CA6: Jail takedown of DUI arrestee on video appears to be excessive force; QI denied

The video of plaintiff’s takedown in the jail on video certainly appears to be excessive force in violation of clearly established law. Denial of summary judgment on qualified immunity properly denied. Jennings v. Fuller, 2016 U.S. App. LEXIS 16633 (6th Cir. Sept. 9, 2016)*:

Does this version of the facts rise to the level of a clearly established constitutional violation? We believe that it does. As the video makes clear, the initial takedown was a gross overreaction. Drunk driving is not a severe crime, nor, prior to the takedown, was there any indication that Jennings—who, recall, was half Officer Fuller’s size—posed a threat to anyone. A jury could easily conclude that his lowering of his left hand was not an act of aggression.

Of course, takedowns are in many circumstances appropriate, see Hayden v. Green, 640 F.3d 150, 154 (6th Cir. 2011), but not always, see Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). The key point in the analysis is whether there was some real form of resistance or danger. See Hayden, 640 F.3d at 154; Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002). Neither is present here. Under these circumstances, briefly and non-threateningly lowering a hand contrary to an instruction simply does not justify a forceful takedown. We think no reasonable officer would disagree.

Nor do we believe that any reasonable officer would tie someone like Jennings face-down for three hours on a restraint bed, especially having never removed the blood-soaked spit hood, never washed away the pepper spray, and never seen to it that Jennings received adequate medical attention even though he had screamed that he had trouble breathing and had emphysema. Not only was this experience very uncomfortable for Jennings, but, more troublingly, it also greatly impeded his ability to breathe, causing him to lose consciousness several times. Leaving a suspect in a situation where he will likely be asphyxiated may be objectively unreasonable. Indeed, it is “clearly established that putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” Champion, 380 F.3d at 903. A jury looking at the video could readily conclude that the straps that the officers used to restrain Jennings put significant pressure on his back. And the officers are therefore not entitled to qualified immunity on this point.

What of the other parts of the incident? Contrary to the district court’s analysis, which relied heavily—and inappropriately, see Cass v. City of Dayton, 770 F.3d 368, 377 (6th Cir. 2014)—on the fact that the officers’ actions violated department policies, there is some merit to their contention that, between the takedown (which involved only Officers Kenamer and Fuller) and the officers’ tying Jennings to the restraint bed, their actions were not objectively unreasonable: whatever had led up to the takedown, the officers were faced with a suspect who was actively resisting, and they had to do something about it. The decision to restrain Jennings at that point was not constitutionally impermissible, and it is quite true that pepper spray, Tasers, arm bars, restraint devices, spit hoods, etc. all have their legitimate place. See, e.g., Lindsay v. Bogle, 92 F. App’x 165, 169 (6th Cir. 2004) (unpublished); Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012); see Kennedy v. Doyle, 37 F. App’x 755, 757 (6th Cir. 2002) (unpublished). Further, as the officers point out, we analyze excessive force claims temporal segment by temporal segment. See Claybrook v. Birchwell, 274 F.3d 1098, 1104 (6th Cir. 2001). Thus, the fact that the initial takedown was clearly unconstitutional does not mean that all the officers’ subsequent actions are ipso facto not protected by qualified immunity.

In another circumstance, the officers might have a winning point. But after carefully reviewing the video evidence, we conclude that we cannot neatly separate the objectively reasonable wheat from the clearly unconstitutional chaff—the officers’ actions and decisions fit together into a single, fluid incident that began and ended with what a reasonable jury could easily conclude were violations of Jennings’s clearly established constitutional rights. A jury, not a court, will be better situated to disentangle what was and what was not excessive force. We therefore affirm the district court’s decision to deny the officers’ request for qualified immunity and remand for further proceedings; as explained above, we dismiss this appeal with respect to the malicious-prosecution claim because we have no jurisdiction over that matter.