                         NOT RECOMMENDED FOR PUBLICATION

                                     File Name: 20a0429n.06

                                         Case No. 19-1331

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Jul 24, 2020
  PATRICIA SIDERS,                                    )                       DEBORAH S. HUNT, Clerk
                                                      )
        Plaintiff-Appellee,                           )
                                                      )     ON APPEAL FROM THE UNITED
                 v.                                   )     STATES DISTRICT COURT FOR
                                                      )     THE EASTERN DISTRICT OF
  CITY of EASTPOINTE, et al.,                         )     MICHIGAN
                                                      )
        Defendants-Appellants.                        )


        BATCHELDER, J., delivered the opinion of the court in which NALBANDIAN, J.,
joined. STRANCH, J. (pp. 16–25), delivered a separate dissenting opinion.

        Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal, two police

officers, in their individual capacities, appeal the denial of qualified immunity from claims of

excessive force, failure to intervene, and deliberate indifference to serious medical needs.

       The main question in this case is whether a police officer dispatched to the night-time scene

of an alleged domestic-violence assault must permit the suspect: (1) to withdraw into a dark

minivan and close the door, then (2) to resist physical restraint by kicking the officer and clinging

to a seat, and finally (3) to expressly refuse the officer’s commands to submit to handcuffing. To

be more specific, the plaintiff contends that the officer used excessive force, in violation of her

clearly established constitutional rights, by: (1) seizing her bodily and physically removing her

from the minivan—rather than allowing her to remain in the minivan and close the door;

(2) overwhelming her resistance by brute force—rather than relenting when she kicked him and

clung to the seat; and (3) tasing her when she physically and verbally refused to comply after six
No. 19-1331, Siders v. City of Eastpointe


orders to place her hands behind her back—rather than permitting her to remain un-handcuffed.

The officer claimed qualified immunity, meaning that he is immune from suit if his actions did not

violate the suspect’s constitutional rights, or if those rights were not clearly established, or if his

decisions, even if mistaken, were not wholly unreasonable under the circumstances.

        To deny qualified immunity here would be to hold that a suspected domestic-violence

perpetrator has a clearly established constitutional right to thwart the responding officer by getting

into a car and closing the door, to resist restraint by kicking the officer and clinging to the car’s

seat, and to refuse the officer’s orders for handcuffing. There are no such rights. To be sure, a

reasonable person viewing the video of this incident could characterize the officer’s actions as

impatient, overzealous, and perhaps unnecessary. But whether we personally condone or condemn

the officer’s conduct is immaterial; the question is whether our constitutional precedent so clearly

forbids it that we cannot even construe the officer’s actions as a reasonable mistake. Even if we

were to agree that the officer was impatient or overzealous, his actions were not wholly

unreasonable under the circumstances, and those actions did not violate the suspect’s clearly-

established constitutional rights. Therefore, he is entitled to qualified immunity.

        The plaintiff’s other accusations, that the other officer violated her constitutional rights by

failing to intervene and deliberately disregarding her serious medical needs, are so clearly refuted

by the video evidence as to render them specious. No reasonable juror viewing the videos could

conclude otherwise and, therefore, that officer is also entitled to qualified immunity.

        We REVERSE and REMAND for issuance of a judgment consistent with this opinion.

                                                  I.

        At about 10:45 p.m., on March 18, 2015, Melvin Siders called 911 on his estranged wife,

Patricia Siders. The City of Eastpointe police dispatcher broadcasted a call for officers to respond,

reporting: 911-caller and wife “are physically fighting” in the driveway, can hear wife “screaming

                                                  2
No. 19-1331, Siders v. City of Eastpointe


in the background,” caller says wife hit him, weapons unknown. R. 35-3 (police broadcast report).

A dashcam video from a responding officer’s cruiser recorded the events that follow.

         A female officer, Rene Deladurantaye, was the first to respond. The area was dark, lighted

only by streetlamps and the lights from the police cruisers. Officer Deladurantaye encountered a

minivan, parallel parked at the curb. Melvin, a 30-year-old, 5’5”, 190 lb. African-American man

in a suit and tie, was standing in front of it. Patricia, a 28-year-old, 5’5”, 200 lb. African-American

woman in a tank top and jeans, was in the minivan but leaning out of the open driver-side rear

door. Three children (ages eight, five, and three) were seated inside the minvan.1 Melvin was

disheveled and holding a “club” by its center, in a non-threatening manner. A “club” is a

tradename for a metal bar that locks onto a car’s steering wheel to prevent or discourage theft of

that car. Officer Deladurantaye told him to put it down and he tossed it aside, claiming that Patricia

had attacked him with it. Officer Deladurantaye could see that Melvin had been struck in the face.2

While Melvin was calm and cooperative, explaining why he called 911 for help, Patricia was

yelling and antagonistic.

         The second officer on scene was a male officer, Joseph Piro, who arrived almost

immediately after Officer Deladurantaye and, because of where he parked his cruiser, it was his

dashcam that recorded the on-scene events.3 Officer Deladurantaye directed Officer Piro to talk

with Patricia while she talked with Melvin. As Officer Piro approached Patricia, she withdrew




         1
           Certain physical characteristics that are not evident from the video were taken from the arrest report. They
are included here for frame of reference but are not material to the case or this appeal. Nor are they disputed.
         2
          There is no dispute that Patricia had struck Melvin in the face before the officers arrived, or that Officer
Deladurantaye could and did recognize that Melvin had been struck in the face. Patricia denied hitting him with the
club. To avoid any disputes of potentially material facts, we will accept that she did not hit him with the club.
         3
             Officer Deladurantaye’s field mic recorded her conversations.


