                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0476n.06
                                                                                         FILED
                                     Nos. 10-5220; 10-5221
                                                                                     Jul 13, 2011
                          UNITED STATES COURT OF APPEALS
                                                                              LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

TERRY WILLIAMS, JR.,

               Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE
                                                     UNITED STATES DISTRICT
GREG SANDEL, Officer, In his                         COURT FOR THE EASTERN
Individual and Official Capacity;                    DISTRICT OF KENTUCKY
ROBERT FULTZ, Officer, In his
Individual and Official Capacity;

               Defendants-Appellants.

and

TREVOR WILKINS, Kentucky Vehicle
Enforcement Officer, In his Individual
Capacity,

            Defendant-Appellant.
_______________________________________/

BEFORE: MARTIN, SUHRHEINRICH and KETHLEDGE; Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Plaintiff-Appellee, Terry Williams, Jr. (“Williams”),

brought a § 1983 excessive force claim and several related state law claims against the Defendants-

Appellants, Greg Sandel, Robert Fultz, and Trevor Wilkins (“Defendants”), after they arrested him

on July 8, 2007, in Kenton County, Kentucky. The district court denied Defendants qualified

immunity on the federal and state law claims. Because Defendants’ conduct was not objectively

unreasonable, we REVERSE.


                                                1
                                        I. BACKGROUND

                                              A. Facts

       On July 7, 2007, Williams, an African-American male, planned to accompany his cousin to

Lexington, Kentucky, to spend an evening out on the town. They began their trip by visiting a liquor

store in Covington, Kentucky, to purchase some vodka; Williams also purchased a blue pill, which

he believed to be ecstasy. With his cousin driving, the two men headed south on Interstate 75 (“I-

75”). Williams took the pill and drank some of the vodka. At some point thereafter, Williams

claims that he began to feel extremely hot, and as a result, he decided not to continue to Lexington.

After requesting that his cousin pull over on the interstate, Williams exited the vehicle and started

walking north in an attempt to return home. Now traveling by foot, Williams, who was still feeling

hot, began to remove his clothing “little by little” until he was completely naked. Fully nude,

Williams continued to jog north along southbound I-75.

       At approximately 11:54 p.m., a motorist traveling on I-75 called 9-1-1 to report seeing a

naked man in the southbound lanes of traffic. Kenton County Police Sergeant Greg Sandel

(“Sandel”) was the first officer to respond to the call. At approximately 12:05 a.m., while driving

southbound on I-75, Sandel spotted Williams jogging north in the emergency median strip next to

the high-speed lane of the interstate. The highway was not lit, and the only sources of light were the

headlights of the police cruiser and passing motorists and, eventually, the officers’ flashlights.

       Passing Williams, Sandel activated his emergency flashing lights, executed a U-turn into the

emergency median strip, and approached Williams from behind (such that the police cruiser faced

north in the southbound emergency lane, next to the center median). Williams turned to face the

police vehicle and Sandel exited his vehicle to approach Williams. Events beginning at this point


                                                  2
are recorded on video (“the video”) from a dash-mounted camera in Sandel’s police cruiser. The

video recorded sound audible inside the unattended cruiser including communication from the police

radio, a satellite radio comedy program playing on the cruiser’s radio, and occasional, muffled

yelling from the officers and Williams. Some recorded portions of the satellite radio program had

racial overtones.

       As Sandel walked toward Williams, he removed his electronic control device (“ECD”) or

Taser and held it in his right hand. Williams raised his hands and initially got down onto his knees.

Continuous traffic passed by them in the southbound lanes.

       Kenton County Officer Robert Fultz (“Fultz”) then arrived on the scene from northbound I-75

and had to scale the concrete median to join Sandel and Williams. As Fultz came over the median,

Williams stood up and then resumed a kneeling position. From this kneeling position, Williams then

adopted the prone position. Laying in the prone position, Williams looked up at Fultz, and initially

refused to allow Fultz to grab his left hand. Fultz attempted to grab Williams’s left hand again,

which Williams allowed. Fultz handcuffed Williams’s left hand.

