                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                         File Name: 04a0388p.06

                      UNITED STATES COURTS OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                         X
                                    Plaintiff-Appellee, -
 FRANCINE SOLOMON,
                                                          -
                                                          -
                                                          -
                                                              No. 03-1707
            v.
                                                          ,
                                                           >
 AUBURN HILLS POLICE DEPARTMENT, a municipal              -
                                                          -
                                            Defendant, -
 corporation,

                                                          -
                                                          -
                                 Defendant-Appellant. -
 OFFICER DAVID MILLER,
                                                          -
                                                         N
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                       No. 01-73847—George E. Woods, District Judge.
                                       Argued: August 13, 2004
                               Decided and Filed: November 10, 2004
                      Before: KEITH, MARTIN, and ROGERS, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Daniel J. Kelly, COX, HODGMAN & GIARMARCO, Troy, Michigan, for Defendant.
Barbara H. Goldman, SHELDON L. MILLER & ASSOC., Southfield, Michigan, for Plaintiff. ON BRIEF:
G. Gus Morris, COX, HODGMAN & GIARMARCO, Troy, Michigan, for Appellant. Barbara H. Goldman,
SHELDON L. MILLER & ASSOC., Southfield, Michigan, for Appellee.
       KEITH, J., delivered the opinion of the court, in which MARTIN, J., joined. ROGERS, J. (pp. 7-8),
delivered a separate dissenting opinion.
                                         _________________
                                             OPINION
                                         _________________
       DAMON J. KEITH, Circuit Judge. Defendant Officer David Miller appeals the district court’s order
denying his motion for summary judgment based on qualified immunity. For the reasons set forth below,
we AFFIRM the judgment of the district court.




                                                   1
No. 03-1707             Solomon v. Auburn Hills Police Dep’t, et al.                                  Page 2


                                           I. BACKGROUND
                                              A. Procedural
        This lawsuit arises out of the arrest of Plaintiff Francine Solomon (“Solomon”). After she was
arrested, Solomon filed a complaint against the Auburn Hills Police Department (“AHPD”) and Officer
David Miller (“Officer Miller”) alleging violations of 42 U.S.C. § 1983, as well as state law claims for
assault and battery and gross negligence. Solomon then filed a motion to amend her complaint, and both
defendants moved for summary judgment arguing, inter alia, that Officer Miller was entitled to qualified
immunity.
        On May 9, 2003, the district court granted the AHPD’s motion for summary judgment because
Solomon had not alleged that a policy, procedure, or custom of the City of Auburn Hills was the cause of
the alleged deprivation. Moreover, the district court ruled that Solomon should be allowed to amend her
complaint to clarify that she was suing Officer Miller in his individual capacity. The district court denied
Officer Miller’s motion for summary judgment after finding that he was not entitled to qualified immunity
as to the Fourth Amendment claims because a jury question existed as to whether his conduct was
objectively reasonable under the circumstances. The district court also left standing the state claims against
Officer Miller for assault and battery and gross negligence.
        Officer Miller timely filed an appeal with this court as to the issue of qualified immunity. Our
opinion today addresses whether the district court erred when it determined that Officer Miller was not
entitled to qualified immunity and consequently denied his motion for summary judgment. For the reasons
that follow, we find that the district court was correct in its decision; Officer Miller was not entitled to
qualify immunity and, therefore, he was not entitled to summary judgment.
                                                B. Factual
         On Saturday, March 24, 2001, Solomon took her six children and several of their friends to see a
movie at the Star Theatre at Great Lakes Crossing (“Theatre”) in Auburn Hills, Michigan. Because the
children ranged in age from three to eighteen, Solomon planned to accompany the younger children to a G-
rated movie and Solomon’s eighteen-year-old son and his girlfriend planned to accompany the older
children to an R-rated movie. Solomon explained this to the ticket seller when she purchased the tickets
for the two movies. When her adult son attempted to enter the R-rated movie theater with the other children,
the usher informed him that the children would not be allowed into the theater without a parent. Solomon
then approached the usher and explained that she was the mother of several of the children and that they had
permission to be in the R-rated movie, but she would be watching the G-rated movie with her younger
children. The usher referred Solomon to customer relations.
        Solomon then explained her situation to the Theatre manager, who responded that Theatre policy
required a parent or guardian to accompany minor children into an R-rated movie. Solomon left customer
relations and walked with her younger children toward the movie theater showing the G-rated movie.
Before she reached the theater entrance, another Theatre employee informed Solomon that the older children
could not see the R-rated movie without her accompanying them. Even though Solomon did not want to
take her young children to see an R-rated movie, she went into the R-rated movie theater as instructed by
Theatre management.
        After Solomon was seated in the R-rated movie theater, the Theatre security guards entered and
informed Solomon that she had to leave because she had not purchased tickets for that particular movie.
Solomon refused to leave because she was following the manager’s instructions. Shortly thereafter, AHPD
officers Miller and Raskin—both of whom were between 230 and 250 pounds and at least five-feet-eight-
No. 03-1707                Solomon v. Auburn Hills Police Dep’t, et al.                                              Page 3


