Plaintiff was Tased when he slowly got out of a car after officers flashed badges on him. He was recovering from surgery and had a colostomy bag and staples in his stomach. While the use of force does not require officers to know plaintiff’s condition, it was clearly established by 2010 that the use of force against a nonresisting and passive motorist was unreasonable. Grant of qualified immunity reversed. Moreover, the Monell claim against the city can go forward for highly inappropriate and frivolous materials in training on the use of force against detainees. Wright v. City of Euclid, 2020 U.S. App. LEXIS 19095 (6th Cir. June 18, 2020):
Even if Flagg is correct that Wright’s act of pushing down on the center console constituted some resistance, if the resistance was merely “passive,” then the use of a taser was unreasonable. See Goodwin, 781 F.3d at 323. The tasering of Wright was justified only if he engaged in resistance that was “active,” which “can take the form of ‘verbal hostility’ or a ‘deliberate act of defiance.'” Id. at 323 (quoting Eldridge v. City of Warren, 533 F. App’x 529, 534-35 (6th Cir. 2013)).
We recognized this principle in Smith v. City of Troy, where the plaintiff was tased while experiencing an epileptic seizure. 874 F.3d at 942. In that case, when officers arrived at the scene, the plaintiff was standing outside his car clinging to a fence, which led the officers mistakenly to believe that he had been driving under the influence. Id. In an attempt to return the plaintiff to his car, an officer tried to pry the plaintiff’s fingers from the fence. Id. The plaintiff responded by pulling his arm away from the officer, at which point the officer forced the plaintiff to the ground and wrestled with him until a second officer arrived and deployed his taser. Id. The district court granted the officers qualified immunity, holding that “the officers used measured force in response to [the plaintiff’s] defiance of their orders and reaching where the officers could not see his hands.” Id. at 943. We reversed, holding that “[a] reasonable juror could conclude that, in pulling his arm away, [the plaintiff’s] resistance was minimal and that [the force used] was excessive.” Id. at 945.
Similarly, the facts regarding Wright’s arm movement would allow a reasonable juror to find that his resistance was minimal to the extent that it constituted resistance at all. Wright maintains that he reached down towards the center console in order to assist the officers in removing him from the SUV because his mobility was limited as a result of his surgery, colostomy bag, and staples in his stomach. However, Flagg claims that he was not aware of Wright’s medical problems until after he had deployed his taser. The reasonableness of force is predicated solely on the knowledge of officers in the moments before the force is used. Graham, 490 U.S. at 396-97. Therefore, if the officers did not know of Wright’s recent surgery, the colostomy bag or the stomach staples, those facts would bear no weight in the reasonableness calculus. But, even if the officers had no knowledge of any of these facts, there are other facts that, when construed in Wright’s favor, could support a reasonable juror’s finding that Wright did not actively resist. In a split-second reaction, Wright pushed down on the center console in an attempt to maneuver his torso into a better position to get out of the car. Construing the record in the light most favorable to Wright, his act of purported resistance is close enough to that of the plaintiff in Smith to present a question of fact for a jury to decide whether Wright in fact actively resisted arrest.
That this issue presents a jury question is confirmed by our consideration of the officer’s actions “in light of testimony regarding the training that [the officer] received.” Griffith v. Coburn, 473 F.3d 650, 657 (6th Cir. 2007). Wright presented expert testimony from Roy Taylor, a police officer and expert on police-involved use of force, who testified that the level of force used was unreasonable. In his affidavit, Taylor noted that the Model Policy on Electronic Control Weapons of the International Association of Chiefs of Police (of which the Euclid police chief is a member), the TASER training manual, and the Euclid Police Department’s use-of-force continuum, each outline circumstances in which use of a taser is appropriate. According to Taylor, “[n]one of the circumstances … were present when Officer Flagg deployed his taser against Lamar Wright. Officer Flagg used a greater level of force than other officers would have used if facing the same, or similar circumstances.” R. 31-6 at PageID 1415.
Finally, and significantly, at no point before Flagg deployed his taser was Wright under arrest for any offense. As we noted in Smith, “the mere failure of a citizen—not arrested for any crime—to follow the officer’s commands does not give a law enforcement official authority to put the citizen in handcuffs.” 874 F.3d at 945. By the same logic, an officer may not tase a citizen not under arrest merely for failure to follow the officer’s orders when the officer has no reasonable fear for his or her safety. Whether the tasering in this instance was constitutionally permissible must be decided by the jury, given the genuine factual disputes described above concerning the circumstances of Wright’s encounter with the officers.
. . .
In conducting the analysis as it pertains to use of the taser, two lines of cases emerge. The first holds that there is no clearly established right not to be tased when a suspect is actively resisting arrest. See, e.g., Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509-10 (6th Cir. 2012) (noting that, as of 2007, a suspect who refused to be handcuffed and actively resisted arrest did not have a clearly established right not to be tased). The second line of authority holds that there is a clearly established right not to be tased when the suspect is not actively resisting arrest. See Brown, 814 F.3d at 462 (holding that “as of December 31, 2010, it was clearly established that tasering a non-threatening suspect who was not actively resisting arrest constituted excessive force”); Coffey, 933 F.3d at 589 (“Drawing the line at a suspect’s active resistance defines the right at a level of particularity appropriate for a claim pursued under § 1983.”); Smith, 874 F.3d at 945 (“It was well-established [in 2014] that a non-violent, non-resisting, or only passively resisting suspect who is not under arrest has a right to be free from an officer’s use of force.”). Assuming Wright’s version of the facts to be true, this case falls neatly within the second category of cases.
To summarize, a reasonable jury could find that Flagg’s actions constituted unreasonable and constituted excessive force. It was clearly established as of November 4, 2016 that drawing a weapon on a suspect who was not fleeing or posing a safety risk and tasering a suspect who was not actively resisting arrest constituted excessive force. Therefore, we REVERSE the district court’s grant of summary judgment on qualified immunity grounds to Flagg as to the excessive-force claims.