       At this point, Kentucky Vehicle Enforcement Officer, Trevor Wilkins (“Wilkins”), reached

the scene, also arriving on northbound I-75 and scaling the median to join Williams and the officers.

Fultz, holding Williams’s left handcuffed hand behind his back, knelt on Williams’s back in an

apparent attempt to finish securing him. Williams (who at the time of the incident weighed over 200

lbs, appeared to be quite physically fit, and stood between five-feet eight-inches and six-feet tall)

used his free right arm to push himself up from a prone position into a seated position. This

movement also caused Fultz to lose hold of Williams’s left arm. Following Williams’s movement,

Sandel appears to use the ECD device for the first time. Fultz then appears to direct Williams to


                                                  3
resume the prone position. Williams complied. Fultz grabbed Williams’s left arm again, at which

point Wilkins and Fultz attempted to secure Williams. Williams, however, successfully pushed

himself up from a prone position again, preventing Fultz and Wilkins from securing him. In

response, Sandel employed his ECD. Also at this point, the off-duty officer riding with Wilkins

becomes visible, standing on the northbound side of the median.

       Following the ECD charge, Williams laid on his back. Fultz attempted to grab his left arm

and to pull him into prone position. Williams did not permit himself to be rolled over and ended up

in a seated position again. Fultz then gestured to Williams to resume prone position. Sandel appears

to wait a few seconds for compliance before using the ECD again. Following the ECD charge,

Williams again laid on his back. He did not resume prone position, and Fultz appears to strike

Williams with his baton. Williams then resumed prone position. Fultz secured something in his

own belt, possibly his flashlight or ECD, and attempted again to grab Williams’s left hand. Williams

looked up at Fultz and prevented his hand from being grabbed. In response, Fultz struck Williams

on the legs and it appears that Williams was subject to an ECD charge. Following the ECD

activation, Williams again laid on his back. Fultz gestured that he should resume prone position.

Williams initially complied. However, when Fultz grabbed his left arm, Williams rolled up into a

seated position. Fultz struck him on the leg with the baton and it appears that Williams was again

subjected to an ECD. All the while, the oncoming traffic did not cease.

       Fultz then gestured to Williams, again laying on his back, to resume prone position. Instead,

Williams sat up. Wilkins appears to strike Williams on the legs with a baton. Fultz followed with

another baton strike to the legs. Fultz then appears to use his baton to strike Williams’s right arm.

Williams responded by scooting away from the officers toward the travel lanes of the interstate,


                                                  4
while maintaining a seated position. The officers continued to gesture toward the ground. Wilkins

appears to strike Williams’s leg. Williams scooted closer to the travel lanes of the interstate. Just

as he reached the yellow line of the high-speed travel lane, it appears that Williams is again subject

to an ECD, which caused him to fall from the seated position onto his back such that his head was

within the high-speed lane. Fultz grabbed his legs in order to pull him from the travel lane back into

the emergency lane.

       Again fully in the emergency lane, Williams resumed his seated position and then stood up.

Both Wilkins and Fultz appear to strike him with the baton. Rather than complying, he ran into the

travel lanes of the interstate. Sandel employed his ECD and Williams dropped onto his stomach in

the high-speed lane. Sandel and Fultz tried to remove him from the lane and Wilkins attempted

unsuccessfully to stop a vehicle that was simultaneously passing the group. At this point, the off-

duty officer scaled the median. Williams stood up, unsecured, and moved further south in the

traveled portion of the interstate. The off-duty officer entered the travel lanes in an attempt to stop

traffic. Wilkins then followed Williams, Sandel, and Fultz south on the interstate. From this point

onward, the group is no longer in view of the video.

       In Williams’s version of the above events, he was fully compliant with the officers. Williams

also maintains that when Fultz first attempted to handcuff him, Fultz asked the other officers “does

anyone have a rope.” Williams alleges that this statement caused him to fear for his life and, thus,

to refuse Fultz’s attempt to secure him in handcuffs. Williams also asserts that the officers took

turns discharging their ECDs on him, but the ECD download sheets for Sandel and Fultz indicate

this assertion is inaccurate and that Fultz did not begin to use his ECD until after Sandel’s final ECD

activation.


