                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                       File Name: 12a0280p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                                                    -
 PATRICIA HAGANS, Administratrix of the

                              Plaintiff-Appellee, --
 Estate of Patrick Hagans, Deceased,

                                                    -
                                                        No. 11-3648

                                                    ,
                                                     >
                                                    -
             v.

                                                    -
                                                    -
 FRANKLIN COUNTY SHERIFF’S OFFICE,
                                                    -
 Franklin County Hall of Justice; JAMES A.
                                                    -
 Franklin County, Ohio, Franklin County Hall -
 KARNES, In His Capacity as Sheriff of

                                                    -
 In His Capacity As a Franklin County Deputy -
 of Justice; JASON RATCLIFF, Individually and
                                                    -
 Sheriff, c/o Franklin County Sheriff’s Office, -
                                                    -
                         Defendants-Appellants. -
 Franklin County Hall of Justice,
                                                    -
                                                   N
                     Appeal from the United States District Court
                    for the Southern District of Ohio at Columbus.
                 No. 2:08-CV-850—Gregory L. Frost, District Judge.
                                      Argued: July 17, 2012
                             Decided and Filed: August 23, 2012
       Before: SUTTON and GRIFFIN, Circuit Judges; DOWD, District Judge.*

                                       _________________

                                             COUNSEL
ARGUED: Mary Jane Martin, ASSISTANT PROSECUTING ATTORNEY, Columbus,
Ohio, for Appellants. Thomas Joseph O’Connell, Columbus, Ohio, for Appellee.
ON BRIEF: Mary Jane Martin, Arnold Paul Thies, ASSISTANT PROSECUTING
ATTORNEY, Columbus, Ohio, for Appellants. Thomas Joseph O’Connell, Columbus,
Ohio, for Appellee.

                                       _________________


         *
          The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District
of Ohio, sitting by designation.


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No. 11-3648        Hagans v. Franklin Cnty. Sheriff’s Office, et al.               Page 2


                                       OPINION
                                 _________________

       SUTTON, Circuit Judge. Invented by a NASA scientist more than fifty years
ago, the taser has become an ever-present tool of law enforcement. The device allows
officers to incapacitate resistant suspects for a brief period of time with relatively few
risks. Relatively few though those risks may be, they are not non-existent, as this case
illustrates. A police officer in Columbus, Ohio, used a taser to subdue Patrick Hagans,
a middle-aged man undone by cocaine and unwilling as a result to allow officers to
detain him. Hagans died three days after the incident. Because the officer did not
violate clearly established law by using the taser in this setting, qualified immunity
protects him from this lawsuit. We reverse the district court’s contrary decision.

                                            I.

       Patrick Hagans spent the early morning hours of May 13, 2007, smoking crack
cocaine with his girlfriend. Around 5:30 a.m., Hagans became paranoid and locked
himself in the bathroom, telling his girlfriend that “people were after him.” R. at 32.
Hagans broke the bathroom window, climbed outside and began running around his yard
screaming. The commotion woke up Hagans’ next door neighbor, Robert Bogard, who
saw Hagans kicking chairs around his deck and jumping on top of cars in his driveway.
Having “never seen another human in such a rage in [his] entire life,” Bogard called the
police around 5:35 a.m. Id. at 2. The dispatcher informed officers in the area that there
was an “unknown disturbance” at Hagans’ address.

       Officer Nelson Frantz arrived first, around 5:42 a.m., and a shirtless Hagans
came running toward him. Frantz ordered Hagans to stop, but Hagans bolted for the
backyard, and Frantz gave chase. Frantz shot pepper spray at Hagans, but it hit Hagans’
backside, to no effect. Hagans raced back to the front of the house, where he
encountered Officer Troy Hughes, who had just arrived. Hagans ran to Hughes’ cruiser
and began yanking on the locked driver’s side door handle. Hagans did not obey
Hughes’ command to stop, prompting Hughes to grab him by the waist and wrestle him
to the pavement. Officer Frantz soon joined the scuffle and tried to subdue Hagans as
No. 11-3648        Hagans v. Franklin Cnty. Sheriff’s Office, et al.               Page 3


well. Hagans refused to be handcuffed. He lay down on the pavement and locked his
arms tightly under his body, kicking his feet and continuing to scream.

