FILED
Oct 07, 2011
LEONARD GREEN, Clerk
File Name: 11a0705n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 10-1050
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT BOZUNG, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
OFFICER TRAVIS RAWSON, OFFICER ) WESTERN DISTRICT OF MICHIGAN
JOHN WILSON, and THE CHARTER )
TOWNSHIP OF DEWITT )
)
Defendant-Appellees. )
Before: BOGGS and KETHLEDGE, Circuit Judges; and COLLIER, Chief District Judge.*
CURTIS L. COLLIER, Chief District Judge. Plaintiff-Appellant Robert Bozung
(“Bozung”) appeals an order of the district court granting a motion for summary judgment in favor
of Defendant-Appellees Travis Rawson (“Officer Rawson”), John Wilson (“Officer Wilson”) and
the Charter Township of DeWitt (or the “Township”) in regards to Bozung’s federal 42 U.S.C. §
1983 claims. As previously stipulated by the parties, all claims against Officer Wilson on appeal
have been dismissed.
For the reasons set forth below, we AFFIRM the district court’s judgment.
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 10-1050
Bozung v. Rawson, Wilson, and The Charter Township of DeWitt
I. Relevant Facts/Procedural History
A. Factual Background
On June 6, 2007, Bozung was returning from a trip to a local grocery store in Lansing,
Michigan. Bozung was fifty-four (54) years old and had health issues arising from a stroke he
suffered at age twenty-eight (28). He had also suffered from a fractured ankle and had a hip
replacement due to a bone deficiency.
One of Bozung’s neighbors had asked him to give her a ride to buy groceries; however,
Bozung explained to her that he could not drive because his license was suspended. As a result, the
neighbor suggested that Bozung allow a friend of hers to drive his truck. Subsequently, the three of
them - Bozung, his neighbor, and his neighbor’s friend - drove to the grocery store.
As the three approached Bozung’s apartment complex upon their return, Officer Rawson of
the DeWitt Township Police Department stopped Bozung’s vehicle because Officer Rawson
considered the rosary hanging from Bozung’s rear-view mirror to be a vision obstruction. The
unknown driver of Bozung’s vehicle stopped the vehicle in the middle of the street and fled the
scene. Officer Rawson pursued the individual in his patrol car and called for back up, but he was
unable to apprehend the individual. When he returned to the truck, he observed Bozung, who had
moved over into the driver’s seat, slowly driving the vehicle into the parking lot of the apartment
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complex. According to Officer Rawson, he ordered Bozung to stop the vehicle; Bozung, however,
claims Officer Rawson did not say anything to him nor did he motion for Bozung to stop the vehicle.
Once Officer Rawson approached the truck, he made contact with Bozung and his neighbor.
He asked them to identify the fleeing driver, but both claimed they did not know him. In Officer
Rawson’s opinion, Bozung was obviously intoxicated. He smelled of alcohol, later registered a .18%
blood alcohol level, and had urinated himself. Officer Rawson confirmed with dispatch that Bozung
was the owner of the truck. He also ran a LEIN check for outstanding warrants. Bozung did have
a misdemeanor warrant for failure to appear in a local court. Once Officer Rawson advised Bozung
there was a warrant for his arrest, he ordered Bozung to get out of the truck and informed him that
he was under arrest. It is at this point that Bozung’s and Defendant-Appellees’s versions of events
differ greatly.
1. Bozung’s Version of Events
According to Bozung, he exited the truck and complied with Officer Rawson’s instructions
to face the truck. He then placed his hands on the bed of his truck. At that time, Officer Rawson
asked Bozung to spread his legs. Although Bozung states he told Officer Rawson that he was
disabled and could not physically comply with the orders quickly, Bozung states Officer Rawson
began kicking the inside of Bozung’s legs. Bozung also asserts he told Officer Rawson his age, and
he told him that he had a total right hip-replacement and had plate and screws in his right ankle. In
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Bozung’s view, because he was not moving quickly enough, Officer Rawson told him they could
handle the situation “the easy way or the hard way.” Then, despite Bozung’s protests, Officer
Rawson grabbed one of Bozung’s arms and brought Bozung down on to the pavement or asphalt.
