Vance v. Wade

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0404p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellant, -
GEORGE A. VANCE,
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No. 07-5930
v.
,
>
BLAINE WADE et al. -
Defendants-Appellees. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 00-00213—Dennis H. Inman, Magistrate Judge.
Argued: June 4, 2008
Decided and Filed: November 17, 2008
Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN, District Judge.*
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COUNSEL
ARGUED: Michael M. Raulston, LAW OFFICES, Chattanooga, Tennessee, for Appellant. Kent
E. Herrin, HERRIN & BOOZE, Johnson City, Tennessee, Ronald W. Jenkins, HERNDON,
COLEMAN, BRADING & McKEE, Johnson City, Tennessee, for Appellees. ON BRIEF:
Michael M. Raulston, LAW OFFICES, Chattanooga, Tennessee, for Appellant. Kent E. Herrin,
HERRIN & BOOZE, Johnson City, Tennessee, Julia C. West, WEST & ROSE, Kingsport,
Tennessee, for Appellees.
MOORE, J., delivered the opinion of the court, in which DUGGAN, D. J., joined.
DAUGHTREY, J. (pp. 11-12), delivered a separate opinion concurring in the result.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. In this lawsuit involving claims of excessive
force, Plaintiff-Appellant George A. Vance (“Vance”) appeals the grant of summary judgment to

*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of Michigan, sitting
by designation.

1
No. 07-5930 Vance v. Wade et al. Page 2

Defendants-Appellees Captain Blaine Wade (“Wade”), Detective Jim Breuer (“Breuer”),1 and the
city of Bristol, Tennessee. In June 2000, Vance filed this lawsuit under 42 U.S.C. § 1983, alleging
that on June 10, 1999, officers Wade and Breuer used excessive force in handcuffing and securing
him during the execution of a search warrant at his business and that the city of Bristol, Tennessee,
failed to train and supervise its officers. Vance’s lawsuit also involved state-law claims for false
arrest and assault and battery. The case was stayed pending the resolution of criminal proceedings
in state court against Vance, and in April 2005 the parties consented to the exercise of jurisdiction
by a U.S. Magistrate Judge. In July 2007, the magistrate judge issued a Memorandum Opinion and
Judgment granting Wade, Breuer, and Bristol’s motions for summary judgment, in particular finding
that Wade did not use excessive force in handcuffing Vance and that Wade, although he did use
excessive force in shoving and cramming Vance in the backseat of a police vehicle, was entitled to
qualified immunity on that claim. In this appeal, Vance focuses his challenge to the judgment
primarily as it pertains to Wade. Although we agree that Vance’s allegations are insufficient to
support an excessive-force claim for handcuffing, we disagree that Wade is entitled to qualified
immunity on the excessive-force claim relating to Wade’s actions in placing Vance in the back of
a police vehicle. We therefore REVERSE the magistrate judge’s order granting summary judgment
on Vance’s claim of excessive force relating to Wade’s actions in shoving Vance inside the police
vehicle, AFFIRM the magistrate judge’s order granting summary judgment in all other respects, and
REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
On June 10, 1999, the Bristol Police Department simultaneously executed seven search
warrants for gambling machines at various locations in the city. The police began executing these
warrants at 6 p.m. Captain Wade was the ranking police officer in charge of the overall planning
and execution of the warrants, and Detective Breuer was the designated team leader for executing
the warrant at Tooties Restaurant, a business in which Vance had an ownership interest. Captain
Wade, along with Assistant District Attorney Gene Perrin (“Perrin”), was at Tooties Restaurant
when the police department began executing the warrant, but Wade left for another raid location
shortly thereafter.
Vance arrived at Tooties Restaurant some time after Wade left. Upon his arrival, Vance
noticed several people standing around outside the restaurant as well as several police cars. Vance
claimed that when he entered the restaurant and asked Breuer what was going on, Breuer responded
by saying “[w]e’re closed.” Joint Appendix (“J.A.”) at 200 (Vance Dep. at 31). Vance replied that
the restaurant was his business and asked whether the police had a search warrant. Breuer stated that
the officers did have a search warrant and, after Vance requested to see the warrant, Breuer asked
another officer to show a copy to Vance.
Vance alleged that Breuer was screaming at him to sit down, and that Vance’s response was
to tell Breuer that “this is not an arrest warrant.” J.A. at 201 (Vance Dep. at 32). At that time, a
phone began ringing in the restaurant, and Vance asserted that Breuer prevented him or anyone else
from answering the phone. In his deposition, Breuer stated that “[i]t’s not common practice during
a search warrant to allow anyone to answer the phone within.” J.A. at 171 (Breuer2 Dep. at 38).
Vance claimed that he demanded to use the restaurant phone and call his lawyer, that Breuer
refused to allow him to do so as he was not under arrest, and that Vance then asked to be arrested
so that he could call his lawyer. J.A. at 201 (Vance Dep. at 32). Vance alleged that Breuer then

