William LaPlante v. City of Battle Creek, Mich.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0067p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
WILLIAM LAPLANTE,
│
Plaintiff-Appellee, │
> No. 21-1371
│
v. │
│
│
CITY OF BATTLE CREEK, MICHIGAN; MIKAEL ZIEGLER │
and BRICE KERSCHEN, individually and in their official │
capacities, │
│
Defendants-Appellants.
┘

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:19-cv-00166—Janet T. Neff, District Judge.

Argued: January 27, 2022

Decided and Filed: April 8, 2022

Before: CLAY, GRIFFIN, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Paul D. Hudson, MILLER CANFIELD, Kalamazoo, Michigan, for Appellants.
Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, for
Appellee. ON BRIEF: Paul D. Hudson, Amanda Rauh-Bieri, MILLER CANFIELD,
Kalamazoo, Michigan, Jill Humphreys Steele, CITY OF BATTLE CREEK, Battle Creek,
Michigan, for Appellants. Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES,
White Lake, Michigan, for Appellee.
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 2

_________________

OPINION
_________________

CLAY, Circuit Judge. Defendants, Officers Mikael Ziegler (“Officer Ziegler” or
“Ziegler”) and Brice Kerschen (“Officer Kerschen” or “Kerschen”), appeal the district court’s
order denying their motion for summary judgment in Plaintiff William LaPlante’s (“Plaintiff” or
“LaPlante”) 42 U.S.C. § 1983 excessive force action. Plaintiff alleges that Defendants violated
his Fourth Amendment rights when Ziegler threw him to the ground in a takedown maneuver
and Kerschen failed to intervene to prevent that use of force. For the reasons that follow, we
AFFIRM the district court’s denial of qualified immunity as to Defendant Ziegler and
REVERSE the district court’s denial of qualified immunity as to Defendant Kerschen and
REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background

Most of the incident giving rise to this lawsuit was captured on dash-camera video. At
2:58 a.m. on May 27, 2016, while performing patrol duties in Battle Creek, Michigan, Officers
Ziegler and Kerschen activated their patrol car lights to stop Plaintiff’s vehicle. Plaintiff stopped
as soon as the officers activated their lights. At that point, the passenger, Ryan Robbins
(“Robbins”), exited the vehicle and began to walk away. Robbins’ exit prompted Officer Ziegler
to loudly yell, “Get in the car, now” as he approached the vehicle. (MVR Video, R. 60-2, Ex. B
at 00:35–00:40.) With his taser in his extended right hand, Officer Ziegler quickly moved
toward the passenger’s side of Plaintiff’s vehicle. Ziegler then yelled once again, in an even
louder tone, ordering Robbins to “Get in the car, now!” (Id. at 00:39–00:40.) Robbins raised his
hands in the air and moved back toward the vehicle, and Officer Kerschen approached Robbins.
Robbins knelt and put his hands in the air as Kerschen approached him.

Moments later, Officer Ziegler proceeded to the driver’s side of the vehicle with his taser
still in his right hand. As he approached Plaintiff, Ziegler said, “Hey.” (Id. at 00:46–00:47.)
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 3

Plaintiff, who was in the driver’s seat, had opened his car door and placed at least one foot on the
ground outside of the vehicle. He was allegedly intoxicated.1

Plaintiff proceeded to exit the vehicle with an open can of beer in his right hand. At that
point, with his taser still in his right hand and in close proximity to Plaintiff, Ziegler stated,
“Hey, just show me your hands, now.” (Id. at 00:43–00:49.) Plaintiff said, “Dude, I’m not
doin . . . ,’” and finished exiting the vehicle with his back to Ziegler. (Id. at 00:49–00:52.)
Ziegler ordered Plaintiff to put the beer down two times. When Plaintiff failed to put the beer
down, Ziegler knocked it to the ground.2 At that point, Plaintiff took a step toward the front of
the car and extended his hand forward against the car’s frame, which caused the car to lurch
forward a short distance.3 Ziegler continued to face Plaintiff’s back, and Plaintiff moved
forward alongside the car. Ziegler then firmly told Plaintiff to “quit moving around” while
simultaneously placing the taser against Plaintiff’s back.4 (Id. at 00:54–00:56.) He then told
Plaintiff to put his hands behind his back.5 When Plaintiff failed to do so and subsequently bent
over,6 Ziegler firmly said, “Put your hands behind your back or I’m gonna tase you.” (Id. at
00:59–01:01.) At that point, Plaintiff, still bent forward, reached his right hand over the car and
placed it at his side. Ziegler said, “Put your fuckin’ hands behind your back, now.” (Id. at
01:01–01:03.)