Bozung contends “he was thrown to the ground almost immediately after advising the officer of his
handicap.” In addition, he states Officer Rawson failed to advise him as to why he was being
arrested, and Officer Rawson did not ask him to place his hands or arms behind his back before he
was thrown to the ground. According to Bozung, his interaction with Officer Rawson, prior to being
taken down to the ground, lasted approximately two to three minutes.
Once Bozung was on the ground, Officer Rawson pulled Bozung’s arms behind his back to
handcuff him. Bozung claims he asked Officer Rawson to loosen the handcuffs because they were
too tight. However, Officer Rawson refused to do so.
At some point, Officer John Wilson, a public safety officer at the Capitol Region Airport
Authority, arrived at the scene. Bozung suggests Officer Wilson was involved in throwing Bozung
to the ground, and he specifically alleges Officer Wilson put his foot on Bozung’s neck while he was
lying, face-down, on the pavement. Still, Bozung admits he could not see Officer Wilson while he
was lying face-down on the ground. Bozung also alleges Officer Rawson had his knee in the center
of Bozung’s back. As a result of these interactions, Bozung suffered from lacerations to his face,
a broken thumb, and permanent spinal cord injuries.
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In response to the Defendant-Appellees’ motions for summary judgment, Bozung presented
the deposition testimonies of two witnesses to corroborate parts of his story. James Leggions
(“Leggions”), one of Bozung’s neighbors, testified he saw the events unfold as the driver fled from
Bozung’s truck. He later saw Bozung get out of his vehicle. To him, Bozung appeared to be holding
onto the back of his truck to keep his balance. However, he did not hear Bozung say anything to the
officers, and he could not generally understand what the officers said to Bozung, except he thought
Officer Rawson ordered Bozung to stay inside the truck. Nonetheless, he testified it was clear
Bozung was having trouble walking, and in his opinion, Officer Rawson “slammed” Bozung to the
ground because Bozung would not give the identity of the driver. According to Leggions, it was
Officer Rawson who placed his foot somewhere on Bozung’s neck.
Melanie Harris (“Harris”), who was supposedly Bozung’s girlfriend at the time of the
incident, testified that she saw Officer Rawson kicking Bozung’s legs apart when Bozung first got
out of his truck. She also states she heard Bozung asking the officer to stop because he was disabled.
In addition, Harris contends other individuals in the forming crowd, including herself, shouted at
Officer Rawson to tell him that Bozung was “handicapped.” Despite their protests, Officer Rawson
told Bozung he must “want this done the hard way,” and he twisted Bozung’s arm and slammed him
to the ground. According to her testimony, it was the second officer, Officer Wilson, who placed
his foot on the upper part of Bozung’s back. Like Leggions, she believed Officer Rawson threw
Bozung to the ground immediately after Bozung informed him of his disabilities.
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As a result of these events, Bozung claims he “suffered lacerations to the face which required
stitches[,] . . . [h]is thumb was broken[,] . . . [and] [t]he handcuffs cut his hand, leaving permanent
marks.” Bozung also contends he suffered more serious injuries. In the three weeks following his
arrest, “he began to lose the use of his arms and had trouble walking. He experienced numbness
from the back of his neck, between the shoulders, working down both arms, then down his legs. An
MRI revealed cervical cord contusion.”
2. Officer Rawson’s Version of Events
According to Officer Rawson, when he ordered Bozung to get out of his vehicle, Bozung
“walked on his own volition along the side of it.” Although he asked Bozung to spread his legs,
Officer Rawson contends he did not use his foot to kick Bozung’s legs apart, and he contends
Bozung never informed him of any disabilities. Indeed, Officer Rawson asserts there was no
indication that Bozung was physically unable to comply with the orders or that he was disabled. At
the time, Bozung did not have a disability sticker on his license plate or a disability tag hanging from
his rearview mirror. He also did not park in a parking spot designated for disabled drivers.
