NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0196n.06
No. 09-1787
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 30, 2011
LEONARD GREEN, Clerk
DIANE MARIE MEIRTHEW, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
ROBERT AMORE, City of Wayne Police Officer, )
)
Defendant-Appellant, )
)
and )
)
CITY OF WAYNE, )
)
Defendant. )
)
BEFORE: SUTTON and GRIFFIN, Circuit Judges; and BERTELSMAN, District Judge.*
GRIFFIN, Circuit Judge.
Plaintiff Diane Marie Meirthew brought this 42 U.S.C. § 1983 action against defendant
police officer Robert Amore, asserting a single claim of excessive force. Amore’s motion for
summary judgment based upon qualified immunity was denied by the district court. He now timely
appeals, and we affirm.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 09-1787
Meirthew v. Amore
I.
In the early morning of May 19, 2007, Officer Amore was on duty in the vicinity of
Meirthew’s neighborhood. Looking through the windows of Meirthew’s home, Amore observed
several minors consuming alcohol. Amore thereafter obtained a search warrant, which he executed
later that morning.
After the police officers entered Meirthew’s home pursuant to the warrant, several minors
were tested and found to have recently consumed alcohol. Meirthew herself was highly intoxicated,
having consumed six to ten beers. After being instructed to sit down, Meirthew began walking away
from the officers. The officials responded by taking her to the floor and handcuffing her. Thereafter,
while being escorted to a police vehicle, Meirthew allegedly kicked a reserve officer in the groin.
Meirthew was arrested for furnishing alcohol to minors, felony assault, resisting arrest, and
disorderly conduct. Meirthew’s daughter, Ronnie Meirthew, and family friend, Aaron Roche, were
also arrested for being minors in possession of alcohol and disorderly conduct. Upon arrival at the
police station, Meirthew, her daughter, and Roche were taken to the booking room. What occurred
there is the basis of Meirthew’s excessive-force claim. The incident was audio and video recorded,
with a camera taking pictures in two-second intervals. These recordings were synchronized, but the
resulting video is poor in quality.
While in the booking room, Meirthew appeared intoxicated and belligerent. As a result, the
booking officials concluded that she should be placed in a cell and booked at a later time. However,
to be placed in a cell, police policy required that Meirthew be searched by a female officer. To
facilitate the search, Amore led Meirthew to a wall and instructed her to spread her feet. At the wall,
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Meirthew v. Amore
Amore stood in close proximity to Meirthew, holding her by her handcuffs or wrists. At this time,
two other officers, in addition to Amore, were present in the small booking room.
The video recording demonstrates some level of resistance by Meirthew when she was placed
against the booking room wall. However, the level and form of resistance is disputed and cannot be
deciphered clearly from the video. Amore contends that Meirthew was kicking, swinging elbows,
and attempting to strike him. Officer Bernard Corney testified that Meirthew kicked Amore and
otherwise refused to cooperate. Meirthew family friend Aaron Roche stated that Meirthew refused
to spread her feet, continually moving them together after Amore would kick them apart. However,
Roche also testified that Meirthew was not violent and did not attempt to kick Amore.1
Amore did not request assistance from his fellow officers when struggling with Meirthew.
Instead, he utilized a pain-compliance technique by lifting Meirthew’s arms, which were handcuffed,
such that her elbows were above her head. Amore warned Meirthew that if she did not comply with
his directives, he would take her to the ground. When she refused to comply, Amore utilized an
“arm-bar takedown” to thrust Meirthew to the floor face first. Meirthew fell, unbraced and
uncontrolled, to the floor, hitting her face with the full force of her body. After she began bleeding
profusely from her face, the officers called an ambulance for her treatment.
As a result of the booking-room takedown, Meirthew suffered six facial fractures, head
lacerations, and a nosebleed. Meirthew now allegedly experiences numbness on the right side of her
face and in her front teeth. In addition, Meirthew allegedly suffers from carpal tunnel syndrome in
1
Meirthew has no independent memory of the events that occurred in the booking room.
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No. 09-1787
Meirthew v. Amore
her wrists, and has pain in her elbows, arms, shoulders, and neck. Meirthew attributes all these
injuries to the incident.
Meirthew was charged with felony assault on a police officer, assault and battery, and six
counts of furnishing alcohol to minors. Pursuant to a plea bargain that dismissed the assault charges,
Meirthew pleaded no contest to three counts of furnishing alcohol to a minor and disturbing the
peace.
In the present 42 U.S.C. § 1983 action claiming excessive force, the district court denied
Amore’s motion for summary judgment, holding that genuine issues of material fact preclude
Amore’s entitlement to qualified immunity. Amore now appeals.
II.
We review de novo a district court’s grant of summary judgment. Longaberger Co. v. Kolt,
586 F.3d 459, 465 (6th Cir. 2009). Summary judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).2 When
determining whether the movant has met this burden, we view the evidence in the light most
favorable to the nonmoving party. Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854,
861 (6th Cir. 2007).
2
Meirthew contends that several of Amore’s exhibits are inadmissible because they “are not
affidavits, depositions, or party admissions” as required by Federal Rule of Civil Procedure 56(e)(1).
