Stephen Bolick v. City of East Grand Rapids, et al

Filing

OPINION filed : AFFIRMED in part and REVERSED in part, decision not for publication. Jeffrey S. Sutton, Circuit Judge; Richard Allen Griffin, Circuit Judge and Edmund A. Sargus , Jr., U.S. District Judge (AUTHORING).

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NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 14a0686n.06
No. 13-1807
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Sep 03, 2014
DEBORAH S. HUNT, Clerk

STEPHEN BOLICK, as Personal
Representative of the Estate of Matthew
Bolick, deceased,
Plaintiff–Appellee,
v.
CITY OF EAST GRAND RAPIDS, et al.,
Defendants–Appellants.

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

Before: SUTTON and GRIFFIN, Circuit Judges; and SARGUS, District Judge.
SARGUS, District Judge. On November 16, 2009, two police officers from the City of
East Grand Rapids responded to a call from Stephen Bolick. He reported that his son Matthew
“was freaking out” and had threatened to kill him. The officers arrived at the scene and, after an
intense struggle, had Matthew on his stomach in handcuffs. Viewing the facts in Matthew’s
favor, one officer then tased him and the other applied pressure to Matthew’s back with both of
his knees. Matthew died at the scene shortly thereafter. His family brought suit. The district
court denied summary judgment on qualified immunity grounds for the post-handcuff tasing and
back pressure, and dismissed qualified immunity as a defense altogether. We AFFIRM the
denial of qualified immunity at summary judgment and REVERSE the dismissal of qualified
immunity as a defense.


The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio,
sitting by designation.

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I.
A.
On the day he died, Matthew was thirty years old and living at his parents’ house. By all
accounts, he was going through a tough time. He had just stopped working at UPS and,
according to Stephen, he had been acting strangely. For example, in the weeks leading up to his
death, Matthew told Stephen that he had been hearing voices, that he was being watched by the
Secret Service, and that he would soon go to New York by helicopter to throw out the first pitch
at a Mets game.
Matthew’s problems came to a head on the night in question. Stephen and one of
Matthew’s brothers, Kevin, arrived home to find the picture window in their dining room broken.
Matthew stood outside and admitted to breaking it. After jumping back through the window, he
ran outside and yelled at his dad to get into the house. Stephen and Kevin got into their car and
left. Stephen called 911 as he drove away, telling the operator, “my son is freaking out, he’s lost
it, he has threatened me.” R. 72-1 at 187.
East Grand Rapids Police Department Sergeant Brian Davis and officer Gary Parker were
dispatched to deal with “a civil domestic” dispute where “the son was out of control.” R. 67-1 at
41. Davis met Stephen at a nearby gas station. Stephen explained that Matthew “was delusional,
hearing voices, had jumped through the window, [that he was concerned Matthew] was going to
hurt himself,” and that Matthew had threatened to kill him. R. 72-1 at 207.
While Stephen spoke with Davis, Parker made his way to Matthew’s house. After talking
to a neighbor who was in his car when Matthew ran up and pounded on the driver’s-side
window, Parker saw Matthew running around in the street. Matthew complied when Parker
ordered him to stop running. When asked what he was running from, Matthew answered, “from
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myself, man.” R. 67-2 at 73. Parker thought Matthew seemed on edge and told him to “chill
out.” Id. Matthew did not, instead punching Parker in the face and running off. Parker followed
and caught up, this time asking Matthew where he lived. Matthew pointed toward his house and
then sucker punched Parker. Parker pulled out his taser and, after another exchange where
Matthew did not follow directions, tased Matthew from five to ten feet away. Matthew stood
back up. Parker tased him again. Parker testified that Matthew reached up, grabbed the taser
wires with his bare hands, broke them off, and kept running. Parker gave chase. Davis, who had
arrived by this time, joined. Both tried unsuccessfully to tase Matthew as he ran home.
The chase ended in Matthew’s kitchen. Matthew ignored commands to get down, instead
crouching into a fighting position and then making his way to the sink. The officers noticed a
nearby set of knives and they repeated their commands. Matthew then turned around, walked
toward the kitchen trash can, and reached into it. Davis kicked the trash can over and things
escalated. Matthew ran at Parker and punched him in the chest; Parker tased Matthew at close
range (known as drive stunning, according to Parker).