Officer Rawson then ordered Bozung to place his hands behind his back to be handcuffed,
and he gave him multiple opportunities to comply with the order over the course of thirty seconds.
Bozung allegedly refused and gripped the bed of the truck. Nonetheless, Officer Rawson concedes
Bozung stated, “wait, wait,” or “I am, I am” in response to Officer Rawson’s commands. Still,
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Officer Rawson asserts Bozung did not provide any explanation as to why he could not put his hands
behind his back to be handcuffed. After unsuccessfully trying a “muscling technique” to release
Bozung’s grip on the truck, Officer Rawson believed “further action was warranted,” even though
he would not characterize Bozung’s non-compliance as active resistence.
At this point, Officer Rawson decided to employ a technique called a “straight arm bar
takedown.” This is a “soft empty hand control technique.” However, when Officer Rawson grabbed
Bozung’s right hand, it appeared to him that Bozung was pulling away from him. Once Bozung was
on the ground, Officer Wilson, who Officer Rawson noticed for the first time, assisted Officer
Rawson in handcuffing Bozung.
At this time, Officer Rawson admits he may have had his knee on Bozung’s shoulder blade,
but this was done to help secure the handcuffs. After Bozung was handcuffed, he was assisted to
his feet by the officers and placed in Officer Rawson’s patrol car. Because Officer Rawson noticed
Bozung had a small cut above his eye and an injury to his thumb, Bozung was transported to the
hospital for treatment. Bozung was released from the hospital after a few hours.
3. Officer Wilson’s Version of Events
Officer Wilson was on duty at the Capitol Region Airport on June 6, 2007. He heard the
transmission from Officer Rawson stating he was in pursuit of a fleeing suspect and needed
assistance.
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When he arrived at the scene, Officer Wilson observed a crowd forming outside of the
apartment complex. He then saw Bozung standing outside of his truck, and he heard Officer Rawson
inform Bozung of the outstanding warrant for his arrest. Although Officer Wilson did not hear
Bozung respond to this information, he saw Bozung walking, on his own volition, to the rear end of
Bozung’s truck. There, Bozung grabbed onto and held the bed of the truck.
When Officer Rawson ordered Bozung to place his hands behind his back, Bozung
responded, “I am, I am.” At no point did Officer Wilson hear Bozung explain to Officer Rawson
that he was disabled, nor did Bozung ever make such statement to Officer Wilson. Instead, it
appeared to Officer Wilson that Bozung was being noncompliant by continuing to hold onto the bed
of the truck. Finally, after giving Bozung multiple opportunities to place his hands behind his back,
Officer Rawson grabbed Bozung’s arm to pry him away from the truck.
It appeared to Officer Wilson that once Officer Rawson freed Bozung’s arm, Bozung tried
to pull away from Officer Rawson. Unsure as to whether Bozung was attempting to flee, Officer
Wilson grabbed Bozung’s other arm in an effort to assist. As a result of Officer Rawson’s straight-
arm bar takedown, all three of the men went to the ground.
While Bozung was on the ground, Officer Wilson claims he crouched alongside Bozung in
order to guide one of Bozung’s arms behind his back so Officer Rawson could handcuff Bozung.
At no point did he place his foot on Bozung’s neck.
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Bozung v. Rawson, Wilson, and The Charter Township of DeWitt
B. Procedural History
Bozung filed a complaint in the Western District of Michigan on April 11, 2008. The
complaint alleged Officer Rawson, Officer Wilson, and the Charter Township of DeWitt violated
Bozung’s civil rights pursuant to 42 U.S.C. § 1983. Specifically, Bozung alleged Officer Rawson
and Officer Wilson used unreasonable and excessive force in effectuating his arrest. Plaintiff then
contended the Township failed to train its officers in the proper use of force and failed to train its
officers to properly accommodate individuals with disabilities. Bozung’s three remaining counts
were brought under state law. He alleged the officers’s conduct constituted gross negligence. He
also asserted claims for assault and battery against the officers. Finally, Bozung brought a claim
against all three of the defendants for violating the Michigan Persons with Disabilities Civil Rights
Act.