                                                  5
       Williams claims that he “attempted to escape” the encounter with the officers by heading

south on the interstate. An eyewitness at the scene observed:

       [The officers] were all following [Williams] or chasing after him more or less, and
       he just, he was running across I-75, running back and forth, zigzagging, trying to
       dodge the cops . . . . And they actually, they finally got a hold of him I believe one
       of them tackled him or something and then they did hit him with their billy club to
       try and get his arms locked like this, backwards, like holding himself up. And one
       of them was hitting him in the elbow, but it wasn’t, it wasn’t phasing him at all. So,
       then after that, I believe he got up and they tased him and that didn’t stop him. He
       just ripped the taser right out of himself, and then kept running down the road. And
       I believe they caught him down the road again, but I could, I could barely see that far.
       That was probably another eighth of a mile to a quarter mile down the road that he
       ran from them, all in the same side of the median though on I-75.

Williams claims that during this portion of the encounter he continued to be beaten, tased, and

sprayed with chemical irritant spray, and we accept his assertion. Fultz and Wilkins admit to

spraying him with pepper spray and maintain that it had no effect on Williams.

       Ultimately, Fultz, Sandel, and Wilkins were able to corner Williams such that his back was

against the concrete median separating the north- and southbound portions of the interstate. Fultz

asserts that Williams attempted to scale the median to escape onto the northbound side.

       While Williams was backed against the median, Fultz acknowledged that the officers

continued to use their batons to try and gain compliance from him. During this period, Williams also

sustained an injury to his head.

       Williams claims that he ultimately collapsed from exhaustion and at that point was placed

in handcuffs and leg shackles. Boone County Deputy Sheriff Scotty Hill (“Hill”), who was not

named as a defendant, arrived at the scene at approximately 12:15 a.m. He reported that Williams

and the officers were several hundred yards south of where traffic was stopped. He ran south toward

the group. Hill stated that:


                                                  6
       The officers were giving [Williams] verbal commands to get on the ground. The
       officers would pause and give him an opportunity to comply with their verbal
       command. When he refused to comply, he was struck in the thigh with an
       expandable baton. I heard and observed this sequence several times.

       I also noticed that taser probes were still in the male subject but the leads were gone.
       In my experience, it is not unusual for subjects who have been tased to try and pull
       the probes out and disconnect the leads. Once this occurs, the probes are
       disconnected from the taser device and it will no longer be effective to subdue an
       individual.

       I also noticed that the officers who were around him were exhausted from the
       physical confrontation. Since the subject was noncompliant with the officers’ efforts
       to arrest him, I discharged my taser into his back. I squeezed and released the taser
       trigger and it cycled for five (5) seconds. The subject fell face down on the ground
       while the taser cycled for the five (5) seconds. After the first five (5) second cycle
       ended, the subject started to push up from the ground, so I squeezed and released the
       trigger again while the probes and leads still had a good connection. The taser cycled
       for another five (5) seconds.

       After the second taser cycle ended, one of the officers was able to secure the second
       handcuff on the subject.

       It is undisputed that once the officers secured Williams, there was no additional force used

against him.

       During the encounter, Sandel requested emergency medical services. The emergency medical

team put Williams on a stretcher. Because he was “combative and screaming” and had “chewed-up”

two non-rebreather masks, the team ultimately secured him to the stretcher. So secured, he was

transported by ambulance to St. Luke’s Hospital. Dr. Paul Spellman, the treating physician,

indicated that Williams arrived with a scalp laceration, two fractured fingers, contusions on his torso

and extremities, and abrasions on his feet. The initial drug and alcohol screens were both negative.