                                                           3
No. 19-1331, Siders v. City of Eastpointe


inside the minivan and tried to close the door.4 Officer Piro stopped approximately two-to-three

feet away from the minivan’s open side door, but extended his left leg straight out and put his left

foot in the door jamb to keep the door from sliding closed, and asked, conversationally, why she

was closing the door on him. Patricia snapped back, defiantly, “because I don’t want you to walk

up on me,” and appeared to kick his foot out of the door jamb as she tried again to close the door.5

Officer Piro immediately moved nearer to the open door and threatened: “Well, I’m gonna f***ing

walk up on you, okay? Close the door on me and you’re gonna get ripped out of this car.” At this

point, Officer Piro was standing with both feet on the street as close to the open door as possible;

he was standing fully upright (not leaning into the van) with his hands at waist level, slightly inside

the van, but not extended in front of him. It is possible that he attempted to touch, actually touched,

or even grabbed ahold of Patricia by her nearest extremity (arm, leg, etc.), if it was in his immediate

grasp, but it is clear from the video, and beyond question, that he did not bend, extend, or reach

into the minivan at that point, nor did he do anything overtly violent, aggressive, or with substantial

or overwhelming force. Nonetheless, we cannot see from the video exactly what was happening

inside the van during the four seconds that Officer Piro was giving this warning or threat. But we

can see in the video that, at the moment he finished saying the word “car,” Patricia—apparently

leaning back so as to piston her leg out horizontally—kicked him in the midsection, causing him



         4
          During her deposition, Patricia offered her version of these events, most of which does not match the video.
Her most serious, and unfounded, accusation is that she tried to close the minivan door due to her fear because Officer
Piro approached her with his hand on his gun. That is not true. The video shows that, when he approached the minivan
and began speaking with Patricia, Officer Piro was calm and cordial with his hands at his sides and not on his gun.
         5
           During her deposition, Patricia denied kicking Officer Piro’s foot out of the door jamb but testified that she
did try again to close the door. Because the dashcam was pointed at the front of the minivan, giving a profile view of
the encounter at the minivan’s sliding side door, and because the interior of the minivan was dark, neither action is
observable in the video. It appears from Officer Piro’s response in the video—both the movement of his foot off the
jamb and his instantaneous change in demeanor from cordial to profane and threatening—that she kicked his foot out
of the door jamb (and he testified that she did), but insomuch as this is a disputed fact, we will accept that she did not
actually kick his foot out of the door jamb. Regardless, this is not a material fact. And, while the video does not show
her repeated attempts to close the door, we will accept her testimony and consider it undisputed that she did so.


                                                            4
No. 19-1331, Siders v. City of Eastpointe


to buckle and take two steps backward, either from the force of the kick or in an effort to avoid it.

Then Patricia yelled, “Don’t put your hands on me, you have no reason to put your hands on me.”6

         After the kick, Officer Piro looked to Officer Deladurantaye, who was still speaking with

Melvin, and then turned back to Patricia and reached into the van with both hands. Officer

Deladurantaye left Melvin and went to assist Officer Piro with Patricia, as Melvin can be heard

exclaiming, “see what I’m sayin’, see what I’m sayin’?,” in obvious reference to Patricia’s frenzy.

While Officer Piro was trying to get hold of Patricia, she continued to kick at him and, when he



         6
          To avoid any dispute of potentially material facts, we will ignore Officer Piro’s account of these unseen
events and consider only Patricia’s, though Patricia’s deposition testimony provides little insight. She testified:
         Question:   Did you tell [Officer Piro] at that point, don’t put your hands on me?
         Patricia:   Yes.
         Question:   Why did you tell him that?
         Patricia:   Because he reached in and tried to grab my ankles.
As discussed in the text, however, it is doubtful—based on the video—that he had “reached in and tried to grab [her]
ankles” prior to her kicking and shouting. Her testimony continued:
         Question:   Why did you say don’t put your hands on me?
         Patricia:   Because he didn’t have a reason to put his hands on me.
         Question:   Did you try to kick the officer’s hands off you?
         Patricia:   I did kick.
         Question:   Did you kick him in the hands?
         Patricia:   No. I don’t remember if it actually hit him or not.
         Question:   But where did you kick?
         Patricia:   I just kicked my foot.
         Question:   Where did you kick your foot at?
         Patricia:   Just like out, like get away.
         Question:   And it’s your testimony you don’t know if you struck the officer when you kicked your
                     foot out?
         Patricia:   No.
         Question:   You don’t know?
         Patricia:   I don’t know.
         Question:   You just don’t recall one way or the other, that’s your testimony?
         Patricia:   I’m saying I don’t remember.
         Question:   As he tried to pull you out of the car, what did you do to prevent from getting pulled out
                     of the car?
         Patricia:   I grabbed on to the seat.
         Question:   And held yourself in the seat?
         Patricia:   Yes.
For purposes of proceeding on undisputed facts, we will assume that Officer Piro tried to grab Patricia’s ankles (as
she testified), so she kicked him in the midsection (as seen in the video), then he did reach into the minivan and grab
her by the left ankle and begin to pull (as seen in the video), while she held on to the seat to prevent him from pulling
her out (as she testified) and continued to kick and fight (as seen in the video).


                                                           5
No. 19-1331, Siders v. City of Eastpointe


got a grip on her left ankle and tried to pull her out of the minivan, she held onto a seat creating a

bizarre tug of war as Officer Piro put his feet up on the door jamb for leverage and pulled Patricia

by the ankle. Meanwhile, Officer Deladurantaye was trying to coax Patricia to stop resisting, let

go of the seat, and get out of the van, asking, “Ma’am, do you really want to do this with your kids

right there?”; Patricia answered, “Yeah!,” and continued to fight. After about five seconds of this

tug of war, Officer Piro managed to drag Patricia completely out of the minivan, pulling her by

the left ankle at about his waist level while she held the minivan door with her left hand at about

the same height, so that she was stretched sideways with her right foot and right hand on the

ground. Officer Deladurantaye pried Patricia’s fingers from the door and the officers lowered her

to the ground: Officer Deladurantaye let Patricia put her left hand down, then Officer Piro put her

left ankle down, so that she was on her hands and knees, but she immediately rolled on to her left

side and kept fighting and yelling.7 At this point, 15 seconds after Patricia first kicked Officer Piro

in the midsection and after about 10 seconds of struggle, Melvin decided to intervene, so Officer

Deladurantaye had to turn back to Melvin to keep him away. A third officer arrived, grabbed

Melvin from behind, yanked him away, and wrestled him to the ground.

