                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 20a0306n.06

                                           No. 19-3945

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                FILED
                                                                               May 28, 2020
 ASHLEY ZURESS,                                     )                      DEBORAH S. HUNT, Clerk
                                                    )
      Plaintiff-Appellant,                          )
                                                    )
                                                                ON APPEAL FROM THE
              v.                                    )
                                                                UNITED STATES DISTRICT
                                                    )
                                                                COURT     FOR      THE
 CITY OF NEWARK, OH; OFFICER DAVE )
                                                                SOUTHERN DISTRICT OF
 BURRIS, in his individual and official capacities, )
                                                                OHIO
                                                    )
      Defendants-Appellees.                         )
                                                    )



BEFORE: BOGGS, GRIFFIN, and LARSEN, Circuit Judges.

          GRIFFIN, Circuit Judge.

          Defendant Officer Dave Burris used a police dog to help arrest plaintiff Ashley Zuress.

During the arrest, the dog bit Zuress. Afterwards, she brought this 42 U.S.C. § 1983 action,

alleging a Fourth Amendment excessive-force violation for both (1) deploying the dog and

(2) allowing the dog to continue its bite. The district court granted summary judgment in Burris’s

favor on the basis of qualified immunity and Zuress appeals. For the reasons expressed below, we

affirm.

                                                I.

          City of Newark police were surveilling a house in Newark, Ohio, because a confidential

informant had told them it was a drug house. At the same time, they were looking for Jeff

Grooms—plaintiff Zuress’s boyfriend and the brother of a resident of that house—because he was

the subject of an outstanding warrant for unpaid child support. The police department had also
No. 19-3945, Zuress v. City of Newark



told Burris that some detectives wanted to talk to Grooms about an armed robbery. After a

confidential informant told Burris that Grooms had been staying at his sister’s residence, police

also monitored it in order to detain Grooms.

       On the day of the incident at issue, Burris was patrolling with his police dog—Ike—and

Officer April Hunt. While patrolling, Burris received a tip from a confidential informant that

Grooms had arrived at his sister’s residence in a tan Jeep Renegade and had entered the house.

Burris, Ike, and Hunt then drove to the residence to surveil it. There, Burris saw the Jeep leave

the house and followed it. After the Jeep committed a traffic infraction, Officer Hunt turned on

the cruiser’s emergency lights.1 The Jeep slowed down, but it passed multiple areas where it could

have safely stopped. Once the vehicle finally stopped, Grooms abruptly opened the driver’s side

door and fled. While Grooms was fleeing, Burris got out of the police cruiser and deployed Ike.

However, Burris and Ike were unable to track Grooms because they did not have their tracking

equipment.

       About nineteen seconds after the Jeep stopped, and before Burris and Ike returned, the Jeep

drove away without authorization. Thereafter, once Burris and Ike returned, they drove with

Officer Hunt after the Jeep.

       While the Jeep was fleeing the scene, another officer—Jon Purtee—intercepted it and

pulled it over. As Burris, Hunt, and Ike pulled up behind Purtee’s cruiser, Purtee assumed a

shooting stance and used his driver’s side door as cover. Purtee commanded the driver, plaintiff

Zuress, to exit her vehicle and when she did she was facing the officers. 2 For the safety of the

officers, Purtee ordered Zuress to turn around. But Zuress did not comply; Purtee directed Zuress


       1
           Multiple video cameras captured the material facts of this case.
       2
           Purtee directed Zuress to step out of the vehicle three times before she exited the vehicle.
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No. 19-3945, Zuress v. City of Newark



to “face away” five times before she turned around. Zuress’s noncompliance continued as she

turned back around and faced the officers. Further, she did not follow Purtee’s command to walk

backwards towards him. Instead, Zuress argued with Purtee, waved her hands around, and reached

down towards her waistband, adjusting her shirt or pants.

       Purtee warned Zuress that he would deploy the dog if she did not comply. One or two

seconds after Purtee gave that warning, Burris released Ike, who advanced toward Zuress and her

car. As he was trained to do, Ike initially ignored Zuress and entered the car to check for other

occupants. While Ike was checking the car, Burris approached Zuress. At roughly the same time

that Burris made physical contact with Zuress, Ike emerged from the car, bit down on Zuress’s left

arm, and held his bite to assist with the arrest. Then Zuress, Burris, and Ike all fell to the ground.

       While Ike and Burris gained control of Zuress, other officers advanced; Burris directed

them to check the car for other occupants. Once the car was cleared, another officer took Burris’s

place on top of Zuress to secure her while Burris moved over to Ike to get him to release his bite.

After struggling with Ike for about twenty-four seconds, Burris got Ike to release his bite. Burris

then moved Ike away from Zuress.

