Scottie Pennington v. Bob Terry, et al

Filing

OPINION filed: For the foregoing reasons, we AFFIRM the decision of the district court granting summary judgment to Sergeant Harris and Officer Long. Decision not for publication. Richard F. Suhrheinrich, Circuit Judge (AUTHORING); Karen Nelson Moore, Circuit Judge (DISSENTING); and Thomas L. Ludington, U.S. District Judge for the Eastern District of Michigan, sitting by designation..

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0164n.06

FILED

No. 15-5314

Mar 23, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SCOTTIE DALE PENNINGTON,
Plaintiff-Appellant,
v.
BOB TERRY; DAVID DUKES; KEN SIRCY;
BRIAN LONG; JAMES HARRIS; CHRIS LYNN,
Defendants-Appellees.

BEFORE:

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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

SUHRHEINRICH and MOORE, Circuit Judges; LUDINGTON, District Judge.*

SUHRHEINRICH, Circuit Judge.
Plaintiff-Appellant Scottie Pennington (“Pennington”) appeals the district court’s
decision granting summary judgment to Defendant-Appellees Sergeant James Harris (“Sergeant
Harris”) and Officer Brian Long (“Officer Long”) (collectively “Defendants”) in his § 1983
action alleging excessive force. On March 2, 2012, Sergeant Harris made a routine traffic stop
of a vehicle in which Pennington was a passenger. During the traffic stop, the officers attempted
to prevent Pennington from swallowing drugs in an apparent effort to destroy evidence.
Although the incident was recorded by the dashboard camera mounted on Officer Long’s
vehicle, the parties dispute whether Sergeant Harris discharged his Taser against Pennington’s
torso in the course of the struggle. The district court ruled that even if Sergeant Harris did
*

The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of Michigan,
sitting by designation.

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deploy his Taser, using a Taser to prevent Pennington’s destruction of evidence and potential
drug overdose was objectively reasonable and did not violate the Constitution. We affirm, but
for different reasons.
I.

BACKGROUND

A. Facts
On the evening of March 2, 2012, Sergeant Harris pulled over Robert Caudill (“Caudill”)
for driving with a revoked license. Pennington was a passenger in Caudill’s truck. Officer Chris
Lynn (“Officer Lynn”)1 and Officer Long arrived soon after Sergeant Harris made the stop.
Officer Lynn stood by the driver’s side of the truck, while Officer Long stood next to the
passenger side, where Pennington was sitting.
Officer Long’s dashboard camera recorded most of the ensuing events. R.29. The parties
stipulated that this video accurately shows Pennington’s arrest. Although the audio from the
video recording is not always distinct, the visual image clearly depicts all of the material facts.
Moreover, the video is the only evidence on which Pennington relies to support his version of the
facts. Appellant Reply Br. 4-8. Therefore, unless otherwise specified, we relate the following
facts as gleaned from the video recording.
According to his affidavit, Officer Long noticed that Pennington appeared to be “trying to
hide something” and asked Pennington to step outside the truck. R.29, at 2:08. Pennington
voluntarily exited the vehicle.

Id. at 2:10-2:15.

Shortly after stepping outside the truck,

Pennington turned away from Officer Long, bent over, coughed, and transferred something from
his right hand to his mouth. Id. at 2:15-2:19. Observing Pennington’s behavior, Sergeant Harris
rushed over and grabbed Pennington’s right arm and neck, attempting to prevent Pennington
1

Officer Lynn was a defendant in the district court case, along with Police Chief Bob Terry, Police Major
David Dukes, and Police Sergeant Ken Sircy. These officers were not personally involved in arresting Pennington,
and Pennington does not challenge summary judgment to these defendants on appeal. Appellant Br. 8.

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from swallowing what Sergeant Harris believed to be pills.

Id. at 2:20-2:23. Pennington

admitted in his deposition that he was trying to swallow the pills because he did not have a
prescription for them. Officer Long held Pennington’s arms behind his back while Sergeant
Harris grasped Pennington’s neck. Id. at 2:27. The officers repeatedly ordered Pennington to
“spit it out.” Id. at 2:27-2:55.
After about thirty seconds of restraining Pennington in this manner, the officers placed
Pennington face-down on the ground. Id. at 2:56. Sergeant Harris again instructed Pennington
to “spit it out.” Id. at 2:59. While Sergeant Harris continued to hold Pennington’s neck, Officer
Long handcuffed Pennington. Id. at 2:57-3:46. Once Pennington was handcuffed, Sergeant
Harris rolled Pennington onto his back and asked Pennington if he had swallowed the pills.
Pennington stated he had not swallowed anything. Id. at 3:50-3:56. Sergeant Harris inspected
Pennington’s mouth with Officer Long’s flashlight. Id. at 4:03-4:07. Officer Long pointed to
Pennington’s mouth and said, “It’s right there on your teeth.” Id. at 4:07.
Sergeant Harris returned Officer Long’s flashlight. Id. at 4:09. He then removed an
object from his left holster and disassembled it into two pieces. Id. at 4:09-4:11. According to
the district court, Sergeant Harris held a flashlight in his left hand and what appeared to be a
Taser in his right hand. Although difficult to discern with certainty from the video, we assume
that Sergeant Harris did retrieve a Taser from his holster because Sergeant Harris concedes both
in his appellate brief and in his affidavit before the district court that he removed a Taser from
his holster during the arrest. Appellee Br. 11.
After retrieving these two items, Sergeant Harris turned Pennington from his back onto
his left side. R.29, at 4:12. Sergeant Harris then placed his feet on either side of Pennington’s
body and leaned slightly to the right, making his Taser-bearing right hand roughly parallel with