         Meanwhile, Patricia was still thrashing, fighting, and yelling, and Officer Piro was shouting

at her to stop resisting and to put her hands behind her back. She refused to comply, both physically

and verbally, yelling at him that she would not. After futilely telling her six times to cooperate,

Officer Piro tased her in the middle of her back and Officer Deladurantaye was able to cuff

Patricia’s hands behind her back. Officer Piro went to help subdue and cuff Melvin. While that

was going on, Patricia—who is double jointed—brought her cuffed hands up over her head to her


         7
           In her deposition testimony, and as the basis for this lawsuit, Patricia claimed that the officers slammed her
on the ground—on her back, on her face, on her head—causing her back injuries, causing her face to swell (and split
her lip), and possibly even causing a concussion. But the video shows that this never happened. The officers never
dropped her on the ground, much less slammed her on the ground, and her face and lip did not hit the ground.


                                                           6
No. 19-1331, Siders v. City of Eastpointe


front, tried to twist free from the officer holding her, and dropped herself onto the ground on her

bottom. The officers re-cuffed her behind her back but she again, while in the cruiser, brought her

cuffed hands over her head to the front, and then fixed her hair while looking in the car mirror.

She was also repeatedly fixing her hair while waiting at the police station. This focus on primping

her hair, and her apparent unawareness of or disinterest in any physical injury while at the station,

undermines her claims of serious injury and effectively refutes any claim that the officers had

reason to recognize that she had a serious medical need, a substantial risk of harm arising from it,

or a need to act on it. Photos of her in the record, taken by police during her booking, are of the

two prong-marks in her back from the taser, albeit without any evident discoloration or swelling,

and of her face and a closer picture of her lips, revealing no evident swelling or an identifiable split

lip.

        The officers arrested Patricia for domestic-violence-based aggravated felonious assault on

Melvin, an aggravated felonious assault on Officer Piro for kicking him, and obstructing a police

investigation. Pursuant to a plea agreement, the prosecutor dismissed the latter charges and

Patricia agreed to plead guilty to a domestic-violence charge and to enter a diversion program,

which led to the dismissal of that charge after she completed a year without further incident.

Patricia filed this § 1983 action against Officer Piro, Officer Deladurantaye, and the City of

Eastpointe. The defendants all moved for summary judgment, which the district court granted in

part, leaving three claims for trial: excessive force by Officer Piro for removing her from the van

and tasing her; failure to intervene by Officer Deladurantaye; and deliberate indifference to a

serious medical need by Officer Deladurantaye. Officers Piro and Deladurantaye appeal the

district court’s denial of their motions for summary judgment based on qualified immunity.




                                                   7
No. 19-1331, Siders v. City of Eastpointe


                                                 II.

        The denial of summary judgment is ordinarily not a final decision within the meaning of

28 U.S.C. § 1291, and, accordingly, it is generally not immediately appealable. But the “denial of

a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of [] § 1291 notwithstanding the absence of a final judgment.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Our jurisdiction is, however, limited: “we may not

decide a challenge aimed solely at the district court’s determination of the record-supported

evidence, but we may decide a challenge with any legal aspect to it, no matter that it might

encroach on the district court’s fact-based determinations.” Bunkley v. City of Detroit, 902 F.3d

552, 560-61 (6th Cir. 2018). Under our pragmatic approach, we “excise the prohibited fact-based

challenge” and “follow the same path as did the district court—considering the sufficiency of the

plaintiff’s proffered evidence, drawing all reasonable inferences in the plaintiff’s favor”—to make

a legal determination “based on th[e] now (for this purpose) undisputed record facts.” Id.

        Proceeding in this manner, we have jurisdiction over this interlocutory appeal from the

denial of qualified immunity. Moreover, in deciding this appeal, we rely primarily—almost

entirely, in fact—on our own plenary review of the videotape recordings. Plumhoff v. Rickard,

572 U.S. 765, 775 (2014) (holding that the panel must decide for itself whether “the events

recorded on the tape justified the officers’ conduct”); Scott v. Harris, 550 U.S. 372, 380-81 (2007)

(“The Court of Appeals . . . should have viewed the facts in the light depicted by the videotape.”).

        The officers claim qualified immunity. Qualified immunity shields government officials

in the performance of discretionary functions from standing trial for civil liability unless their

actions violate clearly established rights of which a reasonable person would have known. Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). It “is an immunity from suit rather than a mere defense to

liability,” Mitchell, 472 U.S. at 526, it allows police officers “breathing room to make reasonable

                                                  8
No. 19-1331, Siders v. City of Eastpointe


but mistaken judgments,” and “protects all but the plainly incompetent or those who knowingly

violate the law,” Stanton v. Sims, 571 U.S. 3, 6 (2013) (quotation marks and citation omitted). The

plaintiff in a § 1983 action bears the burden of overcoming the officer’s qualified-immunity

defense. Bunkley, 902 F.3d at 560. At the summary-judgment stage, the plaintiff must show that

(1) the defendant officer violated a constitutional right and (2) that right was clearly established.

Id. At a minimum, this requires that there be a “genuine issue of fact” material to the claim; that

is, “evidence on which [a] jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986).

                                                   A.