Dr. Spellman found that Williams had an elevated white blood cell count, which could be

attributable to general stress on the system as well as physical exertion. Given Williams’s urinalysis



                                                  7
findings and elevated creatinine levels, there was a concern that he was experiencing a condition

known as rhabdomyolysis, “which is when there has been a muscle injury which causes products

from within the muscle cells to be released into the circulation; it can result in damage to the

kidneys”; Williams ultimately had to undergo a series of dialysis treatments after his release from

the ER.

        In addition to rhabdomyolysis, a psychological exam conducted on January 15, 2009

indicated that Williams suffered Post Traumatic Stress Disorder as a result of the events of July 7

and 8, 2007.

                                      B. Procedural History

        On September 25, 2008, a Kenton County jury convicted Williams of disorderly conduct, but

a mistrial was declared for the charges of resisting arrest, fleeing, and wanton endangerment. The

matter was reset for trial on March 17, 2009, but before trial, Williams entered a plea agreement with

the Commonwealth. He pled guilty to wanton endangerment and entered an Alford plea on the

resisting arrest charge.

        On August 2, 2007, Williams filed a civil complaint in Kenton Circuit Court. The case was

removed to federal court and thereafter Sandel and Fultz filed for summary judgment arguing that

the force used was not objectively unreasonable, and even if it were, they were entitled to qualified

immunity. Wilkins also filed a motion for summary judgment, asserting qualified immunity.

Additionally, Wilkins argued Williams’s state, arrest-related criminal convictions collaterally

estopped him from asserting an excessive force claim.

        Williams opposed the summary judgment motions. He argued that there was sufficient

evidence to create a genuine issue of material fact regarding his claims and that the officers should


                                                  8
not receive qualified immunity because they used excessive force in violation of clearly established

rights.

          On December 8, 2009, the district court held oral argument on the motions for summary

judgment. Ruling from the bench, the court denied the officers’ request for summary judgment:

          My job is, are there factual issues which preclude summary judgment on the
          excessive force claim. I answer that “yes.” At this stage I think there are a number
          of disputed issues of material fact which preclude summary judgment on the Fourth
          Amendment claim.

                   There has been sufficient facts to allege constitutional depravity under the
          Fourth Amendment. So then for the same reasons under the plaintiff’s version of
          facts, I cannot say that the officers – If the jury were to believe plaintiff’s version of
          what occurred, I am unable to say that an officer would not know what they did was
          unreasonable under the facts and circumstances of the case.

                 So the request for the Court to uphold the officers’ use of force in this case
          under the theory of qualified immunity analysis is denied at this point, and that
          includes the motions filed by Sandel and Fultz and the motion filed by Defendant
          Wilkins.

          ....

                   The Court is denying – I want to make sure the record is painstakingly clear.
          The denial of the motion for summary judgment with qualified immunity is based on
          facts that the Court finds are in dispute. The qualified immunity motion was made
          at the end of discovery. There are – And I’m not going to go into all the issues of
          disputed fact. [Williams’s counsel] has highlighted many of those in his brief . . .
          [and] . . . during oral argument this afternoon.

Additionally, the district court denied Wilkins’s argument that collateral estoppel barred Williams

from asserting an excessive force claim. The court also retained Williams’s state-law battery and

negligence claims: “The two battery and negligence claims, in the Court’s view, those rise and fall

with the same considerations, analysis of the federal law claims.” Finally, it rejected the request to

compartmentalize or segment the excessive force analysis into the force used on and off the video.



                                                      9
       Two days later, on December 10, 2009, the district court issued an order on its decision,

stating only that summary judgment was denied on the excessive force, battery, and negligence

claims “for the reasons stated and the findings made on the record.”

       On December 16, 2009, the officers moved for partial reconsideration. Citing the video, they

argued that there were no disputed issues of fact with respect to the force shown and that,

accordingly, they were entitled to judgment as a matter of law. The motion also argued that the

district court, per the precedent of the Sixth Circuit, should segment the analysis for purposes of

qualified immunity. On February 1, 2010, the district court denied the motion for reconsideration,

explaining that the “disputed nature of the conduct depicted in the video, coupled with the video’s

lack of audio, rendered segmentation impractical and inappropriate.”