       Zuress brought this action against Officer Burris pursuant to 42 U.S.C. § 1983.3 She

alleged that Burris violated her Fourth Amendment right to be free of unreasonable government

seizures when he deployed the police dog against her and allowed the dog to continue to bite her

after she had been subdued. Zuress claimed excessive force in both the initial deployment of the

dog and its continued bite. Officer Burris moved for summary judgment, invoking qualified


       3
        Zuress also brought a battery claim against Burris and a municipal-liability claim against
his employer, the City of Newark. See Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978). The district court ruled against Zuress at summary judgment on these claims,
and they are not a part of this appeal.
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No. 19-3945, Zuress v. City of Newark



immunity. The district court granted summary judgment in Burris’s favor and entered judgment.

Zuress has timely appealed.

                                                 II.

       We review de novo the district court’s grant of summary judgment. Burnette Foods, Inc.

v. U.S. Dep’t of Agric., 920 F.3d 461, 466 (6th Cir. 2019). Summary judgment is warranted if a

movant shows that (1) “there is no genuine dispute as to any material fact,” and (2) it “is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Once the moving party has met the initial

burden of showing the absence of a genuine dispute of material fact,” the non-movant has two

options: (1) identify record evidence that demonstrates genuine disagreements over material facts

that a factfinder must resolve, or (2) show that—on undisputed material facts—the non-movant is

not entitled to judgment as a matter of law. Baker v. City of Trenton, 936 F.3d 523, 529 (6th Cir.

2019), cert. denied, 140 S. Ct. 1109 (2020). “[I]n considering the evidence in the record, the court

must view the evidence in a light most favorable to the party opposing the motion, giving that

party the benefit of all reasonable inferences.” Id. (citation and internal quotation marks omitted).

                                                III.

                                                 A.

       Defendant contends that he is entitled to summary judgment on the grounds of qualified

immunity. Once a defendant raises qualified immunity, “[a] plaintiff bears the burden of showing

that a defendant is not entitled to qualified immunity.” Jacobs v. Alam, 915 F.3d 1028, 1039 (6th

Cir. 2019). This requires establishing “(1) that the official violated a statutory or constitutional

right, and (2) that the right was clearly established at the time of the challenged conduct.” Id.

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). We may address the qualified-immunity

requirements in any order. O’Malley v. City of Flint, 652 F.3d 662, 667 (6th Cir. 2011). When a

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No. 19-3945, Zuress v. City of Newark



plaintiff’s excessive-force claim fails on the violation-of-a-constitutional-right requirement, we

need not reach the clearly-established-right requirement. Jones v. City of Cincinnati, 736 F.3d

688, 696 (6th Cir. 2012) (determining that because the defendants had not violated the constitution,

it was not necessary to decide whether plaintiff’s constitutional rights were clearly established);

cf. Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016) (citing Pearson v. Callahan,

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

                                                 B.

       “An excessive-force claim turns on whether an officer’s actions were ‘objectively

reasonable’ given the circumstances he confronted.” Shanaberg v. Licking Cty., 936 F.3d 453,

455–56 (6th Cir. 2019) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). This is an

objective inquiry. Id. at 456. “[W]e ask how a reasonable officer would have seen things in the

heat of the moment, not in hindsight.” Id. To answer that question, our inquiry includes

considering the following factors from Graham v. Connor (the “Graham 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.” 490 U.S.

at 396. The “overarching determination” we must make, however, “is whether the ‘totality of the

circumstances’ justified the degree of force an officer used.” Shanaberg, 936 F.3d at 456 (citation

omitted).




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No. 19-3945, Zuress v. City of Newark



                                               IV.

                                                A.

       The first alleged unreasonable use of force was deploying the dog to help apprehend

plaintiff during the second traffic stop. The Graham factors overall, and the totality of the

circumstances, indicate that deploying the dog was reasonable.

                                                1.

       The immediate-threat factor weighs in defendant’s favor for several reasons. First, plaintiff

had just traveled from a known drug house. Second, plaintiff’s traveling companion—Grooms—

was under surveillance because there was an outstanding warrant out on him (albeit for unpaid

child support). Additionally, Grooms was reportedly a drug addict, and detectives wanted to speak

with him about an armed robbery. Third, plaintiff’s traveling companion had abruptly fled on foot

from the first traffic stop and plaintiff herself had fled the scene in her vehicle—without

authorization—after only about nineteen seconds. Fourth, at the second traffic stop, plaintiff was

an unknown quantity and acted unpredictably. She was standing right next to the driver’s seat of

her vehicle with the door open. That meant she could have quickly attempted to operate the vehicle

again or reached items (such as weapons) inside the vehicle. Plaintiff asserts that she was

unarmed,4 but a reasonable officer would not have known that at the time. Fifth, it was unknown

whether more people were in the vehicle and, if so, whether they were armed. Finally, and perhaps

most importantly, plaintiff was not complying with the officers’ commands; she was arguing,

waving her hands around, turning to face the officers, and even reached for her waistband where

a weapon could have been. See Jackson v. Washtenaw Cty., 678 F. App’x 302, 306 (6th Cir. 2017)