In response to Bozung’s complaint, Officer Wilson, Officer Rawson, and the Township filed
motions for summary judgment. The district court granted in part and denied without prejudice in
part Officer Wilson’s motion, dismissing the federal law claims against Officer Wilson. The district
court also granted in part and denied in part Officer Rawson and the Township’s motion for
summary judgment. All federal claims were dismissed against them as well. Finally, because the
Court had dismissed all federal claims against all of the defendants, it declined to exercise
supplemental jurisdiction over Bozung’s state law claims.
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On Bozung’s § 1983 claims, the district court found Bozung had not “established the actions
of the officers were unreasonable under the totality of the circumstances.” Bozung v. Rawson, No.
1:08-cv-339, 2009 WL 2413624, at *6 (W.D. Mich. Aug. 4, 2009). Although the court considered
the facts in a light most favorable to Bozung, it found summary judgment was warranted. As to
Officer Rawson, the court found he acted reasonably when he forced Bozung to comply through his
straight-arm bar takedown. To support this finding, the court cited the following facts: “(1) when
[Officer Rawson] attempted to stop [Bozung’s] vehicle, the driver of the vehicle had fled the scene;
(2) [Bozung], the owner of the vehicle, [had] a warrant for his arrest; and (3) neither the vehicle nor
[Bozung] had been searched.” Id.(internal citations omitted). The court also credited Officer
Rawson’s and Officer Wilson’s testimony that Bozung had been given a number of opportunities
to place his hands behind his back, and he failed to comply. In addition, Bozung failed to explain
why he was unable to do so. Id.
As to Officer Wilson, the district court found Bozung’s allegations were totally contradicted
by the record. Id. at *7. Indeed, Bozung did not see who placed a foot on his neck, and none of the
witnesses saw Officer Wilson do so.
Next, the district court found that even if the officers made a mistake, they were entitled to
qualified immunity. Id. According to that court, any mistake made was reasonable, and Bozung
failed to demonstrate that the officers had violated a clearly established right. Id. at *8, 9. Because
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the district court found no individual defendant violated Bozung’s constitutional rights, it also
dismissed the federal claims against the Township. Id. at *9.
As a result of the district court’s rulings, Bozung filed a motion for reconsideration. Bozung
v. Rawson, No. 1:09-cv-339, 2009 WL 5149917 (W.D. Mich. Dec. 16, 2009). That motion was
denied. Bozung now appeals the district court’s decision, and he moves this Court to reverse the
district court’s grant of summary judgment in favor of Officer Rawson and the Township.
II. Standard of Review
Because Bozung appeals the district court’s grant of summary judgment, this Court must
review de novo the district court’s ruling. Alspaugh v. McConnell, 643 F.3d 162, 168 (6th Cir.
2011). Summary judgment is proper “if the movant shows that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003).
The Court should view the evidence, including all reasonable inferences, in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). Here, Bozung
alleges the district court disregarded or discredited his version of events. However, “[c]onstruing
the facts on summary judgment in the light most favorable to the non-moving party usually means
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adopting the plaintiff’s version of the facts.” Coble v. City of White House, Tenn., 634 F.3d 865, 868
(6th Cir. 2011). On the other hand, if plaintiff’s version of events “is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
In addition, to survive a motion for summary judgment, “the nonmoving party must go
beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine
issue for trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a
“[plaintiff] is not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga,
No. 1:08-cv-63, 2009 WL 3762961, at *2, 3 (E.D. Tenn. Nov. 4, 2009) (explaining the Court must
determine whether “the record contains sufficient facts and admissible evidence from which a
rational jury could reasonably find in favor of [the] plaintiff”). In addition, should the non-moving
party fail to provide evidence to support an essential element of the case, the movant can meet its
burden by pointing out such failure to the Court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479
(6th Cir. 1989).
