Robert Zucker v. City of Farmington Hills, et al

Filing

OPINION filed : AFFIRMED the judgment of the district court, decision not for publication. Danny J. Boggs, Circuit Judge (AUTHORING); Bernice Bouie Donald, Circuit Judge and Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0144n.06
Case No. 15-1202
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT ZUCKER,
Plaintiff-Appellant,
v.
CITY OF FARMINGTON HILLS, et al.,
Defendants-Appellees.

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FILED
Mar 14, 2016
DEBORAH S. HUNT, Clerk

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

BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.*
BOGGS, Circuit Judge. In 2009, officers of the Farmington Hills Police Department
(“FHPD”) approached Robert Zucker at his residence in an attempt to convince Zucker to
accompany them to a nearby hospital for mental-health treatment. A physical confrontation
ensued and officers forcibly detained Zucker, shocking him with a taser in the process. Zucker
subsequently brought an action under 42 U.S.C. § 1983 in Michigan state court against the City
of Farmington Hills and five members of the FHPD, alleging that FHPD officers had violated his
constitutional rights by seizing and searching his person without probable cause and by using
excessive force in doing so. The defendants removed the case to federal court and filed a motion

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky,
sitting by designation.

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for summary judgment, which the district court granted. For the reasons set forth below, we
affirm the judgment of the district court.
I. Factual Background & Procedural History
A
On August 4, 2009, Zucker reported a home invasion to the FHPD. Officer Robert
Tiderington responded to the call. Although he did not find signs of a forced entry into Zucker’s
apartment, Tiderington observed that the apartment was in “disarray.”

Tiderington’s

conversation with Zucker led Tiderington to believe that Zucker might suffer from a mental
illness. After leaving Zucker’s apartment, Tiderington went to the complex’s management office
to speak with the apartment-complex staff, whom Tiderington asked to locate Zucker’s family
“to see if they could check on [Zucker].” An employee of the apartment complex contacted
Zucker’s brother, who in turn contacted Zucker’s daughter. Ms. Zucker then telephoned her
father, who she knew suffered from bipolar disorder. Ms. Zucker grew increasingly concerned
after she spoke with Zucker, who told her “about microorganisms self-cleaning and composting
in . . . the bathroom,” and decided to travel to Michigan to check on his health.
Just over a week later, occupants of apartments near Zucker’s began to complain about a
water leak and an unpleasant odor that was emanating from Zucker’s apartment.

Upon

investigating, David Cole, an employee of the apartment complex, found that Zucker’s apartment
was “in total disarray and filthy beyond what I’ve seen in a lot of units.” The sinks held food
and garbage, there was little room to walk, and the toilet contained boxes, plastics, and other
materials.
After maintenance staff fixed the leak and left, Ms. Zucker—who had arrived from out of
state to check on her father—entered the apartment. Zucker’s daughter observed that a toilet in

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the apartment was inoperable and “jammed with trash” and that the apartment was in disarray.
Zucker, who alleges that maintenance staff pushed him against a wall, was upset about Cole’s
entry into his apartment, told his daughter that he had a “right to defend his family and his
property,” and showed her a handgun that he had acquired. As Zucker later recounted, “I’d had a
long history with the apartment complex of them doing things prejudicial to my well-being” and
“told her that in case anything happened that there’s a gun for our protection.”
Upon seeing the weapon, Zucker’s daughter promptly left the apartment and warned
Cole, who was returning to help clean the apartment, not to go inside because Zucker had a gun.
Cole and Ms. Zucker walked to the apartment clubhouse and called the FHPD dispatcher. Cole
recounted to the dispatcher that Ms. Zucker had gone to her father’s apartment to inform him that
maintenance would have to enter the apartment again, after which she reemerged from the
apartment and “told [Cole that Zucker’s] gun is out.” Cole also told the dispatcher that Zucker
“[is] totally unstable.”
Cole then handed the phone to Ms. Zucker, who identified herself and told the dispatcher
that “I can’t have [Zucker] know that I was on the phone with you guys . . . [b]ecause my life is
on the line.” She informed the dispatcher that Zucker was “in a manic state” with “delusional
symptomology.” Ms. Zucker went on to say that “something triggered something [in Zucker]
about six weeks ago. Now, years ago he used to say he had [a] gun. I’ve never seen in my life a
gun . . . up until this moment so I’m kinda scared right now.” When the dispatcher asked
whether Ms. Zucker could safely retrieve the gun from her father’s apartment, she replied that
she was “afraid to go back in the apartment” and that she “went running out the door.” Although
Ms. Zucker stated that her father had not threatened her with the gun, she cautioned that “he
decides I’m the enemy, and I’m sending people to—he already threatened me before I came

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to . . . Michigan.” Ms. Zucker asked what the police planned to do and stated that “I don’t want
anyone else getting injured. I don’t want the cops getting injured.” After Ms. Zucker opined that
she could not “in good conscience put anyone else in harm,” the dispatcher assured her that law
enforcement would come to speak with her first before taking any action.
FHPD Officers Tiderington and Allen and FHPD Sergeant Michaluk arrived at the
clubhouse and spoke with Ms. Zucker and Cole. After the conversation, Michaluk reported over
the radio that Ms. Zucker was “just absolutely terrified of [her father].” The officers had learned
from Ms. Zucker and Cole that Zucker was “living in filth” and that Ms. Zucker saw her father
“carrying a gun within his apartment,” though he had not threatened her with it. Michaluk stated
that he was “confident [that] we have enough to do a commitment on our own,” noting that
Zucker could not care for himself, was “using a toilet as the trash bin that is so overflowin[g] it
will not flush, . . . the whole apartment’s in filth[, and] [h]e’s got water standing in the kitchen
floor, which is leaking into other apartments.” Michaluk later radioed to another officer that
Zucker “clearly has a gun” and that Ms. Zucker was “scared to death of [her father], but will not
articulate why.” After a fourth FHPD officer, Officer Tomasovich-Morton, arrived on the scene,
the agents decided that Officer Tiderington, whom officers thought Zucker would remember
from the August 4 encounter, would call Zucker on the phone in an attempt to persuade him to
leave the apartment.
The precise details of what happened next are disputed by the parties. According to the
defendants, Officer Tiderington told Zucker that Tiderington would come to Zucker’s apartment
and subsequently approached the second-floor apartment with Officer Allen. Tiderington met
Zucker in the hallway in front of the apartment, explained that Zucker’s daughter was concerned
for Zucker, and asked Zucker to come with the officers to the hospital. Zucker then said