       4
        Following Zuress’s arrest, a loaded handgun was discovered on the floorboard under a
bag in her vehicle on the front passenger’s side.
                                                -6-
No. 19-3945, Zuress v. City of Newark



(“While [the suspect] was in one sense complying with [the officer’s] command to stop, [the

suspect’s] further turning around with his hand by his waist presented itself as an immediate threat

to the officer.”).

        On balance, the resisting factor weighs in defendant’s favor. “Active resistance” and

“passive resistance” are materially different. Goodwin v. City of Painesville, 781 F.3d 314, 323

(6th Cir. 2015); Jackson, 678 F. App’x at 306. “Active resistance includes ‘physically struggling

with, threatening, or disobeying officers.’” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015)

(citation omitted). It also includes “verbal hostility coupled with failure to comply with police

orders.” Jackson, 678 F. App’x at 306; see also Rudlaff, 791 F.3d at 641. Between exiting her

vehicle at the second traffic stop and the deployment of the canine, plaintiff did not have a physical

struggle with the officers, and she did not orally threaten them. During that time, however, plaintiff

argued with the officers and repeatedly failed to comply with their commands. We conclude that

plaintiff’s repeated non-compliance—coupled with her arguing with the officers—put her conduct

just over the line into the active-resistance category.

        Only the severity-of-the-crime factor weighs in plaintiff’s favor.          Before defendant

deployed the dog, a reasonable officer would have suspected plaintiff of having committed two

misdemeanors. First, plaintiff—without the permission of the police and only about nineteen

seconds after stopping—drove away from the first traffic stop. A reasonable officer would view

that conduct as a violation of Ohio Revised Code § 2921.31(A), which provides:

        No person, without privilege to do so and with purpose to prevent, obstruct, or delay
        the performance by a public official of any authorized act within the public
        official’s official capacity, shall do any act that hampers or impedes a public official
        in the performance of the public official’s lawful duties.




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No. 19-3945, Zuress v. City of Newark



The officers were lawfully attempting to arrest plaintiff’s traveling companion; driving the car

away from the scene “hamper[ed] or impede[d]” the police officers’ “lawful duties.” Ohio Rev.

Code Ann. § 2921.31(A). The maximum penalties for violating § 2921.31(A)—in its default

second-degree misdemeanor form—are ninety days in jail and a fine of $750. Ohio Rev. Code

Ann. §§ 2929.24(A)(2), 2929.28(A)(2)(a)(ii).

       Second, during the subsequent traffic stop, plaintiff repeatedly failed to comply with lawful

orders from the police officers to turn her back to them and walk backwards towards them.

A reasonable officer would have viewed that conduct as violating Ohio Revised Code

§ 2921.331(A), which prohibits “fail[ure] to comply with any lawful order or direction of any

police officer invested with authority to direct, control, or regulate traffic.” The maximum

penalties for violating § 2921.331(A)—in its default first-degree misdemeanor form—are six

months in jail and a $1,000 fine. Ohio Rev. Code Ann. §§ 2929.24(A)(1), 2929.28(A)(2)(A)(i).

       A violation of each provision is a potential felony. Ohio Rev. Code Ann. §§ 2921.31(B),

2921.331(C)(4)–(5)(a). Defendant, however, has not articulated—beyond mere assertion—why a

reasonable officer would have viewed plaintiff’s suspected violations of those provisions as

felonies rather than misdemeanors.5 Because the crimes a reasonable officer would have suspected

plaintiff of having committed were non-violent misdemeanors without harsh penalties, the

severity-of-the-crime factor weighs in plaintiff’s favor.




       5
          We note, however, that Ohio Revised Code § 2921.31(B) provides that “[i]f a violation of
this section creates a risk of physical harm to any person, obstructing official business is a felony
of the fifth degree.” Fleeing from a traffic stop in a car can pose a risk of harm to people, especially
if the police must chase down a driver who refuses to stop his car.
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No. 19-3945, Zuress v. City of Newark



                                                2.