At the same time, Davis wrestled

Matthew to the ground and the officers tried to get Matthew in handcuffs. Matthew was 5’4”,
128 pounds at the time; the record does not reflect Parker’s size; Davis is 5’10” and estimated
that he weighed 210 pounds at the time. Despite the size difference and despite outnumbering
Matthew, the officers testified that Matthew put up significant resistance. The officers cuffed
Matthew’s right hand but had to continue to fight to get his left hand behind his back. Parker
drive stunned Matthew again on his side. At this point, he and Davis were able to get Matthew’s
other hand in cuffs. With Matthew in handcuffs and on his stomach, the officers radioed for
backup.

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The district court assumed—and the parties do not dispute—that Parker tased Matthew
after Matthew had been handcuffed but before backup arrived. See R. 97 at 22; R. 67-2 at 123.
As the officers tell it, they had significant difficulty controlling Matthew even after they had him
handcuffed on his stomach. They testified that Matthew’s strength and continued resistance
prompted them to take halves, with Parker using his body to straddle Matthew’s ankles and
Davis up toward Matthew’s back. Davis testified that he used his hands and knees (at different
times)—but not the full weight of his body—to put pressure on Matthew’s shoulders. Despite
trying to control him, the officers testified that Matthew repeatedly tried to buck them and almost
succeeded in doing so; and that he tried to grab the officers with his hands even though he was in
cuffs. As they remember it, Matthew resisted their control on and off for roughly ten minutes
before backup arrived.
Matthew’s brothers Kevin and Jonathan tell a different version. They had made their
way back to the house by this time (after Matthew was in handcuffs and before backup arrived)
and saw some of Matthew’s encounter with the officers on the ground. Kevin testified that he
watched the encounter for about five minutes. He heard Matthew scream three times and the
officers tell Matthew to stop resisting once. As he saw it, one of the officers held Matthew’s
head down and officer Davis applied pressure to Matthew’s back with both knees and the full
weight of his body. He also testified that Matthew moved his legs “back and forth” off of the
ground and raised them up a matter of “[i]nches.” R 72-2 at 108. Jonathan’s testimony largely
mirrored Kevin’s. He said he saw Davis put both knees and arms into Matthew’s back, and that
he saw one of the officers tase Matthew in his back. When asked whether Matthew made
kicking motions, Jonathan said, “[h]is feet shuffled slowly, but not kicking at [sic] any means.”

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R. 72-3 at 82. When asked again whether Matthew struggled, Jonathan said his “feet shuffled”
and “slid across the ground” but that Matthew “couldn’t move.” Id. at 84.
Several officers who showed up to relieve Davis and Parker restrained Matthew in a
similar manner (one high, one low). They testified that Matthew continued to struggle. One of
the officers asked Matthew twice if he was okay. Matthew grumbled the first time and did not
respond the second. EMS personnel on the scene rolled Matthew over. His eyes were half open
and glassy, and the color had drained from his face. The EMS personnel tried to resuscitate him,
but Matthew was pronounced dead at the scene soon thereafter. The autopsy report cites
exhaustive mania—also known as excited delirium syndrome—as the official cause of death.
B.
Matthew’s family brought suit against East Grand Rapids, Davis, and Parker. Relevant to
this appeal, they alleged excessive force against Davis and Parker in violation of the Fourth (and
Fourteenth) Amendment. They also brought a failure-to-train claim against East Grand Rapids
and its director of public safety under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The
district court granted partial summary judgment to the defendants on the failure-to-train claims.
Viewing the record in Matthew’s favor, the district court held that genuine issues of material fact
as to the officers’ post-handcuff tasing and back pressure required denial of qualified immunity
at summary judgment. The court then dismissed qualified immunity as a defense. The officers
bring an interlocutory appeal of the denial and dismissal of qualified immunity.
II.
According to the officers, it is uncontested that Matthew resisted them (mightily) after
being placed in handcuffs on his stomach. Even if he were not resisting, they argue, all that