1
Plaintiff’s blood alcohol test, which resulted from a search warrant executed at a hospital approximately
three hours later, revealed that Plaintiff’s blood alcohol level (“BAC”) was 0.115g/ml of blood.
2
The parties dispute whether Plaintiff was “attempting to be cooperative” during this sequence and whether
Officer Ziegler gave Plaintiff “ample opportunity” to comply with his orders. (Compare Appellee’s Br. 11 with
Appellants’ Br. 5.)
3
According to Plaintiff, his vehicle allegedly had a “problem with park” because “[t]he cable from the
shifter” was not working. (See Pl.’s Dep., R. 60, Ex. A, Page ID # 377.)
4
Plaintiff argues that Officer Ziegler “needlessly pushed [Plaintiff] into the corner of the open car door and
escalated the situation by yelling into [Plaintiff]’s face, ‘quit moving around.’” (Appellee’s Br. 11.)
5
Plaintiff claims that he was “not told he was under arrest” at any point during the interaction. (Appellee’s
Br. 29.) However, he testified that he understood that he was being detained. Additionally, Plaintiff does not claim
that the application of the handcuffs was excessive.
6
The parties dispute whether Plaintiff bent over on his own accord or was instead forced to bend down by
Officer Ziegler, “thereby continuing to unnecessarily heighten and increase the tension in the situation[.]”
(Compare Appellee’s Br. 11–12 (“Despite [Plaintiff]’s lack of resistance, [Defendant] bent [Plaintiff] forward into
the corner of the open car door . . . .”) with Appellants’ Br. 5 (“Officer Ziegler tells Plaintiff to ‘put your hands
behind your back, now!’ but Plaintiff instead bends forward and leans into the car.”).)
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 4

Plaintiff next turned his face slightly toward Ziegler and stated “Dude, I’m not movin’
around, man, I’m sorry.” (Id. at 01:04–01:06.) He then moved his hands toward his back.
Plaintiff leaned slightly back and looked at Ziegler in the eyes, at which point Ziegler pulled
Plaintiff toward him and firmly said, “Well don’t move!” (Id. at 01:05–01:07.) In response,
Plaintiff said, “Alright!” (Id. at 01:07.) Ziegler then said, “Stay right there,” and he put his taser,
which was in his right hand, back in its holster. (Id. at 01:08–01:09.) Plaintiff then asked,
“What’s wrong, dude?” (Id.) Ziegler said, “You are what is wrong! You’re driving.” (Id. at
01:08–01:11 (emphasis added).) Plaintiff brought his hands forward, removing them from the
position behind his back. He then raised his hands in the air above his head, with a ninety-degree
bend at each of his elbows. Ziegler once again stated, “Put your fuckin’ hands behind your
back.” (Id. at 01:11–01:14.) As Ziegler said those words, Plaintiff took one step with his right
foot and proceeded to bend his knees into a squat stance. Simultaneously, he rotated his hands
down from over his head so that his arms were perpendicular to his body. Ziegler then grabbed
Plaintiff’s shoulders, bent his knees, and pulled Plaintiff towards the ground,7 causing Plaintiff to
land on the street in a prone position.

As this occurred, Officer Kerschen ran over from the passenger’s side of the vehicle after
securing Robbins’ handcuffs. The officers struggled to handcuff Plaintiff, who continued to
move once he was on the ground.8 Amidst various groans, Plaintiff stated, “What the fuck,
man?” (Id. at 01:19–01:21.) Ziegler once again told Plaintiff to put his hands behind his back.
Plaintiff continued to groan. Plaintiff then said, “I ain’t doing nothing, dude!” (Id. at 01:34–
01:36.) Ziegler once again told Plaintiff to put his hands behind his back. Plaintiff then
exclaimed, “Here, take my hands! God damn! Take them!” (Id. at 01:37–01:40.) Ziegler then
firmly said, “put ‘em behind your back.” (Id. at 01:40–01:42.) Plaintiff then said, “Take them!