1
Although the parties inconsistently spell his name both “Breuer” and “Brewer,” the record seems clear that
his name is spelled “Breuer.” See Joint Appendix (“J.A.”) at 121 (Bristol Tennessee Police Department Individual
Training Record for James Breuer); J.A. at 167 (Dep. of James J. Breuer).
2
Breuer did not recall Vance requesting to contact his lawyer. J.A. at 171 (Breuer Dep. at 36).
No. 07-5930 Vance v. Wade et al. Page 3

faced up to him with “killer eyes” and told him that “[y]ou’re not calling your lawyer.” Id. At that
point, Vance claimed that he “looked around in [the restaurant] and I said, ‘Everyone in here keep
your eyes on Mr. Brewer [sic] and myself. Don’t take your eyes off of us. He’s getting ready to
violate my civil rights.’” J.A. at 202 (Vance Dep. at 33).
Breuer and Perrin then conferred, and Breuer decided to call Captain Wade back to Tooties
Restaurant because he believed that Vance’s behavior was “interrupting our search warrant” and that
the officers “couldn’t do the—the job we were there to do with—with this going on with this man.”
J.A. at 171-72 (Breuer Dep. at 39-40). Even Vance admitted that Breuer asked him to sit down
“[t]hree or four times” and that he had not done so. J.A. at 205 (Vance Dep. at 36).
When Wade arrived, Vance alleged that Wade handcuffed him and that Wade “grabbed both
hands and jerked them behind me fast, quick, hard, and cuffed the same time almost instantly,
crammed down on them and then jerked up on them. You know how tall he is.3 Brought me up on
my toes. Had me on my toes and marched me all the way out” of the restaurant. J.A. at 208 (Vance
Dep. at 58). Vance stated that around “50 people” had gathered in the parking lot outside the
restaurant. J.A. at 207 (Vance Dep. at 56). Vance claimed that Wade “set me down” in a police
vehicle and that Wade left him “[s]itting on the edge of the seat” with his feet on the ground and the
door open. J.A. at 209 (Vance Dep. at 59); J.A. at 218 (Vance Dep. at 67).
Vance testified that while he was sitting on the edge of the seat, Wade and Breuer had an
argument and “they talked for five minutes.” J.A. at 218 (Vance Dep. at 67). Vance claims that
when Wade returned to the vehicle, he said “[g]et in there,” and pushed Vance into the car,
“cramm[ing] my head down on my shoulder.” J.A. at 219 (Vance Dep. at 69). Vance testified that
Wade “took his hand and put [it] on my shoulder and he twisted the upper trunk all the way around.
Then he ran out of reach so he swapped hands and put his hand there to give him more leverage.
And then he took this hand and he crammed my head down on my shoulder.” Id. Vance stated that
“at that time I was hung. My hips were hung in the vehicle. I couldn’t break loose. Finally they
broke loose, thank the Lord. My hips broke loose and I fell face forward into the floorboard, laying
in the floorboard. My knees were right on the running frame of the car” J.A. at 219-20 (Vance Dep.
at 69-70). Vance then testified that Wade “just took the door and shut it up like that and pushed my
body in there” and that while the door did not close on his legs, instead “[t]he door pushed them in,
crammed me in there.” J.A. at 219-20 (Vance Dep. at 69-70).
Vance stated that it was hot outside that day, around ninety degrees, and that the windows
of the car were rolled up. J.A. at 211 (Vance Dep. at 71). Vance claimed that, while he was down
in the backseat and struggling to get into an upright position, he was “holler[ing] at” the auxiliary
police officer and that the response initially was “[s]ilence.” J.A. at 220 (Vance Dep. at 70). In his
brief, Vance claims that he was in the backseat “for Ten to Fifteen (10-15) minutes” while the
auxiliary officer “ignored him” until Vance mentioned having had surgery and currently having back
pain. Appellant Br. at 5. When Vance was able to right himself and lean forward, he then “pecked
on the plexiglass” and attracted the attention of the auxiliary officer sitting in the front seat. J.A. at
211 (Vance Dep. at 71). Vance then stated that after he got the officer’s attention, the officer asked
him what he wanted, and Vance replied that “‘you’d better get back here and loosen these cuffs, I
don’t have no feeling in my hands, you’ve hurt my neck and you’ve hurt my back.’ I said, ‘I’ve had
back surgery.’ I said, ‘I’m in therapy now.’ I said, ‘You’ve hurt me.’” J.A. at 212 (Vance Dep. at
72). Vance stated that the officer “evidently believed me,” that the officer left the vehicle and
walked over to Wade, who then returned to the vehicle with Breuer, who removed the handcuffs
after asking if Vance would behave. Id.