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something, began to move his hands toward his jacket pockets, and turned to reenter the
apartment. Fearful that Zucker was trying to reach for the gun, Tiderington grabbed Zucker’s
arm to prevent him from leaving, and both men fell to the floor. While Zucker and Tiderington
struggled on the floor, Officer Allen saw Zucker reach into his jacket for what looked to be a
shoulder holster. Allen warned Zucker that if he did not remove his hand from the jacket, Allen
would shock him with a taser. When Zucker did not comply, Allen shocked him once.
Zucker’s own deposition testimony offers a different story. According to Zucker, Officer
Tiderington called and arranged to meet him in fifteen minutes outside of the apartment. Zucker
stepped out of his apartment to find that Tiderington was “bounding up the stairs.” Without
saying anything, Tiderington approached Zucker, locked arms with him, pulled him to the
ground, and handcuffed him. Zucker was left “handcuffed lying with [his] back on the ground,”
hands behind his back, “[c]ompletely passive and in shock.” Tiderington then left Zucker bound
and supine on the ground and entered the apartment, after which Officer Tomasovich-Morton
arrived on the scene, wiped Zucker’s mouth, stood up, and did a “knee drop on [his] chest.”
Subsequently, another officer, presumably Officer Allen, shocked Zucker continuously with a
taser for approximately two minutes.
It is undisputed that after officers subdued Zucker, they searched his person and
transported him to the hospital, where he was declared mentally unsound and in need of medical
attention based in part on a petition for hospitalization signed by Officer Tiderington.
B
In 2011, Zucker brought an action against the City of Farmington Hills and its Chief of
Police, Charles Nebus, among other defendants, in Michigan state court.

The defendants

removed the case to federal court after Zucker added federal claims. As amended, his complaint

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asserted four state-law claims and four federal claims against the City of Farmington Hills,
Officers Allen, Tomasovich-Morton, and Tiderington, Sergeant Michaluk, and Chief Nebus.
Zucker brought his federal claims under 42 U.S.C. § 1983, alleging four counts: First, in
what is labeled as “Count IV,” Zucker alleged that the individual defendants deprived him of
“liberty or property without due process of law” and “[t]he right to be free from excessive force,
and to be secure in his person” in violation of the Fourth and Fourteenth Amendments. Second,
Zucker alleged that the City of Farmington Hills has adopted a pattern or practice of allowing
unconstitutional actions and failed to supervise or train the individual officers responsible for
Zucker’s constitutional injuries. Third, Zucker alleged that Chief Nebus and Sergeant Michaluk
“acquiesc[ed] in unconstitutional conduct.” Fourth, Zucker alleged that all individual defendants
engaged in a conspiracy to deprive Zucker of his civil rights.
After the parties took discovery, the defendants moved for summary judgment on all of
Zucker’s claims, arguing in relevant part that Zucker could not prove that the officers had
violated the Fourth Amendment because the seizure was supported by probable cause and
because no excessive force was used. The individual defendants invoked qualified immunity and
argued that Officer Tiderington’s August 4, 2009, interaction with Zucker, Ms. Zucker’s alarmed
conversation with the FHPD dispatcher on August 13, 2009, and officers’ conversations with
Ms. Zucker and the apartment-complex staff all led officers to reasonably believe in a
“probability or substantial chance” that Zucker was “dangerous to himself or others,” thereby
rendering the search and seizure of Zucker’s person constitutional. In support of their excessiveforce defense, the defendants pointed to the officers’ testimony to establish that Zucker, whom
they believed could be armed, was resisting, which justified the force that the officers used. The
defendants argued that any of Zucker’s testimony to the contrary was inadmissible because he

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was mentally incompetent at the time and therefore lacked the “competent personal knowledge”
required by Federal Rule of Evidence 602.
In response, Zucker wrote a “counter-statement of facts” in which he maintained that the
August 4, 2009, interaction, the incident at the police station, and Ms. Zucker’s conversation
with the police dispatcher did not create probable cause to believe that Zucker was dangerous to
himself or others. However, aside from asserting that no amount of force was necessary because
there was no cause to believe that he was dangerous, Zucker never pointed to relevant parts of
his own deposition testimony, which expressly contradicted the officers’ account of the
altercation in front of Zucker’s apartment. Zucker stated only that when viewed in the light most
favorable to him, the testimony of Officers Tiderington and Allen showed that “a reasonable
officer in the position of these officers would have known that” the force they used to subdue
him “violated [his] right to be free from excessive force.”
Zucker did, however, observe that the Michigan Mental Health Code authorizes an
officer to “take [an] individual into protective custody and transport the individual to a
preadmission screening unit” if the officer “observes [the] individual conducting himself or
herself in a manner that causes the peace officer to reasonably believe that the individual is a
person requiring treatment.”1 Mich. Comp. Laws § 330.1427(1). By contrast, the FHPD has a
policy that an officer may take someone into protective custody if “the officer or another
reliable person” observes that the individual is a “person who requires treatment.”

1

The statute defines a “person requiring treatment” as including any person with a mental illness
who, because of that illness, can “reasonably be expected within the near future to . . . seriously
physically injure himself, herself, or another,” or whose inability to “attend to . . . his or her basic
physical needs” or “understand his or her need for treatment” is reasonably expected to cause
harm to the individual. Mich. Comp. Laws § 330.1401(1)(a)–(c).
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Though Zucker did not clarify the relevance of the discrepancy between FHPD policy
and the Mental Health Code, the defendants responded in a reply brief that the officers’ alleged
violation of the Michigan statute was irrelevant to the question of whether the seizure of Zucker
was constitutional, since a violation of state law is not basis for a claim under 42 U.S.C. § 1983.
An oral hearing before the district court failed to dispel the conflict about the relevance of the
Mental Health Code. The parties did, however, clarify that Zucker was voluntarily waiving a
number of his claims, including all state-law claims, a “due-process claim,” and all claims
against Chief Nebus.
After the hearing, the district court granted the defendants’ motion for summary
judgment. In a written ruling, the court agreed with the defendants that probable cause justified
the officers’ seizure of Zucker. The court observed that “[t]o the extent plaintiff disputes
whether probable cause existed, it is not based on a disagreement over the facts.