7
Plaintiff emphasizes that the maneuver was not an “arm-bar takedown, which is used to guide citizens to
the ground . . . .” (Compare Appellee’s Br. 13 with Appellants’ Br. 19, 23.)
8
While the dash cam footage does not show the entire period during which the officers attempted to
handcuff Plaintiff, the officers’ microphones were on, and voices can be heard and distinguished. Additionally, the
bottom-left quadrant of the video footage does show Ziegler and Plaintiff immediately after Ziegler employed the
takedown maneuver. The video shows that Plaintiff attempted to get up from the ground as Ziegler applied
downward force to restrain and handcuff Plaintiff. While the parties dispute whether Officer Ziegler lost his balance
as he performed the maneuver, the video shows that Ziegler readjusted his footing after Plaintiff attempted to rise
from the ground.
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 5

I ain’t do nothin,’ dude. Go ahead!” (Id. at 01:42–01:48.) Officer Ziegler repeated his request
that Plaintiff put his hands behind his back. Plaintiff then said, “I am not doin’ nothin.’” (Id. at
01:50–01:51.) Ziegler then stated, “Put ‘em behind your back and don’t move.” (Id. at 01:51–
01:54.) Plaintiff immediately said, “Alright! God damn, man.” (Id. at 01:54–01:55.) Ziegler
then loudly exclaimed, “Stay right there!” (Id. at 01:55–01:57.) Plaintiff then stated, “I am not
fuckin’ doin’ nothin,’ man.” (Id. at 01:50–02:01.) Several seconds later, Ziegler announced
over his radio that Plaintiff was in custody. Plaintiff was standing at this point, with his hands
cuffed behind his back. It took approximately one minute and thirty seconds to effectuate
Plaintiff’s arrest.

Following his arrest, Plaintiff had several scrapes and lacerations on the left side of his
face, particularly around his brow ridge and cheekbone. Plaintiff also began to complain about
pain in his elbow. He loudly grunted and cried out in pain as he paced next to the police vehicle,
and he eventually bent down. Simultaneously, Ziegler discussed information regarding the
incident via radio.

Less than a minute after the officers effectuated Plaintiff’s arrest, Officer Ziegler notified
police dispatch that Plaintiff was experiencing pain in his elbow. Afterward, Plaintiff and
Ziegler then discussed whether Plaintiff had complied with Ziegler’s orders prior to the arrest.

Officer Ziegler then proceeded to inspect Plaintiff’s vehicle, specifically the front left
bumper area that allegedly hit the car that was parked in front of it. He picked up the beer can
and looked inside Plaintiff’s vehicle from which he recovered an item for inspection. He
subsequently returned the item to the vehicle. Plaintiff then stated, “I’ve done nothing but
cooperate, my handcuffs are put on me so tight I can’t even feel my hands.” (Id. at 05:17–
05:19.) At that point, Ziegler said, “Okay, we’ll fix ‘em.” (Id. at 05:21–05:23.) Ziegler
loosened the handcuffs at Plaintiff’s request. Plaintiff continued to insist that he did not do
anything, and Ziegler stated in response that, “You get handcuffed when you’re in the car and
people act like that.” (Id. at 05:35–05:39.)

Plaintiff was later treated by Lifecare Ambulance Services (“Lifecare”). Lifecare
transported Plaintiff to Bronson Battle Creek Hospital for additional treatment, and he was later
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 6

taken to Calhoun County Jail. Medical personnel determined that Plaintiff had dislocated his
left elbow and sustained a small avulsion fracture. In the criminal case related to this incident,
Plaintiff pleaded guilty to a felony charge of operating while under the influence of alcohol and a
high misdemeanor charge of attempted obstruction of a police officer.

The police report relating to this incident fills some gaps left by the video, photographs,
and Joint Statement. First, it indicates the officers’ alleged reasons for initially stopping
Plaintiff’s vehicle. The report states that they “observed a silver 4-door vehicle . . . rapidly
accelerating and breaking [sic] . . . [and] squeeling [sic] the tires and swerving on the
roadway . . . [so they] decided to catch up to this vehicle and make a traffic stop on it for careless
driving and suspected OUIL” (Police Report, R. 60-7, Ex. G, Page ID # 617.) Officer Kerschen
allegedly attempted to call dispatch before the officers exited the police car, however, both
officers claim he was unable to do so because Robbins immediately attempted to flee, and they
decided to give chase. The police report further indicates that the officers discovered that
Plaintiff had an outstanding felony warrant for absconding parole. Finally, the report indicates
that the officers recovered marijuana from Plaintiff’s vehicle.

