                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0236n.06

                                           No. 16-2133

                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                          Apr 25, 2017
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

DEJUAN OLIVER,                                  )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )
                                                      ON APPEAL FROM THE UNITED
                                                )
                                                      STATES DISTRICT COURT FOR THE
ERIC BUCKBERRY,                                 )
                                                      EASTERN DISTRICT OF MICHIGAN
                                                )
       Defendant-Appellant.                     )
                                                )
                                                )



BEFORE: DAUGHTREY, MOORE, and KETHLEDGE, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. After plaintiff DeJuan Oliver was

removed forcibly from his vehicle during a traffic stop that culminated in his arrest, Oliver filed

this 42 U.S.C. § 1983 suit against defendant Officer Eric Buckberry, alleging a claim of

excessive force. Buckberry moved for summary judgment in his favor, arguing that he was

entitled to qualified immunity from suit. The district court disagreed, concluding that genuine

disputes of fact remained to be resolved by a jury. Buckberry now appeals that determination,

contending that his version of the arrest is supported by a video recording of the encounter; that

based on the facts presented in the video, Oliver’s claim fails as a matter of law; and that he is

entitled to qualified immunity. Because the district court made no legal determinations, and

because the video evidence does not blatantly contradict the district court’s conclusion that the

record indicates the existence of genuine disputes of material fact, we are without jurisdiction to
No. 16-2133, Oliver v. Buckberry


resolve that dispute at this juncture of the proceedings. We therefore dismiss Buckberry’s

appeal.

                       FACTUAL AND PROCEDURAL BACKGROUND

          At approximately 2:00 a.m. on September 16, 2013, Buckberry, a Farmington Hills

police officer, initiated a traffic stop after witnessing Oliver driving slowly and weaving between

lanes. Buckberry’s service vehicle was equipped with a video- and audio-recording system that

memorialized the stop and subsequent interaction between Buckberry and Oliver. After stopping

Oliver’s vehicle, Buckberry approached Oliver’s driver-side door and asked Oliver if he had

been drinking. Buckberry then opened the car door and ordered Oliver to get out of the vehicle.

Oliver did not follow Buckberry’s order, instead asking why he was being pulled over and

requesting to speak with Buckberry’s supervisor. Buckberry asked Oliver to get out of the car

several more times, but Oliver refused to exit the vehicle. Buckberry told Oliver that he was

under arrest and that if he did not get out of the vehicle, he would be pepper-sprayed. Two

seconds later—before Oliver had time to respond or comply—Buckberry pepper sprayed Oliver,

grabbed him by the shirt, yanked him from the car, and threw him onto the pavement.

          Once Oliver was on the ground, Buckberry held Oliver’s legs still and forcefully put his

knee into the left side of Oliver’s neck and head, causing the right side of Oliver’s head to slam

into the pavement. While he did this, Buckberry yelled, “Quit resisting!” Buckberry then began

to handcuff Oliver. He told Oliver to give him his hand, and Oliver raised his right arm behind

his back. Buckberry then directed Oliver to give him his other hand, and Oliver shifted his body

weight so that he could move his left arm behind his back to be handcuffed. Buckberry had

removed his leg from Oliver’s neck, presumably so that Oliver could reach his hands behind his




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No. 16-2133, Oliver v. Buckberry


back, but after Buckberry had control of both hands, he put his leg forcefully back onto Oliver’s

neck and head and said, “Are you done, asshole?”

       With his hands behind his back, Oliver began to say repeatedly, “Officer, I do not resist.”

While saying that he did not resist, Oliver appears to bring his left hand back by his side and onto

the pavement. Buckberry yelled at him to put his hand behind his back, and Oliver complied

immediately, saying, “My hands are back there officer, I do not resist.” Buckberry finished

handcuffing Oliver and began to search him for weapons. Buckberry’s leg was still pressed into

Oliver’s neck and head, and Oliver told Buckberry that he could not feel his face. Oliver also

told Buckberry repeatedly that he could not breathe, and Buckberry replied, “If you can run your

mouth, you can breathe.” Buckberry continued to search for weapons and, after telling Oliver to

“quit kicking around,” hit Oliver in the side of the body. Based on the video, it does not appear

that Oliver made any attempts to get up, but Buckberry told him twice to “stay down.” Finally,

Buckberry jerked Oliver to his feet and walked him to the police car.

       Oliver subsequently filed suit against Buckberry, claiming, under 42 U.S.C. § 1983, that

Buckberry had violated his Fourth Amendment right to be free from excessive force during an

arrest. Oliver and Buckberry filed cross motions for summary judgment, which the district court

denied, explaining that a dispute of material fact barred resolution of Oliver’s excessive-force

claim and Buckberry’s claim for qualified immunity. Buckberry filed a motion for

reconsideration, which also was denied. Buckberry now appeals the district court’s denial of his

motion for summary judgment based upon qualified immunity.




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No. 16-2133, Oliver v. Buckberry


                                           DISCUSSION

Jurisdiction

          We have jurisdiction to review appeals from “all final decisions of the district courts.”

28 U.S.C. § 1291. “[A] district court’s 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 28 U.S.C.

§ 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530

(1985).     Therefore, we may decide an appeal if it challenges “the district court’s legal

determination that the defendant’s actions violated a constitutional right or that the right was

clearly established.”     DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015)

(emphasis in original).

          In contrast, we may not decide fact-based, or “evidence sufficiency,” appeals directly

challenging the plaintiff’s allegations and the district court’s acceptance of those allegations. Id.