It is a

disagreement over motives and perception.” Viewed objectively, the facts could support but one
conclusion, namely, that a reasonable officer would believe that the “plaintiff was a potentially
violent threat to others, and that he was a potential threat to his own health and well-being due to
the unhygienic state of his apartment.” Turning to the excessive-force claim, the district court
concluded that the force used by the officers was reasonable in light of the undisputed fact that
“plaintiff was in relatively full control of his physical capabilities, and was actively resisting
efforts to subdue him.” Having found no underlying constitutional violation, the court dismissed
Zucker’s claim that Sergeant Michaluk was liable on a supervisory theory and also held that
Zucker failed to show that Farmington Hills had an unconstitutional policy.
Zucker then moved the court for various forms of relief pursuant to Federal Rules of
Civil Procedure 59(e) and 60(b)(6) and Eastern District of Michigan Local Rule 7.1(h) on the

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ground that the district court erred when it concluded that the officers had probable cause to
search and seize Zucker. Zucker disputed some of the court’s statements of fact related to his
daughter’s conversation with the police dispatcher and the state of Zucker’s apartment, and, in
reference to the Mental Health Code, argued that “nothing personally observed by any officer”
established probable cause to believe that Zucker was a danger to himself or others. In passing,
Zucker also stated that he had testified that officers had “employed force against Zucker while
passive and in handcuffs.” The district court denied Zucker’s motion, suggesting that while the
personal-observation requirement of the Mental Health Code may be relevant to a Fourteenth
Amendment due-process claim, it was irrelevant to a civil-rights action alleging a violation of the
Fourth Amendment.
C
Zucker appeals the district court’s denial of his post-judgment motion.

On appeal,

Zucker asserts that the district court committed four errors. First, Zucker argues that with all
inferences taken in his favor, the facts show that the officers lacked probable cause to believe
that he was a danger to himself or others. Appellant Br. 21–27. Second, Zucker argues that the
district court failed to consider his own testimony when it dismissed his excessive-force claim.
Id. at 27–29. Third, Zucker asserts that because FHPD policy does not conform to Section 427
of the Michigan Mental Health Code, Farmington Hills has a policy of violating constitutional
rights. Id. at 30–34. Lastly, Zucker argues that the district court misunderstood his counsel
when counsel informed the district court that Zucker was no longer maintaining a count for a
violation of due process. Id. at 34–36. We address each argument in turn.

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II. Standard of Review
A
We begin by clarifying what is properly before this court on appeal. Zucker’s notice of
appeal formally appeals only the district court’s order denying Zucker’s post-judgment motion,
in which Zucker asked the court to vacate and reconsider its December 2014 order granting the
defendants’ motion for summary judgment. However, because “[a]n appeal from a timely-filed
Rule 59 motion also brings before the appellate court the underlying judgment,” Hood v. Hood,
59 F.3d 40, 43 n.1 (6th Cir. 1995) (per curiam), we review the district court’s decision to grant
the defendants’ motion for summary judgment as well.

We proceed by summarizing the

standard that governs our review of the two district-court orders on appeal before turning to the
merits of Zucker’s arguments.
B
A district court may grant a motion for summary judgment if “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). This court reviews a district court’s decision to grant or
deny summary judgment de novo. Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 619 (6th Cir.
2006). In an appeal from a decision granting summary judgment to a party, we consider the
evidence and “all inferences drawn therefrom” in favor of the non-moving party. Little Caesar
Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000). However, the mere existence
of an alleged factual dispute “will not defeat an otherwise properly supported motion for
summary judgment” so long as there is no “genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986).

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Our review of Zucker’s post-judgment motion is more nuanced. A district court may
grant relief under Rule 59(e) for any of four reasons: “(1) because of an intervening change in
the controlling law; (2) because evidence not previously available has become available; (3) to
correct a clear error of law; or (4) to prevent manifest injustice.” Hayes v. Norfolk S. Corp.,
25 F. App’x 308, 315 (6th Cir. 2001). Though Rule 59(e) relief is rare, relief under Rule 60(b) is
even more extraordinary. Rule 60(b)(6), which Zucker invoked in the district court, permits
courts to relieve a party from final judgment only in “unusual and extreme situations where
principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.
1990). Lastly, in order to establish grounds for reconsideration under Local Rule 7.1(h), a
movant must “demonstrate a palpable defect by which the court and the parties . . . have been
misled” and also “show that correcting the defect will result in a different disposition of the
case.” E.D. Mich. Local R. 7.1(h)(3); In re Greektown Holdings, LLC, 728 F.3d 567, 574 (6th
Cir. 2013).
Where, as here, the order underlying the district court’s decision involved a grant of
summary judgment, we ordinarily review de novo the court’s denial of relief under Rule 59(e)
and Local Rule 7.1(h). Indah v. SEC, 661 F.3d 914, 924 (6th Cir. 2011); Med. Mut. of Ohio v. k.
Amalia Enters. Inc., 548 F.3d 383, 389–90 (6th Cir. 2008). However, “[a] district court’s refusal
to consider evidence for the first time on [these motions] will be reversed only if the refusal
constitutes an abuse of discretion.” Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003). We
review the denial of a Rule 60(b) motion for abuse of discretion. Jinks v. AlliedSignal, Inc., 250
F.3d 381, 385 (6th Cir. 2001).

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C
The individual officer defendants have invoked qualified immunity, which modifies what
Zucker must show in order to defeat their motion for summary judgment. In order to provide
officers “breathing room to make reasonable but mistaken judgments,” Stanton v. Sims, 134 S.
Ct. 3, 5 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)), officers
enjoy protection from actions seeking civil damages such as this one so long as their conduct did
not violate “clearly established statutory or constitutional rights of which a reasonable person
would have known,” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). For an official to have known that his actions would
violate “clearly established” law, “existing precedent must have placed the statutory or
constitutional question beyond debate.” al-Kidd, 131 S. Ct. at 2083. The “clearly established”
standard involves two questions: First, whether the relevant officer violated the plaintiff’s
statutory or constitutional rights. Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 508
(2012). Second, whether the right in question was clearly established at the time of the alleged
violation. Ibid. When analyzing whether an officer has violated clearly established law, courts
have discretion in deciding which of the two questions to address first “in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. When a defendant
invokes qualified immunity, the plaintiff must prove that the defendant is not entitled to qualified
immunity. Davenport v. Causey, 521 F.3d 544, 550 (6th Cir. 2008). Nevertheless, we must
construe all facts in the light most favorable to the plaintiff and must make all reasonable
inferences in his favor. Ibid.