inches tall1—arrived. The officers entered the theater, found Solomon sitting with her three young children,
and instructed Solomon to leave. Solomon informed the police officers that she had purchased tickets and
attempted to explain the situation, but the officers insisted that she leave. After Solomon refused, Officer
Miller told her that she was under arrest for trespassing. Officer Miller grabbed her arm to make her leave,
and Solomon, pushing her foot against the seat in front of her, backed away 2from the officer. Officer Miller
then informed her that she was under arrest for assaulting a police officer. At that point, Officer Raskin
asked Solomon to speak with the police officers in the lobby and Solomon agreed. Solomon’s children and
their friends followed Solomon out of the R-rated movie theater.
       When Solomon entered the hallway, she handed her toddler to her son’s girlfriend, and Solomon
explained to her children that she was going to talk with the officers. In the lobby, Officer Raskin motioned
for Solomon to walk toward him. As Solomon was walking toward Officer Raskin, Officer Miller came
up behind her, grabbed her arm, and attempted to leg sweep her. Solomon tripped but did not fall; when
she regained her balance, she folded her arms across her chest. In response to Officer Miller’s action,
Solomon yelled, “Why are you doing this[?] I did not do anything.”
        At this point, Officer Miller grabbed her left arm and Officer Raskin grabbed her right arm. The
officers threw Solomon up against a wall and knocked her face into a display case. Solomon did not attempt
to pull away from them and the Officers gave no directives to Solomon. Officer Raskin then handcuffed
Solomon’s right arm behind her back. Officer Miller pushed up against Solomon with his entire body
weight, shoving his arm against her back and his leg in between hers. Solomon was pinned against the wall
and could not move; her right arm was already handcuffed and her left arm was straight along her side.
Without uttering any instruction to Solomon, Officer Miller forcibly bent her left arm behind her and
“hear[d] a popping sound and her left arm [went] limp.” J.A. at 148 (Deposition of Officer Miller).
       Solomon was subsequently taken to Pontiac Osteopathic Hospital, where she was diagnosed with
a comminuted fracture of her left elbow; she also had several bruises from being thrown against the wall.
Solomon was hospitalized for six days for surgical treatment of the fracture and underwent a second
operation at a later date. She also underwent extensive physical therapy and endures continual
complications.
        Solomon was later charged with resisting arrest, assault on a police officer, and trespass. As part
of a plea bargain, Solomon pleaded guilty to trespass and attempted resisting arrest.
                                                   II. DISCUSSION
                                                A. Standard of Review
        While a denial of summary judgment is usually considered an interlocutory order and not appealable,
when the denial occurs because the moving party is not entitled to qualified immunity, we may review that
decision. Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002). All facts are viewed in the light most favorable
to the plaintiff and the relevant questions are “strictly legal.” Id. at 299. “As a purely legal determination,
the district court’s denial of qualified immunity is subject to de novo review.” Thomas v. Cohen, 304 F.3d
563, 568 (6th Cir. 2002). “[T]o the extent that there is disagreement about the facts . . . we must review the
evidence in the light most favorable to the Plaintiff[ ], taking all inferences in [her] favor.” Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004).


    1
     In his deposition, Officer Miller testified that he was between five-feet-ten-inches and five-feet-eleven-inches tall and
weighed between 230 and 235 pounds. J.A. at 128. In her complaint, Solomon stated that she was five-feet-five-inches tall and
weighed 120 pounds. J.A. at 6.
    2
      Solomon asked Officer Miller why she was being arrested for assaulting an officer, and he replied that she had kicked an
officer. J.A. at 77-78. Solomon denies kicking either officer.
No. 03-1707             Solomon v. Auburn Hills Police Dep’t, et al.                                    Page 4