        Patricia accuses Officer Piro of using excessive force, in violation of her constitutional

right to be free from such force. In her deposition, she described this claim as follows:

        Question: What exactly did [Officer Piro] do that constitutes excessive force?
        Patricia:     Pulling me out of a vehicle by my feet and I wasn’t under arrest, and
                      they [the other officers] were trying to cuff me as I was being Tased at
                      the time, and also I was slammed onto the ground.

R. 35-2 at 47, PgID 391. The video makes clear that the second and third allegations did not

happen: officers did not try to cuff her while she was being tased and she was not slammed to the

ground. In this appeal, however, and in the district court, her attorney describes and argues her

claims differently, albeit somewhat imprecisely. We proceed on that description.

        Patricia’s encounter with Officer Piro, from the time he approached her until Officer

Deladurantaye handcuffed her and then went to help subdue and handcuff Melvin, lasted about 90

seconds. During that 90 seconds, there were three discrete events or “segments” that comprise

Patricia’s excessive-force claim: (1) Officer Piro’s touching or grabbing her as she sat in the

minivan, before she kicked him; (2) Officer Piro’s grabbing her by the left ankle and pulling her

from the van after she kicked him; and (3) Officer Piro’s tasing her while she thrashed on the street


                                                   9
No. 19-1331, Siders v. City of Eastpointe


refusing to comply with his orders to put her hands behind her back for cuffing. We analyze these

events sequentially. See Morrison v. Bd. of Trs., 583 F.3d 394, 401 (6th Cir. 2009) (“A reviewing

court analyzes the subject event in segments when assessing the reasonableness of a police

officer’s actions.”). “This approach requires us to evaluate the use of force by focusing on the

‘split-second judgment’ made immediately before the officer used allegedly excessive force, not

on the poor planning or bad tactics that might have created the circumstances that led to the use of

force.” Reich v. City of Elizabethtown, 945 F.3d 968, 978 (6th Cir. 2019) (quotation marks and

citation omitted).

        The first event is Officer Piro’s act of touching or grabbing Patricia in the minivan before

she kicked him. Because it is clear from the video that this “grabbing” could not have been overtly

excessive or violent, her claim must be that the mere act of seizing her physically under these

circumstances was per se excessive; she has no claim that the amount of force used in effectuating

that seizure was excessive. “[A]n officer may seize an individual without offending the Fourth

Amendment if the officer has reasonable suspicion that criminal activity may be afoot.” Hoover

v. Walsh, 682 F.3d 481, 494 (6th Cir. 2012) (quotation marks omitted). Reasonable suspicion is a

“particularized and objective basis for suspecting the particular person . . . of criminal activity

based on specific and articulable facts.” Id. (quotation marks and citation omitted). “We determine

whether an officer has the requisite quantum of proof by looking at the totality of the

circumstances.” Id. “Pertinent circumstances include the officer’s own direct observations,

dispatch information, directions from other officers, and the nature of the area and time of day

during which the suspicious activity occurred.” Id. (quotation marks and citation omitted). When

officers “reasonably believe[] that a crime occurred,” and that “the occupant[] of [a] car [was]

involved in that crime,” the officers have enough reasonable suspicion to remove the car’s



                                                10
No. 19-1331, Siders v. City of Eastpointe


occupants from the car and for a potential seizure. Houston v. Clark Cty. Sheriff Deputy John

Does 1-5, 174 F.3d 809, 815 (6th Cir. 1999).

        Here, Officer Piro responded to the dispatcher’s broadcast of domestic violence—

specifically accusing Patricia of domestic violence—and arrived to find Melvin pleading his case

that Patricia had been hitting him in the face. Even without Melvin’s version of events, Patricia’s

loud and antagonistic behavior from the moment the officers arrived (particularly in contrast to

Melvin’s subdued conduct) would have led Officer Piro, or any reasonable officer, to believe that

Patricia was the aggressor. It was late at night and dark. And the police dispatcher had said that

weapons were unknown. When Officer Piro approached the suspect, Patricia, she withdrew into

the dark minivan and tried to close the door. Officer Piro had reasonable suspicion that Patricia

had committed a crime, likely a violent domestic assault, and, correspondingly, had reason to take

hold of her and seize her physically. A police officer is not obliged to let an allegedly violent

suspect close herself into a dark minivan (with children inside) and dictate the terms of his

investigation into her alleged violence.     It reasonably appears from the video—and would

reasonably have appeared to any officer at the scene—that Patricia was intending to avoid or resist

investigation. And her combative attitude, shouts and statements, and attempt to close herself into

the minivan gave Officer Piro a reasonable basis to suspect that she might pose a safety threat.

        Even conceding that Officer Piro’s profanity was inappropriate and inflammatory, the mere

act of his seizing (i.e., touching or grabbing) her as she sat in the minivan, before she kicked him,

was permissible under the Fourth Amendment and the facts of this case. Moreover, neither his

profanity nor his act of seizing her justified her response of kicking him in the midsection.

        The second event is Officer Piro’s removal of Patricia from the minivan after she kicked

him. The video shows that he told her that if she tried to close the door on him again, he was going

to “rip” her from the van, whereupon she kicked and tried again to close the door, so he grabbed

                                                 11
No. 19-1331, Siders v. City of Eastpointe


her by the ankle, used the door jamb for leverage, and pulled her from the minivan, overcoming

her attempt to kick free and cling to the seat. The Fourth Amendment “protects individuals from

the use of excessive force during an arrest or investigatory stop.” Brown v. Lewis, 779 F.3d 401,

418 (6th Cir. 2015) (citing Graham v. Connor, 490 U.S. 386, 394-95 (1989)). To determine

whether force was excessive, the court “appl[ies] an objective reasonableness test, looking to the

reasonableness of the force in light of the totality of the circumstances confronting the defendants,

and not to the underlying intent or motivation of the defendants.” Burgess v. Fischer, 735 F.3d

462, 472 (6th Cir. 2013). Three factors guide the reasonableness test: “the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officer or others, and

whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Martin v.