At summary judgment, the Court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonable find for the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return
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a verdict in favor of the non-movant based on the record, the Court should enter summary judgment.
Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
III. Analysis
A. Officer Rawson
To prevail on his 42 U.S.C. § 1983 claim against Officer Rawson, Bozung must show that
“a person acting under color of state law deprived [him] of a right secured by the Constitution or
laws of the United States.” Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006). Here, Bozung alleges
two distinct instances of excessive force, which is prohibited under the Fourth Amendment. Slusher
v. Carson, 540 F.3d 449, 454 (6th Cir. 2008). First, he alleges either Officer Rawson or Officer
Wilson, or both, threw him to the ground as he was standing by the truck. Second, he alleges once
he was on the ground, one or both of the officers placed their knee or foot on his spinal cord.
“A claim of excessive force under the Fourth Amendment requires that a plaintiff
demonstrate that a seizure occurred, and that the force used in effecting the seizure was objectively
unreasonable.” Rodriguez v. Passinault, 637 F.3d 675, 680 (6th Cir. 2011). Whether a
constitutional violation based on excessive force occurred “depends on the facts and circumstances
of each case viewed from the perspective of a reasonable officer on the scene and not with 20/20
hindsight.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007) (citing Graham v. Connor, 490 U.S.
386, 395-96 (1989)). In making its determination, the Court should “pay particular attention to ‘the
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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.’”
Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010) (citing Kostrzewa v. City of Troy, 247 F.3d 633,
639 (6th Cir. 2001)). This is not an “exhaustive list,” and the inquiry ultimately turns on whether
the seizure was reasonable under the “totality of the circumstances.” Slusher, 540 F.3d at 455.
In addition, “[e]ach defendant’s liability must be assessed individually based on his own
actions.” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). Here, Bozung must show Officer
Rawson “(1) actively participated in the use of excessive force, (2) supervised the officer who used
excessive force, or (3) owed the victim a duty of protection against the use of excessive force.” Id.
(citing Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)).
According to Bozung, his version of events leading to his arrest support a finding that Officer
Rawson used excessive force and acted unreasonably under the totality of circumstances.
Specifically, Bozung alleges Officer Rawson slammed him to the ground without first giving him
any instructions to place his hands behind his back. Bozung contends that although he was
attempting to obey Officer Rawson and explain his limitations, Officer Rawson acted without
provocation anyway. In addition, Bozung states Officer Rawson placed his knee or foot on Bozung’s
back, contributing to Bozung’s spinal cord injuries. Although Bozung’s version of events differ
from that of Officer Rawson, the Court finds Bozung has not established a genuine issue of material
fact regarding whether Officer Rawson used excessive force.
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Indeed, considering the facts in a light most favorable to Bozung, it is clear it was reasonable
for Officer Rawson to employ the straight-arm bar takedown technique to neutralize Bozung and to
handcuff Bozung. See Slusher, 540 F.3d at 455 (explaining that although the Court should evaluate
the decision to use force “from the perspective of an objective officer,” the facts must still be viewed
in a light most favorable to the plaintiff). When Officer Rawson asked Bozung to step out of his
vehicle, he had very limited knowledge about Bozung. He knew Bozung had been drinking, he
knew the driver of Bozung’s vehicle had fled the scene, and he knew there was a warrant for
Bozung’s arrest. Here, the record unequivocally shows Bozung was being arrested on a
misdemeanor offense. Indeed, he was not being arrested for a “violent or serious crime, and this fact
weighs in favor of using less force in arresting someone for such conduct.” Carpenter v. Bowling,
276 F. App’x 423, 426 (6th Cir. 2008) (citing Thacker v. Lawrence County, 182 F. App’x 464, 472
(6th Cir. 2006)) (internal brackets and citations omitted). However, neither Bozung nor Officer
Rawson has offered evidence to show at what point Officer Rawson became aware of the fact
Bozung’s arrest warrant was for a misdemeanor offense (see Appellant Brief at 50, n.13).