       This appeal followed.

                                             II. Analysis

                                           A. Jurisdiction

       The officers file this interlocutory appeal pursuant to 28 U.S.C. § 1291. Williams challenges

jurisdiction, arguing that the officers raise questions of fact that preclude this court’s review.

       An appellate court may hear an interlocutory appeal for the “denial[] of summary judgment

motions based on qualified immunity to the extent that the appeal raises issues of law.” Grawey v.

Drury, 567 F.3d 302, 310 (6th Cir. 2009) (citations omitted). Applying Kentucky immunity law, we

also have jurisdiction to review the denial of qualified immunity for the state law claims. See

Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007); Haney v. Monsky, 311 S.W.3d

235, 239-40 (Ky. 2010).




                                                  10
       We review de novo the district court’s denial of qualified immunity for federal and state law

claims. Id. (federal standard); Estate of Clark, ex rel. Mitchell v. Daviess County, 105 S.W.3d 841,

844 (Ky. App. 2003) (state standard). This de novo review is based on the facts viewed in the light

most favorable to the plaintiff, or in other words, we presume the plaintiff’s version of the facts is

correct if the facts are disputed. Grawey, 567 F.3d at 310.

                     B. Qualified Immunity: § 1983 Excessive Force Claim

       The officers claim that they are entitled to qualified immunity because the force used was

reasonable given the circumstances they faced: a naked man on the interstate in the middle of the

night, who was unwilling to allow himself to be secured. They also maintain that even if the force

was not objectively reasonable, they are entitled to qualified immunity because the force used did

not violate clearly established law. Sandel and Fultz assert qualified immunity for their ECD, police

baton, and pepper spray usage. Wilkins asserts qualified immunity for his baton and pepper spray

usage. Williams argues that in effecting his arrest, the officers violated his Fourth Amendment right

to be free from excessive force by their repeated usage of the ECD, police batons, and pepper spray.1

       Stating a claim for excessive force under 42 U.S.C. § 1983 requires a plaintiff to establish

“the deprivation of a right secured by the Constitution or laws of the United States” that is “caused

by a person acting under color of state law.” Marvin v. City of Taylor, 509 F.3d 234, 243 (6th Cir.

2007) (internal citations and quotation marks omitted). The doctrine of qualified immunity operates


       1
         In his brief, Williams also asserts that Wilkins is responsible for his failure to intervene to
stop the allegedly excessive number of ECD activations by Sandel and Fultz. Wilkins accurately
points out that Williams failed to include a failure to intervene allegation in his complaint and
explicitly informed the district court that this type of claim was not at issue. Because this claim was
not raised before or considered by the district court, Williams forfeited this claim. See Meade v.
Pension Appeals & Review Comm., 966 F.2d 190, 194 (6th Cir. 1992) (stating that appellate court
generally “will not address issues on appeal that were not raised and ruled upon below”).

                                                  11
to shield government officials performing discretionary functions from civil liability “insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Determining the

applicability of qualified immunity involves a two-step analysis. First, the court asks whether the

officers’ conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).2 If no

constitutional violation exists, the inquiry stops, the § 1983 claim fails as a matter of law, and the

officers do not need qualified immunity. Marvin, 509 F.3d at 244. But if the court finds a potential

constitutional violation, it then asks whether the right was clearly established in light of the specific

circumstances of the case. Saucier, 533 U.S. at 201.3 When the law is not sufficiently clear such

that a reasonable officer would be on notice that his conduct is clearly unlawful, qualified immunity

is appropriate. Id. at 202.