City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (quoting Graham, 490 U.S. at 396).

        As the video makes clear, every bit of the force that Officer Piro used to remove Patricia

from the minivan was necessary to overcome her resistance (i.e., clinging to the seat and kicking);

he did not slam or drop her on the ground or commit any other form of gratuitous violence.

Therefore, this too is a question of whether the mere act of overwhelming her resistance and

forcefully removing her physically, under these circumstances, was per se excessive; there is no

legitimate claim that the amount of force Officer Piro used in effectuating that removal was

excessive.

        As already discussed, Officer Piro had reason to suspect that Patricia had committed a

crime, likely a violent domestic assault, that she was attempting to avoid or resist his investigation,

and that she might pose a safety threat to the officers, herself, or the children in the car. He had

just warned her: “Close the door on me and you’re gonna get ripped out of this car,” and she had

responded by kicking him and trying to close the door. Officer Piro’s split-second decision to grab

her by the ankle and pull her from the car was not unreasonable.

                                                  12
No. 19-1331, Siders v. City of Eastpointe


        Having said that, we do not mean to commend Officer Piro here—he might have been more

patient and less threatening (and less profane); he might have ordered Patricia to exit the minivan

and given her time to comply voluntarily; or he might have coerced her from the minivan with the

threat of tasing, rather than physically overwhelming her and pulling her out. But he was not

constitutionally required to do so. Even if we thought that Officer Piro could have used different

means to remove Patricia from the minivan during this 20-second struggle, that does not mean that

he used more force than is constitutionally permitted. Officer Piro’s removal of Patricia from the

minivan did not rise to the level of unconstitutional excessive force.

        The third event is Officer Piro’s tasing Patricia while she thrashed on the street refusing to

comply with his repeated orders to put her hands behind her back for cuffing. It is undisputed that

Officer Piro discharged the taser into the fleshy part of her back, at ordinary strength and duration.

Therefore, there is no legitimate claim that the means of effectuating the tasing was excessive; the

question is, again, whether the mere act of tasing her, under these circumstances, was per se

excessive. Our cases establish that police do not use excessive force when they tase someone

(even multiple times) who is actively resisting arrest. Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th

Cir. 2015) (citing Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012),

Williams v. Sandel, 433 F. App’x. 353, 363 (6th Cir. 2011), and Cockrell v. City of Cincinnati, 468

F. App’x. 491, 495 (6th Cir. 2012)). The video makes clear that Patricia was actively non-

compliant and resisting until and even after Officer Piro tased her. Therefore, this tasing was

permissible under the Fourth Amendment and the facts of this case.

        Officer Piro is entitled to qualified immunity on this claim.




                                                 13
No. 19-1331, Siders v. City of Eastpointe


                                                 B.

        Patricia claims that Officer Deladurantaye violated her constitutional rights by failing to

intervene to stop Officer Piro’s use of excessive force. This claim necessarily fails because Officer

Piro did not use excessive force. Moreover, the video refutes this claim for additional reasons.

        We have held repeatedly that officers are not liable under failure-to-intervene claims when

the ostensible “opportunity and means” to intervene do not last long enough for the officer to “both

perceive what was going on and intercede to stop it.” Burgess, 735 F.3d at 475 (citing Durham v.

Nu’Man, 97 F.3d 862, 868 (6th Cir. 1996)); see also Ontha v. Rutherford Cty., 222 F. App’x. 498,

506 (6th Cir. 2007). Even if Officer Piro’s conduct of removing Patricia from the van and tasing

her until she complied with his instructions had been excessive force, Officer Deladurantaye did

not have an opportunity or means to intervene to stop it. She was questioning Melvin when Officer

Piro began pulling Patricia from the minivan; for a few seconds, she assisted Officer Piro with

releasing Patricia’s grip from the door and lowering her to the ground; but then she abandoned that

assistance when Melvin attempted to intervene and instead she focused on removing Melvin from

the struggle. She was not involved in the tasing and had no reason to prevent it.

        Officer Deladurantaye is entitled to qualified immunity on this claim.

                                                 C.

        Patricia claims that Officer Deladurantaye’s deliberate indifference to her serious medical

needs violated her constitutional rights. A cause of action under § 1983 for failure to provide

adequate medical treatment requires a showing that the defendants acted with deliberate

indifference to the serious medical needs of the arrestee. Estelle v. Gamble, 429 U.S. 97 (1976).

There are two parts to the claim: objective and subjective. For the objective component, the

arrestee must demonstrate “the existence of a ‘sufficiently serious’ medical need.” Blackmore v.

Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825,

                                                 14
No. 19-1331, Siders v. City of Eastpointe


834 (1994)). For the subjective component, the arrestee must demonstrate that the defendant knew

of and disregarded a substantial risk of serious harm to the arrestee’s health and safety. Id.

        Patricia cannot meet either requirement. Her claims are that she suffered an injury where

the taser struck her and had bruising on her face and body from being pulled from the van and

dropped on the ground. The video shows that she was not slammed or dropped on the ground and

that her face and lip never hit the ground. Regardless, these are not serious injuries that create a

serious medical need. The officers photographed the taser bruise and her face and lip, neither of

which showed a serious medical condition. She says she complained to the officers that she needed

medical treatment for her face and body injuries, but the lengthy video of her waiting at the

station—sitting calmly in the lotus position, primping her hair, moving and walking without any

suggestion of discomfort—undermines that assertion. It appears from the video that the officers

tried to ensure that she was not seriously injured and to make her comfortable. But, even accepting

that she complained to them, she has no evidence that her alleged injury was sufficiently serious

or that any officer (much less Officer Deladurantaye, specifically) was subjectively aware of a

substantial risk of serious harm from that injury and deliberately disregarded that risk.

        Officer Deladurantaye is entitled to qualified immunity on this claim.

                                                III.