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matters is that a reasonable officer in their position would have interpreted Matthew’s actions as
resistance, thus justifying their force.
A.
“[U]nder either [qualified-immunity] prong, courts may not resolve genuine disputes of
fact in favor of the party”—here, the officers—“seeking summary judgment.” Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014). Instead, if “there is disagreement about the facts, . . . we must
review the evidence in the light most favorable to the Plaintiff[], taking all inferences in [his]
favor.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004); see also Tolan,
134 S. Ct. at 1865 (the first qualified-immunity question “asks whether the facts, [t]aken in the
light most favorable to the party asserting the injury, . . . show the officer’s conduct violated a
[federal] right” (alterations in original) (emphasis added) (internal quotation marks omitted)).
In turning to this case and reading the record in Matthew’s favor, Matthew did not resist
the officers after he was handcuffed. The district court assumed as much, see R. 97 at 28, and
our own view of the record—in Matthew’s favor—leads us to the same conclusion. Kevin and
Jonathan watched as the officers subdued Matthew.

Kevin testified that the officers held

Matthew’s head down and that Matthew could only move his legs off of the ground a matter of
inches. See R. 72-2 at 107–08. Jonathan testified that he did not see Matthew try to buck the
officers off, see R. 72-3 at 82; that Matthew’s feet “shuffled slowly,” but that he was “not
kicking [by] any means,” id.; and, when asked whether Matthew struggled against the officers,
that Matthew’s “feet shuffled” and “slid across the ground,” but that Matthew still “couldn’t
move,” id. at 84.

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B.
The officers contend that a reasonable officer would have interpreted Matthew’s actions
as active resistance. 1 We have jurisdiction when a defendant appeals the “denial of a claim of
qualified immunity,” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), but the scope of our
jurisdiction is narrow. We may only review the denial of qualified immunity based purely on
issues of law, Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006), meaning the
officers must accept “the plaintiff’s facts, taken at their best,” Williams v. Mehra, 186 F.3d 685,
689 (6th Cir. 1999); see Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (“[Where] the
defendant disputes the plaintiff’s . . . story, the defendant must nonetheless be willing to concede
the most favorable view of the facts to the plaintiff for purposes of the appeal.”). In other words,
we do not have jurisdiction insofar as the officers solely contest “whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 320 (1995).
But if, “aside from the impermissible arguments regarding disputes of fact, the defendant also
raises the purely legal question of whether” he is due qualified immunity under “the facts
alleged” in the plaintiff’s favor, “then . . . this court has jurisdiction.” Estate of Carter v. City of
Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (citation omitted) (internal quotation marks omitted).
III.
The officers in this case appeal the denial of qualified immunity as to two discrete police
actions against Matthew on the night of his death: Parker’s alleged use of a taser while Matthew
lay handcuffed on his stomach, and Davis’s alleged pressure against Matthew’s back under the
same circumstances. We review the denial of qualified immunity de novo, McCullum v. Tepe,
693 F.3d 696, 699 (6th Cir. 2012), and ask two questions in doing so: first, whether the officers
1

The camera on officer Parker’s taser recorded video of the encounter in the kitchen. Much of the video
came from the vantage point of the taser placed on the floor next to Matthew’s body. The video does not resolve the
parties’ factual dispute (as to whether and what extent Matthew struggled).