                                                 B. Analysis
         Through the use of qualified immunity, the law shields “government officials performing
discretionary functions . . . from civil damages liability as long as their actions could reasonably have been
thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635,
638 (1987). The United States Supreme Court has constructed a two-part test to determine whether an
officer-defendant should be granted qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200 (2001).
First, a court must consider whether the facts, viewed in the light most favorable to the plaintiff, “show the
officer’s conduct violated a constitutional right.” Id. at 201. If the answer is yes, the court must then decide
“whether the right was clearly established.” Id. “The 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 that he confronted.” Id. at 202.
        In the case before us, the district court reached the correct decision in denying Officer Miller
summary judgment, but its rationale intertwined the standard for determining qualified immunity and the
standard for granting summary judgment. The district court failed to completely evaluate the second prong
of the Saucier test. Instead of concluding whether or not Officer Miller acted objectively reasonable under
the circumstances, the district court merely found that a jury question exists on that issue. This comes,
however, as no surprise. As recognized by the concurring Justices in Saucier, the two-part test “holds large
potential to confuse.” Saucier, 533 U.S. at 210 (Ginsburg, Stevens, Breyer, JJ., concurring). Because we
are to review the district court’s decision de novo, the district court’s confusion of the standard does not
require reversal. Set forth below is the proper analysis for determining whether qualified immunity should
result in summary judgment for a defendant—in this case, Officer Miller.
                                  1.   Violation of Constitutional Right
         As instructed by the Court in Saucier, this court must “concentrate at the outset on the definition of
the constitutional right and [then] determine whether, on the facts alleged, a constitutional violation could
be found. . . .” Saucier, 533 U.S. at 207. Here, Solomon brought forth a claim that Officer Miller used
excessive force when he arrested her, thereby giving rise to a violation of her constitutional protection
against unreasonable seizures under the Fourth Amendment. This court has recognized a person’s
constitutional “right to be free from excessive force during an arrest. . . .” Minchella v. Bauman, 72 Fed.
Appx. 405, 2003 WL 21957034, at **3 (6th Cir. Aug. 13, 2003) (citing Graham v. Connor, 490 U.S. 386,
393-94 (1989)); see also Phelps, 286 F.3d at 300 (indicating that when allegations of excessive force occur
“during the course of the arrest of a free person, . . . the parties’ rights and liabilities are governed by the
Fourth Amendment’s reasonableness standard”). This also includes a claim based on excessive force used
in handcuffing. Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993); see also Burchett v. Kiefer,
310 F.3d 937, 944 (6th Cir. 2002) (recognizing that “right to be free from ‘excessively forceful handcuffing’
is a clearly established right for qualified immunity purposes”); Turek v. Saluga, 2002 WL 31119691, at **2
(6th Cir. Sept. 24, 2002) (citing Walton, 995 F.2d at 1342).
        After the constitutional right has been defined, we still must inquire whether a violation of
Solomon’s right to be free from excessive force could be found. Solomon walked out of the movie theater
into the hallway as instructed by the officers. Once in the hallway, Officer Miller attempted to knock her
onto the ground by kicking her legs even though she was not a flight risk and, in fact, was following Officer
Raskin’s order. Then, Officer Miller, along with Officer Raskin, shoved her into a display case. Even
though Officer Raskin had Solomon’s right arm handcuffed and even though Solomon was not actively
resisting arrest, Officer Miller pushed his entire weight against Solomon’s body, shoving his hand into her
back and his leg into her legs. Officer Miller then grabbed Solomon’s arm and twisted it behind her with
such force that he fractured it in several places. Under the circumstances “[t]aken in the light most favorable
to the party asserting the injury,” Saucier, 533 U.S. at 201, Officer Miller’s overly aggressive actions could
have violated Solomon’s Fourth Amendment right to be free from excessive force during an arrest.
No. 03-1707                 Solomon v. Auburn Hills Police Dep’t, et al.                                                  Page 5


