                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0041n.06
                                                                                  FILED
                                        No. 15-2551                         Jan 19, 2017
                                                                        DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

STEPHANIE STEPHAN,                                    )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
v.                                                    )
                                                      )
TANYA HEINIG,                                         )
                                                      )     ON APPEAL FROM THE
       Defendant-Appellant,                           )     UNITED STATES DISTRICT
                                                      )     COURT FOR THE EASTERN
WEST BLOOMFIELD TOWNSHIP FIRE                         )     DISTRICT OF MICHIGAN
DEPARTMENT; TIMOTHY TOROK; RICHARD                    )
PAUL; and WEST BLOOMFIELD TOWNSHIP, a                 )
Michigan Municipality,                                )
                                                      )
       Defendants.                                    )
                                                      )
                                                      )


BEFORE:       MERRITT, BATCHELDER, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Tanya Heinig was one of several firefighter–paramedics to

respond to Stephanie Stephan’s 911 call on November 28, 2011. Heinig and the others arrived

shortly after Stephan suffered a seizure. When Stephan woke from the seizure, she became

agitated. In response to Stephan’s aggression, Robert Barnes, a police officer on the scene,

grabbed her. Heinig also grabbed Stephan, though more forcefully, until Stephan complained

that Heinig was hurting her. Stephan subsequently filed a § 1983 suit against Heinig, and the

district court denied Heinig’s motion for summary judgment on the excessive-force claim after
No. 15-2551
Stephanie Stephan v. Tanya Heinig

concluding that Heinig was not entitled to qualified immunity. Heinig now appeals that decision.

Because Heinig’s use of force was objectively reasonable, she is entitled to qualified immunity.

                                                I.

       In an interlocutory appeal of a district court’s denial of qualified immunity, this court

does not question the district court’s determination that there is sufficient evidence of a

constitutional violation to send the case to a jury. DiLuzio v. Village of Yorkville, Ohio, 796 F.3d

604, 609–11 (6th Cir. 2015). This opinion accordingly relies upon the district court’s version of

the incident.

       Stephan is a second-degree black belt in Tai Kwon Do. Stephans v. West Bloomfield

Township, No. 13-14877, 2015 WL 6791527, at *1 (E.D. Mich. Nov. 6, 2015). On November

28, 2011, Stephan had a grand mal seizure at Master Kwang Han’s Dojo, a Tai Kwon Do studio.

Id.   Han called 911, and four firefighter–paramedics from the West Bloomfield Fire

Department—Ryan Glashauser, Tanya Heinig, Timothy Torok, and Richard Paul—responded

along with police officer Robert Barnes. Id. at *1–2. Glashauser and Torok had previous

experience with Stephan and knew she could be agitated after having a seizure, which is

common for seizure patients. Id. When the responders arrived, Han was on the phone with

Stephan’s mother. Id. Han gave the phone to Glashauser, who tapped Stephan on the arm to see

if she was awake.     Id.   In response, Stephan punched Glashauser in the leg, though not

intentionally, as she was just waking from her seizure. Id.

       The first thing Stephan remembers after regaining consciousness was Heinig standing

over her saying she could go to jail for hitting Glashauser. Id. Stephan then took the phone from

Glashauser to talk to her mom. Id. Because Stephan wanted to tell her mom about Heinig’s

comment, but did not want the responders to hear her, she spoke to her mom in Chaldean, her


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native language. Id. When Stephan was on the phone, Paul rolled his eyes, laughed, and

mocked her. Id. Stephan assumed Paul was making fun of her for speaking Chaldean, so she

became agitated. Id. She threw her phone toward Paul—though she did not intend to hit him—

and swore at him. Id. at *2–3. After throwing her phone, Stephan stood up to walk—admittedly,

angrily—toward the back of the dojo to change her clothes and leave. Id. at *3. Because Paul

was standing between her and the back of the dojo, Stephan had to walk toward Paul. Id.

       At that point, Barnes, perceiving danger, grabbed Stephan’s right arm and pushed her

toward the ground. Id. Stephan complained to Barnes that he was hurting her, to which he

responded: “You need to stop fighting, or it’s going to hurt more.” Id. Heinig then grabbed

Stephan’s left arm, tried to force Stephan on her head, used either her knee or her full body

weight to apply pressure to Stephan’s back to the point that Stephan could not breathe, and raised

Stephan’s left arm “way up.” Id. When Stephan screamed that she had shoulder problems and

that Heinig had dislocated her shoulder, Heinig let go of her. Id. Eventually Stephan calmed

down and left the dojo with her sister. Id.