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III. Probable Cause
It is well established that absent suspected criminal activity, a law-enforcement agent
may not seize a person simply in order to assess his mental fitness. McKenna v. Edgell, 617 F.3d
432, 440 (6th Cir. 2010); Fisher v. Harden, 398 F.3d 837, 842 (6th Cir. 2005). As we explained
in Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997), the Fourth Amendment protects
individuals from state-sanctioned detention for a psychiatric evaluation absent “probable cause to
believe that the person is dangerous to himself or others.” Id. at 1102. In this context, a showing
of probable cause “requires only a ‘probability or substantial chance’ of dangerous behavior, not
an actual showing of such behavior.” Ibid. (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13
(1983)). When examining whether officers had probable cause to believe that an individual
posed a danger, we have cautioned that “probable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts,” ibid. (quoting Gates, 462 U.S. at 232),
requiring courts to evaluate the facts known to officers from the perspective of a “reasonable and
objective person” in those officers’ position, Fisher, 398 F.3d at 843. Zucker makes two
arguments that officers seized him without probable cause in violation of the Fourth
Amendment. As we explain, neither is availing.
A
Zucker first argues that his daughter’s conversations with the dispatcher and officers
could not support a reasonable belief that he posed a danger to himself or others. Appellant Br.
21–27. Emphasizing that Ms. Zucker “told police [that Zucker] doesn’t threaten her,” id. at 6,
Zucker argues that it was plain to officers that his daughter was frightened and alarmed simply
because she had never before seen a gun, not because Zucker posed a danger to anyone, see id. at
25–26. Because Zucker’s account of his daughter’s report to officers draws selectively from the

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evidence before the district court and is clearly inconsistent with what that record shows
transpired, we disagree.
We have confronted probable cause in the context of mental-health seizures in a number
of cases, three of which are particularly instructive here. In Fisher v. Harden, 398 F.3d 837 (6th
Cir. 2005), police received a call from a passerby who reported that a man in the distance
appeared to have tied himself to railroad tracks in an attempt to take his own life. Id. at 839–40.
The police approached the man, who turned out to be Fisher, and observed him sitting in a
folding chair with a rifle, where he had positioned himself in order to shoot groundhogs. Id. at
840. We rejected the officers’ argument that they had probable cause to detain Fisher, reasoning
that because Fisher was not tied to the railroad tracks, appeared to be hunting, and approached
the police in an entirely ordinary manner, the police had no evidence that Fisher was a danger
other than discredited information from an obviously unreliable informant. Id. at 843–44.
By contrast, in Monday, Monday dialed a mental-health hotline and reached a
psychologist, whom he informed that he had ingested a particular prescription medication, was
drinking alcohol, and “could have cared less” that doing so while taking the medication was
potentially fatal. Monday, 118 F.3d at 1101. The psychologist informed the police that Monday
may have overdosed on the medication in an attempt to commit suicide. Ibid. The police arrived
at Monday’s residence, found that at least twenty of his pills were missing from a recently issued
prescription bottle, and observed that he was intoxicated. Ibid. Although Monday denied having
overdosed, we concluded that the officers’ observations, in the context of the psychologist’s
report, created probable cause to believe that Monday’s life was in danger. Id. at 1102–03; see
also Ziegler v. Aukerman, 512 F.3d 777, 783–84 (6th Cir. 2008).

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Simon v. Cook, 261 F. App’x 873 (6th Cir. 2008), helps to clarify the line we have drawn
between Fisher and Monday. Simon called the Lexington Police Department to report that
government officials had been harassing him. Id. at 874. The police responded, and the situation
escalated after officers expressed doubts about Simon’s “bizarre and improbable” story that
various government officers and agencies were conspiring to attack and kill him. Id. at 880. An
officer detained Simon after Simon nearly struck him in the face and stated: “[H]ow would you
like it if I followed you around?” Ibid. We emphasized that probable cause “requires only a
‘probability or substantial chance,’” id. at 881 (quoting Monday, 118 F.3d at 1102), and found
that the officers reasonably concluded that Simon posed a danger since he nearly made physical
contact with an officer and “intimated that he intended to follow police officers,” id. at 880.
Here, the information that the officers had indicated a greater and far more immediate
danger than did the information that the police had in Simon. First, whatever Ms. Zucker’s
subjective motivations or fears may have been, no reasonable person could infer that she was
saying anything other than that Zucker posed a danger to himself and others around him. Ms.
Zucker emphatically told the dispatcher not to tell Zucker that she had called “because my life is
on the line.” She also told the dispatcher that Zucker was “in a manic state” and was suffering
from “delusional symptomology.” Ibid. Ms. Zucker expressed that she was “afraid to go back in
the apartment” and explained that she “went running out the door” because she was “scared.”
She also intimated that Zucker would be capable of violence if confronted, stating: “I don’t want
anyone else getting injured. I don’t want the cops getting injured.” Although Zucker claims that
his daughter was scared simply because she had “never seen in [her] life a gun . . . up until this
moment,” a reasonable person who heard her statement in context could not but conclude that

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she was scared not merely because Zucker had a gun, but rather because he produced a gun after
“something triggered something,” sending him into a “delusional” and “manic” state.
Moreover, Ms. Zucker’s conversation with the dispatcher was not the only evidence
available to police. Cole, who stated that he had been inside Zucker’s unit earlier in the day, told
the dispatcher that Zucker was “totally unstable” and that Ms. Zucker had told Cole that Zucker’s
“gun is out.”

It is uncontested that once officers arrived, Zucker’s daughter told Officer

Tiderington that “she was concerned about her father’s mental state,” that Zucker’s “apartment
was in disarray,” and that “she observed him walking around with a gun.” Officer Tiderington
could confirm Ms. Zucker’s and Cole’s reliability based on his own experience with Zucker:
Nearly two weeks prior to the incident, Officer Tiderington had spoken with Zucker and had
come away with the impression that Zucker suffered from a mental illness. Although Zucker
argued to the district court that the “disarray” that Tiderington observed was due to an invader,
not Zucker, Zucker offered nothing to contest Tiderington’s testimony that Zucker’s own
demeanor on August 4 caused Tiderington to believe that Zucker might be ill.
Tiderington’s visit to Zucker’s apartment reasonably raised the officers’ suspicions about
whether Zucker was mentally sound. When coupled with the alarmed reports from Ms. Zucker
and Cole that Zucker was in a manic, delusional state and had produced a firearm, we agree with
the district court that a reasonable officer would have found a “probability” that Zucker would
engage in dangerous behavior. Monday, 118 F.3d at 1102 (quoting Gates, 462 U.S. at 243 n.13).
B
On appeal, Zucker also argues that officers lacked probable cause to seize him because
they violated state law. In an apparent reference to the Mental Health Code, Zucker suggests that
the district court erred by making a “finding of probable cause based not on any officer