Plaintiff’s medical records confirm his elbow dislocation and fracture. The records also
reflect that on the night of the incident, Plaintiff denied having any head injuries, neck pain, back
pain, leg pain, or hip pain. However, Plaintiff subsequently sought medical support for chronic
and recurring headaches, dental pain, persistent elbow pain and stiffness, and general weakness.
Plaintiff also claims that the encounter caused him chronic anxiety, nightmares, and difficulty
sleeping. Plaintiff’s medical history further indicates that prior to the relevant encounter, he had
three arm surgeries between 2002 and 2015––two on his right arm, and one that was unspecified.
Additionally, the medical history indicates that Plaintiff had previously experienced a
“separation of [the left] AC joint,” a joint in the shoulder complex which connects the collarbone
to the shoulder blade.9 (Medical Records, R. 60-8, Ex. H, Page ID # 656–57.)

9
This information is relevant to the Court’s assessment of Plaintiff’s injuries. See Scheffler v. Lee, 752 F.
App’x 239, 250 (6th Cir 2018) (“An excessive force claim ‘may be established through evidence of severe
injury . . . .’”) (quoting Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009)). Specifically, it
indicates that Plaintiff’s left elbow dislocation occurred in the context of prior procedures and existing trauma in the
arm and shoulder region of the left side of his body. (Medical Records, R. 60-8, Ex. H, Page ID # 649; Pl.’s Dep.,
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 7

B. Procedural History

Plaintiff filed his complaint in March 2019. He listed Officers Ziegler and Kerschen, as
well as the City of Battle Creek (“Battle Creek”), as Defendants. Defendant Battle Creek filed
an answer in which it raised various affirmative defenses, including qualified immunity.
Defendants Ziegler and Kerschen also filed an answer, which also raised various affirmative
defenses including qualified immunity. Plaintiff denied “each and every one of Defendants’
Affirmative Defenses.” (Answer to Affirmative Defenses, R. 8, Page ID # 37–38; Answer to
Affirmative Defenses, R. 12, Page ID # 53–54.)

The district court dismissed the claim against Battle Creek with prejudice pursuant to a
voluntary dismissal by Plaintiff and a joint stipulation by all three Defendants. Officers Ziegler
and Kerschen then filed a motion for summary judgment. The parties also filed a joint statement
of facts. The district court held a motion hearing on March 18, 2021. The same day, the court
issued an order in accordance with its bench opinion, which denied Ziegler and Kerschen’s
motion for summary judgment on the basis of qualified immunity. Defendants timely appealed.

II. DISCUSSION

A. Standard of Review

We review a district court’s denial of qualified immunity de novo. Gregory v. City of
Louisville, 444 F.3d 725, 742 (6th Cir. 2006). Although a district court’s factual findings are not
reviewable on interlocutory appeal, id. at 742, “where a district court’s denial of summary
judgment may appear to be based on factual issues, we may nonetheless review that court’s
determination if it ‘hinges on legal errors as to whether the factual disputes (a) are genuine and
(b) concern material facts.’” Essex v. Cnty. of Livingston, 518 F. App’x 351, 356 (6th Cir. 2013)
(quoting Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009)). At the summary
judgment stage, courts are required to “view the facts and draw reasonable inferences in ‘the
light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris,
550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)) (per

R. 60-1, Page ID # 265–66 (Plaintiff notes that his left arm has lasting impairments and weakness due to injuries
from a 2010 motor vehicle accident in which his shoulder joint was separated).)
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 8

curiam) (brackets omitted). If the evidence would allow a reasonable jury to find in favor of a
non-moving party, summary judgment may not be granted. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).