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violated the plaintiff’s constitutional right, and second, whether that constitutional right was
clearly established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232
(2009). If, viewing the facts in the plaintiff’s favor, the answer to both questions is yes, qualified
immunity does not shield the officers from trial. See McCullum, 693 F.3d at 699. We address
the questions in sequence.
A.
The Fourth Amendment protects citizens from unreasonable seizures. The parties do not
dispute that Matthew had been seized within the meaning of the Fourth Amendment at the time
of the actions in question; they do dispute whether the post-handcuff tasing and back pressure
amounted to excessive—and thus unreasonable—force under the circumstances. According to
the reasonableness inquiry, we ask “whether the totality of the circumstances justifie[d]” the
officers’ actions, Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013), and we
view the facts and circumstances “from the perspective of a reasonable officer on the scene” in
doing so, Graham v. Connor, 490 U.S. 386, 396 (1989).
Graham v. Connor provides guidance for the reasonableness inquiry in excessive-force
cases. We must undertake “a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.” 490 U.S. at 396 (internal quotation marks omitted). Although the reasonableness test is
“not capable of precise definition or mechanical application,” several factors assist in the
balancing: “the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id.; see also Champion, 380 F.3d at 904 (noting that it “must be

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considered” in the reasonableness analysis “[w]here it is or should be apparent to the officers that
the individual involved is emotionally disturbed”).
The first Graham factor requires a closer look at the timeline in this case. To be sure, the
crimes Matthew allegedly committed—assaulting a police officer and threatening to kill his
father—justified force in apprehending him. The officers used force commensurate with those
crimes in trying to handcuff him: they deployed their tasers several times and Parker held
Matthew’s legs so he could not run away or fight back. The district court accordingly granted
the officers qualified immunity for those actions. But those actions are not before us. We must
assume Matthew was in handcuffs on his stomach and that he could barely move. Because we
must assume that Matthew had been apprehended and did not actively resist the officers at the
time of the actions at issue, this factor tilts in Matthew’s favor.
Viewing the facts in Matthew’s favor brings clarity to the second and third factors
(whether Matthew posed a threat and whether Matthew attempted to resist arrest). In this view, a
reasonable jury could find the following facts by the time Parker drive stunned Matthew and
Davis put his knees into Matthew’s back: Matthew could hardly move, had stopped resisting, and
was outnumbered, all with one of the officers (Davis, who was six inches taller and 80 pounds
heavier) applying significant pressure to his upper back. The second and third Graham factors
thus also favor Matthew.
Working through these factors brings us to the ultimate question of whether the totality of
the circumstances justified the seizure. Based on the Graham factors, “[t]he bottom line is that a
[reasonable] jury could find that the officers’ conduct was unreasonable.” Martin, 712 F.3d at
960. Yes, Matthew assaulted Parker and attempted to evade arrest. But, taking the facts in his
favor, Matthew could barely move, had stopped resisting, was under control, and thus posed little
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risk to himself or anyone else by the time he was in handcuffs—at which point Parker tased him
and Davis (who knew Matthew suffered from a diminished mental state) put the weight of his
body into Matthew’s upper back. For these reasons, a reasonable jury could conclude that the
officers’ post-handcuff actions were not calibrated to the threat Matthew posed, and thus were
objectively unreasonable uses of force.
“The facts and circumstances of other recent excessive force cases” may “guide our
[reasonableness] inquiry.” Roberts v. Manigold, 240 F. App’x 675, 677 (6th Cir. 2007). Those
cases support our conclusion. See Martin, 712 F.3d at 960 (“The quantum of force the officers
used was constitutionally excessive, violating the Fourth Amendment right of an unarmed,
minimally threatening, and mentally unstable individual to be free from gratuitous violence
during an arrest.”); Bultema v. Benzie Cnty., 146 F. App’x 28, 35 (6th Cir. 2005) (“[T]he
gratuitous use of force on a suspect who has already been subdued and placed in handcuffs is
unconstitutional.”); Champion, 380 F.3d at 901 (excessive for police officers to “lay on top of”
an arrestee “who had stopped resisting arrest and posed no flight risk, and [then] spray[] him
with pepper spray even after he was immobilized by handcuffs and a hobbling device”).
The officers contend that the district court undertook an improper analysis by analyzing
each factor as a discrete part of the reasonableness inquiry. While the officers properly point out
that “totality of the circumstances” is the correct test in this case, they fail to explain how the
district court did not adhere to this test. The district court did analyze each Graham factor as a
discrete point, but it did so before addressing—and as part of the analysis that helped answer—
the ultimate totality-of-the circumstances question. We have also undertaken a similar form of
analysis in other cases, see, e.g., Martin, 912 F.3d at 758–60, and the officers do not cite any
cases to show that this form of analysis amounts to error. Further, we review the issue de novo
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and are not bound to follow the district court’s analysis. Our de novo review of the excessiveforce claim results in the same conclusion the district court reached.
B.
Qualified immunity protects officers “from the sometimes hazy border between excessive
and acceptable force.” Saucier v. Katz, 533 U.S. 194, 206 (2001) (internal quotation marks
omitted). The second part of the qualified-immunity inquiry accordingly thus asks whether, at
the time of the challenged conduct, “[t]he contours of the right” allegedly violated were
“sufficiently clear that a reasonable official would understand that what he is doing violates that
right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