However, Amore is not limited to affidavits, depositions, and party admissions in moving for
summary judgment, but may offer any relevant and admissible evidence. Fed. R. Civ. P. 56(c)(2).
Meirthew also contends that Exhibit 24-11 is irrelevant and therefore inadmissible. Because we need
not consider this exhibit, this objection will not be addressed.
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No. 09-1787
Meirthew v. Amore
“Through the use of qualified immunity, the law shields governmental officials performing
discretionary functions . . . from civil damages liability as long as their actions could reasonably have
been thought consistent with the rights they are alleged to have violated.” Livermore ex rel. Rohm
v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007) (internal quotation marks and citation omitted). A
two-tiered inquiry is required to determine whether an officer is entitled to qualified immunity.
Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled on other grounds). We determine whether “the
facts alleged show the officer’s conduct violated a constitutional right[.]” Id. If the plaintiff
establishes that a constitutional violation occurred, we consider “whether the right was clearly
established” at the time of the violation. Id. Courts may “exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
When the defendant raises the defense of qualified immunity, the plaintiff bears the burden of
demonstrating that the defendant is not entitled to qualified immunity. Livermore, 476 F.3d at 403.
III.
“The Fourth Amendment prohibits the use of excessive force by arresting and investigating
officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). This prohibition extends to the use of
force during booking procedures. Lawler v. City of Taylor, 268 F. App’x 384, 386 (6th Cir. 2008)
(unpublished) (citing Phelps v. Coy, 286 F.3d 295, 300-01 (6th Cir. 2002)).
In Graham v. Connor, the Supreme Court held that excessive-force claims are analyzed under
a “reasonableness” standard. 490 U.S. 386, 395 (1989). Assessing whether a particular use of force
is reasonable “requires a careful balancing of the nature and quality of the intrusion on the
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No. 09-1787
Meirthew v. Amore
individual’s Fourth Amendment interests against the countervailing governmental interests at stake.”
Id. at 396 (internal quotation marks and citation omitted). Accordingly, a court must consider “the
totality of the circumstances,” “including the severity of the crime at issue, whether the subject
pose[d] an immediate threat to the safety of the officers or others, and whether [the subject was]
actively resisting or attempting to evade arrest by flight.” Id. (internal quotation marks and citation
omitted). This analysis “contains a built-in measure of deference to the officer’s on-the-spot
judgment[.]” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).
Upon review, we conclude that Meirthew has set forth sufficient admissible evidence to
establish a genuine issue of material fact regarding the reasonableness of Amore’s use of force.
Viewing the record in the light most favorable to Meirthew, Amore utilized the arm-bar takedown
when plaintiff was unarmed, handcuffed, surrounded by police officers, physically restrained, and
located in the secure confines of a police station. While she was non-compliant in refusing to spread
her feet, a reasonable jury could find that Meirthew posed no danger and the use of the arm-bar
takedown was unreasonable under the circumstances.
Here, all the Graham v. Connor factors favor a finding of excessive force. First, the
underlying crimes allegedly committed by Meirthew were not severe. While Meirthew was charged
with kicking an officer in the groin, the charge was dismissed pursuant to a plea bargain in which
she pleaded no contest to three counts of furnishing alcohol to a minor and disturbing the peace. See
Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (noting that disturbing the peace is “relatively
minor”); Harris v. City of Circleville, 583 F.3d 356, 366 (6th Cir. 2009) (finding several non-violent
crimes to be “not particularly serious”).
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No. 09-1787
Meirthew v. Amore
Second, Meirthew did not pose an immediate threat at the police station. Indeed, she was
unarmed, handcuffed, and surrounded by police officers. See Harris, 583 F.3d at 366 (noting that
a plaintiff “did not pose an immediate threat” in part because she was handcuffed and surrounded
by officers). Moreover, Meirthew made no verbal or physical threats, is five feet, four inches in
height, and 123 pounds in weight. Amore, on the other hand, is five feet, ten inches in height, and
230 pounds in weight. See Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir. 2004)
(holding that plaintiff did not pose an immediate threat when she possessed no weapon, made no
verbal threats, and was shorter and lighter than the officers); Lewis v. Downs, 774 F.2d 711, 714 (6th
Cir. 1985) (abrogated on other grounds) (finding that plaintiff did not pose a threat in part because
he was 120 pounds and restrained by a man weighing 175 pounds). Moreover, the situation
confronting Amore in the booking room was not a “tense, uncertain, and rapidly evolving” situation
requiring him to make “split-second judgments.” Graham, 490 U.S. at 397; see also St. John v.
Hickey, 411 F.3d 762, 772 (6th Cir. 2005) (abrogated on other grounds) (finding the use of force to
be excessive in part because “exigent circumstances” did not require “speedy” action by officers).3
Finally, Meirthew was not attempting to resist or evade arrest by flight. Indeed, she was
already arrested, handcuffed, and present in the City of Wayne police station. While Meirthew
refused to spread her feet to be searched, such resistance was minimal. See Rohrbough v. Hall, 586
3
Amore contends that Meirthew posed an immediate threat of harm because she was
combative, intoxicated, and had previously assaulted an officer. However, viewing the evidence in
the light most favorable to plaintiff, her intoxicated and belligerent state does not necessarily justify
the use of force in this case. See Shannon v. Koehler, 616 F.3d 855, 863 (8th Cir. 2010) (noting that
the plaintiff’s drunk and belligerent state was insufficient to justify the use of force).