       While Officers Hughes and Frantz continued to struggle with Hagans on the
ground, a third officer, Jason Ratcliff, approached. Seeing that Hagans was still actively
resisting, Ratcliff unholstered his taser and applied it in drive-stun mode, pressing the
taser directly against Hagans’ upper back. The shock apparently did not faze Hagans,
as he reached back and tried to grab the taser. Ratcliff tased Hagans a second time, again
to no effect and again prompting Hagans to grab for the device. At this point, Ratcliff
tried to use the taser in dart mode, firing two electric probes at Hagans from a distance,
but the probes missed (how, from such a short distance, is not clear). Ratcliff tased
Hagans two to four more times in drive-stun mode. Realizing that the shocks were not
working, Ratcliff joined the other two officers in trying to subdue Hagans by hand.
After struggling for twenty or thirty seconds, the three officers finally secured Hagans’
wrists with handcuffs and put shackles on his legs to keep him from kicking or running.

       A medical squad arrived. Alert at the time, Hagans lost consciousness and
stopped breathing about ten minutes later. Paramedics administered CPR in the
ambulance on the way to the hospital, restoring Hagans’ pulse and respiration. Yet
Hagans never regained consciousness, and he died three days later. The coroner found
cocaine in Hagans’ system and listed his cause of death as “bronchopneumonia due to
anoxic encephalopathy due to cocaine intoxication,” R. 51-7 at 6—which is to say, the
cocaine starved his brain of oxygen, leading to fatal respiratory complications. The
coroner’s report also listed “[c]oronary atherosclerosis”—hardening of the arteries in the
heart—as “a contributing factor.” Id.

       In August 2008, Hagans’ estate filed this lawsuit in Ohio state court against the
Franklin County Sheriff’s Department and Officer Ratcliff. Hagans alleges that Ratcliff
used excessive force by tasing him repeatedly in violation of the Fourth (and Fourteenth)
Amendment and in violation of Ohio’s assault and battery laws. The defendants
removed the case to federal court. Following discovery, Officer Ratcliff moved for
summary judgment on the basis of qualified immunity. The district court denied
No. 11-3648         Hagans v. Franklin Cnty. Sheriff’s Office, et al.                Page 4


Ratcliff’s motion, and Ratcliff filed this interlocutory appeal. See 28 U.S.C. § 1291;
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

                                            II.

        This qualified-immunity case, like all qualified-immunity cases, presents two
questions:    (1) whether the officer (Ratcliff) violated the claimant’s (Hagans’)
constitutional (Fourth Amendment) rights (by repeatedly tasing him after he actively
resisted arrest); and, if so, (2) whether that constitutional right was clearly established
at the time of the incident (in May 2007, when the tasing occurred). The first question
raises some complications. The second one does not. We opt to answer the easier of the
two questions, saving the harder one for another day. See Pearson v. Callahan, 555 U.S.
223, 236 (2009).

        Qualified immunity spares Ratcliff from money-damages claims for his law-
enforcement work so long as he did not violate the clearly established constitutional
rights of Hagans at the time of the encounter. Reichle v. Howards, 566 U.S. ___, 132
S. Ct. 2088, 2093 (2012). It is one thing to overturn a conviction based on judicial
interpretations of a constitutional guarantee reached after officers make an arrest; it is
quite another to expose officers to the time, expense and risk of money-damages actions
based on interpretations not yet clearly established.

        In deciding whether a right has been clearly established, the Supreme Court has
“repeatedly” warned lower courts not to define the right at “a high level of generality.”
Ashcroft v. al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2084 (2011). Hagans proposes a
lofty definition of the right (“the right to be free from excessive force,” R. 63 at 9), one
floor down from the words of the Fourth Amendment itself (“the right to be free of
‘unreasonable . . . seizures’”) and two floors down from the highest level of generality
possible (“the right to be free from a constitutional violation”). Yet these types of
inquiries do little to answer the question. “The general proposition” that the Fourth
Amendment prohibits police officers from using excessive force “is of little help in
determining whether the violative nature of [Ratcliff’s] particular conduct [was] clearly
established.” al-Kidd, 131 S. Ct. at 2084. It is sometimes worse than that: If a court
No. 11-3648        Hagans v. Franklin Cnty. Sheriff’s Office, et al.                Page 5


does not carefully define the right, it risks collapsing the two qualified-immunity
inquiries into one, permitting the constitutional-violation inquiry always to answer the
clearly established inquiry. Precedent demands instead that we go down the stairs of
abstraction to a concrete, particularized description of the right. Though not too far
down: just as a court can generalize too much, it can generalize too little. If it defeats
the qualified-immunity analysis to define the right too broadly (as the right to be free of
excessive force), it defeats the purpose of § 1983 to define the right too narrowly (as the
right to be free of needless assaults by left-handed police officers during Tuesday
siestas).