        1. Constitutional Violation

        Williams’s claim of excessive force is “properly analyzed under the Fourth Amendment’s

‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). In considering

whether the officers’ conduct is objectively reasonable, this court must look at the facts and

circumstances of the case from the perspective of a reasonable officer at the scene and not using

20/20 hindsight. Grawey, 567 F.3d at 310. With this perspective, the court must balance “the nature



        2
        While Saucier held that the sequence of this analysis, as it is portrayed here, was mandatory,
the Supreme Court has since stated that conducting the analysis in this order, while beneficial, is not
required. Pearson v. Callahan, 555 U.S. 223 (2009).
        3
        A third step considering whether a “plaintiff has offered sufficient evidence to indicate that
what the official allegedly did was objectively unreasonable in light of the clearly established
constitutional right” is used by some courts, but is redundant in an excessive force analysis that
already considers whether the conduct was objectively unreasonable. Grawey, 567 F.3d at 309.

                                                   12
and quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal citations and

quotation marks omitted). The most important factors to consider include: (1) “the severity of the

crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or

others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

at 396.

                 a. Severity of the Crime

          As Wilkins points out, Williams’s behavior might have given rise to several violations under

state law, including: public intoxication, indecent exposure in the second degree, disorderly conduct

in the second degree, and impermissibly walking on the highway. See Ky. Rev. Stat. § 525.100

(public intoxication); Ky. Rev. Stat. § 222.202 (alcohol intoxication); Ky. Rev. Stat. § 510.150

(indecent exposure); Ky. Rev. Stat. § 525.060 (disorderly conduct); Ky. Rev. Stat. § 189.570(14),

(16) (walking on or along a highway). Although not the most serious of criminal violations, surely

Williams’s bizarre conduct, jogging naked on the interstate in the earliest hours of the morning,

provided several reasons for the officers to stop and detain him.

                 b. Immediate Safety Threat

          Considering first the portion of the encounter recorded on the video, it is clear that Williams

posed an immediate threat to the safety of himself and the officers, as well as passing motorists.

Williams’s nudity clearly conveyed to the officers that Williams was unarmed. Yet Williams created

a risk of serious harm by virtue of the location and his actions. In fact, in the initial seconds of

Sandel’s interaction with Williams, before he began resisting the officers’ attempts to secure him,

eleven vehicles passed on the travel lanes of southbound I-75. Granted, Sandel and Williams


                                                    13
remained in the emergency lane next to the median, but even so, there is some risk inherent in

standing alongside traffic moving at such high speeds, especially when there is an individual

involved who has been engaging in bizarre and highly erratic behavior.

        Once Williams began resisting Fultz’s attempts to secure him in handcuffs, the risk

dramatically increased for all involved: Williams, the officers, and the passing motorists. As seen

on the video and described above, Williams’s movements became erratic and he repeatedly moved

toward the travel lanes of the interstate. Correspondingly, the officers were forced to move closer

to the travel lanes as well. Approximately nineteen more vehicles passed while the officers

attempted to secure Williams in the emergency median. At least one vehicle passed while Williams

and the officers were in the high-speed and middle travel lanes of the interstate. As Williams exited

the view of the camera and headed south in the travel lanes of the interstate, up to three additional

vehicles passed before traffic was stopped. Obviously, the risk of serious bodily injury or death is

great when encountering the high-speed traffic present on an interstate. See generally Scott v.

Harris, 550 U.S. 372, 384 (2007) (acknowledging the risk of serious bodily injury or death present

in a pedestrian and high-speed motorist crash). This risk was further heightened by the darkness and

limited visibility.

        The record indicates that the encounter ultimately returned to the emergency lane next to the

median dividing the southbound and northbound portions of I-75. The officers’ testimony indicates

that Williams attempted to scale the median. Even though southbound traffic remained stopped,4


        4
        The stoppage of traffic certainly diminishes the threat of a fatal or seriously injurious
accident. In this case, the traffic was stopped by an off-duty officer wearing civilian clothes and
carrying a flashlight. And while the video indicates that the officer effectively and continuously
stopped traffic, from the perspective of an officer on the scene, a question may have remained
whether a single officer, so dressed and so equipped, would be able to halt interstate traffic until

                                                 14
it was reasonable for the officers, given Williams’s behavior and position next to a scalable median,

to worry about the risk he might pose to motorists on the northbound side of I-75. Plainly,