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No. 09-1787
Meirthew v. Amore
F.3d 582, 586 (8th Cir. 2009) (noting that “de minimis or inconsequential” resistance does not justify
a substantial use of force); Shreve v. Jessamine Cnty. Fiscal Court, 453 F.3d 681, 687 (6th Cir.
2006) (noting that “passive” resistance did not justify use of significant force). Moreover, while
Meirthew’s non-compliance may have justified some physical response by Amore, the amount of
force utilized may have been unreasonable. See Lawler, 268 F. App’x at 387 (quoting Graham, 490
U.S. at 395) (“[T]he Fourth Amendment governs more than just ‘when’ force may be applied; it also
governs ‘how [that force] is carried out.’”); Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)
(“[E]ven where some force is justified, the amount actually used may be excessive.”). Here, in
response to Meirthew’s refusal to spread her feet, Amore utilized a takedown maneuver that
forcefully thrust her to the booking room floor. This maneuver was performed, despite the fact that
plaintiff was handcuffed, leaving her with no means with which to protect her face. These facts,
taken in the light most favorable to Meirthew, are sufficient to establish a violation of her Fourth
Amendment right to be free from excessive force.4
IV.
Next, Amore contends that even if a constitutional violation occurred, he is nevertheless
entitled to qualified immunity because the violation was not clearly established at the time the
incident occurred. Indeed, “it is not enough that a plaintiff establishes that the defendant’s use of
force was excessive under the Fourth Amendment. To defeat qualified immunity, the plaintiff must
show that the defendant had notice that the manner in which the force was used had been previously
4
Indeed, at oral argument, Amore conceded that the arm-bar takedown is not normally used
on handcuffed subjects.
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No. 09-1787
Meirthew v. Amore
proscribed[.]” Livermore, 476 F.3d at 403-04. Accordingly, government officials are entitled to
qualified immunity, despite the existence of a constitutional violation, if such violation was not
“clearly established” at the time of the incident. Anderson v. Creighton, 483 U.S. 635, 639-40
(1987). A constitutional violation is clearly established when “[t]he contours of the right [are]
sufficiently clear [such] that a reasonable official would understand that what he is doing violates
that right.” Id. at 640.
The constitutional violation at issue here was clearly established at the time the incident
occurred. As described above, each of the Graham factors support a finding of excessive force. See
Rohrbough, 586 F.3d at 587 (finding a constitutional violation to be clearly established when each
of the Graham factors supported a finding of excessive force). Moreover, our prior opinions clearly
establish that it is unreasonable to use significant force on a restrained subject, even if some level
of passive resistance is presented. See Griffith v. Coburn, 473 F.3d 650, 659 (6th Cir. 2007) (holding
that it is clearly established that when a suspect refuses to follow officer orders, but otherwise poses
no safety threat, use of significant force is unreasonable); Shreve, 453 F.3d at 687 (finding “passive
resistance” to be an insufficient justification to use significant force against a plaintiff who was
already pacified through the use of pepper spray); Smoak, 460 F.3d at 783-84 (noting that despite
plaintiff’s action in suddenly jumping to his feet, a reasonable officer would have known that
knocking the plaintiff to the ground was excessive in light of the fact that plaintiff was handcuffed).
Indeed, in Harris v. City of Circleville, we held that “there undoubtedly is a clearly established legal
norm precluding the use of violent physical force against a criminal suspect who already has been
subdued and does not present a danger to himself or others.” 583 F.3d at 367; see also Morrison v.
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No. 09-1787
Meirthew v. Amore
Bd. of Trs. of Green Twp., 583 F.3d 394, 404 (6th Cir. 2009) (quoting Baker v. City of Hamilton,
Ohio, 471 F.3d 601, 607-08 (6th Cir. 2006)) (“This Court has consistently held . . . that ‘use of force
after a suspect has been incapacitated or neutralized is excessive as a matter of law.’”). Because it
was clearly established that the use of significant force in response to passive resistance may
constitute excessive force, and because Meirthew posed no safety threat, Amore is not entitled to
summary judgment based upon qualified immunity.
V.
In conclusion, Meirthew has met her burden in establishing genuine issues of material fact
regarding Amore’s alleged violation of her clearly established rights.5 Accordingly, the district
court’s denial of the motion for summary judgment based upon qualified immunity is affirmed.
5
In reviewing the district court’s denial of summary judgment, we have noted the existence
of critical issues of material fact. At trial, the jury will determine the relevant facts surrounding the
booking of Meirthew, including the level and form of resistance presented. We do not opine
regarding the viability of Meirthew’s excessive-force claim if her version of the facts, as described
above, is rejected by the jury.
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