Next, it was not clear to Officer Rawson, at the time of the incident, whether Bozung posed
an immediate threat to him. Although there is no evidence to suggest Bozung possessed a weapon
or made verbal or physical threats to the officers, see, e.g., Meirthew v. Amore, 417 F. App’x 494,
497 (6th Cir. 2011), the record indicates the officers did not have an opportunity to search Bozung
or his vehicle prior to employing the straight-arm bar takedown technique. In addition, it may have
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been “difficult for the officers to judge [Bozung’s] intentions” given the facts mentioned above. See,
e.g., Wysong v. City of Heath, 260 F. App’x 848, 855 (6th Cir. 2008). Although the evidence
indicates “Bozung was cooperative and was not boisterous, combative, or disrespectful,” there was
a growing crowd forming at the scene, and Officer Rawson needed to be concerned about his safety
and the safety of others.
Finally, in the context of this case, the most important Graham factor is whether Bozung was
resisting arrest by not complying with Officer Rawson’s orders to place his hands behind his back
prior to the takedown. Although Bozung argues on appeal he does not recall Officer Rawson asking
him to place his hands behind his back, he conceded before the district court in his response in
opposition to the motions to dismiss that he had been told to place his hands behind his back.
(District Court Record No. 65) (“Both defendant officers admit that Bozung responded to Rawson’s
command to place his hands behind his back as saying “wait, wait,” and “I am, I am,” which is
consistent with [Bozung’s] claim that he never refused to place his hands behind his back, but rather
simply needed more time to comply”). In addition, during his deposition testimony, Bozung states
two to three minutes passed between the time he walked around from the back of his truck until the
time Officer Rawson employed the straight-arm bar technique. The Court finds, in light of Bozung’s
concession before the district court and the amount of time Bozung gripped the bed of his truck,
there was a sufficient amount of time for Bozung to comply with the officer’s request to put his
hands behind his back.
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Finally, regarding whether Officer Rawson used excessive force while Bozung was on the
ground, it is clear Bozung has not demonstrated that there is a genuine issue of material fact. See,
e.g., Goodrich v. Everett, 193 F. App’x 551, 556 (6th Cir. 2006). Bozung alleges Officer Rawson
put his knee on Bozung’s back. “Taking the evidence in light most favorable to [Bozung], the
kneeing . . . occurred not when [Bozung] was neutralized, but while the officers were handcuffing
him.” Id.; cf. Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009) (explaining that
excessive force on a suspect who has been restrained and placed in handcuffs is unconstitutional).
Therefore, such action was objectively reasonable.
B. The Township
The district court properly found the Township was also entitled to summary judgment
because “no individual defendant violated [Bozung’s] rights.” Bozung, 2009 WL 2413624, at *9.
“To succeed on a municipal liability claim, a plaintiff must establish that his or her constitutional
rights were violated and that a policy or custom of the municipality was the ‘moving force’ behind
the deprivation of the plaintiff’s rights.” Miller v. Sanilac Cnty, 606 F.3d 240, 254- 55 (6th Cir.
2010). Because this Court finds Officer Rawson did not use excessive force in violation of Bozung’s
Fourth Amendment rights, the Township cannot be held liable.
IV. Conclusion
For these reasons, we AFFIRM the decision of the district court.
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BOGGS, Circuit Judge, dissenting. Because I believe there are factual disputes that go to
the heart of whether the force employed by Officer Rawson in handcuffing Bozung was reasonable,
I cannot join the majority opinion. Viewing the facts in the light most favorable to Bozung, Officer
Rawson’s conduct was objectively unreasonable and violated a clearly established constitutional
right. I would therefore reverse the grant of summary judgment for Rawson and remand for further
proceedings.
