                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 14a0237n.06

                                   No. 12-6269
                                                                       FILED
                         UNITED STATES COURT OF APPEALS            Mar 28, 2014
                              FOR THE SIXTH CIRCUIT            DEBORAH S. HUNT, Clerk


DAVID EGGLESTON,                      :
                                      :
       Plaintiff-Appellee,            :
                                      :    ON APPEAL FROM THE
v.                                    :    UNITED STATES DISTRICT
                                      :    COURT FOR THE MIDDLE
                                      :    DISTRICT OF TENNESSEE
JAKE SHORT,                           :
                                      :
       Defendant-Appellant.           :



BEFORE: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge.

                                     OPINION

BERTELSMAN, District Judge:

       Plaintiff-Appellee David Eggleston brought this 42 U.S.C. §

1983       action    against   Defendant-Appellant   Officer    Jake   Short,

alleging that Short used excessive force against Eggleston in the

course of making an arrest.           The district court denied Short’s

motion for summary judgment based on qualified immunity, and he

appeals.

       Because there is an issue of fact as to whether the force used

was excessive, this court does not have jurisdiction to entertain

       *
      The Honorable William O. Bertelsman, United States District
Judge for the Eastern District of Kentucky, sitting by designation.
No. 12-6269, Eggleston v. Short


the appeal.   Therefore, we must DISMISS the appeal and remand the

case to the district court.

                                  I.

     No question is raised concerning the validity of the arrest.

The arrest followed a high-speed chase in which Eggleston initially

failed to stop and was endangering the public. When he finally did

stop, he left his motor running, and Officer Short forcefully

removed him from his truck and took him to the ground in order to

obtain access to the truck and turn off the ignition.   Eggleston’s

blood alcohol level was later found to be well above the legal

limit.

     It is the degree of force used by Short in performing this

“takedown” maneuver that gives rise to this action.     During the

takedown, Eggleston landed on his face and was severely injured,

suffering a broken jaw, receding gums requiring skin grafts to

repair, two chipped teeth, three dead teeth, and a broken hand.

The takedown procedure, which took only seconds, was recorded on

the cruiser’s video camera.   The video is in evidence and has been

reviewed by both the district court and this court.

     In a succinct but clear order, the district court held that

“[g]iven the varying interpretations of the video . . . where

[there is] an issue of material fact as to whether the force

applied was objectively reasonable . . . [an award of] summary

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No. 12-6269, Eggleston v. Short


judgment is inappropriate.”       It seems apparent that the district

court’s holding was based on its opinion that the video is not

clear as to the amount of force used or whether Short could have

employed some measure to prevent Eggleston from landing on his

face.

        Having carefully considered the matter, we hold that the video

does indeed raise issues of fact to the extent that we lack

jurisdiction to consider this appeal.

                                    II.

        In analyzing a qualified immunity case, courts must proceed as

follows.

                           A. The Trial Court

        The evidence must be interpreted in the light most favorable

to the party asserting the injury.        See Saucier v. Katz, 533 U.S.

194, 201 (2001).

        The court then looks to two factors: (1) whether the action

violated     a   constitutional     right;   and   (2)   whether   that

constitutional right was clearly established such that a reasonable

officer would understand that what he is doing would violate that

right.    Eldridge v. City of Warren, 533 F. App’x 529, 532 (6th Cir.

2013) (citations omitted). The court has the discretion to conduct

this analysis in any order.       Id. (citing Pearson v. Callahan, 555

U.S. 223, 236 (2009)).

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No. 12-6269, Eggleston v. Short


     In considering whether a constitutional violation occurred, if

the defendant challenges the plaintiff’s version of the facts, an

issue of fact is created, and qualified immunity must be denied.

See Johnson v. Jones, 515 U.S. 304 (1995) (officer’s claim he did

not participate in beating of plaintiff raised a non-appealable

issue of fact).   However, a court may grant qualified immunity if

one of the parties’ accounts is “blatantly contradicted by the

record, so that no reasonable jury cold believe it.”      Scott v.

Harris, 550 U.S. 372, 380 (2007).