3
The officers apparently do not recall who handcuffed Vance. J.A. at 172 (Breuer Dep. at 41) (“After this
lawsuit was filed a year after the fact we tried to figure out amongst ourselves who handcuffed him and we can’t
remember.”); J.A. at 253 (Wade Dep. at 17) (“Q. Okay. Did you handcuff him? A. No, sir.”).
No. 07-5930 Vance v. Wade et al. Page 4

As the magistrate judge noted, Vance “claims that he suffered injuries to his neck and lower
back as a result of the force utilized by Captain Wade in handcuffing [him] and forcing him into the
floorboard of the rear of the police vehicle.” J.A. at 394 (Mem. Op. at 5). In his Statement of
Undisputed Material Facts in Opposition to the Motion for Summary Judgment, Vance noted his
deposition testimony that he “sustained injuries to my neck and lower back,” that “[s]ince June 10,
1999, I had surgery on my neck,” and that he has “also sustained emotion and mental anguish and
incurred attorney’s fees.” J.A. at 358.
Vance, however, admitted that he did not ask the officers to take him to the hospital or
provide any medical aid or assistance. J.A. at 222 (Vance Dep. at 100). On the night of the search,
Vance’s daughter-in-law, Maggie Vance, took several photographs of Vance’s wrists. J.A. at 360-4
61 (Notice of Filing Copies of Photographs as Exhibit); J.A. at 370 (Jane Vance Dep. at 45).
Although Vance argued to the district court that the force from the handcuffing “cause[d] bleeding,
cutting and bruising in the outside and numbness of his hands,” J.A. at 346 (Resp. to Mots. for
Summ. J. at 3), the photographs show only what appears to be a very small bruise on one wrist and
absolutely no lacerations or blood. On appeal, Vance asserts only that the handcuffing caused
“damage to his writs [sic].” Appellant Br. at 17. Furthermore, although the handcuffing occurred
on June 10, 1999, the sole medical evidence in the record pertaining to Vance’s alleged injuries is
an “Independent Medical Evaluation” report from November 2001. J.A. at 71-82, 73. The report,
however, is neither sworn nor accompanied by a sworn affidavit, and therefore it offers no support
to Vance. See Pack v. Damon Corp., 434 F.3d 810, 815 (6th Cir. 2006) (“Although the district court
relied on both the Bukowski Report and the Quillen Affidavit, the Bukowski Report is unsworn and
thus is hearsay, which may not be considered on a motion for summary judgment.”). Finally, after
the officers finished their search of Tooties Restaurant on June 10, 1999, Vance voluntarily provided
a two-page statement to the officers about the gambling machines in the restaurant. The statement
pertains only to the asserted legality of the machines and does not contain any complaints of injury
or reference to police misconduct. The statement bears the signatures of both Breuer and Vance and
was commenced at 6:45 p.m. on June 10, 1999, and completed at 7:37 p.m. that same night.
In June 2000, approximately one year after the execution of the search warrant at Tooties
Restaurant, Vance filed this lawsuit pursuant to 42 U.S.C. § 1983. Because criminal proceedings
against Vance were ongoing in state court—the charges concerned the gambling machines that the
officers seized on June 10, 1999—Vance’s § 1983 lawsuit was stayed for several years.5 In April
2005, the parties consented to the exercise of jurisdiction by a U.S. Magistrate Judge.
In March 2007, the city of Bristol, Wade, and Breuer moved for summary judgment, and
Vance filed a response in April 2007. On July 10, 2007, the magistrate judge granted summary
judgment to the defendants. As to the primary issue on appeal—the excessive-force claims arising
out of Wade’s alleged actions in tightly handcuffing Vance and cramming him in the backseat of
the police vehicle—the magistrate judge found that Vance’s handcuffing claim failed because the
handcuffs were removed when Vance complained. J.A. at 397-98 (Mem. Op. at 8-9). However,
regarding Vance’s excessive-force claim for being pushed into the car, the magistrate judge found
that although the “question is extremely close in light of Lyons v. City of Xenia,” 417 F.3d 565 (6th
Cir. 2005), “under the plaintiff’s version of the facts, there was a constitutional violation.” J.A. at
402 (Mem. Op. at 13 & n.4). However, the magistrate judge found that Wade was entitled to
qualified immunity.