        Examples abound of an appropriate middle ground. In an excessive-force case,
that might mean asking whether “a disturbed felon, set on avoiding capture through
vehicular flight [that placed] persons in the immediate area . . . at risk” had a clearly
established right not to be shot. Brosseau v. Haugen, 543 U.S. 194, 200 (2004) (per
curiam). Or, closer to today’s case, it might mean asking “whether a misdemeanant,
fleeing from the scene of a non-violent misdemeanor, but offering no other resistance
and disobeying no official command, had a clearly established right not to be tased.”
Cockrell v. City of Cincinnati, 468 F. App’x 491, 495 (6th Cir. 2012).

        Defined at the appropriate level of generality—a reasonably particularized
one—the question at hand is whether it was clearly established in May 2007 that using
a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed
amounted to excessive force. The answer is no. Cases from this circuit and others,
before and after May 2007, adhere to this line: If a suspect actively resists arrest and
refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser
to subdue him.     Consider cases from this circuit first.       In Williams v. Sandel,
433 F. App’x 354 (6th Cir. 2011), officers confronted a suspect who was high on
ecstasy, nude and jogging along the interstate at midnight. Id. at 354. The suspect
refused to be handcuffed, prompting officers to tase him thirty-seven times (and to use
batons and pepper spray as well) until he stopped resisting. Id. at 362. We held the
officers’ use of force was reasonable. Id. at 363. Or consider Caie v. W. Bloomfield
No. 11-3648        Hagans v. Franklin Cnty. Sheriff’s Office, et al.               Page 6


Twp., No. 11-1378, 2012 WL 2301648 (6th Cir. June 18, 2012). After two officers
wrestled the suspect to the ground, he refused to move his arms from under his body,
prompting a third officer to tase him. Id. at *2. The tasing was reasonable given the
suspect’s “active[] resist[ance] [to] the officers’ attempts to secure his arms behind his
back.” Id. at *4; see also Williams v. Ingham, 373 F. App’x 542, 548 (6th Cir. 2010)
(officers acted reasonably by tasing suspect who would not move his hands from under
his body).

       By contrast, when we have found excessive force, the suspects were compliant
or had stopped resisting. In Kijowski v. City of Niles, 372 F. App’x 595 (6th Cir. 2010),
officers used excessive force by tasing a wedding guest who was sitting in his truck, not
disobeying police commands. Id. at 600–01. And in Landis v. Baker, 297 F. App’x 453
(6th Cir. 2008), officers used excessive force by repeatedly tasing a suspect who was
pinned on the ground with his face submerged in muddy water. Id. at 464; see also
Roberts v. Manigold, 240 F. App’x 675, 676 (6th Cir. 2007) (officers used excessive
force by repeatedly tasing suspect even though he was “completely pinned”); cf.
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004) (officers used
excessive force by dousing suspect with pepper spray after he was immobilized with
handcuffs and leg shackles and stopped resisting).

       A suspect’s active resistance also marks the line between reasonable and
unreasonable tasing in other circuits. Compare McKenney v. Harrison, 635 F.3d 354,
360 (8th Cir. 2011) (tasing suspect who bolted toward second-story window in an
attempt to escape was not excessive force); Draper v. Reynolds, 369 F.3d 1270, 1277–78
(11th Cir. 2004) (tasing suspect who acted belligerently and refused to provide his
license and registration after a traffic stop was not excessive force); and Hinton v. City
of Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (tasing suspect three times who actively
resisted officers’ attempts to handcuff him was not excessive force); with Cavanaugh v.
Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (tasing non-resistant suspect was
excessive force); Oliver v. Fiorino, 586 F.3d 898, 906–07 (11th Cir. 2009) (tasing
suspect ten times was excessive force because he stopped resisting after the first shock);
No. 11-3648         Hagans v. Franklin Cnty. Sheriff’s Office, et al.                Page 7


Brown v. City of Golden Valley, 574 F.3d 491, 498–99 (8th Cir. 2009) (tasing car
passenger who was not attempting to flee or resist arrest was excessive force); and Casey
v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir. 2007) (tasing a non-violent
misdemeanant who was not offering any resistance was excessive force).

        One decision bucks this trend—kind of. In two consolidated cases, the en banc
Ninth Circuit held that officers used excessive force by tasing suspects who offered
minimal resistance. Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc). In the
first case, a pregnant woman whom officers pulled over for speeding refused to sign a
citation and refused to get out of her car, leading the officers to tase her three times and
to handcuff her. Id. at 436–38. In the second case, an officer trying to arrest a domestic-
abuse suspect tased the suspect’s wife when she failed to move out of the way. Id. at
438–39. Whatever glimmer of hope the Ninth Circuit’s holdings on the constitutional
issue offer Hagans is closed by the reality that the court held the officers were entitled
to qualified immunity because the right was not clearly established at the time of the
encounters. Id. at 448, 452. If it did not violate clearly established law to tase a
pregnant mother who refused to sign a traffic citation in November 2004, how could it
violate clearly established law to tase an out-of-control, shirtless man strung-out on
drugs who was thrashing about with two officers on the ground in May 2007? Hagans
has not shown any changes in the law over that period or for that matter any law specific
to the Sixth Circuit that would clearly establish the illegality of this far more reasonable
use of a taser.