     The “clearly established” inquiry, it is vital to note, must

be undertaken in light of the specific context of the case, not as

a broad general proposition . . . .” Saucier, 533 U.S. at 201

(emphasis added); see also Campbell v. City of Springboro, 700 F.3d

779, 788–89 (6th Cir. 2012). That is, “[t]he relevant, dispositive

inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Saucier, 533 U.S. at

202; see also Burgess v. Fischer, 735 F.3d 462, 473 (6th Cir.

2013).   If the constitutional right was not clearly established,

the motion for qualified immunity should be granted.

     If the court finds that the constitutional right was clearly

established, it may proceed to rule on the question of qualified

immunity on the basis of the record.   The court may deny qualified

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No. 12-6269, Eggleston v. Short


immunity if the facts disclose a violation of a well-established

right,   or    grant    qualified       immunity      if    the   facts,   even    when

interpreted in favor of the plaintiff, do not support a finding

that   it     would   have    been     obvious   to    a     reasonable    person    in

defendant’s position that his actions violated a constitutional

right.

                             B.   The Appellate Court

       “The    collateral      order    doctrine      provides     this    court   with

jurisdiction to hear an interlocutory appeal of a denial of

qualified immunity.”          Younes v. Pellerito, 739 F.3d 885, 888 (6th

Cir. 2014) (citation omitted).             However, it “applies only to the

extent that the denial was based on ‘pure questions of law.’” Id.

“A defendant challenging a denial of qualified immunity must be

willing to concede the most favorable view of the facts to the

plaintiff for purposes of the appeal.”                     Id.    “Where a defendant

relies instead on [his] own disputed view of the facts, ‘the appeal

boils down to issues of fact and credibility determinations that we

cannot make.’” Id.           However, if “the issue appealed concerns not

which facts the parties might be able to prove, but whether certain

alleged facts reflect a violation of clearly established law,” this

inquiry is a legal question, and the appellate court does have

jurisdiction.         Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir.

2002).

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No. 12-6269, Eggleston v. Short


                                       III.

      The constitutional issue in this case is whether Short used

excessive force against Eggleston in the course of arresting him.

Such claims are analyzed under the Fourth Amendment’s objective

“reasonableness” standard.           Graham v. Connor, 490 U.S. 386, 395

(1989). “Determining whether the force used to effect a particular

seizure is ‘reasonable’ under the Fourth Amendment requires a

careful balancing of ‘“the nature and quality of the intrusion on

the    individual’s         Fourth      Amendment       interests”’      against

countervailing governmental interests at stake.”                    Id. at 396

(citation omitted).     This analysis “requires careful attention to

the facts and circumstances of each particular case, including 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.”      Id.

      This   “reasonableness”        inquiry     “is   an   objective   one:   the

question     is   whether    the     officers’    actions     are   ‘objectively

reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.”

Id. at 397 (citation omitted).

      In the case now before us, the trial judge, albeit succinctly,

found that the video relied on by both parties was ambiguous.

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No. 12-6269, Eggleston v. Short


Interpreted most favorably to Eggleston, the video could support a

reasonable conclusion that the force employed was excessive. Short

challenges    that   interpretation     on   appeal.   His   proffered

interpretation is that the force used was reasonable considering

all the surrounding circumstances, including the seriousness of the

offense, the necessity of getting the vehicle under control for

protection of the public, and the fact that Short had no backup.

See Graham v. Connor, 490 U.S. 386, 396 (1989); Burgess, 735 F.3d

at 472–73; Campbell, 700 F.3d at 787.

     We have reviewed the video and, like the district court,

conclude that it is ambiguous and does not allow us to determine as

a matter of law whether Short’s use of force was reasonable under

the circumstances.     Accordingly, this court lacks jurisdiction.

Younes, 739 F.3d at 888–89. Moreover, because viewing the video in

Eggleston’s favor could reasonably lead to a finding of excessive

force, this case does not fall within the limited exception under

which the plaintiff’s account may be disregarded because it is “so

utterly discredited by the record as to be rendered a visible

fiction.”    Scott v. Harris, 550 U.S. 372, 380 (2007).

                                  IV.

     Therefore, it is ordered that the appeal is DISMISSED for lack

of appellate jurisdiction.



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