4
Although the parties failed to include copies of the photographs in the Joint Appendix, the photographs were
part of the record before the district court and have been supplied to this court.
5
Vance was tried and convicted in Tennessee state court of aggravated gambling promotion, and his conviction
was affirmed on appeal in April 2004. State v. Vance, No. E2003-00110-CCA-R3-CD, 2004 WL 746296 (Tenn. Crim.
App. April 8, 2004).
No. 07-5930 Vance v. Wade et al. Page 5

On July 25, 2007, Vance timely filed a Notice of Appeal.
II. ANALYSIS
Although Vance’s appellate brief lists three issues in its “Statement of Issues for Review”
section, our analysis below pertains only to the second issue, whether “Captain Blaine Wade use[d]
excessive force in violation of Mr. Vance’s civil rights.” Appellant Br. at 2. Before undertaking
that analysis, we briefly address the other two issues and explain why they merit little attention.
The third “issue” stated in Vance’s brief consists of the following sentence: “[t]he Appellant
does not seek redress for the lack of procedural due process pursuant to Rule 26 of the Federal Rules
of Civil Procedure.” Appellant Br. at 2. Later in his brief, Vance simply repeats this sentence.
Appellant Br. at 18. Accordingly, we do not address this contention or concession.
The first issue stated in Vance’s brief is whether “Defendant Jim Breuer violate[d] Mr.
Vance’s civil rights and negligently inflict[ed] mental anguish.” Appellant Br. at 2. Vance devotes
exactly eight lines of text in the “Argument” portion of his brief to this claim and includes a single
citation to a Tennessee Supreme Court case. Appellant Br. at 9 (citing Sallee v. Barrett, 171 S.W.3d
822 (Tenn. 2005)). The exact nature of Vance’s claim is also unclear: the section heading asks
whether Breuer “negligently inflict[ed] mental anguish” but in text Vance asserts that Breuer’s
actions were “certainly an intentional infliction of emotional harm.” Id. (emphases added). Vance
provides the elements of neither claim. Moreover, Vance’s Complaint and his Response to the
motions for summary judgment do not refer to any such claim, J.A. at 4 (Compl. ¶ 22) (“In addition,
the Plaintiff sues the Defendants for the state pendant [sic] claims of false arrest and assault and
battery.”); J.A. at 344-54 (Pl.’s Resp. to Mot. for Summ. J.), and the magistrate judge therefore
understood Vance as raising only the state law claims of “false arrest and assault and battery.” J.A.
at 390 (Mem. Op. at 1).
Vance appears not to have raised below any claims for intentional or negligent infliction of
emotional distress, and “the failure to present an issue to the district court forfeits the right to have
the argument addressed on appeal.” Armstrong v. City of Melvindale, 432 F.3d 695, 699-700 (6th
Cir. 2006). Furthermore, even if Vance had presented such claims to the district court, “an issue is
deemed forfeited on appeal if it is merely mentioned and not developed.” United States v. Clark,
469 F.3d 568, 569-70 (6th Cir. 2006). Accordingly, we do not address Vance’s argument that
Breuer negligently or intentionally inflicted emotional distress.
A. Legal Standards
“We review a district court’s decision granting summary judgment de novo.” Burchett v.
Kiefer, 310 F.3d 937, 941 (6th Cir. 2002). Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c). “In conducting the summary judgment analysis, we must view all inferences to be drawn
from the underlying facts in the light most favorable to the nonmoving party,” which is Vance in this
case. Burchett, 310 F.3d at 942.
We must also assess Vance’s claim under the framework of qualified immunity. “According
to the doctrine of qualified immunity, ‘government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v. Katz, 533 U.S.
194, 201 (2001), the Supreme Court explained that the “initial inquiry” in the qualified immunity
analysis is determining whether “the facts alleged show the officer’s conduct violated a
No. 07-5930 Vance v. Wade et al. Page 6

