                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0209n.06

                                          No. 19-1729


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Apr 14, 2020
 WILLIAM FRANKLIN,                                      )                   DEBORAH S. HUNT, Clerk
                                                        )
        Plaintiff-Appellee,
                                                        )
                                                        )      ON APPEAL FROM THE
        v.
                                                        )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE EASTERN
 CITY OF SOUTHFIELD, MICHIGAN,
                                                        )      DISTRICT OF MICHIGAN
        Defendant,                                      )
                                                        )                 OPINION
 GREGORY ROESKE,                                        )
        Defendant-Appellant.                            )



       BEFORE:        STRANCH, BUSH, and LARSEN, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. William Franklin sued Police Officer Gregory

Roeske and others under 42 U.S.C. § 1983 for alleged constitutional violations arising out of an

encounter that led to his arrest. Officer Roeske brings this interlocutory appeal challenging the

district court’s denial, at summary judgment, of qualified immunity on Franklin’s excessive force

claim against him. But because both the objective reasonableness of Roeske’s actions and the

assertion that he did not violate clearly established law hinge on disputes of material fact not

conceded or otherwise resolved by the record, we are without jurisdiction to hear this appeal. We

must therefore DISMISS the case for lack of jurisdiction.
No. 19-1729, Franklin v. City of Southfield, Mich., et al.


                                        I.      BACKGROUND

            A. Factual Record

        On August 31, 2013,1 police received a report of a fight between a man and a woman in a

purple car at a gas station in Southfield, Michigan. An “anonymous caller witnessed a woman

being hit by a male subject.” Officer Gregory Roeske of the Southfield Police Department was

dispatched to the scene. Roeske and another officer checked the gas station but found no purple

vehicle. Ten minutes later, an anonymous caller reported a man in a purple vehicle assaulting a

female passenger on George Washington Drive. As Roeske approached that location, he found

Franklin sitting in a purple Oldsmobile with two female passengers.

        The remainder of the encounter was captured on Roeske’s in-car video system. Roeske

activated his overhead lights and turned into the intersection where Franklin was stopped. Upon

seeing Roeske, Franklin started to drive down Lafayette Circle. While Franklin disputes seeing

Roeske’s overhead lights, the video indicates that Roeske’s lights were on, although he never

activated his siren or directed Franklin to pull over. Twenty seconds later, Franklin pulled into his

own driveway. Roeske followed.

        The next events are at the heart of this appeal. Franklin parked in this driveway; Roeske

parked behind him and shouted, “Put your hands up! Hands up!” A woman exited the passenger

seat with her hands up. Franklin exited from the driver’s side and walked around the back of the

car, keeping his distance from Roeske, who exited the police car with his taser gun drawn.2

Franklin was upset and was exclaiming that he was at his home. Roeske approached Franklin,




1
 Roeske’s brief indicates that the events in question transpired on August 16, 2016. This conflicts with the
evidence in the record.
2
 Roeske testified that he exited the vehicle with his Glock pistol drawn. It appears from the video, however,
that he drew his taser.


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No. 19-1729, Franklin v. City of Southfield, Mich., et al.


pointed the taser gun at his chest, and Franklin put his hands up. He stayed in the same location

and continued speaking loudly. Roeske, at this point, knew that Franklin was unarmed. He made

a motion with his left index finger, which according to Roeske, was to command “Plaintiff to come

to the front of his vehicle and put his hands on the hood; Ofc. Roeske testified that he did this

verbally and through a gesture, the video makes it clear that he did gesture although the audio is

not entirely clear.” According to Franklin, Roeske instructed him to move forward but did not

order him to put his hands on the hood of the patrol car. Franklin walked toward Roeske with his

hands up, did not appear to turn toward the hood of the patrol car, and continued to face Roeske

with his hands in the air.

        Roeske shot Franklin in the abdomen with his taser gun. Franklin clutched his chest and

stomach and buckled to the pavement. Franklin testified that he was able to pull off one of the

taser probes as he fell to the pavement. Once on the ground, Franklin is not entirely visible on the

video, but he appears to roll over, at times continuing to speak. Roeske asserts that Franklin then

“sits up,” but the video shows that while he picked his head up to speak, Franklin’s body remained

on the pavement. Roeske then tased Franklin a second time, 9 seconds after the initial shot.