Rawson is entitled to summary judgment if he did not violate Bozung’s constitutional right
to be free from excessive force. As the majority correctly explains, the reasonableness of arresting
officers’ use of force depends on the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers, and whether he is actively resisting arrest or attempting
to evade arrest by flight. Graham v. Connor, 490 U.S. 386, 394 (1989). “Authorities must be
allowed ‘to graduate their response to the demands of any particular situation.’” United States v.
Montoya de Hernandez, 473 U.S. 531, 542 (1985) (quoting United States v. Place, 462 U.S. 696,
709 n.10 (1983)). Law enforcement surely has an interest in securing a suspect. If an individual
suspected of a minor crime puts up even a low level of resistance to arrest, he may be subjected to
some force. Wysong v. City of Heath, 260 F. App’x 848, 854–55 (6th Cir. 2008).
Our case law makes it clear, however, that there is no government interest in tackling
someone who is compliant and not attempting to flee. See Pershell v. Cook, 2011 WL 2728137, at
*5 (6th Cir. July 13, 2011) (knocking suspect to the ground was unreasonable when suspect “did
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not resist arrest or pose an immediate danger to officers”); Kijowski v. City of Niles, 372 F. App’x
595, 600 (6th Cir. 2010) (use of Taser against suspect presenting no risk of harm unreasonable);
Lawler v. City of Taylor, 268 F. App’x 384, 386–87 (6th Cir. 2008) (officer’s “use of force in
throwing [suspect] to the floor was disproportionate to any threat he faced,” given that suspect had
merely insulted officer and “raised his left arm slightly”); Smoak v. Hall, 460 F.3d 768, 784 (6th Cir.
2006) (unreasonable to tackle cuffed and compliant suspect); Solomon v. Auburn Hills Police Dep’t,
389 F.3d 167, 174 (6th Cir. 2004) (attempting leg sweep and shoving plaintiff against wall
unreasonable when plaintiff was complying with the officers’ demands); McDowell v. Rogers, 863
F.2d 1302, 1307 (6th Cir. 1988) (unreasonable to strike unresisting suspect).
Although the true version of what happened between Bozung and the officers is certainly
disputed, on summary judgment the facts must be viewed in the light most favorable to Bozung. In
my view, Bozung has alleged facts and provided evidence sufficient to justify the conclusion that
there is a genuine issue of material fact as to whether Rawson violated his Fourth-Amendment rights
by using the straight-arm bar takedown technique when Bozung was not resisting arrest, and when
Rawson could not reasonably have concluded that he was doing so.
Rawson stopped Bozung’s vehicle for a trivial infraction. Although the driver fled, and
Bozung had an outstanding warrant, Rawson had no reason to believe that Bozung had committed
a serious crime. Bozung did not attempt to flee. Instead, after parking, he exited the truck and
moved to the back of the vehicle as directed. Bozung did not threaten Rawson, and there was no
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evidence that he had a weapon. According to Rawson’s deposition testimony, Bozung was “calm
and collected” and was not “boisterous or combative in any way.” Bozung exited the vehicle slowly,
holding onto the truck bed for balance. Neighbor James Leggions testified in his deposition that
Bozung was “off balance” and “walked like he had a problem with his legs.” Bozung advised
Rawson that he had had a total hip replacement and had a plate and screws in his right ankle.
Onlookers also shouted that Bozung was handicapped.
I agree with the majority that we must assume that Rawson told Bozung to place his hands
behind his back, even though Bozung argues on appeal that he never received such an order. Bozung
stated in his deposition that he did not recall receiving an order from Rawson to put his hands behind
his back. Bystanders Leggions and Melonie Harris did not report hearing such an order. Bozung’s
lawyer, however, argued to the district court that Bozung was ordered to place his hands behind his
back but, given his disability, needed more time to comply with the order. Bozung’s response to the
defendants’ motions for summary judgment states that Rawson ordered him “to walk to the rear of
the vehicle and to place his hands behind his back to be cuffed.” Bozung cannot present a new
argument on appeal. See Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006)
(“Allowing [plaintiff] to present a new theory of her case on appeal that was not alleged below would
permit her two bites at the apple, a practice that would be very disruptive of orderly trial
procedure.”).