constitutional right.”6 “[I]f a violation could be made out on a favorable view of the parties’
submissions,” the Supreme Court then directed that “the next, sequential step is to ask whether the
right was clearly established.” Id. Finally, the Supreme Court elaborated that “[t]he relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.
Accordingly, we have stated that “[w]e analyze claims of qualified immunity using a three-part test,
which requires us to determine (1) whether a constitutional right was violated; (2) whether that right
was clearly established and one of which a reasonable person would have known; and (3) whether
the official’s action was objectively unreasonable under the circumstances.” Harris v. Bornhorst,
513 F.3d 503, 511 (6th Cir. 2008) (citing Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en
banc)).
In evaluating the merits of a plaintiff’s claim that officers used excessive force, we “must
apply an ‘objective reasonableness’ standard.” Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir. 2007)
(quoting Graham v. Connor, 490 U.S. 386, 388 (1989)). “Under this standard, ‘the question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.’ The test is
‘reasonableness at the moment’ of the use of force, as ‘judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.’” Id. (quoting Graham, 490 U.S.
at 397, 396) (internal citations omitted). Evaluating the reasonableness of a use of force “requires
careful attention to the facts and circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.
at 396. In addition, “we have held that a plaintiff may allege use of excessive force even where the
physical contact between the parties did not leave excessive marks or cause extensive physical
damage.” Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir. 1999) (citing Holmes v. City of
Massillon, 78 F.3d 1041, 1048 (6th Cir. 1996)).
Finally, as to a claim that officers used excessive force in handcuffing an individual, “[o]ur
precedents allow the plaintiff to get to a jury upon a showing that officers handcuffed the plaintiff
excessively and unnecessarily tightly and ignored the plaintiff’s pleas that the handcuffs were too
tight.” Burchett, 310 F.3d at 944-45; see also Lyons, 417 F.3d at 575-76 (“[T]he plaintiff must
allege some physical injury from the handcuffing, and must show that the officers ignored plaintiff’s
complaints that the handcuffs were too tight.”) (internal citations omitted).
B. Analysis
The argument section of Vance’s brief regarding his excessive-force claim against Wade is
disorganized and unclear. See Appellant Br. at 9-18. Roughly half of the argument section consists
simply of a lengthy quote from an unspecified case.7 Appellant Br. at 12-17 (quoting, without
citation or listing in the Table of Authorities, Baker v. City of Hamilton, 471 F.3d 601, 605-08 (6th
Cir. 2006)). Although Vance’s argument lacks clarity, it appears that his argument involves two

6
We note that the Supreme Court recently granted a petition for writ of certiorari and directed the parties “to
brief and argue the following question: ‘Whether the Court’s decision in Saucier v. Katz should be overruled?’”
Questions Presented, Pearson v. Callahan, No. 07-751, available at http://www.supremecourtus.gov/qp/07-00751qp.pdf
(March 24, 2008) (internal citation omitted). In the interim, we conduct our qualified-immunity analysis based on the
law as it has developed in this circuit.
7
The argument section also includes a lengthy quotation from a Tennessee state-court case concerning a
governmental entity’s waiver of immunity for negligent acts, after which Vance asserts that “[t]herefore, the City is not
immune.” Appellant Br. at 12. Because Vance’s “Statement of Issues for Review” does not mention the city of Bristol
at all, we do not address the city’s liability, as it appears that Vance forfeited any claims he may have against the city.
No. 07-5930 Vance v. Wade et al. Page 7