“There is, however, an added wrinkle” where the record contains “a videotape capturing
the events in question.” Scott, 550 U.S. at 378. Because facts “must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts,” we may
not adopt a version of the facts that is “blatantly contradicted” by video footage that is not
“doctored or altered in any way” and which clearly “depicts . . . [the events that] actually
happened.” Id. at 378–80 (quoting Fed. R. Civ. P. 56(c)) (emphasis added). But we must
nonetheless “view any relevant gaps or uncertainties left by the videos in the light most favorable
to the Plaintiff,” Latits v. Phillips, 878 F.3d 541, 544 (6th Cir. 2017) (citing Godawa v. Byrd,
798 F.3d 457, 463 (6th Cir. 2015)), and must also “make all reasonable inferences in their favor
when undertaking the qualified immunity analysis on summary judgment, Godawa, 798 F.3d at
463; see also Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 783–84 (6th Cir. 2004)
(Clay, J., dissenting) (concluding that where video footage is unclear and could support differing
outcomes, courts should view the facts in the light most favorable to the non-moving party)
(citing Headwaters Forest Def. v. Cnty. of Humboldt, 211 F.3d 1121, 1132 n.5 (9th Cir. 2000)
(“The videotape evidence here appears to raise more questions than it answers . . . .”)).

B. Analysis

In reviewing an order denying qualified immunity, the Court considers (1) whether an
“official’s conduct . . . violate[d] a constitutional right,” and, if so, (2) whether “that right
was . . . clearly established at the time of the conduct.” Latits, 878 F.3d at 547 (citing Godawa,
798 F.3d at 462–63 (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001))). We take each in
turn.

i. Constitutional Violation

The use of excessive force during an arrest is unreasonable and violates the Fourth
Amendment. Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015) (citing Graham v. Connor,
490 U.S. 386, 394–95 (1989)). Courts consider “three factors . . . in determining the
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 9

reasonableness of force used” by a police officer: “(1) the severity of the crime at issue;
(2) whether the suspect posed an immediate threat to the safety of the police officers or others;
and [(3)] whether the suspect actively resisted arrest or attempted to evade arrest by flight.”
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (citing Graham, 490 U.S.
at 396). “These factors are not an exhaustive list,” id., because the ultimate question is whether
“the totality of the circumstances justifies [the] particular sort of seizure” that took place,
Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985) (brackets and
ellipse omitted)).

Importantly, the inquiry is not whether any force was justified, but “whether the [officer]
‘could reasonably use the degree of force’” that was employed. Roell v. Hamilton Cnty.,
870 F.3d 471, 483 (6th Cir. 2017) (quoting Martin v. City of Broadview Heights, 712 F.3d 951,
958 (6th Cir. 2013)) (emphasis in original). An officer’s use of force “must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,”
given the fact that “police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Graham, 490 U.S. at 396–97. However, “just because we
must look at the circumstances through the eyes of a reasonable officer does not mean . . . that
we must accept the officers’ subjective view of the facts when making this assessment.” Jacobs
v. Alam, 915 F.3d 1028, 1041 (6th Cir. 2019). “Rather, ‘the action must be viewed in light of the
surrounding circumstances.’” Palma v. Johns, No. 21-3315, 2022 WL 594046, at *5 (6th Cir.
Feb. 28, 2022) (quoting Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005)).

a. Claim Against Officer Ziegler

There is no dispute that Officer Ziegler employed a takedown maneuver and accordingly
used physical force to bring Plaintiff to the ground. Ziegler engaged in the maneuver only after
Plaintiff failed to comply with a number of the officer’s verbal orders to show his hands, put
down his beer, and put his hands behind his back. But because the orders were given in rapid
succession over the course of only thirty seconds, it was not clear whether Plaintiff understood or
was given sufficient time or opportunity to comply with some of the orders before he was thrown
to the ground. Consequently, there are genuine issues of material fact regarding the extent of
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 10

Plaintiff’s cooperation, the degree of Ziegler’s subsequent force, and the reasonableness of the
force employed.

The police report states that the officers found probable cause to arrest LaPlante for:
(1) resisting and obstructing the police; (2) resisting and obstructing justice; (3) driving with a
suspended license; and (4) operating a vehicle under the influence of liquor. Plaintiff pleaded
guilty to a felony charge of operating a vehicle while under the influence of alcohol and a high
misdemeanor charge of attempted obstruction of a police officer. However, viewing the facts in
the light most favorable to Plaintiff requires us to look at the nature and severity of Plaintiff’s
offense at the time that Officer Ziegler employed the takedown maneuver. See Gaddis, 364 F.3d
at 774. At that point, Ziegler only had probable cause to arrest Plaintiff for the misdemeanor
offense of operating a vehicle under the influence of alcohol. See Mich. Comp. Laws
§ 257.625(7)(a). This offense is only moderately severe from the perspective of “a reasonable
officer on the scene.” Graham, 490 U.S. at 396; Gaddis, 364 F.3d at 774. Indeed, there is no
allegation that Plaintiff’s offense was violent or otherwise resulted in any injuries.