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observation, as required by statute.” Appellant Br. 23. In his view, officers could not have taken
Ms. Zucker’s or Cole’s observations into consideration when making their probable-cause
determination, since the Mental Health Code states that an officer can take a person into
protective custody if the officer himself “observes [the] individual conducting himself or herself
in a manner that causes the peace officer to reasonably believe that the individual is a person
requiring treatment,” Mich. Comp. Laws § 330.1427(1). See Appellant Br. 23. Zucker intimates
that without the observations of third parties, the officers would have had no reason to believe
that he was dangerous. See id. at 24, 26.
Zucker’s argument fails because we have repeatedly held that a plaintiff cannot allege a
violation of state law in an action under 42 U.S.C. § 1983. See, e.g., Pyles v. Raisor, 60 F.3d
1211, 1215 (6th Cir. 1995) (“While the states are, of course, free to enact laws that are more
protective of individual rights than the United States Constitution, a mere violation of such a
state law will not establish a proper claim under § 1983.” (quoting Conley v. Williams, No. 935524, 1994 WL 326001, at *2 (6th Cir. July 5, 1994))); see also United States v. Beals, 698 F.3d
248, 263 (6th Cir. 2012) (“While the states are free to impose rules for searches and seizures that
are more restrictive than the Fourth Amendment, those rules will not be enforced in a federal
criminal proceeding.”). Nothing in the Fourth Amendment prohibits an officer from relying on a
third party’s observation when ascertaining whether probable cause to conduct a seizure exists,
so long as it would be reasonable to conclude that the third party is reliable. See, e.g., Boykin v.
Van Buren Township, 479 F.3d 444, 450 (6th Cir. 2007); see also, e.g., Ziegler, 512 F.3d at 783–
84.
Zucker counters that in Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir. 2013), the Seventh
Circuit stated that “[p]robable cause exists ‘only if there are reasonable grounds for believing

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that the person seized is subject to seizure under the governing legal standard.’” Id. at 732
(quoting Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992)). The Fitzgerald court went on
to explain that “[i]n Illinois, the governing legal standard is 405 [Ill. Comp. Stat.] 5/3-606,” a
provision of the Illinois Mental Health and Developmental Disabilities Code. Ibid. While
Fitzgerald may at first blush seem to give support for Zucker’s argument, the phrase “governing
legal standard” simply refers to the danger that the seizure seeks to avoid, not the manner in
which state officials obtain the information that establishes probable cause to believe that the
danger will occur. This is evidenced in the Seventh Circuit’s steadfast rejection of the very
argument that Zucker makes here. See, e.g., Chatas v. Smith, 884 F.2d 980, 987 (7th Cir. 1989);
McKinney v. George, 726 F.2d 1183, 1188–89 (7th Cir. 1984). Most recently, in Bruce v.
Guernsey, 777 F.3d 872 (7th Cir. 2015), the court rejected a civil-rights plaintiff’s argument that
officers’ violation of a personal-observation requirement in the mental-health-seizure provision
of the Illinois Mental Health and Developmental Disabilities Code constituted a violation of the
Fourth Amendment. Id. at 876. The panel explained that “the constitutionality of a mentalhealth seizure does not depend on whether the officer met each requirement spelled out by state
law.” Ibid. On the contrary, “a violation of the Illinois Mental Health and Developmental
Disabilities Code does not constitute a per se violation of the Fourth Amendment. Our task
instead is to see whether [officers] had probable cause to believe that [the plaintiff] needed
immediate hospitalization because she was a danger to herself or others.” Ibid. Our task is no
different, and nothing in Fitzgerald changes our analysis.
IV. Excessive Force
In addition to the district court’s conclusion that the officers had probable cause to search
and seize Zucker, Zucker takes issue with the district court’s holding that the officers did not use

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excessive force against him. See Appellant Br. 28–29. Before resolving Zucker’s argument, we
must first ascertain what evidence the district court was required to consider before it granted the
defendants’ motion for summary judgment as to Zucker’s excessive-force claims.
A
In his appellate brief, Zucker points to his own deposition testimony and sets forth facts
that do raise a material issue of fact as to whether the officers used excessive force:
When Plaintiff exited his apartment, he closed the door behind him, and saw
Tiderington bounding up the stairs. The officer then, without word or warning,
“comes alongside me, locks arms with me and pulls me to the ground and handcuffs
me.” Then Tiderington searched Plaintiff and asked if he had a gun, to which
Plaintiff responded affirmatively. Tiderington then took Plaintiff’s keys and without
permission or warrant, made entry into Plaintiff’s apartment, leaving Plaintiff on the
ground. According to Plaintiff, while he remained handcuffed behind his back,
laying on the ground face up, officer Tomasovich-Morton came up the stairs and
executed a knee-drop on his chest. Plaintiff was in terrific pain and fearing
impending death, began to recite the Shma Yisroel creed when Officer Allen
appeared and began tasing Plaintiff repeatedly.
Id. at 8–9 (citations omitted). If Officer Tiderington had detained Zucker and if Zucker had
stopped resisting and did not pose a threat to himself or anyone else, Officer TomasovichMorton’s “knee-drop” maneuver and Officer Allen’s act of shocking Zucker repeatedly with a
taser would raise serious questions about the constitutionality of the force officers used. Indeed,
we have held that striking or shocking a non-resisting detainee violates the Fourth Amendment.
See, e.g., Thomas v. Plummer, 489 F. App’x 116, 125–27 (6th Cir. 2012); Landis v. Baker,
297 F. App’x 453, 462–63 (6th Cir. 2008).
The problem is that Zucker never brought his testimony to the attention of the district
court in his opposition to the defendants’ motion for summary judgment. In his response below,
Zucker did not attach the portions of his own testimony that explained his account of how
officers physically detained him on August 13, 2009. Nor did he cite to, summarize, or describe
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that testimony in his memorandum in opposition. Instead of citing his own deposition testimony
that he was “on the floor . . . like a beached whale” when attacked by Officers TomasovichMorton and Allen, Zucker chose to argue that Officer Tiderington’s and Officer Allen’s own
testimony showed that the defendants used excessive force.
The defendants stated that Zucker’s “testimony does not create a genuine issue of fact”
on the issue of excessive force because he was “judged to be mentally incompetent at the time of
this incident” and “does not, therefore, have competent personal knowledge of [the events], as
required by [Federal Rule of Evidence] 602.” Zucker could have set forth his own version of the
facts or responded that his testimony would be admissible at trial; his decision not to do either
gave the district court discretion to decline to consider Zucker’s testimony. See Fed. R. Civ. P.
56(e)(2). Because “there is no duty imposed upon the trial court to ‘search the entire record to
establish that it is bereft of a genuine issue of material fact,’” Guarino v. Brookfield Twp. Trs.,
980 F.2d 399, 404 (6th Cir. 1992) (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480
(6th Cir. 1989)), the district court’s failure to consider Zucker’s testimony was not error. And
because our review of the district court’s grant of summary judgment to the defendants is limited
to the evidence that the parties brought to the district court’s attention, see Meridian Leasing,
Inc. v. Associated Aviation Underwriters, Inc., 409 F.3d 342, 346 (6th Cir. 2005); Bush v. Rauch,
38 F.3d 842, 846 (6th Cir. 1994), we may not consider Zucker’s testimony as it relates to the
excessive-force claim.
We recognize that in his post-judgment motion, Zucker cited to his deposition testimony
to support his contentions that “Zucker denies having had any conversation with Officer
Tiderington at his front door prior to being taken to the ground and handcuffed. Zucker was
handcuffed immediately. Tomosovich-Morton [sic] appeared before Allen and employed force

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against Zucker while [Zucker was] passive and in handcuffs.” However, Zucker’s effort to
create a dispute of fact was too little, too late. For one, Zucker’s post-judgment motion focuses
on the district court’s probable-cause determination, not the court’s conclusion that officers did
not use excessive force against him. For another, it is “well established” that Rule 59(e) relief is
not warranted “when [a motion] is premised on evidence that the party had in his control prior to
the original entry of judgment.” Emmons v. McLaughlin, 874 F.2d 351, 358 (6th Cir. 1989).
The same goes for motions made pursuant to Rule 60(b)(6) and Local Rule 7.1(h).