excessive-force claims against Wade: one relating to the tight handcuffing, and another relating to
Wade’s alleged actions in marching Vance out of the restaurant and shoving Vance into the backseat
of the police vehicle. We address each in turn.
1. Vance’s Claim that Wade Used Excessive Force in Handcuffing Him
We hold that Vance has failed to establish a constitutional violation in regard to his claim
that Wade used excessive force in handcuffing him. As stated above, for an excessive-force-in-
handcuffing claim, our cases require that a plaintiff show both that officers handcuffed the plaintiff
excessively and unnecessarily tightly and that officers “ignored the plaintiff’s pleas that the
handcuffs were too tight.” Burchett, 310 F.3d at 944-45; Lyons, 417 F.3d at 575-76. Vance clearly
cannot establish the second element of showing that Wade ignored Vance’s complaints.
Vance’s deposition testimony shows that Wade promptly responded to Vance’s complaints.
Vance did testify that another officer—an auxiliary officer who is unnamed and not a party to this
suit—sat in the front of the vehicle while Vance struggled to right himself and allegedly ignored
Vance’s verbal complaints for a period of approximately ten to fifteen minutes until Vance was able
to right himself and “peck” on the glass to attract the auxiliary officer’s attention. J.A. at 211-12
(Vance Dep. at 71-72); Appellant Br. at 5. Vance then testified that the auxiliary officer left the
vehicle and spoke to Wade, who returned to the vehicle with Breuer, who removed the handcuffs.
J.A. at 212 (Vance Dep. at 72). Vance sued Wade, but Vance has not identified or sued the auxiliary
officer. Most importantly, Vance’s testimony demonstrates that Wade took prompt corrective action
upon learning of Vance’s complaints.
We therefore hold that Wade did not violate Vance’s constitutional rights in handcuffing him
because the handcuffs were removed when Wade learned of Vance’s complaints. See Burchett, 310
F.3d at 945 (holding that no constitutional violation occurred when plaintiff “complained only once,
and on that occasion, Sheriff Kiefer immediately offered to remove the handcuffs if Burchett would
behave”).
2. Vance’s Claim that Wade Used Excessive Force in Securing Him in the
Police Vehicle
Vance appears to be asserting a second excessive-force claim that stems from “when he was
escorted to the police car and then placed in it.” J.A. at 398 (Mem. Op. at 9). The magistrate judge
noted that the Supreme Court’s decisions in Muehler v. Mena, 544 U.S. 93 (2005), and Michigan
v. Summers, 452 U.S. 692 (1981), clearly permit an officer to handcuff and detain an individual
during the execution of a search warrant. J.A. at 396-97, 400-01 (Mem. Op. at 7-8, 11-12).
Nonetheless, an officer may not use excessive force in doing so, and the magistrate judge concluded
that, drawing all reasonable inferences from the evidence in favor of Vance, “under [Vance’s]
version of the facts, there was a constitutional violation.” J.A. at 402 (Mem. Op. at 13). The
particular acts that the magistrate judge found to have violated Vance’s constitutional rights were
Wade’s actions in “pulling up on [Vance’s] handcuffs while his hands were cuffed behind his back,”
in “shoving [Vance’s] head and shoulder downward and essentially throwing [Vance] into the
floorboard,” and in “closing the car door to force [Vance’s] legs into the car.” J.A. at 401-02 (Mem.
Op. at 12-13).
We agree with the magistrate judge that these asserted actions could constitute an excessive
use of force, and because a constitutional “violation could be made out on a favorable view of the
parties’ submissions,” Saucier, 533 U.S. at 201, we proceed to the second and third steps of our
qualified immunity inquiry: “(2) whether that right was clearly established and one of which a
reasonable person would have known; and (3) whether the official’s action was objectively
unreasonable under the circumstances.” Harris, 513 F.3d at 511. As the Supreme Court observed
No. 07-5930 Vance v. Wade et al. Page 8

in Saucier, “there is no doubt that Graham v. Connor clearly establishes the general proposition that
use of force is contrary to the Fourth Amendment if it is excessive under objective standards of
reasonableness.” Saucier, 533 U.S. at 201-02. Consequently, the crucial inquiry is whether Wade’s
“action was objectively unreasonable under the circumstances.” Harris, 513 F.3d at 511; Saucier,
533 U.S. at 202 (“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.”) (emphasis added).
The Supreme Court’s opinion in Saucier provides critical guidance in analyzing whether
Wade’s use of excessive force was objectively unreasonable under the circumstances in this case.
In Saucier, the Supreme Court rejected the Court of Appeals’ conclusion “that qualified immunity
is merely duplicative in an excessive force case” given that the analysis for both excessive-force and
qualified-immunity claims involve determining whether an officer’s actions were “objectively
unreasonable.” Saucier, 533 U.S. at 203. Instead, the Supreme Court explained that “[t]he qualified
immunity inquiry . . . has a further dimension” that “acknowledge[s] that reasonable mistakes can
be made as to the legal constraints on particular police conduct.” Id. at 205 (emphasis added). As
a result, qualified immunity “protect[s] officers from the sometimes ‘hazy border between excessive
and acceptable force,’” and “in excessive force cases, . . . in addition to the deference officers
receive on the underlying constitutional claim, qualified immunity can apply in the event the
mistaken belief was reasonable.” Id. at 206 (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-
27 (11th Cir. 2000)).
Applying the Saucier analysis—and comparing the facts in this case to those in Saucier—we
hold that Wade is not entitled to qualified immunity. In Saucier, the plaintiff’s excessive-force
claim involved allegations that military police officers used excessive force in arresting and securing
the plaintiff, who was wearing a visible, knee-high leg brace, when he interrupted a speech given
by Vice President Al Gore to celebrate the conversion of a military base to a national park. The
Supreme Court noted that because it “granted certiorari only to determine whether qualified
immunity was appropriate, . . . we will assume a constitutional violation could have occurred under
the facts alleged.” Id. at 207. The Supreme Court nonetheless held that the military police officer
was entitled to qualified immunity despite the plaintiff’s allegations of a “‘gratuitously violent
shove’ . . . when he was placed into the [military] van” because “[a] reasonable officer in petitioner’s
position could have believed that hurrying [the plaintiff] away from the scene . . . was within the
bounds of appropriate police responses.” Id. at 208.
Although the facts in this case and those in Saucier are similar, this case involves a
substantial difference: Vance asserts that Wade escorted him to a police vehicle, left that scene for
several minutes, and then returned to Vance and forcibly crammed him into the floorboard of the
vehicle. Further, although both cases involved a degree of tension and concern for keeping order,
the level of tension and danger in this case was considerably lower. Saucier involved a demonstrator
protesting a speech by the Vice President, whereas in this case a large crowd of approximately fifty
people were standing outside a restaurant where officers were executing a search warrant for illegal
gambling machines.
The time delay between Wade escorting Vance to the car and Wade’s later actions in
cramming Vance into car is the decisive factor that renders this case substantially different than
Saucier. Certainly, Wade arrived at the scene with the understanding that Vance was being
uncooperative, and Vance’s own deposition testimony confirms that he had refused to comply with
Breuer’s repeated requests to sit down and allow the officers to conduct the search. See J.A. at 403
(Mem. Op. at 14) (observing that “the situation confronting Captain Wade from his perspective” was
that “he had been called back to Tooties by fellow officers because [Vance] was argumentative and
uncooperative; [Vance] himself acknowledges that he was still arguing loudly with Investigator
Breuer when he was handcuffed by Wade”). Wade also relied upon an affidavit from Professor Jerry
No. 07-5930 Vance v. Wade et al. Page 9