Franklin rolled over, which Roeske interpreted as an attempt to disconnect the wires. Roeske tased

Franklin a third time—16 seconds after the initial shot; Franklin was still on the ground. Each

time the taser was active for 5 seconds. Franklin was taken into custody. A breathalyzer

administered at the police station indicated that his blood alcohol level was .100. Franklin was

charged with crimes including assault, obstructing police, operating a vehicle under the influence

of alcohol, and fleeing/eluding police. The case was taken to trial and Franklin was acquitted by

a jury of all charges.




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No. 19-1729, Franklin v. City of Southfield, Mich., et al.


            B. Procedural History

        Franklin filed suit against the City of Southfield, Police Chief Eric Hawkins, and Police

Officer Gregory Roeske on August 29, 2016. He alleged municipal and individual liability claims

under the Fourth and Fourteenth Amendments for excessive force and unlawful arrest. On March

29, 2018, the district court dismissed claims against the City of Southfield and Chief Hawkins.

Officer Roeske filed a motion for summary judgment on Franklin’s remaining claims—excessive

force and false arrest allegations against him—on the basis of qualified immunity. On June 6,

2019, the district court held a hearing on Roeske’s summary judgment motion, where it granted

Roeske’s motion on the false arrest claim, but denied qualified immunity as to excessive force.

Roeske filed this interlocutory appeal challenging the district court’s denial of qualified immunity.

                                        II.     JURISDICTION

        Before reaching the merits of this appeal, we must assess whether we have jurisdiction to

hear it. We are authorized to hear appeals only from “final decisions” of the district court. 28

U.S.C. § 1291. “[A] district court’s 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 28 U.S.C. § 1291

. . . .” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). But this is a narrow exception. Barry v.

O’Grady, 895 F.3d 440, 443 (6th Cir. 2018). We have jurisdiction to review claims of qualified

immunity only to the extent that the defendants limit their argument to purely legal questions.

McGrew v. Duncan, 937 F.3d 664, 669 (6th Cir. 2019). “Once a defendant’s argument drifts from

the purely legal into the factual realm and begins contesting what really happened, our jurisdiction

ends and the case should proceed to trial.” Berryman v. Rieger, 150 F.3d 561, 564-65 (6th Cir.

1998). Defendants may not appeal denial of a motion for summary judgment based on qualified




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No. 19-1729, Franklin v. City of Southfield, Mich., et al.


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, 320 (1995).

        In two limited circumstances, we retain jurisdiction over a denial of qualified immunity

involving disputed facts challenged on interlocutory appeal. First, “we may overlook a factual

disagreement if a defendant, despite disputing a plaintiff’s version of the story, is ‘willing to

concede the most favorable view of the facts to the plaintiff for purposes of the appeal.’” Adams

v. Blount Cty., Tenn., 946 F.3d 940, 948 (6th Cir. 2020) (quoting Barry, 895 F.3d at 443). Second,

we may decide an appeal involving disputed facts in the exceptional circumstance that a district

court’s factual determination is “blatantly contradicted by the record, so that no reasonable jury

could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007) (relying on video that captured the

incident in question because it “utterly discredited” the plaintiff’s version of events).

        To determine the scope of our jurisdiction, we “separate an appellant’s reviewable

challenges from its unreviewable.” DiLuzio v. Vill. of Yorkville, Ohio, 796 F.3d 604, 610 (6th Cir.

2015). We retain jurisdiction over “pure question[s] of law, despite the defendants’ failure to

concede the plaintiff’s version of the facts.” Livermore ex el Rohm v. Lubelan, 476 F.3d 397, 403

(6th Cir. 2007). In deciding such questions, we “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.” DiLuzio, 796 F.3d at 611 (quoting Estate of Carter v. City of Detroit, 408

F.3d 305, 310 (6th Cir. 2005)). We “need look no further than the district court’s opinion” for the

facts and inferences that precipitate the legal question at hand. See Barry, 895 F.3d at 443.