This depends on whether the

unlawfulness of the officers’ conduct was apparent “in the light of pre-existing law.” Id.; see
Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002) (Pre-existing law refers “first to
decisions of the Supreme Court, then to decisions of this court and other courts within our
circuit, and finally to decisions of other circuits.”).
Before answering this question, we must define the rights at issue “at the appropriate
level of generality—a reasonably particularized one.” Hagans v. Franklin Cnty. Sheriff’s Office,
695 F.3d 505, 509 (6th Cir. 2012); see id. at 508–09 (“If it defeats the qualified-immunity
analysis to define the right too broadly (as the right to be free of excessive force), it defeats the
purpose of § 1983 to define the right too narrowly (as the right to be free of needless assaults by
left-handed police officers during Tuesday siestas).”). We thus ask: whether it was clearly
established in November 2009 that it was excessive for an officer to apply the weight of his body
to the back of a handcuffed suspect who did not resist, all while the suspect lay on his stomach
with another officer controlling his legs; and whether it was excessive for an officer to tase the
arrestee in drive-stun mode under the same circumstances.
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The answer to both questions is yes. As to Davis’s conduct, we have several times held
that the application of pressure to a handcuffed suspect on his stomach violates clearly
established law. For example, in Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th
Cir. 2004), we confronted the same question when officers “lay on top of” an arrestee “who had
stopped resisting arrest and posed no flight risk, and sprayed him with pepper spray even after he
was immobilized by handcuffs and a hobbling device.” As we held then, in 2004, “it [is] clearly
established that putting substantial or significant pressure on a suspect’s back while that suspect
is in a face-down prone position after being subdued and/or incapacitated constitutes excessive
force.” Id. at 903; Martin, 712 F.3d at 961 (“The prohibition against placing weight on [an
arrestee’s] body after he was handcuffed was clearly established in the Sixth Circuit as of August
2007.”). In short, a reasonable officer in Davis’s position would have known based on clearly
established law that it was excessive to apply pressure to Matthew’s back with both knees and
the weight of his body while Matthew was handcuffed on his stomach and could barely move.
Champion also applies to Parker’s use of the taser in drive-stun mode. To be sure,
Champion addressed the use of pepper spray (not a taser) on a hobbled and handcuffed suspect.
But the Champion court did note that, as of 2004, we had “consistently held that various types of
force applied after the subduing of a suspect are unreasonable and a violation of a clearly
established right.” Champion, 380 F.3d at 902. Here, if it was “clearly established that the
Officers’ use of pepper spray against [an arrestee] after he was handcuffed and hobbled was
excessive,” id. at 903, it was clearly established that Parker’s tasing of Matthew under
substantially similar conditions was also excessive. Several other pre-2009 cases reinforce this
conclusion.