        For the foregoing reasons, we REVERSE the district court’s denial of qualified immunity

and REMAND for issuance of a judgment consistent with this opinion.




                                                 15
No. 19-1331, Siders v. City of Eastpointe


        JANE B. STRANCH, Circuit Judge, dissenting. To have jurisdiction over Defendants’

interlocutory appeal, we must view the facts in Siders’ favor. Barry v. O’Grady, 895 F.3d 440,

443 (6th Cir. 2018). The majority opinion fails to do so. When the most favorable view of the

facts is conceded in Siders’ favor, id., genuine disputes remain over whether Defendants are

entitled to qualified immunity. I therefore respectfully dissent.

    A. Excessive Force

        Whether an officer’s use of force in effecting an arrest is excessive in violation of the

Fourth Amendment turns on “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). This analysis is guided by three

factors: “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.” Goodwin v. City of Painesville, 781 F.3d 314, 321 (6th Cir. 2015) (quoting Shreve

v. Jessamine Cnty. Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006)).

        When viewing the facts in Siders’ favor, as we must, the first Graham factor—the severity

of the crime—weighs toward affirming the denial of qualified immunity. The Defendants were

dispatched in response to a call regarding a domestic disturbance, and all charges against Siders

were ultimately dismissed. Melvin and Patricia Siders were arguing over her laptop computer.

Patricia Siders did not have any weapons. When Officer Deladurantaye arrived, she was simply

investigating and did not initially believe she had any reason to arrest Siders. Officer Piro,

moreover, did not tell Siders before he ripped her from the van that she was under arrest or being

investigated. In Kent v. Oakland Cty., 810 F.3d 384, 391 (6th Cir. 2016), we found that the severity

of the crime factor weighed in the plaintiff’s favor because he was never told he was under arrest

and did not realize he would be detained until an officer “instructed him that he would be tased if

                                                 16
No. 19-1331, Siders v. City of Eastpointe


he failed to comply with commands.” Id.; see also Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009)

(finding excessive force where officer pepper sprayed man who “was never told he was under

arrest.”). Ultimately, a jury could conclude that the misdemeanor domestic violence, disrupting

the peace, and resisting arrest charges that stemmed from the incident were not “serious” crimes.

Goodwin, 781 F.3d at 322 (concluding that disputes of material fact existed over whether

misdemeanor disorderly conduct was a serious crime); see also Lee v. Tucker, 904 F.3d 1145 (10th

Cir. 2018) (denying qualified immunity where deputies were dispatched in response to a call

regarding potential misdemeanor domestic violence crime because not all calls to police involving

allegations of domestic violence entitled deputies to respond with substantial force).

        On the second Graham factor, the majority opinion concludes that Siders posed an

immediate threat to the officer’s safety due to “her combative attitude, shouts and statements, and

attempt to close herself into the minivan.” But the conclusion that, as a matter of law, Siders posed

an immediate threat to Piro’s safety cannot be squared with our case law and with the requirement

that we view the facts in the light most favorable to Siders. Piro testified at his deposition that

Siders did not do or say anything to him that made him think he was in some sort of danger as he

walked up to her. As he approached Siders, he asked, “how are you doing ma’am?” She

responded, “I’ll be good when I get my stuff,” referring to her laptop computer and other

valuables, which she believed Melvin Siders had taken from her home.

        Patricia Siders was frightened as Piro approached, and she attempted to close the van’s

sliding door. She was going to speak with Piro, but she preferred to do so with the door closed.

As the sliding door began to close, Piro asked, “is there a reason why you are closing this door on

me?” and stuck his foot in front of the door so that it would not close. Siders responded, “because

I don’t want you to walk up on me.” Piro answered, “well I’m gonna fucking walk up on you,

okay? Close the door and you’re going to get ripped out of the car.” He did not order Siders to

                                                 17
No. 19-1331, Siders v. City of Eastpointe


get out of the van; and he did not tell her she was under arrest. I do not disagree with the majority

opinion’s conclusion that Piro had the authority to order Siders to exit the vehicle, but the record

does not show that he did. And on interlocutory appeal, we are required to view the facts in Siders’

favor—we cannot treat Piro’s unwarranted threat as if it were a police order.

        The video shows Piro then escalating the situation, apparently in response to Siders’

attempt to close the van’s sliding door after his threat. Viewing the facts in the light most favorable

to Siders, her conduct in that moment did not threaten Piro’s safety or even his ability to investigate

because she was willing to speak with him, she just preferred to do so from inside the car. The

record does not support the majority opinion’s conclusion that the video blatantly contradicts

Siders’ version of events. It is for a jury to decide, moreover, whether Sider’s testimony about her

present sense impression, feelings, and plan (i.e. that she was frightened as Piro approached and

that she planned to speak with Piro but preferred to do so with the door closed) is credible in light

of the video evidence. Even to the extent that the video shows Piro did not have his hand on his

gun, that fact does not dispute Siders’ description of her perception and feelings as he approached

and after his threat.

        It is also undisputed that Siders “was unarmed and made no evasive movements to suggest

[she] had a weapon.” Kent, 810 F.3d at 391 (finding no immediate threat to officer safety where

plaintiff was unarmed and made no movement to suggest he had a weapon). A jury could conclude

that Piro’s escalation of the situation placed him and his colleagues in greater danger than if he

had proceeded with his investigation without pulling Siders from her seat in the middle of the van

with her children. Specifically, Deladurantaye was injured in the “scuffle,” which could have been

avoided if Piro had asked Siders questions without prying her by her ankles from the middle seat

of her van and throwing her to the ground.