       The Graham factors are not exhaustive. See Graham, 490 U.S. at 396. “The overarching

determination we make is whether the ‘totality of the circumstances’ justified the degree of force

an officer used.” Shanaberg, 936 F.3d at 456 (citation omitted). When we have concluded that a

constitutional violation occurred in canine excessive-force cases, there was typically “a poorly

trained dog that attacked suspects without warning or command.” Ashford v. Raby, 951 F.3d 798,

803 (6th Cir. 2020). Here, however, plaintiff does not argue that the dog was inadequately trained

or that the dog attacked without warning or command.6 Given the overall orientation of the

Graham factors, and considering the totality of the circumstances, it was reasonable to deploy the

police dog because plaintiff had ready access to her vehicle and possible weapons, had a traveling

companion whose whereabouts were unknown, was refusing to comply with commands, and was

arguing even though officers had their weapons trained on her. Accordingly, we conclude that the

deployment of the police dog did not constitute a violation of the Fourth Amendment.

                                                B.

       The second alleged unreasonable use of force was the delay in stopping the dog bite after

plaintiff had been subdued. We have acknowledged that it is possible for “a delay in calling off [a

police] dog . . . [to] rise to the level of an unreasonable seizure.” Greco v. Livingston Cty.,

774 F.3d 1061, 1064 (6th Cir. 2014). But the facts here do not support a Fourth Amendment

violation. Once defendant and the dog made physical contact with plaintiff, there were about five

seconds between when plaintiff was subdued and other officers reached plaintiff, defendant, the




       6
        In plaintiff’s complaint, as part of her municipal-liability claim, she alleged that Newark
provided inadequate use-of-force training to Burris and the dog. But that argument and the
municipal-liability claim are not a part of this appeal.
                                                -9-
No. 19-3945, Zuress v. City of Newark



dog, and the vehicle. Approximately three seconds later, defendant signaled the other officers to

check the vehicle. After roughly four more seconds, defendant started to move off of plaintiff so

another officer could take his place holding her down. Defendant’s switch from holding plaintiff

down to manually attempting to get the dog to release its bite took about three seconds. This means

that from the time defendant had another officer to take his place holding down plaintiff to when

he started to get the dog to release its bite, about eleven seconds elapsed. Such a short amount of

time—some of which involved defendant directing other officers to check the vehicle for officer-

safety purposes—was not the kind of delay that “rise[s] to the level of an unreasonable seizure.”

Id.; see also Ashford, 951 F.3d at 803–04 (concluding that it was not “the stuff of a Fourth

Amendment violation” when a dog bite lasted about “four to five total seconds after” the dog

pulled the plaintiff out of a vehicle and when “[a]t most, one could [have] argue[d] that [the officer]

could have called the dog off a second or two sooner”).

       Additionally, although the bite lasted about twenty-four seconds once defendant started

attempting to get the dog to release, a critical component of this type of Fourth Amendment

violation was missing. For this sort of Fourth Amendment violation to occur, the government must

terminate a person’s “freedom of movement through means intentionally applied.” Dunigan v.

Noble, 390 F.3d 486, 492 (6th Cir. 2004) (quoting Brower v. Cty. of Inyo, 489 U.S. 593, 597

(1989)). While defendant was working to get the dog to release his bite, the continued bite was

not a “means intentionally applied.” See id. at 492–93 (emphasis omitted) (determining there was

not a Fourth Amendment violation because it was not the officer’s intention for the dog to bite the

plaintiff); see Neal v. Melton, 453 F. App’x 572, 577–78 (6th Cir. 2011) (concluding that there

was not an excessive force Fourth Amendment violation because the dog’s contact with one of the

plaintiffs was “not the type of intentional or knowing contact [that is] required”). The second

                                                 -10-
No. 19-3945, Zuress v. City of Newark



alleged use of unreasonable force, therefore, did not constitute a violation of the Fourth

Amendment.

       For these reasons, plaintiff has failed to demonstrate “that [defendant] violated a statutory

or constitutional right” and therefore has not rebutted defendant’s claim of qualified immunity.

Jacobs, 915 F.3d at 1039 (citation omitted). Accordingly, the district court correctly granted

summary judgment in defendant’s favor.

                                                 V.

       Finally, plaintiff raises one additional issue. She contends that summary judgment was

improper because the testimony of her expert witnesses established a genuine dispute of material

fact regarding whether the uses of force were excessive. We disagree for two reasons. First, in

plaintiff’s briefing, she concedes that the facts are undisputed. There cannot be a genuine dispute

of material fact if no facts are disputed. Second, plaintiff argues that whether a use of force was

reasonable is a question of fact. But in our circuit, whether a use of force was reasonable is “a

pure question of law.” Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009) (quoting

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)); see Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir.

2008) (“The Supreme Court . . . clarified the summary-judgment standard for excessive-force

claims, rejecting the argument that the question of objective reasonableness is ‘a question of fact

best reserved for a jury.’” (quoting Scott, 550 U.S.at 381 n.8)). The testimony of plaintiff’s experts

on a legal question cannot establish a genuine dispute of a material fact.

                                                 VI.

       For these reasons, we affirm the district court’s judgment.




                                                -11-