See, e.g., Landis v. Baker, 297 F. App’x 453, 464 (6th Cir. 2008) (clearly

established that tasing “a suspect . . . surrounded by officers, in a prone position” and not even
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fully handcuffed was unconstitutional); Roberts, 240 F. App’x at 677 (where one officer pinned a
suspect

down

and

the

other

tased

him,

“[t]he

gratuitous

use

of

force

on

a

suspect . . . already . . . subdued and placed in handcuffs [was] unconstitutional”).
The officers counter that not every reasonable officer in their position would have
understood that Matthew did not struggle or resist. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011) (violation of clearly established law when the right is “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right” (emphasis
added) (internal quotation marks omitted)). Again, this argument asks us to view the facts in a
light most favorable to the officers, which we cannot do. A view of the record in Matthew’s
favor (which shows that he was barely able to move and did not resist) controls our analysis, not
one that considers whether every reasonable officer would have acted differently under a
situation drawn more in their favor. For this reason, the facts of the cases the officers cite are
easily distinguishable from those here. See Hagans, 695 F.3d at 507 (use of force before the
suspect was handcuffed and while he actively resisted arrest); Humphrey v. Mabry, 482 F.3d
840, 850–51 (6th Cir. 2007) (officers acted reasonably when they used force after relying on
officer-to-officer information that turned out to be wrong); Goodrich v. Everett, 193 F. App’x
551, 556 (6th Cir. 2006) (use of force occurred before the plaintiff was under the officers’
control).
IV.
This leaves the question of whether the officers’ qualified-immunity defense should have
been dismissed. For the sake of context, the officers moved for summary judgment based on
qualified immunity, and Mr. Bolick moved for summary judgment requesting dismissal of
qualified immunity as a defense. As we have explained, and as our holding now confirms, the
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district court held that genuine issues of material fact required denial of the officers’ motion
regarding their use of post-handcuff force. Despite finding genuine issues of material fact, the
district court granted Mr. Bolick’s request to dismiss qualified immunity as a defense. We
review the matter de novo, see McCullum, 693 F.3d at 699, and we reverse.
Qualified immunity acts both as a shield from trial, see Mitchell, 472 U.S. at 525, and as
a defense to liability on the merits, see Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.
1986) (“Mitchell makes it clear that the immunity doctrines’ protections against liability and
against the various burdens of litigating insubstantial claims are conceptually distinct.”).
Accordingly, our cases confirm that an official denied qualified immunity at summary judgment
because of an issue of fact can re-raise the defense at trial. Id. (“[D]ecisions with respect to
dismissal or summary judgment, [even] if adverse, do not preclude the interposition of the
defense of immunity as a defense to liability on the merits.”); see Champion, 380 F.3d at 898–99
(police-officer defendants asserted the defense at trial after being denied qualified immunity at
summary judgment); see also Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011) (“[O]nce trial has been
had, however, the availability of official immunity should be determined by the trial record, not
the . . . summary judgment record.” (alteration in original) (internal quotation marks omitted)).
In this case, even though the district court declined to grant summary judgment to the
officers based on qualified immunity, it improperly dismissed qualified immunity as a defense.
Reinforcing our conclusion is the fact that the officers complied with the only requirement
necessary for them to invoke the defense at trial: raising qualified immunity as an affirmative
defense from the outset. See Kennedy, 797 F.2d at 300 (“Since immunity must be affirmatively
pleaded . . . . we conceive it possible that one might assert immunity as an affirmative defense to
the complaint and thus as an affirmative defense to ultimate liability without putting in issue his
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or her right to be free of subjection to trial . . . .”). We thus reverse the district court’s decision to
dismiss qualified immunity as a defense to the police actions that remain at issue.
V.
For the reasons stated, we affirm in part and reverse in part.

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