See

Newburgh/Six Mile Ltd. P’ship II v. Adlabs Films USA, Inc., 483 F. App’x 85, 94–95 (6th Cir.
2012); Mich. Dep’t of Soc. Servs. v. Sullivan, No. 91-1995, 1992 WL 88972, at *4–5 (6th Cir.
1992) (per curiam). Because Zucker did not clearly raise the issue of excessive force in his postjudgment motion, and had access to his own testimony before filing his opposition to the
defendants’ motion for summary judgment, the district court did not err by declining to consider
that testimony. Accordingly, we must examine the district court’s excessive-force rulings in
light of the evidence that the parties adverted to in their summary-judgment briefing.
B
Having clarified what evidence the district court was required to consider, we turn to the
issue of whether that evidence created a material dispute regarding officers’ alleged use of
excessive force against Zucker. In the district court, Zucker alleged that officers used excessive
force against him in two ways. First, Zucker argued that Officer Tiderington used excessive
force when he forcibly detained Zucker, which he did by grabbing Zucker’s arm and bringing
Zucker to the floor. Second, Zucker argued that Officer Allen used excessive force when he
shocked Zucker with a taser.

Because Zucker’s opposition to the defendants’ motion for

summary judgment never mentioned—and the district court never considered—Officer

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Tomasovich-Morton’s knee-drop maneuver, we may not now consider it on appeal.

See

Meridian Leasing, 409 F.3d at 346; Bush, 38 F.3d at 846.
i
Officers may use reasonable force in order to effectuate a seizure. Graham v. Connor,
490 U.S. 386, 396 (1989). The reasonableness of a particular seizure must be evaluated by
balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment
interests” against “the countervailing governmental interests at stake.” Ibid. (quoting Tennessee
v. Garner, 471 U.S. 1, 8 (1985)). A number of factors may be relevant, including “whether the
[individual] 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.” Ibid. The Supreme Court has
cautioned that courts must take care to avoid ignoring context when conducting the analysis:
“‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers,’ violates the Fourth Amendment.” Ibid. (citation omitted) (quoting Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973)). Rather, the governmental interests at stake must be
evaluated through the lens of “an officer on the scene making split-second judgments and
without the advantage of 20/20 hindsight.” Goodrich v. Everett, 193 F. App’x 551, 555 (6th Cir.
2006).
In this case, Officer Tiderington met Zucker in front of his apartment, explained that
Zucker’s daughter was concerned, and asked Zucker to come with the officers to the hospital.
Zucker then moved his hands toward his jacket pockets and turned to enter his apartment. With
information from Ms. Zucker and Cole that Zucker was armed, manic, and unstable, Tiderington
interpreted Zucker’s behavior as an attempt to reach for his gun and grabbed Zucker’s arm to
prevent him from leaving, causing both men to fall to the floor.

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Tiderington’s decision to grab Zucker and—assuming that the fall was intentional—bring
him to the floor did not violate the Fourth Amendment. Although a “totally gratuitous blow with
a policeman’s nightstick may cross the constitutional line,” McDowell v. Rogers, 863 F.2d 1302,
1307 (6th Cir. 1988), our precedents make clear that an officer may grab or tackle an individual
whom the officer reasonably suspects may be “capable of violence.” Goodrich, 193 F. App’x at
557; see also, e.g., Wysong v. City of Heath, 260 F. App’x 848, 854–55 (6th Cir. 2008). We
have already explained that officers reasonably believed that Zucker posed a danger to himself or
others.

In particular, Officer Tiderington had reason to believe that Zucker was mentally

unstable—as Ms. Zucker put it, he was in a “manic” and “delusional” state—and that he had a
gun that his daughter intimated he would use against officers. In this context, the danger to
officers if Zucker obtained his gun, either from his jacket or from inside his apartment, was
great, and Officer Tiderington’s decision to grab Zucker to avoid the possibility that he would
retrieve the weapon was reasonable. While tackling an individual who is compliant and not
actively resisting could well constitute excessive force, see, e.g., Smoak v. Hall, 460 F.3d 768,
784 (6th Cir. 2006), no precedent directs the same result where, as here, the detainee is not
compliant and is reasonably suspected of violent behavior.
ii
Similarly, we cannot conclude that Officer Allen’s use of a taser to shock Zucker violated
clearly established law. Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505 (6th Cir.
2012), informs our analysis. In Hagans, an unarmed but enraged man who had smoked crack
cocaine charged toward an officer before attempting to enter a police cruiser. Id. at 507; Hagans
v. Franklin Cty. Sheriff’s Office, No. 2:08-CV-850, 2011 WL 2173696, at *8 (S.D. Ohio June 2,
2011). Two officers wrestled Hagans to the ground but could not manage to cuff his hands,

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since he “lay down on the pavement and locked his arms tightly under his body, kicking his feet
and continuing to scream.” Hagans, 695 F.3d at 507. Seeing that Hagans was continuing to
actively resist, a third officer shocked Hagans four to six times until officers finally subdued him.
Ibid. These facts presented the question of whether “it was clearly established in May 2007 that
using a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed
amounted to excessive force.” Id. at 509.
In answering this question, we observed a line in the case law that separated suspects who
actively resisted arrest from those who did not: We had previously held that the use of a taser to
subdue an individual who actively resisted arrest did not constitute excessive force. See Caie v.
West Bloomfield Township, 485 F. App’x 92, 94 (6th Cir. 2012); Williams v. Sandel, 433 F.
App’x 353, 354, 362–63 (6th Cir. 2011). By contrast, officers who had used a taser against an
individual who was either compliant or who had stopped resisting did violate the Fourth
Amendment. See Kijowski v. City of Niles, 372 F. App’x 595, 600–01 (6th Cir. 2010); Landis v.
Baker, 297 F. App’x 453, 464 (6th Cir. 2008); cf. Champion v. Outlook Nashville, Inc., 380 F.3d
893, 901 (6th Cir. 2004) (holding that officers used excessive force by using pepper spray
against a suspect who was immobilized and had stopped resisting).