Williams’s conduct from the beginning of the encounter until he was secured posed an immediate

threat of injury or death to himself, the officers, and other motorists by virtue of the circumstances.

               c. Actively Resisting Or Attempting To Evade

       Again, the video demonstrates that Williams actively resisted the officers’ efforts to secure

him. Although Williams insists that he was compliant with the officers, the video makes clear that

he repeatedly refused to allow himself to be secured by the officers and he attempted to evade the

officers by traveling south on the interstate (out of view of the camera). See Scott, 550 U.S. at 380-

81 (holding that a court should rely on the video record when the plaintiff’s version of the facts

blatantly contradicted it). Even after he was cornered against the median, he refused to submit to

being secured until two final ECD activations allowed the officers to handcuff him.

       It is against this backdrop that we must weigh the officers’ conduct. Although Williams’s

offenses were arguably not of extreme severity, law enforcement surely has an interest in efficiently

securing a suspect. And that interest was heightened under the circumstances presented here; the

officers had a strong interest in securing Williams for his own protection as well as theirs and the

protection of passing motorists. As a result, the force used, which ceased once the government’s

interests were realized, weighs in favor of a finding of reasonableness.




Williams was secured.

                                                  15
        Admittedly, Williams’s claim of being subject to baton strikes, pepper spray, and thirty-seven

ECD activations,5 taken alone and out of context, makes the officers’ conduct seem somewhat

unreasonable. But even under Williams’s version of the facts, despite the first thirty-six ECD

activations, all of the baton strikes, and the repeated pepper spray usage, Williams remained

unsecured and unwilling to comply with the officers’ attempts to secure him for his own safety as

well as the officers’ and motorists’. As a result, his interests do not outweigh the government’s.

        Williams also attempts to emphasize the allegedly excessive nature of the force by

highlighting his injuries. Even assuming that the rhabdomyolysis was tied to the ECD activations,

the injury itself does not dictate a finding of excessive force. See Miller v. Sanilac Cnty., 606 F.3d

240, 252 (6th Cir. 2010) (explaining that the existence of a constitutional violation turns on “not the

extent of the injury inflicted but whether an officer subjects a detainee to gratuitous violence” per

the Graham analysis (citation and internal quotation marks omitted)).

        Nor does Williams’s allegation about a racially charged comment transform the officers’

force into excessive force. See Hudson v. Goob, No. 07-1115, 2009 WL 789924, at *12 (W.D. Penn.

Mar. 24, 2009) (“The rule is that if the physical force used is not itself excessive, i.e., is reasonable,

then merely adding verbal threats or racial epithets cannot transform an otherwise non excessive use

of force into an unconstitutional use of excessive force.”); Johnson v. City of Ecorse, 137 F. Supp.

2d 886, 892 (E.D. Mich. 2001) (“Policemen’s use of slurs and racial epithets is not a search or

seizure, and thus cannot sink to the level of violating the Fourth Amendment’s prohibition of



        5
         Williams’s claim of thirty-seven ECD activations is based on downloads recorded from
Sandel’s ECD (fourteen total activations) and Fultz’s ECD (twenty two activations) as well as one
activation from Deputy Hill. We note that Deputy Hill’s deposition indicates that he used his ECD
on Williams twice, which would bring the total ECD activations in the record to thirty-eight.

                                                   16
excessive force.”); see also Giese v. Wichita Police Dep’t, 69 F.3d 547, 1995 WL 634173, at *2

(10th Cir. 1995) (unpublished table opinion) (“Verbal threats during questioning also do not

constitute the use of excessive force.”).

       Although the reasonableness of force is often a question of fact, on several occasions we have

determined that force is objectively reasonable. In a case quite similar to this one, we held that the

use of “closed-fist blows” and ECD activation during an officer’s attempt to effect the arrest of a

potentially armed, non-compliant suspect did not amount to a constitutional violation. Williams v.