                                                  18
No. 19-1331, Siders v. City of Eastpointe


        Once Siders was on the ground, a jury could conclude that she posed no greater or more

immediate threat of danger to Piro. Although she continued to object to the officers’ touching her,

responded “no” at one point when asked to put her arms behind her back, and flailed about, she

was also sitting or lying on the ground, still unarmed and making no threats of violence. Her

children were in the car. And a jury could reasonably conclude that she would not pose a threat to

the officers because she was unarmed and concerned about keeping her children out of harm’s

way; while she and Melvin Siders both lay on the ground, their children began to cry in the van,

and she looked toward them, waved at them with one arm, and sought to comfort them by saying

“it’s ok baby.” At this stage of the case and viewing the record favorably toward Siders, the

evidence that advances Defendants’ position that Siders posed a threat—“her combative attitude,

shouts and statements, and attempt to close herself into the minivan”—simply create disputes of

material fact that a jury should resolve.

        The third Graham factor requires the court to consider whether Siders was actively

resisting arrest or evading arrest by flight. The facts viewed in the light most favorable to the

Siders present two distinct periods of possible resistance: first, the time leading up to when Piro

pulled Siders from the vehicle; and second, the period during which Siders was sitting and lying

on the pavement.

        The constitutional analysis of the first period turns on whether Siders’ attempt to close the

van door when she had not been ordered out of the car, but Piro had threatened, “[c]lose the door

and you’re going to get ripped out of the car,” constitutes active resistance. The majority opinion

concludes that “the video makes clear, every bit of the force that Officer Piro used to remove

Patricia from the minivan was necessary to overcome her resistance (i.e., clinging to the seat and

kicking).” (Maj. Op. at 12) This conclusion is inconsistent with the opinion’s fair recognition that

“a reasonable person viewing the video of this incident could characterize” Piro’s actions as

                                                 19
No. 19-1331, Siders v. City of Eastpointe


“overzealous, and perhaps unnecessary” and that whether Siders kicked Piro’s foot is a disputed

fact or immaterial. (Maj. Op. at 2, 4 n.5) To be sure, active resistance to an officer’s command

can legitimize an officer’s use of force. Goodwin, 781 F.3d at 323. “Such resistance can take the

form of ‘verbal hostility’ or ‘a deliberate act of defiance.’” Id. (quoting Eldridge v. City of

Warren, 533 Fed. Appx. 529, 534–35 (6th Cir. 2013)). But passive resistance is not enough to

legitimize an officer’s use of force. Id. at 323–24 (finding passive resistance where an officer

asked the plaintiff to step out of his apartment, but the plaintiff “refused, saying that he did not

have to come outside, and withdrew into the apartment.”). Id. When Siders sought to close the

van door, she was not yet under arrest, and Piro had given her no verbal command. Also, she was

sitting in a passenger seat in the middle the van so could not have been attempting to flee.

Compare Caie v. W. Bloomfield Twp., 485 Fed. Appx. 92, 96 (6th Cir. 2012) (finding plaintiff’s

“attempts to flee—including getting behind the wheel of his car and trying to drive away” justified

use of force). And the record indicates that she still planned to answer Piro’s questions, just from

inside the van. The majority opinion focuses on evidence in the record that Siders backed away

from Piro and, according to Piro, kicked out her foot after Piro threatened her, but concedes that

the video does not show Siders kicking Piro and suggests that it is not relying on the kick as a

material fact. (Maj. Op. at 4 n.5) That leaves only evidence of Siders’ passive resistance to a

threat, not an order. Our case law does not support a finding that force is appropriate under these

circumstances. Goodwin, 781 F.3d at 323–25; Eldridge, 533 Fed. Appx. at 534–35.

        The constitutional analysis of the second period of possible resistance should turn on

whether Patricia was actively resisting as Piro tased her. Although it is constitutionally permissible

for a police officer to use a taser against a suspect who is actively resisting arrest by “physically

struggling with, threatening, or disobeying officers,” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th

Cir. 2015), “[w]e have held that even previously-resisting suspects have a constitutional right to

                                                 20
No. 19-1331, Siders v. City of Eastpointe


be free of a gratuitous application of a Taser once they have stopped all resistance,” Goodwin,

781 F.3d at 324. The majority opinion improperly melds the analysis of distinct periods, finding

that Patricia “thrashed on the street refusing to comply with [Piro’s] repeated order,” when in fact,

at the time the video shows Piro using his taser, Siders is lying on her side on the ground, trying

to comfort her children. Therefore, even if a jury concludes that Siders had earlier resisted arrest

by rolling away from Piro, “physically struggling,” and disobeying his order to put her hands

behind her back, the jury could determine that when the taser was deployed, she had stopped

resisting and the force used against her was excessive.

        The final step of the Graham analysis requires the court to inquire “whether the totality of

the circumstances justifie[s] a particular sort of . . . seizure.” Graham, 490 U.S. at 396 (quoting

Tennessee, 471 U.S. at 8–9). The “careful balancing of the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the countervailing governmental interests at

stake” called for in Graham indicates that a jury could reasonably find that Piro violated Patricia’s

Fourth Amendment right to be free from excessive force. Piro’s decision to pry Patricia from the

middle seat of her van by the ankles onto concrete in front of her children was out of proportion to

the situation presented: Piro’s training taught him to de-escalate when possible and to use only the

amount of force necessary to confront a situation. As Deladurantaye described, “[i]f we go to a

situation and the person is calm, we approach them in a calm manner” and the amount of force

used is “based on the force you’re given.” A jury could conclude that Siders was calm when Piro

first approached her—she told him “I’ll be good when I get my stuff,” referring to her laptop and

possessions she said Melvin Siders had taken—and that Piro was responsible for the situation’s

escalation. Analysis of the totality of the circumstances must also consider the context, that the

officers were dispatched to address a domestic dispute. Although Melvin Siders called the police,

claiming that Patricia Siders had been violent with him, when the police arrived, it was Melvin

                                                 21
No. 19-1331, Siders v. City of Eastpointe


Siders who had a weapon and Patricia Siders who was sitting in the van with their children.