On the basis of this

distinction, we concluded that the officer in Hagans did not violate clearly established law as of
2007. Hagans, 695 F.3d at 511.
The analysis that governed the outcome in Hagans also governed in 2009, when officers
shocked Zucker in an effort to subdue him. See Caie, 485 F. App’x at 96. Indeed, this court
continues to draw a distinction between the use of force against a resisting suspect, which is
generally permissible, and the use of force against a suspect who is compliant or has stopped
resisting, which is not. See, e.g., Gradisher v. City of Akron, 794 F.3d 574, 585–86 (6th Cir.

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2015); Thomas, 489 F. App’x at 126–27. Accordingly, Officer Allen did not violate clearly
established law so long as Zucker was actively resisting when Allen shocked Zucker with the
taser. Such was the case here.
As explained above, Zucker failed to timely inform the district court that he disputed the
defendants’ assertion that he was struggling against Tiderington after the two fell to the ground.
The testimony of Officers Tiderington and Allen makes clear that Allen shocked Zucker while
Zucker continued to resist detention. Because Zucker’s summary-judgment briefing did not state
facts that contradicted the defendants’ account of events or support such facts by pointing to
specific material in the record, and failed to show that the statements of Officers Tiderington and
Allen could reasonably be read to show a constitutional violation, see Fed. R. Civ. P. 56(c), we
find no error in the district court’s conclusion that Officer Allen did not violate clearly
established law when he deployed his taser against Zucker. And because Zucker agrees that his
supervisory-liability claims against Sergeant Michaluk must fail if the individual officers are not
liable, see Appellant Br. 30, we find no error in the district court’s grant of summary judgment to
Sergeant Michaluk either.
V. Municipal Liability
Invoking Monell v. Department of Social Services, 436 U.S. 658 (1978), Zucker also
contends that the district court erred when it determined that he could not maintain his claim
against the City of Farmington Hills.

Appellant Br. 30.

Zucker argues that the City of

Farmington Hills has an official “policy” that violates the “rights to be free from unreasonable
seizure, force and search,” id. at 31, and that this policy caused him to be seized in violation of
the Fourth and Fourteenth Amendments, id. at 30–31. He also intimates that this policy amounts
to a failure to train officers. Id. at 31.

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To succeed on a claim that a municipality has a policy or practice of constitutional
violations, a plaintiff must identify an unconstitutional policy and must show that the policy led
to a constitutional deprivation. Baynes v. Cleland, 799 F.3d 600, 621 (6th Cir. 2015); Garner v.
Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993); see also City of Canton v. Harris, 489
U.S. 378, 389 (1989) (“[A] municipality can be liable under § 1983 only where its policies are
the ‘moving force [behind] the constitutional violation.’” (second alteration in original) (quoting
Monell, 436 U.S. at 694)). Although municipalities do not enjoy qualified immunity, Meals v.
City of Memphis, 493 F.3d 720, 727 (6th Cir. 2007), there is no liability under Monell without an
underlying constitutional violation, Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014).
The “moving force behind” Zucker’s claim is that “the City [of Farmington Hills] had,
and continues to have, a policy that misquotes the [Michigan] Mental Health Code,” which led to
the deprivation of his rights under the Fourth and Fourteenth Amendments. Appellant Br. 31.
As explained above, however, nothing in the Fourth Amendment prohibits an officer from
relying on a third party’s observations when ascertaining whether probable cause to conduct a
seizure exists, so long as reliance on that third party is reasonable. See, e.g., Boykin, 479 F.3d at
450. Although states may restrict state and local officers’ conduct in a way that goes beyond
what the Fourth Amendment requires, their decision to do so does not expand the Fourth
Amendment in a way that would transform a violation of state law into a violation of the Fourth
Amendment. See, e.g., Beals, 698 F.3d at 263. Because Zucker has failed to show how the
discrepancy between the Farmington Hills policy and the Mental Health Code in any way
changes how the Fourth Amendment should apply, and does not assert that the FHPD policy
represents a deprivation of a state-created liberty interest, the district court did not err when it
granted the defendants’ motion for summary judgment as to Zucker’s Monell claim.

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VI. Due-Process Claim
In his appellate brief and a subsequent motion, Zucker argues that this court should
remand the case so that the district court may consider a due-process claim that he purportedly
raised in his post-judgment motion. See Appellant Mot. to Remand 14; Appellant Br. 34–36.
Zucker notes that in Count IV of his complaint, he argued that the individual defendants were
liable under 42 U.S.C. § 1983 because they violated his “right not to be deprived of liberty or
property without due process of law, as secured by the 4th and 14th Amendments to the
Constitution of United States of America.” In response to the defendants’ motion for summary
judgment, however, Zucker made no mention of due process.
Without any indication that Zucker intended to bring a due-process claim that was
distinct from his claim that the defendants violated his Fourth Amendment rights, the court asked
Zucker’s counsel about a due-process claim in an oral hearing: “[Y]ou alleged a violation of due
process and Defendants argued that that must also be dismissed for various legal reasons. Are
you still maintaining a count for violation of due process, and if so, which one is it and where is
it? And take your time.” Zucker’s counsel responded in the negative:
COUNSEL: Your Honor, respectfully the 42 U.S. [sic] 1983 claims contained
within them, the excessive force, which would be the 4th and 14th unlawful seizure
and unlawful search, so I think that would also knock out the assault and battery, the
state claims, and it would be duplicative.
THE COURT: Yes.
COUNSEL: And the due process, I think, so as not to complicate things for the jury
may also be disposed in that manner.
Later in the oral hearing, the court returned to the issue to clarify what Zucker was alleging in
Count IV of his complaint. Zucker’s attorney did not mention a violation of due process. Based
on the colloquy at the oral hearing, as well as Zucker’s failure to explain a distinct due-process