Ingham, 373 F. App’x 542 (6th Cir. 2010). This court found that it was objectively reasonable for

an officer to use pepper spray to force a non-compliant individual to follow police orders. Monday

v. Oullette, 118 F.3d 1099, 1104 (6th Cir. 1997). Kijowski v. City of Niles, 372 F. App’x 595 (6th

Cir. 2010) is not to the contrary. There we held that the beating and use of an ECD against a non-

resisting subject was not objectively reasonable. Id. at 600. However, central to the court’s

conclusion was the suspect’s non-resistance. The Kijowski court was careful to distinguish case law

which held that use of physical force against a resisting suspect is not objectively unreasonable. Id.

(citing Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (emphasizing that

the use of physical and ECD force against an individual actively resisting arrest could be a

reasonable use of force)).

       Finally we note that other circuits have likewise recognized the danger posed by proximity

to a busy roadway in finding the use of force against a non-compliant individual objectively

reasonable. See Buckley v. Haddock, 292 F. App’x 791, 796 (11th Cir. 2008) (holding that repeated

ECD usage on a non-compliant suspect during an arrest on the side of a busy highway at night was

objectively reasonable); Mecham v. Frazier, 500 F.3d 1200, 1205 (10th Cir. 2007) (holding that


                                                 17
pepper spray usage on a non-compliant suspect was objectively reasonable when the “encounter

played out on the narrow shoulder of a busy interstate highway” with “high speed traffic” nearby).

       Accordingly, we conclude the officers use of ECDs, batons, and pepper spray was not

objectively unreasonable on the facts presented and did not amount to a violation of Williams’s

Fourth Amendment rights. Although the lack of video capturing the entire interaction between the

officers and Williams makes this a slightly more difficult question, the evidence, even taken in the

light most favorable to Williams, still supports a conclusion that the officers’ conduct did not amount

to a constitutional deprivation.6

                           D. Qualified Immunity: State Law Claims

       Williams also brought state-law claims of battery and negligence against the officers.

State-law qualified immunity protects officers from liability for discretionary acts, taken in good

faith, within their scope of authority. See Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). Bad

faith can be demonstrated by objective unreasonableness or by a subjective intention to harm (i.e.,

a “corrupt motive”). See id. at 523. As with federal qualified immunity, it is Williams’s burden to

establish that the officers’ actions were not performed in good faith. James v. Wilson, 95 S.W.3d

875, 905 (Ky. Ct. App. 2002).

       Without authority or even any description of the negligence claim’s elements, Williams

alleges that a reasonable juror could conclude that the “officers exceeded the bounds of force

reasonably needed to affect the arrest and thereby were negligent[.]” Arguably, his negligence claim

is waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). In any event, the claim



       6
        Because we conclude that the officers’ conduct was not objectively unreasonable, we decline
to address the district court’s decisions on collateral estoppel and segmentation.

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merely alleges a breach of the “duty not to use excessive force.” Jones v. Kentucky Bd. of Claims,

No. 2006-002157, 2007 WL 2812612, at *3 (Ky. Ct. App. 2007). This claim thus follows the

excessive-force analysis.

       We have already concluded that the officers used reasonable force. Therefore, Williams’s

state law claims survive only if the officers acted with a subjective intent to harm him. Williams

says that Fultz’s reference to a rope, a racial radio broadcast, and the “abuse . . . despite his

compliance” establish the requisite subjective intent. None of these allegations support Williams’s

claim. As we have explained, Williams was non-compliant. The “racial radio broadcast” is

irrelevant: a radio comic’s remarks, broadcast 15 minutes after Sandel exited his police vehicle, say

nothing about the officers’ motives. Finally, even assuming Fultz made the rope comment, we find

that the comment is insufficient as a matter of law to defeat the presumption that Fultz acted in good

faith with respect to his attempts to subdue Williams in the extraordinary circumstances presented

here. See Rowan Cnty v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (“once the material facts are

resolved, whether a particular defendant is protected by official immunity is a question of law, which

we review de novo” (internal citation omitted)). We thus hold that the officers are entitled to

qualified immunity on Williams’s state-law claims.

                                       III. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s denial of summary judgment

on federal and state-law qualified immunity.




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