While the video shows that Plaintiff moved his arms forward ahead of the takedown
maneuver, Officer Ziegler does not allege that Plaintiff assaulted him or made any offensive
gestures toward him.10 And although the interaction occurred on a dark street early in the
morning before either officer could pat down the suspects or call for backup, a reasonable jury
could determine that Plaintiff’s failure to promptly obey all of Officer Ziegler’s orders did not
place Ziegler in such a dangerous situation that a forceful takedown maneuver was reasonable.

There are also genuine disputes of fact regarding whether Plaintiff resisted arrest by
taking actions that prevented Officer Ziegler from handcuffing him. There is no question that
Plaintiff failed to comply with several of Officer Ziegler’s orders and moved his hands in the air
just as Ziegler was about to handcuff him; however, Plaintiff’s behavior––particularly
considering the disputes of fact that the video fails to clarify––does not necessarily amount to

10
Officer Ziegler did claim that Plaintiff’s movements made him worry that Plaintiff might flee or possibly
injure him. (Police Report, R. 60-7, Ex. G, Page ID # 623.) However, the parties dispute whether Plaintiff’s
behavior was provoked by Ziegler due to his alleged aggressive tactics, and whether Ziegler gave Plaintiff sufficient
opportunity to comply when he yelled out to Plaintiff a long list of orders over the course of only thirty seconds. See
supra notes 2, 4, 6–8.
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 11

active resistance. Woodcock v. City of Bowling Green, 679 F. App’x 419, 423 (6th Cir. 2017)
(“We have held that mere noncompliance is not active resistance.”) (citing Goodwin v. City of
Painesville, 781 F.3d 314, 323–24 (6th Cir. 2015); see supra notes 2, 4, 6–8. In fact, Plaintiff
claims that he had not been told that he was being arrested at this point of the interaction.

The parties dispute whether Plaintiff’s actions amounted to resistance given that, as
Plaintiff emphasizes, placing one’s hands in the air is a “universal and widely recognized sign of
surrender.” (Compare Appellee’s Br. 6 with Appellants’ Br. 2–4.) According to Defendants,
Plaintiff’s raised hands were an act of resistance rather than an indication that he had
surrendered. But the fact that a suspect does not immediately surrender does not inherently mean
that he is resisting. See Woodcock, 679 F. App’x at 423. Indeed, the district court emphasized
that “hands in the air . . . renders the person whose hands are in the air vulnerable to attack, to
aggressive action and so forth.” (Summ. J. Hr’g Tr., R. 65, Page ID # 757 (emphasis added).)
The court stated that it had a “hard time accepting that . . . hands in the air is a position of threat.”
(Id.) To be sure, we must (1) assess an officer’s use of force “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Graham,
490 U.S. at 396, and (2) defer to the clear, unaltered depiction of the facts displayed in the video,
Scott, 550 U.S. at 378. But in this case, we cannot completely determine the nature of the
interaction or the communications between Plaintiff and Officer Ziegler from the video alone.
That task is best left to a jury.

Plaintiff and the district court rightly compare this case to our opinion in Baker v. City of
Hamilton, 471 F.3d 601 (6th Cir. 2006). In that case, we held that qualified immunity is
inappropriate where there is a dispute regarding whether a suspect stopped and raised his hands
in the air during a police encounter, and a reasonable jury could conclude that the suspect’s
movements indicated that he had surrendered. Id. at 607–08. This case is factually analogous to
Baker in various respects, even considering the fact that, unlike in Baker, the record includes a
video depicting the moment when Plaintiff raised his hands in the air ahead of the takedown
maneuver. (Compare Appellee’s Br. 28 (citing to the dashcam footage) with id. at 603 (“What
happened . . . is disputed by the parties and is the basis of [Plaintiff]’s complaint.”).) That is
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 12

because a reasonable jury could view the video and determine that Plaintiff surrendered when he
raised his hands.