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The majority’s reliance on Scott v. Harris is misplaced. The record shows that“ opposing
parties [have told] two different stories,” and a “genuine” dispute as to the sequence of events exists.
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)). Even if we assume Bozung
received an order to place his hands behind his back, whether Rawson’s actions were reasonable
turns on disputed issues of fact. We do not know how clear and forceful the order was, nor how long
Rawson gave Bozung to comply with the order before taking him to the ground. The majority
emphasizes Bozung’s “concession” in his deposition that he stood outside the truck for “maybe . .
. two to three minutes” before he was taken to the ground, construing this delay as evidence that
Bozung resisted Rawson’s order. But we must view the facts as a whole in the light most favorable
to Bozung, not simply pounce on any detail that could weaken his case. Officer Wilson’s testimony
suggests that the delay was shorter: he estimated that “at least 30 seconds passed” between the time
that Rawson gave Bozung the instruction and when he performed the takedown maneuver. Leggions
testified that “after [Bozung] got almost around his truck, [Rawson] ran over and thr[ew] him to the
ground.” Even if Bozung was out of the truck for two minutes, moreover, we do not know how long
after he exited the truck the order to place his hands behind his back was given. There is also a
factual dispute as to whether Bozung struggled when Rawson attempted to handcuff him. The
plaintiff’s version of events is not “blatantly contradicted by the record,” and a “reasonable jury
could believe it.” Ibid. With so much uncertainty as to what actually happened, the “facts must be
viewed in the light most favorable to the nonmoving party.” Ibid.
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More importantly, there are disputed facts regarding whether Bozung’s handicap and his
inability to comply at once with Rawson’s order should have been apparent to Rawson. Bozung,
Officer Wilson, and Ms. Harris all testified that Bozung indicated to Rawson that he was attempting
to comply with the order. Bozung stated in his deposition that he told Rawson he was disabled and
said, “it’s going to take me a few minutes.” Harris stated that Bozung yelled, “wait and minute, wait
a minute,” but that Rawson responded, “well, I guess you want this done the hard way” and grabbed
him. Officer Wilson testified that Bozung responded to Rawson’s command to place his hands
behind his back by saying “I am, I am.” According to Bozung, Rawson ignored these protests and
slammed him to ground with sufficient force to lacerate his forehead and fracture his hand.
Construing the facts in the light most favorable to Bozung, a jury could find, in light of Bozung’s
handicap and lack of resistance, that it was unreasonable for Rawson to perform the takedown
maneuver to handcuff Bozung, and that Rawson’s conduct thus violated Bozung’s Fourth-
Amendment rights.
Furthermore, Rawson is not entitled to qualified immunity. A “defendant enjoys qualified
immunity on summary judgment unless the facts alleged and the evidence produced, when viewed
in the light most favorable to the plaintiff, would permit a reasonable juror to find that (1) the
defendant violated a constitutional right; and (2) the right was clearly established.” Morrison v. Bd.
of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009). A right is clearly established if “the
contours of the right [are] sufficiently clear that a reasonable official would understand that what he
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is doing violates that right.” Binay v. Bettendorf, 601 F.3d 640, 646–47 (6th Cir. 2010). The facts,
taken in the light most favorable to Bozung, would permit a finding that the force Rawson used was
not only unnecessary, but would have been recognized as such “by a reasonable officer in his
position.” Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002). The right to be free from excessive
force is clearly established, see Graham, 490 U.S. at 394–95, as is “the right to be free from physical
force when one is not resisting the police,” Wysong, 260 F. App’x at 856. Here, there is a genuine
issue of material fact as to whether Bozung resisted arrest. If he did not resist, a reasonable officer
would have known that it was unnecessary to force him to the ground to handcuff him. The grant
of summary judgment for Rawson was therefore improper.
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