Observing the situation, a reasonable person could conclude that Patricia Siders had been a victim.

In this context, a jury could also determine that Piro’s decision to rip Siders from the van was

unreasonable and excessive.

        Application of the Graham factors to the facts taken in the light most favorable to Patricia

shows: (1) that Patricia’s misdemeanor offenses were not serious, (2) there was little basis to

believe Patricia was a threat to the officers or others, (3) Patricia’s withdrawal into the van was at

most a passive refusal to comply with an unwarranted threat (“close the door and you’re going to

get ripped out of the car”), and (4) she had stopped resisting when Piro tasered her. The majority

opinion’s contrary conclusions rely on Defendants’ challenges to Patricia’s version of events,

which have no place in our qualified immunity analysis in an interlocutory appeal. The facts

viewed most favorably to Patricia, as we must at this stage, state a constitutional violation.

        We should therefore reach the next constitutional question—whether the violated right was

clearly established at the time of the alleged violation. Framed properly, we should ask 1) whether

a potential misdemeanant, who has not been placed under arrest and who has neither fled nor

resisted investigation, has a clearly established right not to be forcibly removed by her ankles from

a passenger seat of her car, and 2) whether a potential misdemeanant has a right not to be tasered

when she is lying on the ground and has stopped resisting. I would answer these questions

affirmatively because Piro had “fair warning” that his actions were unconstitutional. Goodwin,

781 F.3d at 325 (quoting Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005)). Goodwin

also explained that force used against a plaintiff “absent a statement that he was under arrest or an

order to get on the ground or something similar” was excessive after plaintiff’s passive resistance

because “it was not objectively apparent that Officers intended to take [plaintiff] into custody, or

that he was not free to remain in his home.” See id. at 326; see also Eldridge, 533 Fed. Appx. at

                                                 22
No. 19-1331, Siders v. City of Eastpointe


530–31, 535 (affirming denial of qualified immunity where officers confronted an erratic driver

who passively resisted several commands that he exit his vehicle until officers forcibly removed

him from the car and tased him multiple times).

        The majority opinion is fair in acknowledging that Piro could have achieved his goal of

investigating or arresting Siders without using any force: “he might have been more patient and

less threatening (and less profane); he might have ordered Patricia to exit the minivan and given

her time to comply voluntarily; or he might have coerced her from the minivan with the threat of

tasing, rather than physically overwhelming her and pulling her out.” (Maj. Op at 13) This honest

acknowledgement suggests that the amount of force used was not reasonable and, in my view,

shows that the force used was objectively unnecessary to investigating Siders or effecting her

arrest. It was therefore excessive in violation of the Fourth Amendment. Graham, 490 U.S. at

397.

        Because Patricia had a clearly established constitutional right not to be pulled from her car

by the ankles onto concrete in front of her children when she was, at most, passively resisting

investigation, and because she also had a clearly established right not to be gratuitously tasered

after ceasing resistance, I would affirm the district court’s denial of summary judgment with

respect to the excessive force claim against Piro.

    B. Failure to Protect

        Though it is a closer call, in my view, Siders has also presented sufficient evidence for a

jury to rationally determine that Officer Deladurantaye failed to protect Siders from excessive

force. As discussed above, the facts accepted in the light most favorable to the Plaintiff show that

Piro’s use of force against Siders was excessive. Deladurantaye was within feet of Siders and Piro

during the duration of their interaction but did not attempt to de-escalate the situation. Instead, she

helped to pry Siders from her vehicle even though—when she came on the scene—Deladurantaye

                                                  23
No. 19-1331, Siders v. City of Eastpointe


did not believe she had any reason to arrest Siders and she observed that Melvin Siders had a

weapon while Patricia Siders was sitting unarmed in a passenger seat of the van.

        Because Officer Deladurantaye had a clearly established duty to protect Siders, and the

facts indicate that she failed in this duty, I would affirm the district court's denial of qualified

immunity on this claim.

    C. Failure to Provide Medical Attention

        As with Defendants’ other claims to qualified immunity, we must not resolve genuine

disputes of material fact in Defendants’ favor in analyzing Siders’ deliberate indifference claim.

        Regarding the objective prong, Siders argues that she had a sufficiently serious medical

need because her injuries were “so obvious that even a lay person would easily recognize the need

for medical treatment.” Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013). The district court

agreed, noting “I think it’s a fact question . . . whether or not the mark on her back and the big lip

and so forth is enough for the constitutional requirement of being able to show that there was a

serious medical need.” (R. 52, Motion for Summary Judgment Hearing and District Court’s

Ruling, PageID 742) The record confirms that officers could see Siders’ injuries with the naked

eye, indicating that a jury could conclude that “even a lay person would easily recognize the need

for medical treatment.” Given the injuries to Siders’ face, a jury could conclude that the officers

should have considered whether Patricia had suffered a head trauma or concussion and needed

medical treatment.

        Turning to the subjective prong, as already described, Defendants knew of Siders’ injuries,

but Siders asserts that she did not receive any medical attention. The booking room video does

not blatantly contradict these facts. Although it shows an officer telling Siders that she would get

her some ice, it does not show Siders receiving any ice or other medical attention. To obviate “the

need to dismiss the entire appeal for lack of jurisdiction,” we should “ignore” Defendants’

                                                 24
No. 19-1331, Siders v. City of Eastpointe


“attempts to dispute the facts,” and assume that Siders did not receive any medical care. Diluzio

v. Vill. of Yorkville, Ohio, 796 F.3d 604, 611 (6th Cir. 2015) (quoting Estate of Carter, 408 F.3d

at 310). Viewing the facts in the light most favorable to Siders, a jury could conclude that

Defendants knew of Siders’ need for medical attention and acted with deliberate indifference by

failing to provide her with any medical care.

        For all of these reasons, I respectfully dissent from the holdings of the majority opinion.




                                                 25