Importantly, we have determined that the use of a takedown maneuver, in a variety of
scenarios, can amount to excessive force. See, e.g., Harris v. City of Circleville, 583 F.3d 356,
365–66 (6th Cir. 2009) (denying qualified immunity where officers employed a takedown
maneuver after the suspect was already cuffed within the police station and the officers
subsequently struck the suspect while pushing his handcuffed hands over his head, kicked him in
the ribs, and referred to him using racist slurs); McCaig v. Raber, 515 F. App’x 551, 555 (6th
Cir. 2013) (concluding that a reasonable jury could find that an officer’s use of a takedown
maneuver was not objectionably reasonable where a suspect “made no aggressive gestures or
statements, attempted to cooperate, offered no resistance, and stated that he would ‘go easy’”);
Pershell v. Cook, 430 F. App’x 410, 415 (6th Cir. 2011) (denying qualified immunity where,
after performing a leg sweep and handcuffing a suspect, officers proceeded to strike the suspect
three times, causing him to lose consciousness and sustain a hip fracture); Lawler v. City of
Taylor, 268 F. App’x 384, 387 (6th Cir. 2008) (denying qualified immunity where video footage
“would permit a jury to conclude that [an officer]’s use of force in throwing [a suspect] to the
floor [of the booking room of a police station] was disproportionate,” where the suspect had
merely insulted an officer, refused to comply with orders, and continually raised his hand);
Meirthew v. Amore, 417 F. App’x 494, 497–98 (6th Cir. 2011) (denying qualified immunity
where the officer used an arm-bar takedown in a police station booking room, where the suspect
was unarmed, handcuffed, and surrounded by officers).

Considering the factors outlined by the relevant caselaw, this case presents genuine
disputes as to Officer Ziegler’s use of force, both as Ziegler engaged in the takedown maneuver
and as he proceeded to “put pressure on [Plaintiff’s] back, upper body, arms, and the side of his
head.” (Appellee’s Br. 14); McCaig, 515 F. App’x at 555. Where, as here, the available video is
not clear as to those factors, see supra notes 2, 4, 6–8, we must reject Ziegler’s qualified
immunity defense because a reasonable jury could find that his use of force violated Plaintiff’s
Fourth Amendment rights. Godawa, 798 F.3d at 463, 467.
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 13

b. Claim Against Officer Kerschen

The district court erred when it determined that Officer Kerschen was not entitled to
qualified immunity on Plaintiff’s failure to intervene claim. Plaintiff claims that Kerschen failed
to stop Ziegler’s allegedly excessive takedown and struggle, and that Kerschen had the “requisite
notice, means, and opportunity to verbally and/or physically intervene on [Plaintiff’s] behalf;
however, he instead did and said nothing to aid [Plaintiff].” (Appellee’s Br. 20.) But an
officer’s “mere presence during [an] altercation, without a showing of some direct responsibility,
cannot suffice to subject [him] to liability.” Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir.
2013). Indeed, “the Sixth Circuit has repeatedly held that officers are not liable under failure-to-
intervene claims when the ostensible ‘opportunity and means’ to intervene does not last long
enough for the officer to ‘both perceive what was going on and intercede to stop it.’” Pelton v.
Perdue, 731 F. App’x 418, 426 (6th Cir. 2018) (quoting Burgess, 735 F.3d at 475).

To overcome the timing and opportunity requirements for failure to intervene cases,
Plaintiff argues that Officer Ziegler’s use of force included the verbal orders at the beginning of
Ziegler’s encounter with Plaintiff. Accordingly, Plaintiff contends that by the time that Ziegler
employed the takedown maneuver, “despite the passage of one minute and 12 seconds,”
Kerschen “made no attempt whatsoever to move towards Plaintiff or offer any assistance
whatsoever in arresting him.” (Appellee’s Br. 40 (emphasis omitted).) For these reasons,
Plaintiff claims, a reasonable jury could conclude that Kerschen had the opportunity and means
to intervene and prevent the force used against him. (Id. at 38–40.)

The exchange between Plaintiff and Ziegler involved profane language and was certainly
stern and loud. However, that exchange was sufficiently distinct from the takedown maneuver
that it might or might not be considered the same use-of-force incident. See City & Cnty. of San
Francisco v. Sheehan, 575 U.S. 600, 615 (2015) (holding that a Plaintiff “cannot establish a
Fourth Amendment violation merely on tactics that result in a . . . confrontation that could have
been avoided”) (quotation marks and citations omitted). Indeed, just moments before Officer
Ziegler engaged in the maneuver, he put away his taser to free his hands so that he could
handcuff Plaintiff and end the interaction. At that point, Kerschen could not have been on notice
that the contentiousness between Plaintiff and Ziegler would continue and would result in
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 14

