest on December 15, 2002.
         The next inquiry is whether Baker’s right to be free from such strikes was “clearly
established” at the time of the incident. We conclude it was. We have noted recently that “[c]ases
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 (citing cases). Although Shreve
post-dated Baker’s arrest by four years, there was ample case law in this circuit to give notice to
Officer Taylor that Baker had a constitutional right to be free from gratuitous strikes to the head and
knee. For example, Phelps – which held that a police officer has no governmental interest in
repeatedly striking a criminal defendant after the defendant has been neutralized – was released on
April 10, 2002, eight months before Baker’s arrest. Phelps, 286 F.3d at 301-02. In Adams v.
Metiva, 31 F.3d 375 (6th Cir. 1994), we likewise held that the use of force on a suspect after he had
been incapacitated by mace is excessive force as a matter of law. Id. at 386; see also McDowell v.
Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988) (“[O]ur court has repeatedly found that a totally
gratuitous blow with a policeman’s nightstick may cross the constitutional line. . . .”). Because there
was significant Sixth Circuit case law support for Baker’s right to be free from gratuitous strikes to
his body, qualified immunity is not an available defense for Officer Taylor.

         5
           In support of his Fourth Amendment claim and in opposition to defendants’ motion for summary judgment,
Baker offered his hospital records, an affidavit by a witness who claims to have observed Officer Taylor strike Baker,
and three affidavits by individuals who claimed to have been hit by Officer Taylor with his baton or asp. In its Opinion
and Order, the district court did not indicate whether it had considered these materials. On appeal, defendants argue that
the witness’s affidavit should be disregarded because it contradicts Baker’s depiction of the arrest. Defendants argue
further that the other affidavits are inadmissible “other acts” evidence under Federal Rule of Evidence 404(b). We need
not consider these arguments, however, because Baker’s complaint and deposition testimony is sufficient to establish
a genuine issue of material fact. See Shreve, 453 F.3d at 687-88 (finding deposition testimony, although inconsistent,
sufficient to defeat defendants’ motion for summary judgment). We therefore express no opinion as to the admissibility
of this evidence offered by plaintiffs.
No. 05-4390              Baker v. City of Hamilton, Ohio, et al.                                                 Page 7


                                                 2. Jesse Snader
        Viewing the facts in a light most favorable to the non-moving party, Jesse Snader was
surrendering at the time that Officer Taylor struck him with his baton. In light of this action, he has
alleged facts sufficient to establish a genuine issue of material fact as to whether Officer Taylor used
excessive force in arresting him on October 23, 2003. Snader claims that Officer Taylor struck him
on the back of his head while chasing Snader, after Snader had announced that he was slowing
down. After striking Snader, Officer Taylor allegedly tackled him and sat on Snader’s back with
a choke hold, while other officers caught up and subsequently struck Taylor in his legs.
        Defendants argue that Snader had not surrendered at the time that he was struck by Officer
Taylor because, although he announced that he was stopping, he had yet to come to a complete stop.
We disagree. We find it particularly important that in this case, Snader allegedly yelled “I’m
stopping!” in response to Officer Taylor’s instruction that he would shoot Snader if he did not stop.
Snader’s alleged response shows that he was compliant with Officer Taylor’s order and in the act
of surrendering when struck by Officer Taylor. A jury could therefore find that Officer Taylor’s use
of his asp was unjustified and gratuitous.
        We also find it significant that Officer Taylor struck Snader on the head. We have noted
repeatedly that a blow to an individual’s head may constitute excessive force, see, e.g., Bultema v.
Benzie County, 146 F. App’x 28, 36 (6th Cir. 2005) (unpublished); Phelps, 286 F.3d at 302; Davis
v. Bergeron, No. 98-3812, 1999 U.S. App. LEXIS 17984, at *12-13 (6th Cir. July 27, 1999)
(unpublished), and in the circumstances alleged by Snader, Officer Taylor’s strike to such a sensitive
and vitally important part of Snader’s body was objectively unreasonable. Even if we were to agree
with defendants that Officer Taylor’s use of his asp was necessary to subdue Snader – and we6do
not – Officer Taylor could have struck Snader in another, less sensitive part of Snader’s body.
        Because a jury could find that Snader was surrendering at the time he was struck in the head,
we likewise conclude that Officer Taylor’s use of his asp was gratuitous. As we discussed above,
Snader’s right to be free from a gratuitous strike to the head was clearly established at the time of
this incident. See, e.g., Phelps, 286 F.3d at 301-02; McDowell, 863 F.2d at 1307. Officer Taylor,
therefore, may not avail himself of qualified immunity for the Snader incident.
                                                        IV.
       Baker and Snader also allege that Officer Taylor is liable for assault and battery under Ohio
law. The district court granted summary judgment to defendants with respect to plaintiffs’ state law
claims, finding that “Taylor and the other officers’ actions were reasonable in light of the
circumstances and as such privileged.”
        “If an officer uses more force than is necessary to make an arrest and protect himself
        from injury, he is liable for assault and battery . . . .” City of Cincinnati v. Nelson,
        No. C-74321, 1975 Ohio App. LEXIS 7443, *5 (May 5, 1975); see also Schweder
        v. Baratko, 103 Ohio App. 399, 403, 143 N.E.2d 486 (1957) (“Force when used
        lawfully in making an arrest is in the exercise of a government function, and only in
        cases where excessive force is used, that is, force going clearly beyond that which