        This line between suspects who actively resist arrest and those who comply with
officers’ commands may or may not hold as to the ultimate constitutional question. The
taser remains a relatively new technology, and courts and law enforcement agencies still
grapple with the risks and benefits of the device. Even as of a year ago, however, it
could be said that tasers carry “a significantly lower risk of injury than physical force”
and that the vast majority of individuals subjected to a taser—99.7%— suffer no injury
or only a mild injury. John H. Laub, Director, Nat’l Inst. of Justice, Study of Deaths
No. 11-3648         Hagans v. Franklin Cnty. Sheriff’s Office, et al.                 Page 8


Following Electro Muscular Disruption 31 (2011); see also Mattos, 661 F.3d at 454
(Kozinski, J., concurring in part and dissenting in part).

        Acknowledging that he was actively resisting arrest, Hagans points out that some
factors relevant to the inquiry cut against Officer Ratcliff’s decision to employ the taser.
See Graham v. Connor, 490 U.S. 386, 396 (1989). As to whether Hagans posed “an
immediate threat to the safety of the officers or others,” id. at 396, Ratcliff testified that
he did not see Hagans land any kicks or punches on the other officers, the other officers
did not appear to be injured or bleeding, and he did not hear Hagans make any threats.
As to whether Hagans was “attempting to evade arrest by flight,” id., Ratcliff testified
that Hagans, who was on the ground and surrounded by officers, did not pose a risk of
getting away. And as to “the severity of the crime at issue,” id., Ratcliff knew only that
someone had reported a disturbance and had no idea what, if any, crime Hagans had
committed.

        Yet these factors must be assessed together with, not apart from, the reality that
Hagans was out of control and continued forcefully to resist arrest. As the district court
recognized, the combination of factors presented Officer Ratcliff with a “close call,” R.
63 at 14, as some factors cut in favor of using the taser while other factors cut against
it. The essence of qualified immunity, however, is to give government officials cover
when they resolve close calls in reasonable (even if ultimately incorrect) ways. See al-
Kidd, 131 S. Ct. at 2085. The fact remains that, prior to May 2007 (and for several years
after), no case in any circuit held that officers used excessive force by tasing suspects
who were actively resisting arrest, even though many of them, like Hagans, were
suspected of innocuous crimes, posed little risk of escape and had not yet physically
harmed anybody.

        That the taser shocks might have contributed to Hagans’ death does not
change things. Although the autopsy report concluded that Hagans died from cocaine
intoxication, Hagans’ expert opined that the taser shocks were “a substantial factor in
causing his death.” R. 52-5 at 3. Even if we credit Hagans’ causation evidence, as we
must on summary judgment, that does not override his standard-of-care problem. “In
No. 11-3648         Hagans v. Franklin Cnty. Sheriff’s Office, et al.                Page 9


determining whether there has been a violation of the Fourth Amendment, we consider
not the extent of the injury inflicted but whether an officer subjects a detainee to
gratuitous violence.” Miller v. Sanilac Cnty., 606 F.3d 240, 252 (6th Cir. 2010) (citation
and internal quotation marks omitted). For the reasons just given, Officer Ratcliff did
not violate clearly established law when he tried—unsuccessfully, it turns out—to
subdue Hagans with the taser. Tragic though Hagans’ death assuredly is, that regrettable
fact cannot transform the state of the law in May 2007, and it cannot alter our duty to
grant qualified immunity when an officer has not violated clearly established law.

        That leaves two other matters. Because Ratcliff did not violate a clearly
established right, it follows that his employer, the Franklin County Sheriff’s Office, is
also entitled to summary judgment. To hold the Sheriff’s Office liable, Hagans must
show that its “failure to train” officers on the proper use of tasers “amounts to deliberate
indifference.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). But “a municipal
policymaker cannot exhibit fault rising to the level of deliberate indifference to a
constitutional right when that right has not yet been clearly established.” Szabla v. City
of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en banc). The same is true with
respect to Hagans’ state-law claim for assault and battery. Officer Ratcliff did not
violate a clearly established right, and nothing else shows he otherwise acted “with
malicious purpose, in bad faith, or in a wanton or reckless character.” Ohio Rev. Code
§ 2744.03(A)(6)(b). Ohio’s statutory immunity applies.

                                            III.

        For these reasons, we reverse and remand for further proceedings.