(quoting Ortiz v. Jordan, 562 U.S. 180, 190 (2011)). “That is, the District Court’s determination

that the summary judgment record in [a] case raised a genuine issue of fact . . . [is] not a ‘final

decision’ within the meaning of the relevant statute.” Johnson v. Jones, 515 U.S. 304, 313

(1995). However, “we may decide, as a legal question, an appeal challenging the district court’s

factual determination insofar as the challenge contests that determination as ‘blatantly

contradicted by the record, so that no reasonable juror could believe it.’” DiLuzio, 796 F.3d at

609 (citing Scott v. Harris, 550 U.S. 372, 380 (2007)). In such “exceptional circumstances,” we

may overrule a district court’s determination that a factual dispute exists. Austin v. Redford Twp.

Police Dep’t, 690 F.3d 490, 496 (6th Cir. 2012). Buckberry appears to believe that this case

presents such circumstances.




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No. 16-2133, Oliver v. Buckberry


Qualified Immunity on Oliver’s Excessive-Force Claim

       It is unconstitutional under the Fourth Amendment for an officer to subject a person to

excessive force during the course of an arrest. Graham v. Connor, 490 U.S. 386, 394 (1989). In

his complaint, Oliver alleged that it was excessive for Buckberry to drive his knee into Oliver’s

neck and head, to continue to apply significant pressure to his neck and head for over a minute,

and to gratuitously punch him after he was handcuffed.

       To determine if force was excessive, courts apply an “objective reasonableness test” and

consider the totality of the circumstances confronting the officer. Brown v. Lewis, 779 F.3d 401,

418 (6th Cir. 2015). This inquiry is guided by three factors: (1) the severity of the crime at

issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others;

and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Martin v.

City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013). We assess these factors “from the

perspective of a reasonable officer on the scene making a split-second judgment under tense,

uncertain, and rapidly evolving circumstances without the advantage of 20/20 hindsight.”

Brown, 779 F.3d at 418 (quoting Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)).

       Government officials performing discretionary functions generally are shielded from

liability “insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harris v. City of Circleville, 583 F.3d

356, 364-65 (6th Cir. 2009). However, an official is not entitled to qualified immunity if,

viewing the facts in the light most favorable to the plaintiff, the record shows that (1) the officer

violated a constitutional right and (2) the right was clearly established at the time of the

violation. Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016). Courts have




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No. 16-2133, Oliver v. Buckberry


discretion to determine which inquiry to make first. Id. (citing Pearson v. Callahan, 555 U.S.

223, 236 (2009)).

       The district court reviewed the parties’ motions for summary judgment, and denied both

motions, explaining:

      In this case plaintiff Oliver claims he was gratuitously punched by defendant
      Buckberry after Oliver was handcuffed and no longer resisting arrest. Buckberry
      asserts that he struck Oliver with an open hand to the triceps in order to continue
      frisking him for weapons. There exist genuine issues of material fact regarding a
      determination of the reasonableness of the officer’s actions, precluding summary
      judgment to either party. The dispute of material fact bars not only resolution of
      Plaintiff’s excessive force claim but also Defendant’s claim for qualified immunity.

“[T]he reasonableness of officer conduct in an excessive-force claim is a question of law that a

court may decide,” but only if “all material facts are undisputed.”          Stricker v. Twp. of

Cambridge, 710 F.3d 350, 364 (6th Cir. 2013). If the video evidence is inconclusive, and if the

parties dispute whether Oliver continued to resist arrest after he was removed from the vehicle

and whether he posed a threat to Buckberry’s safety, it would be premature for the district court

to make a legal determination as to the excessiveness of the force. Buckberry’s entitlement to

qualified immunity hinges on the resolution of those factual disputes, which are material to both

prongs of the analysis. See Brown, 779 F.3d at 419 (“This circuit has further concluded that,

since at least 2009, the use of violence against a subdued and non-resisting individual has been

clearly established as excessive, regardless of whether the individual had been placed in

handcuffs.”).

       Buckberry, however, contends that the video evidence shows that Oliver did continue to

resist arrest, based on the fact that Buckberry yelled at Oliver to “quit resisting,” the fact that

Oliver “pulled his left hand away” from Buckberry, and the fact that Oliver was twisting his

body around and attempting to “curl into a ball.” According to Buckberry, because the video



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No. 16-2133, Oliver v. Buckberry


evidence shows that Oliver continued to resist, it blatantly contradicts the district court’s

determination that this fact remains disputed.

       Despite Buckberry’s best efforts to convince us otherwise, the video evidence does not

blatantly contradict the district court’s determination, and a reasonable juror could easily

conclude that Oliver did stop resisting arrest once removed from the vehicle. On the recording,

Oliver tells Buckberry repeatedly that he is not resisting. He continues to lie almost completely

still, with his face down on the ground. He cooperates while being handcuffed. Although at one

point his left hand does come out of Buckberry’s grasp, Oliver puts that hand back behind his

back immediately. The video shows very little “twisting” or moving around by Oliver, and any

movements that he does make appear to be in attempt to alleviate the pressure being applied by

Buckberry to his neck and head.

       Thus, the video evidence does not blatantly and demonstrably contradict the district

court’s finding that there are disputes of fact material to the determination of whether

Buckberry’s conduct was “objectively reasonable.” Viewing the facts in a light most favorable

to him, rather than to Oliver, Buckberry insists that he is entitled to qualified immunity. But,

because his arguments hinge on factual findings that have not yet been made—and that the

district court has identified as being in dispute—we cannot review them at this time.

                                            CONCLUSION

       For the reasons set out above, we DISMISS this appeal for lack of jurisdiction.




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