                                    2. Constitutional Right Clearly Established
        Once a potential violation of a plaintiff’s constitutional right has been established, we next decide
whether that right was clearly established. In so deciding, we must ask “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation confronted.” Phelps, 286 F.3d at 299
(quoting Saucier, 533 U.S. at 202) (internal quotations omitted). “[T]he ‘reasonableness’ inquiry in an
excessive force case 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.” Graham, 490 U.S. at 397 (emphasis added).3 Discerning reasonableness “requires
a careful balancing of . . . the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Id. at 396 (citations and internal quotations omitted). We must remember
to consider the reasonableness of the officer at the scene, id., and keep in mind that officers must often make
split-second judgments because they are involved in “circumstances that are tense, uncertain, and rapidly
evolving,” id. at 397. “It is sometimes difficult for an officer to determine how the relevant legal doctrine,
here excessive force, will apply to the factual situation the officer confronts.” Saucier, 533 U.S. at 205.
If an officer, therefore, makes a mistake as to how much force is required, he will still be entitled to
qualified immunity so long as that mistake was reasonable. Id. Thus, to find Officer Miller shielded from
his actions and therefore entitled to qualified immunity, we must find that Officer Miller’s use of force under
the circumstances was objectively reasonable.
        In determining objective reasonableness of an officer accused of using excessive force, we will
consider several factors. We “should pay particular attention to ‘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.’” Burchett, 310 F.3d at 944 (citations and internal
quotations omitted). In addition, we have also found that “the definition of reasonable force is partially
dependent on the demeanor of the suspect.” Minchella, 2003 WL 21957034, at **3 (officers asserting that
large plaintiff who refused to be arrested required more force). In applying these considerations to the facts
at hand, it would be clear to a reasonable officer that the amount of force used against Solomon by Officer
Miller was unlawful.
        First, Solomon was being arrested for trespassing. Therefore, “[t]he reasonableness of the Officer[’s]
actions must be weighed against this backdrop.” Id. The crime at issue here was a minor offense and
certainly not a severe crime that would justify the amount of force used by Officer Miller.
        Moreover, Solomon posed no immediate threat to the safety of the officers or others. She was
surrounded by her children, including toddlers. Solomon bore no weapon, and she made no verbal threats
against the officers. We must also consider the size and stature of the parties involved. Here, each of the
officers stood at least five-feet-eight-inches tall and weighed between 230 and 250 pounds. By stark
contrast, Solomon stood five-feet-five-inches tall and weighed approximately 120 pounds. Under these
facts, Solomon posed no immediate threat to the officers’ safety.
        Finally, it is undisputed that Solomon did not attempt to flee. Solomon cooperated with the officers
by leaving the movie theater and accompanying them out into the lobby. She also complied with the request
of Officer Raskin who motioned for her to walk toward him. In taking the facts as Solomon alleges, she
did not resist arrest. After she exited the movie theater, she was never told that she was under arrest. The
mere fact that she crossed her arms after Officer Miller tried to leg sweep her does not create a presumption
of actively resisting arrest that would justify Officer Miller’s actions.



    3
      In his brief, Officer Miller argued that “[w]hile it is true the Plaintiff suffered a relatively severe fracture, there is no
evidence this injury was intended by the officer.” Appellant’s Br. at 18. The law clearly indicates that the officer’s intent is
irrelevant in determining the reasonableness of his actions.
No. 03-1707            Solomon v. Auburn Hills Police Dep’t, et al.                                  Page 6


         Qualified immunity will often operate “to protect officers from the sometimes ‘hazy border between
excessive and acceptable force.’” Saucier, 533 U.S. at 206 (citing Priester v. Riviera Beach, 208 F.3d 919,
926-27 (11th Cir. 2000)). An officer should be entitled to qualified immunity if he made an objectively
reasonable mistake as to the amount of force that was necessary under the circumstances with which he was
faced. Greene v. Barber, 310 F.3d 889, 894 (6th Cir. 2002). The facts here, however, do not present one
of those hazy cases. The dissent ignores that the officers here were not faced with a tense and uncertain
situation where they feared for their safety and the safety of bystanders. In fact, Solomon cooperated with
the officers by leaving the movie theater. It was at that point that Officer Miller began to act with
unnecessary, unjustifiable, and unreasonable force. He first attempted to leg sweep her when she was
walking, as instructed, toward Officer Raskin. Officer Miller then shoved her into the display case, putting
his entire weight—nearly twice the amount of her own weight—against her. Finally, without directing
Solomon to act, he yanked her arm behind her with such force that it fractured. Officer Miller’s actions,
in total, were excessive and resulted in Solomon suffering from bruising and a fractured arm. In viewing
the facts in favor of Solomon, we conclude that no reasonable officer would find that the circumstances
surrounding the arrest of Solomon required the extreme use of force that was used here. Officer Miller is
no exception. Because Officer Miller’s conduct was unlawful under the circumstances, he is not able to
escape liability through qualified immunity.
                                          III. CONCLUSION
        For the foregoing reasons, Officer Miller is not shielded from his actions by qualified immunity and
the district court’s denial of his motion for summary judgment is AFFIRMED.
No. 03-1707             Solomon v. Auburn Hills Police Dep’t, et al.                                         Page 7