E. Loar, “the Dean of the Division of Public Safety, as well as an Associate Professor of Criminal
Justice, at Walters State Community College in Morristown, Tennessee,” J.A. at 400 (Mem. Op. at
11), in which Professor Loar opined that “it was reasonable to handcuff Mr. Vance and remove him
from the premises in order to minimize the risks to officers and in order that the search could
continue.” J.A. at 316 (Loar Aff. at 5).
The problem, however, is that Vance alleged that Wade used this force well after securing
Vance and defusing the situation. Had Wade, in a decisive effort to minimize risks and calm a
potentially volatile situation, simply escorted Vance to the car and proceeded immediately to shove
Vance into the car and cram him into the floorboard, this case would more likely fall in “the
sometimes ‘hazy border between excessive and acceptable force’” in which qualified immunity
would properly operate to protect an officer from suit. Saucier, 533 U.S. at 206 (quoting Priester,
208 F.3d at 926-27). The delay between initially placing Vance in the car and then returning after
several minutes to cram him into the vehicle renders irrelevant Wade’s reliance on the Loar
Affidavit and his belief, upon initially arriving at the restaurant, that Vance had been uncooperative.
We confronted a similar situation in Burden v. Carroll, 108 F. App’x 291, 293-94 (6th Cir.
2004), a case in which we affirmed the district court’s denial of qualified immunity against a claim
of excessive force. We explained that “[a]ccording to the series of events as [plaintiff] Burden
describes them, [officer] Carroll shoved Burton violently even though he already had adequate time
to assess the situation and even though any reasonable officer would have concluded that neither
Burden nor Shipman posed any safety or flight risk.” Id. (footnote omitted). We concluded that
“[b]ecause Burden alleges that Carroll [shoved him] well after the situation was secured, Carroll
cannot claim that he was reasonably mistaken about the degree of force that was appropriate under
those circumstances.” Id. at 294. Similar to the officer in Burden, Wade had secured the situation
by the time that he handcuffed Vance and escorted him to the police vehicle. Consequently, when
Wade returned to the vehicle several minutes later, it was objectively unreasonable for him to
believe that any further force was necessary to maintain order because it would have been “clear to
a reasonable officer that [Wade’s] conduct was unlawful in the situation he confronted.” Saucier,
533 U.S. at 202. The qualified immunity analysis “acknowledge[s] that reasonable mistakes can
be made as to the legal constraints on particular police conduct,” id. at 205 (emphasis added), but
according to Vance’s allegations, Vance had been cooperatively sitting handcuffed in the back of
a police vehicle for several minutes when Wade returned and used force.8 We therefore hold that
Wade is not entitled to qualified immunity from9Vance’s claim that Wade used excessive force in
cramming him into the back of a police vehicle.
III. CONCLUSION
For the reasons discussed above, we REVERSE the magistrate judge’s order granting
summary judgment on Vance’s claim of excessive force relating to Wade’s actions in shoving Vance