        6
         Hamilton Police Division General Order RR-1.3 also suggests that Officer Taylor’s strike to Snader’s head
was excessive and in contravention of police policy. Order RR-1.3 provides in pertinent part:
        The baton will be used for the purposes of restraining unruly prisoners or subduing assailants by
        striking them on such sensitive areas as ankles, knees, shins, hands, wrists, elbows, structural areas
        or other sensitive areas. The use of a baton above the shoulder should be made only in cases of
        extreme physical danger to the officer or others.
No. 05-4390           Baker v. City of Hamilton, Ohio, et al.                                 Page 8


       is reasonably necessary to make the arrest, can such force be claimed an assault and
       battery by the person arrested.”). An officer, acting in his official capacity, is
       immune from liability for injury unless his actions were “manifestly outside the
       scope” of his responsibilities, or the officer acted “with malicious purpose, in bad
       faith, or in a wanton or reckless manner.” OHIO REV. CODE § 2744.03(A)(6).
D'Agastino v. City of Warren, 75 F. App’x 990, 995 (6th Cir. 2003) (unpublished) (emphasis added).
Plaintiffs do not contend that Officer Taylor was acting outside the scope of his employment when
arresting Baker and Snader, but rather argue that immunity is not available to Officer Taylor because
he acted with malicious purpose, in bad faith, or recklessly in arresting them.
         We reverse the district court’s order granting defendants summary judgment on Baker’s and
Snader’s state law claims. As discussed above, both Baker and Snader have put forward evidence
that Officer Taylor struck Baker gratuitously while arresting them. This evidence is sufficient to
establish a genuine issue of material fact as to whether Officer Taylor acted maliciously or in bad
faith in striking and arresting them.
       Finally, plaintiffs also argue that punitive damages should be available in this case. As
defendants note properly, because the district court granted defendants’ motion for summary
judgment, it did not reach the issue of punitive damages. The issue of punitive damages is therefore
not properly before this court, and we do not rule on this issue.
                                                 V.
       For the reasons stated above, we reverse the district court’s entry of summary judgment in
favor of defendant Taylor with respect to plaintiffs’ Fourth Amendment claims of excessive force
and plaintiffs’ claims for assault and battery arising under Ohio law, and remand for further
proceedings. We affirm the grant of summary judgment in favor of defendant City of Hamilton.