       Stephan sued Heinig, Torok, Paul, West Bloomfield, and the West Bloomfield Fire

Department, asserting excessive-force and failure-to-train theories under § 1983 as well as gross

negligence, and claiming damages as a result of a shoulder dislocation and emotional injuries.

R.1, PgID #1–8. The defendants moved for summary judgment, R.34, PgID #169, and the

district court granted the motion on all but Stephan’s excessive-force claim against Heinig,

Stephans, 2015 WL 6791527, at *12.

       The district court held that Heinig was not entitled to qualified immunity. The court

evaluated the three Graham factors—“the severity of the crime at issue, whether [Stephan]

pose[d] an immediate threat . . . , and whether [Stephan was] actively resisting arrest or


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attempting to evade arrest by flight”—and concluded that a reasonable jury could find that

Heinig’s use of force was unreasonable. Id. at *5. The court first reasoned that Stephan did not

commit a serious crime. Id. The court then found that “Stephan did not legitimately pose a

threat to anyone’s safety”; “she posed a minimal threat” before Heinig intervened, and she posed

no threat at the moment Heinig grabbed her. Id. Finally, the district court concluded that

“whether Stephan actively resisted [was] at least a wash.” Id. at *6. Additionally, the court

rejected Heinig’s argument that some amount of force was undoubtedly necessary in the

situation, noting that even if some force was necessary, the amount of force Heinig used was

clearly excessive. Id. The district court went on to hold that Heinig had violated a clearly

established right. Id. The court reasoned that “a reasonable jury could find that Stephan was

subdued and not actively resisting by the time Heinig intervened,” and it is clearly established

that an officer may not use “gratuitous” force on a suspect who is already incapacitated. Id.

                                               II.

       Heinig was entitled to qualified immunity. Although we may not question the district

court’s determination of evidence sufficiency, DiLuzio, 796 F.3d at 609–10, we may disregard

attempts by Heinig to dispute the facts and resolve a purely legal issue on appeal, Estate of

Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005). Therefore, in this appeal the court

may ask: Given the district court’s factual inferences in favor of Stephan, did the district court

make the correct legal determination that Heinig violated Stephan’s clearly established Fourth

Amendment rights? The answer is no.

       This is because, when analyzing a Fourth Amendment claim, a court must determine

whether the challenged conduct was objectively reasonable “from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor,


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490 U.S. 386, 396 (1989). Both Stephan and Heinig recognize this as the correct standard.

However, rather than ask what a reasonable officer in Heinig’s position would have perceived

during the incident, the district court asked, for each of the Graham factors: Could a reasonable

jury find that this fact actually existed? For example, instead of concluding that a reasonable

officer would not have seen Stephan as a threat, the district court reasoned that Stephan did not

actually pose a threat, Stephans, 2015 WL 6791527, at *5. Along the same lines, instead of

deciding that a reasonable officer could not have believed that Stephan was resisting, the court

found that Stephan may not have been actually resisting, id. at 6. From this analysis, and relying

solely on the Graham factors, the district court concluded that Heinig’s conduct was

unreasonable. This application of the Fourth Amendment’s objective-reasonableness standard

was deficient as a matter of law, and we have jurisdiction to evaluate whether, under the correct

standard, Heinig violated the Fourth Amendment.

       Under the correct legal standard, Heinig acted reasonably by intervening, because a

reasonable officer in her position would have found the intervention necessary. The Graham

factors, alone, are not dispositive. Rather, assessing whether a seizure is objectively reasonable

is “fact-specific [and] based on the totality of the circumstances.” Baynes v. Cleland, 799 F.3d

600, 607 (6th Cir. 2015). Thus, even considering that Stephan had not committed a violent

crime, posed at most a minimal threat, and may not have been resisting Barnes, various factors

could have led Heinig to believe that her use of force was necessary: Stephan was a second-

degree black belt in Tae Kwon Do and therefore knew how to fight; Stephan acted aggressively

in front of Heinig by yelling obscenities, throwing her phone, and walking angrily toward Paul;

and Barnes told Stephan immediately before Heinig intervened that Stephan needed to stop

fighting him. Under these circumstances, no clearly established law renders it unreasonable for


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Heinig to grab Stephan and force her to the floor. Heinig thus did not violate Stephan’s

constitutional rights and is entitled to qualified immunity.

       The judgment denying qualified immunity to defendant Heinig is reversed.




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