8
We stress that the dispositive issue in this case is the delay between when Wade escorted Vance to the police
car and when he shoved Vance into the back seat. It is possible that, absent such a delay, the same force used on Vance
would be a constitutionally acceptable amount of force. In this case, viewing the facts in the light most favorable to
Vance, we hold only that, given the delay between Wade’s various actions, the circumstances would not have led a
reasonable officer in Wade’s position to believe that his actions were “within the bounds of appropriate police
responses.” Saucier, 533 U.S. at 208.
9
The ultimate decision with respect to whether or not defendant Wade is entitled to qualified immunity depends
on the jury’s factual determination as to the actual events that transpired between Vance and Wade. The court ultimately
decides the issue of qualified immunity. In this case, however, “The jury becomes the final arbiter of [Wade’s] claim
of immunity since the legal question of immunity is completely dependent upon which view of the facts is accepted by
the jury.” Brandenberg v. Cureton, 882 F.2d 211, 215-216 (6th Cir. 1989).
No. 07-5930 Vance v. Wade et al. Page 10

inside the police vehicle, AFFIRM the magistrate judge’s order granting summary judgment in all
other respects, and REMAND the case for further proceedings consistent with this opinion.
No. 07-5930 Vance v. Wade et al. Page 11

___________________________________
CONCURRING IN THE RESULT
___________________________________
MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in result. The majority in this
case identifies as excessive force what the district court described as Captain Wade’s action in
“roughly shoving [Vance] into the police vehicle” and “essentially throwing [him] into the
floorboard.” The district court held that this conduct, together with “pulling up on the plaintiff’s
handcuffs” and “closing the door to force plaintiff’s legs into the car,” was “objectively
unreasonable.” The court concluded that “under the plaintiff’s version of the facts, there was a
constitutional violation,” basing this determination on “the totality of the circumstances” and
describing the call as “extremely close in light of Lyons v. City of Xenia, [417 F.3d 565, (6th Cir.
2005)].” But the district court went on to hold that there was “no obvious constitutional violation
in pulling up on the plaintiff’s wrists” or in “forc[ing] the plaintiff into the police car as [Wade] did.”
(Emphasis added.) As a result, because the plaintiff could not produce “‘materially similar’ case
law that ‘squarely governs’ this case,” the district court held that Wade was entitled to qualified
immunity and granted his motion for summary judgment.
The flaw in this analysis by the district court is that the conclusion, purportedly based on the
totality of the circumstances, fails to take into consideration all the relevant circumstances. The
error may have resulted from Wade’s counsel’s willingness to accept the plaintiff’s version of the
“undisputed facts” on its face, for purposes of resolving the motion for summary judgment by
focusing on legal arguments (1) that the force used in securing Vance in the back of the police car
was not excessive, based on the Supreme Court’s pronouncement that “[n]ot every push or shove,
even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment,” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation and internal quotation marks
omitted), and (2) that even if the district court found to the contrary, his client was entitled to
qualified immunity, based on our opinion in Lyons. Committed to prevailing on the legal questions
as a way of securing immediate dismissal of the claims against Wade, his counsel did not develop
the factual record, which would otherwise have signaled the district court that there was a material
dispute of fact concerning the events alleged to constitute excessive force.
The record before the district court, and now before us, contains Captain Wade’s deposition,
in which he denies having handcuffed Vance, testifying that he had no handcuffs in his possession
when he arrived at the scene and was not sure who did put handcuffs on the plaintiff. He also denied
walking Vance to the car or securing him in the backseat, testifying that after Vance was taken out
of the restaurant, Wade next saw Vance seated in the backseat with the door closed. This version
of the facts is supported by the written statement Vance produced at the police station when he
arrived there within the next half-hour. In one-and-a-half, single-spaced, handwritten pages, Vance
defended the legality of his gambling operation in detail, but never mentioned mistreatment by Wade
or any of the other officers involved in his arrest. Wade’s deposition testimony is further buttressed
by medical records showing that Vance did not seek treatment for the injuries he blames on Wade
for a matter of months, supposedly because he could not get an appointment. Finally, photographs
taken of Vance’s his wrists taken on the night of his arrest show no injury beyond a slight redness,
despite Vance’s allegations that Wade’s use of force left his wrists cut and bleeding.
The existence of this fundamental dispute of fact should have prevented the district court
from ruling on the defendant’s motion to dismiss. Summary judgment is not appropriate in the
qualified immunity context “if there is a factual dispute . . . involving an issue on which the question
of immunity turns, such that it cannot be determined before trial whether the defendant did acts that
violated clearly established rights.” Buckner v. Kilgore, 36 F.3d 536, 540 (6th Cir. 1994). Simply
put, when “the legal question of qualified immunity turns upon which version of facts one accepts,”
No. 07-5930 Vance v. Wade et al. Page 12

summary judgment cannot be granted. Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000)
(quoting Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998)). As a result, I agree with
the majority that we should reverse the district court’s judgment as to the “shoving” claim against
Captain Wade and remand the case for trial, but not for the reason cited in the majority opinion.
Because I would make it clear on remand that what actually occurred at the scene and whether it
constituted excessive force are questions to be resolved by the trier of fact, I am unable to join in that
opinion.