        In this case, the district court ruled from the bench on Roeske’s entitlement to qualified

immunity regarding Franklin’s excessive force claim. It held, in full:

        I want to go to what I think is the basic issue in this case, which I think is the
        excessive force issue. I have viewed, and viewed, and reviewed that video, and I



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No. 19-1729, Franklin v. City of Southfield, Mich., et al.


        think that there is a question of fact. I think clearly that officer’s use of that hand
        motion creates an issue of fact. What could the plaintiff be thinking? I mean, he
        could be thinking, you know, come here, maybe I’m going to pat you down. I don’t
        know what he’s thinking, but when you look at it, I could see objectively how a
        reasonable person could say that is come towards me. On the other hand, I see the
        officer’s position; what officer is going to say come closer to me? I mean, I do see
        both sides, but I think it creates in this case a question of fact for the jury to
        determine, so for that reason the motion is denied on that issue.

Roeske does not concede the view of the facts most favorable to Franklin; instead, he asserts that

we have jurisdiction because the district court applied the wrong rule of law and because the district

court’s conclusion that there remained a dispute of material fact was contradicted by the video

evidence. Harris, 550 U.S. at 380.

        Qualified immunity insulates “government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Goodwin v. City of Painesville, 781 F.3d 314,

320-21 (6th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In the excessive

force context, we first ask whether, when viewing the facts in the light most favorable to Franklin,

Roeske’s actions were “‘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); Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir. 2013). We assess

“‘reasonableness at the moment’ of the use of force, as ‘judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Goodwin,

781 F.3d at 321 (quoting Graham, 490 U.S. at 396). The Graham Factors guide this analysis: “the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396.




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No. 19-1729, Franklin v. City of Southfield, Mich., et al.


        If a constitutional violation is found, the second step is to ask whether “the right was clearly

established at the time of the alleged violation.” Campbell v. City of Springboro, 700 F.3d 779,

786 (6th Cir. 2012). It was well established at the time of the incident that Franklin possessed a

right to be free of excessive force—and from being tased—if he was compliant with Roeske’s

instructions “or had stopped resisting.” Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505,

509 (6th Cir. 2012); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004);

Cockrell v. City of Cincinnati, 468 F. App’x 491, 496 (6th Cir. 2012) (collecting cases).

        In this case, both prongs of the qualified immunity analysis hinge on disputes of material

fact that are not conceded and that remain unresolved by the video. If, in fact, Roeske’s gesture

was for Franklin to walk forward, a jury may find that, from the perspective of a reasonable officer,

it was not objectively reasonable to tase him. Whether Franklin complied with instructions is also

a dispute of material fact, as is whether Roeske issued accompanying verbal instructions.

Furthermore, we must assess the objective reasonableness of each taser deployment separately.

See, e.g., Champion, 380 F.3d at 902; Goodwin, 781 F.3d at 323. And there remains a question of

fact as to whether Franklin’s actions after he was dropped by the first taser were sufficient to make

the second and third use of the taser objectively reasonable. Additional factual clarity is also

needed before we can assess whether Roeske violated clearly established law, as it is axiomatic

(as it was in 2013) that tasing a person who complies with police instructions—or who is not

resisting arrest—violates the Fourth Amendment. See, e.g., Hagans, 695 F.3d 509. Because the

resolution of facts in dispute is necessary to resolve either prong of the qualified immunity inquiry

as a matter of law, we do not have jurisdiction to hear this appeal.

        Roeske contends that by asking, “[w]hat could the plaintiff be thinking?” the district court

committed a legal error that led it to view the facts through an improper lens. It is true that we




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No. 19-1729, Franklin v. City of Southfield, Mich., et al.


assess whether a constitutional violation occurred from the “perspective of a reasonable officer on

the scene,” not the subjective understanding of the plaintiff. Graham, 490 U.S. at 396. But, as

shown above, we view the facts in the light most favorable to the plaintiff. Here, the district court

rightly considered the impact of Roeske’s hand gesture on that calculus. The gesture is relevant

to a reasonable officer’s perspective. That the district court did not restate that the qualified

immunity inquiry is to be conducted from the perspective of a reasonable officer does not revive

our jurisdiction to hear this appeal. There is no way to decide this case as a matter of law without

resolving disputed facts.

                                         III.    CONCLUSION

        For the foregoing reasons, we DISMISS this case for lack of jurisdiction.




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