                                              _______________
                                                 DISSENT
                                              _______________
        ROGERS, Circuit Judge, dissenting. At worst, Officer Miller made an objectively reasonable
mistake as to the amount of force necessary to handcuff Ms. Solomon. Because Officer Miller is therefore
entitled to qualified immunity, I respectfully dissent.
         The crux of Ms. Solomon’s § 1983 claim is the handcuffing that resulted in her broken arm. It is
well established that the handcuffing of a suspect incident to a lawful arrest is constitutional. We held
explicitly in Neague v. Cynkar, 258 F.3d 504, 508 (6th Cir. 2001) that “when there is no allegation of
physical injury, the handcuffing of an individual incident to a lawful arrest is insufficient as a matter of law
to state a claim of excessive force under the Fourth Amendment.” See also Palshook v. Jarrett, 120 F. Supp.
2d 641, 656 (N.D. Ohio 2000) (“Insofar as [plaintiff's] claim rests entirely on the fact that he was handcuffed
[to a bench in a holding cell] . . . there is no cause of action for excessive force. It may [be] true that it was
unnecessary . . . to cuff [plaintiff ] at all, but in the context of placing an individual under arrest, use of
handcuffs alone cannot amount to excessive force”). Here, Ms. Solomon pleaded guilty to one count of
misdemeanor trespassing and one count of misdemeanor attempted resisting and obstructing a police officer;
her arrest was lawful and violated no provision of the Constitution. The decision to handcuff Ms. Solomon,
while perhaps not the most advisable course under the circumstances, was certainly constitutional and did
not, without more, amount to excessive force. Therefore, if Ms. Solomon has a claim of excessive force,
it must be found in the amount of force used by Officer Miller in attempting to handcuff her.
         As the majority states, “[q]ualified immunity will often operate ‘to protect officers from the
sometimes hazy border between excessive and acceptable force.’” Maj. Op. at 6 (quoting Saucier v. Katz,
533 U.S. 194, 206 (2001)). Here, Officer Miller had the right to handcuff Ms. Solomon incident to a lawful
arrest and was entitled to use a reasonable amount of force to do so. This case is indeed one of those that
fall in the hazy border between excessive and acceptable force. It is uncontested that Officer Miller was
faced with Ms. Solomon’s unwillingness to submit to his constitutional decision to handcuff her. Ms.
Solomon admitted that she pulled her arms together as the officers seized her to avoid the officers’ attempt
to handcuff her. There is no evidence that Officer Miller was attempting to subdue Ms. Solomon by
breaking her arm. Officer Miller was surprised by Ms. Solomon’s injury and immediately summoned
medical attention.
       The Supreme Court prescribed the proper analysis in excessive force/qualified immunity cases as
follows:
        Because “police officers are often forced to make split-second judgments—in circumstances
        that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary
        in a particular situation,” the reasonableness of the officer's belief as to the appropriate level
        of force should be judged from that on-scene perspective. We set out a test that cautioned
        against the “20/20 vision of hindsight” in favor of deference to the judgment of reasonable
        officers on the scene. . . .
                 The qualified immunity inquiry, on the other hand, has a further dimension. The
        concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made
        as to the legal constraints on particular police conduct. It is sometimes difficult for an officer
        to determine how the relevant legal doctrine, here excessive force, will apply to the factual
        situation the officer confronts. An officer might correctly perceive all of the relevant facts
        but have a mistaken understanding as to whether a particular amount of force is legal in
        those circumstances. If the officer's mistake as to what the law requires is reasonable,
        however, the officer is entitled to the immunity defense.
No. 03-1707             Solomon v. Auburn Hills Police Dep’t, et al.                                  Page 8


Saucier, 533 U.S. at 205 (citations omitted).
       In the instant case the objective facts are that an officer with a heavy build was legally trying to
handcuff a person of slighter build who was physically trying not to be handcuffed. The precise amount of
force needed to accomplish this without injury in the circumstances of this case is so obviously a difficult
determination that the mere fact that injury occurred does not amount to evidence of unreasonable force.
At worst it was a reasonable mistake for which qualified immunity is appropriate. As the Supreme Court
repeated in Saucier, “not every push or shove, even if it may later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment.” 533 U.S. at 209.
       Because qualified immunity is required in this case under Saucier, I respectfully dissent.