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claim in his opposition to the defendants’ motion for summary judgment, the district court
determined that Zucker had waived any such claim.
Zucker now argues that because his counsel misunderstood what the court meant when it
asked if Zucker was dismissing “a count for violation of due process,” counsel could not have
waived the argument. In particular, Zucker argues that his attorney mistakenly believed that the
district court was referring to a due-process claim that Zucker brought in a separate state-court
action against the hospital where Zucker was committed.
The contours of the “due-process claim” that Zucker seeks to make remain hazy. As
Zucker’s counsel explained in an affidavit submitted to this court, the claim hinges on the
discrepancy between FHPD policy and the Mental Health Code. See Appellant Mot. to Remand,
Ex. 1 at 7. In Wise v. Wilburn, No. 07-CV-15479, 2009 WL 2222606 (E.D. Mich. July 20,
2009), which Zucker suggests forms the basis for his due-process claim, the court stated that
officers may, consistent with the Fourth Amendment, “lawfully seize a person within his home
without a warrant and detain him for psychiatric evaluation on finding probable cause to believe
that the individual poses a ‘probability or substantial chance’ of dangerous behavior to himself or
others.” Id. at *1 (quoting Monday, 118 F.3d at 1102). The court went on to explain that
“[u]nder the Fourteenth Amendment Due Process Clause, police officers may lawfully seize a
person without a warrant for purposes of mental health evaluation based on reasonable grounds
to believe that the person is subject to seizure under the governing legal standard.” Ibid. (citing
Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993)). Drawing on the Wise court’s statement of the
law, Zucker argues that the analysis of mental-health seizures under the Fourth Amendment is
substantively different from the analysis of mental-health seizures under the Fourteenth
Amendment, and posits that he can succeed under the latter.

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Though we harbor doubts about the merits of this argument, see generally Pino v. Higgs,
75 F.3d 1461, 1469 (10th Cir. 1996) (explaining contours of the Fourth and Fourteenth
Amendments in cases involving mental-health seizures), we need not consider it now because
Zucker forfeited his due-process claim by failing to explain or support it in the district court
before the court entered judgment in favor of the defendants.
Even if we ignore Zucker’s counsel’s statement that Zucker was voluntarily dismissing a
due-process claim, we cannot ignore the “well-settled” rule that parties ordinarily forfeit for
appellate review any claims that they failed to properly raise in the district court. Armstrong v.
City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006); Scottsdale Ins. Co. v. Flowers, 513 F.3d
546, 552–53 (6th Cir. 2008). Consistent with this general rule, we do not ordinarily consider an
argument on appeal where a plaintiff, after being given the opportunity to do so, “fails to present
[his] argumen[t] to the district court in opposition to a defendant’s motion for summary
judgment.” Davis v. Lucent Techs., Inc., 251 F.3d 227, 232 (1st Cir. 2001); accord Lahar v.
Oakland County, 304 F. App’x 354, 356 (6th Cir. 2008). Because Zucker could have, but did
not, articulate a distinct due-process claim before the district court’s entry of judgment, the
district court did not err when it granted summary judgment in favor of the defendants. See
Schwab v. Huntington Nat’l Bank, 516 F. App’x 545, 552 (6th Cir. 2013).
Nor did the district court err when it denied Zucker’s post-judgment motion without
considering his due-process claim. It is also “well-settled” law in this circuit that “parties cannot
use a motion for reconsideration to raise new legal arguments that could have been raised before
a judgment was issued.” Bank of Ann Arbor v. Everest Nat’l Ins. Co., 563 F. App’x 473, 476
(6th Cir. 2014) (quoting Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 395
(6th Cir. 2007)). And “[n]ew arguments based on hindsight regarding how a movant would have

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preferred to have argued its case do not provide grounds for Rule 60(b) relief.” Westport Ins.
Corp. v. Goldberger & Dubin, P.C., 255 F. App’x 593, 595 (6th Cir. 2007). Since Zucker did
not properly raise the due-process claim before the entry of judgment against him, we find no
error in the district court’s disposition of his post-judgment motion. See, e.g., Bank of Ann
Arbor, 563 F. App’x at 476; Marietta Franklin Sec. Co. v. Muldoon, No. 93-3432, 1994 WL
399550, at *4 (6th Cir. Aug. 1, 1994) (per curiam).
Zucker seeks to avoid the consequences of forfeiture by contending that the defendants’
motion for summary judgment was in fact a motion for partial summary judgment because it did
not explicitly mention a due-process claim. See Appellant Mot. to Remand 8. On Zucker’s
view, he thus had no obligation to raise the due-process claim in his response in opposition to the
motion.

Ibid.

But Zucker ignores the fact that the defendants’ motion stated without

qualification that Zucker’s federal claims lacked merit. And since the Supreme Court has held
that if “a particular Amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for analyzing th[e] claims,” County of
Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273
(1994) (plurality opinion)); see also Ziegler, 512 F.3d at 786–87, the defendants reasonably
understood that Count IV of Zucker’s complaint would be governed by the Fourth Amendment
analysis that they set forth in their motion for summary judgment. Cf. Doe ex rel. Thomas v.
Tsai, 648 F.3d 584, 587 (8th Cir. 2011) (“We reject the Appellants’ contention that the Appellees
failed to move for summary judgment on all of the Appellants’ claims. . . . Although we agree
with the Appellants that Sergeant Pickhardt did not argue that summary judgment was
appropriate on the children’s Fourth Amendment search claims, this absence is logical because it

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is unclear from the Appellants’ complaint whether they assert a Fourth Amendment search claim
against Sergeant Pickhardt . . . .”). Because nothing in Zucker’s complaint or briefing indicated
that Zucker meant anything else—and because nothing in the defendants’ motion suggested that
the defendants sought anything other than summary judgment on all of Zucker’s claims—Zucker
was not relieved of his obligation to articulate the due-process claim in his response in
opposition.
This leaves the question of whether this court may consider the due-process claim for the
first time on appeal. Although we have held that “absent a legitimate excuse,” an argument that
is not properly raised in the district court is ordinarily forfeited for appellate review, United
States v. Huntington Nat’l Bank, 574 F.3d 329, 331 (6th Cir. 2009), this rule is “one of prudence
. . . and [is] not jurisdictional,” Coffee Beanery, Ltd. v. WW, L.L.C., 300 F. App’x 415, 419 (6th
Cir. 2008) (alterations in original) (quoting Official Comm. of Unsecured Creditors of Color Tile,
Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir. 2003)). Nonetheless, we have only
“rarely exercised” discretion to consider new claims on appeal and decline to do so here, where
the parties have not extensively briefed the merits of the claim. Scottsdale Ins. Co., 513 F.3d at
552.
VII
Maintaining an untidy apartment is not by itself grounds for probable cause to search and
seize a person. Nor does the mere fact that an individual is a gun owner justify the use of force
against him. In Zucker’s case, however, officers had far more cause for concern than these two
facts. Because the evidence submitted to the district court shows that the officers had reliable
evidence that Zucker had a weapon while in a delusional state, officers had probable cause to
temporarily detain, search, and seize Zucker. Similarly, because Zucker failed to allege facts that

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would create a genuine dispute about whether he was actively resisting the officers’ efforts to
subdue him, the district court did not err when it held that Zucker cannot overcome qualified
immunity and maintain his excessive-force claims.
For these reasons, we AFFIRM the judgment of the district court.

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