Ziegler employing a takedown maneuver. And, importantly, Officer Kerschen did rush over to
assist as soon as he secured Robbins’ handcuffs. Contrary to Plaintiff’s contentions, the video
indicates that Officer Kerschen did not have enough time “to ‘both perceive what was going on
and intercede to stop it.’” Pelton, 731 F. App’x at 426 (6th Cir. 2018) (quoting Burgess, 735
F.3d at 475). Accordingly, Officer Kerschen was entitled to qualified immunity.

ii. Clearly Established

“Public officials are entitled to qualified immunity from suits for civil damages if either
the official’s conduct did not violate a constitutional right or if that right was not clearly
established at the time of the conduct.” Latits, 878 F.3d at 547 (citing Godawa, 798 F.3d at 463
(citing Saucier, 533 U.S. at 201–02) (emphasis added))). Accordingly, to affirm the district
court’s judgment as to Plaintiff’s claim against Officer Ziegler, we must also determine that
Plaintiff’s claimed rights were clearly established in May of 2016.

“As a starting point, [Plaintiff] had a clearly established right to be free from excessive
force.” Palma, 2022 WL 594046, at *16 (citing Godawa, 798 F.3d at 463). However, while
“this general right is well known, the right at issue is not defined at such ‘a high level of
generality.’” Id. (quoting Godawa, 798 F.3d at 467). Rather, the claimed right must be
sufficiently particularized so “that a reasonable official would understand that what he is doing
violates that right.” Kennedy v. City of Villa Hills, 635 F.3d 210, 214 (6th Cir. 2011) (citation
omitted). Stated otherwise, Plaintiff need not always put forth “a case directly on point” to show
that his claimed rights were indeed clearly established at the time of the conduct. Rivas-Villegas
v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam). That is because “courts ‘ask whether it would
have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he
confronted.” Palma, 2022 WL 594046 at *16 (quoting Ziglar v. Abbasi, ---U.S.---, 137 S. Ct.
1843, 1867 (2017) (quoting Saucier, 533 U.S. at 202)) (quotations omitted). Plaintiff need not
show that “the very action in question has previously been held unlawful, but . . . in light of pre-
existing law, the unlawfulness [of the official action] must be apparent.” Anderson v. Creighton,
483 U.S. 635, 640 (1987).
 No. 21-1371 LaPlante v. City of Battle Creek, Mich., et al. Page 15

Viewing the disputed facts in the light most favorable to Plaintiff, Officer Ziegler
violated Plaintiff’s clearly established right to be free from excessive force when he employed
the takedown maneuver. While Defendants claim that no reasonable officer in Ziegler’s shoes
would have known that it was constitutionally excessive to use a takedown maneuver to subdue
an intoxicated, uncooperative person, the extent of Plaintiff’s cooperation is disputed here.
(Compare Appellants’ Br. 12, 21–22, 29 with Appellee’s Br. 11–12, 17.)

We have held that takedown maneuvers are excessive when officers deal with a
“generally compliant” suspect, and that the police may not use physical force against a subdued,
non-resisting subject. Smoak v. Hall, 460 F.3d 768, 784 (6th Cir. 2006). We have also
established that such a maneuver is excessive when a suspect surrenders to the police, does not
offer resistance, and/or when the interaction happens in the presence of multiple officers. See
id.; see also Harris, 583 F.3d at 365–66; see also Baker v. City of Hamilton, Ohio, 471 F.3d 601
(6th Cir. 2006); McCaig, 515 F. App’x at 551; Lawler, 268 F. App’x at 387; Meirthew, 417 F.
App’x at 496–97; Stanfield v. City of Lima, 727 F. App’x 841, 847–48 (6th Cir. 2018); Mallory
v. Whiting, 489 F. App’x 78, 83 (6th Cir. 2012); Scott v. Kent Cnty., 678 F. App’x 435 (6th Cir.
2017) (Moore, J., dissenting). Considering the totality of the circumstances, and viewing the
facts in the light most favorable to Plaintiff, an objective officer in Ziegler’s shoes was on
“notice that his specific conduct was unlawful.” Rivas-Villegas, 142 S. Ct. at 8.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s denial of qualified
immunity as to Officer Ziegler, and REVERSE the district court’s denial of qualified immunity
as to Officer Kerschen and REMAND for further proceedings consistent with this opinion.