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Pennington’s stomach. Id. at 4:13. Sergeant Harris’s left hand, still grasping the flashlight,2
pressed Pennington’s right side. Id. Sergeant Harris again commanded Pennington to “spit it
out.” Id. The video shows that Sergeant Harris’s right hand, holding the Taser, came close to
the right side of Pennington’s stomach but never touched it. As the district court observed, “[t]he
video indicates Plaintiff did not convulse and remained lucid throughout the struggle.”
Pennington did not exhibit any signs of pain or physical agitation at the moment of the alleged
tasing. Nor did he make any verbal statement expressing pain or requesting the officers to stop
what they were doing. Pennington merely continued to insist he had no pills. Id. at 4:14-4:19.
During this span of time, Officer Long stood next to Pennington, leaning over him and shining
his flashlight near Pennington’s face. Id. at 4:10-18. Officer Long was not touching Pennington
or forcing him to the ground at this point.
Sergeant Harris then stood upright, reconnected the flashlight to the Taser, and holstered
it. Id. at 4:19-4:25. He stepped away from Pennington and instructed him to lie on his stomach.
Id. at 4:37. The video next shows Sergeant Harris bending over Pennington; picking up two or
three long, thin objects from Pennington’s lower back area; and discarding the objects onto the
ground nearby. Id. at 4:42-4:47. The district court ventured that these objects were “perhaps
taser prongs.”
Officer Long searched the passenger seat of Caudill’s truck and found two syringes. Id.
at 4:44-5:30. Sergeant Harris searched the ground around Pennington and Pennington’s pockets.
Id. at 5:14-6:53.

Sergeant Harris’s statement on the video indicates he found one pill in

2

Defendants’ brief suggests that Sergeant Harris actually held the Taser’s removable cartridge in his left
hand rather than a flashlight. Appellee Br. 11. But any debate over whether Sergeant Harris held a flashlight versus
a Taser cartridge in his left hand is not pertinent because neither item is capable of delivering an electric shock. The
critical question is whether Sergeant Harris’s right hand, holding the Taser, made contact with Pennington’s body.

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Pennington’s pocket. Id. at 6:53-7:03. The officers state in their affidavits that Sergeant Harris
found pills on the ground that Pennington either dropped or spit out.
During and after this search, the officers asked Pennington several times if he needed
medical attention because of the drugs he ingested. Id. at 6:45-8:47. Each time, Pennington
insisted that he was “fine.” Id. at 6:45-8:47.
The officers took Pennington to Putnam County Jail. On the inmate medical form,
Pennington indicated he had no “injuries that need treatment at this time.” The drugs Sergeant
Harris recovered at the scene were sent to the crime lab and identified as a Schedule III narcotic.
Pennington pled guilty to possession of a Schedule III narcotic.
B. Procedural History
Pennington filed this § 1983 action pro se against Sergeant Harris and Officer Long
alleging excessive force in the course of his arrest. The complaint made no mention of a Taser.
When asked in his deposition, “They didn’t even pull a taser on you, did they?,” Pennington
replied, “No. Because I wasn’t resisting. I give them no reason.”
Defendants filed a motion for summary judgment. They argued that the amount of force
used was objectively reasonable and, alternatively, the officers were entitled to qualified
immunity.
Several months after Defendants’ motion for summary judgment, Pennington filed a pro
se, stand-alone, unsworn submission claiming that Sergeant Harris shot him with a Taser from a
distance of five feet away as Pennington lay prostrate on the ground.

In the submission,

Pennington stated that he was unconscious at the time he was tased and did not remember it, but
the next day a friend who worked as a corrections officer identified the marks on his body as
injuries from a Taser application.

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By the time Pennington filed his opposition in response to Defendants’ motion for
summary judgment, he had obtained counsel. In his response, Pennington continued to modify
his story. His opposition to summary judgment argued that Sergeant Harris used excessive force
in tasing Pennington while he was lying on the ground and not resisting arrest. The opposition to
summary judgment did not rely on Pennington’s unsworn submission that he was tased while
unconscious but pointed solely to the video evidence already in the record.3

Defendants

responded in their reply that “no Cookeville Police Officer used a taser on Scottie Pennington,”
citing Pennington’s deposition testimony affirming no one used a Taser during the arrest, the
officers’ affidavits, and the video recording.
C. District Court Opinion
The district court reviewed the videotape recording Pennington’s arrest and concluded
that it did not support Pennington’s claim in his unsworn submission that while he was
unconscious “Sergeant Harris shot the taser at him from a distance of five feet as he lay
handcuffed on the ground.” The district court agreed, however, that Pennington’s claim of
“Sergeant Harris holstering the taser and removing the taser the [sic] prongs is consistent with
the Court’s review.”
Operating on the assumption that Sergeant Harris “touch[ed] the taser to Plaintiff’s torso
briefly” and that Sergeant Harris activated the Taser while it was in contact with Pennington’s

3

Had he attempted to do so, Pennington could not have relied on the statements in his unsworn submission
to oppose Defendants’ motion for summary judgment. Unsworn declarations cannot be relied upon for purposes of
opposing a motion for summary judgment. See Fed. R. Civ. P. 56(c); Zainalian v. Memphis Bd. of Educ., 3 F.
App’x 429, 431 (6th Cir. 2001). Even if Pennington had converted the statements in his unsworn submission into an
admissible form, such as an affidavit, a party may not create a fact issue by filing an affidavit that directly
contradicts the party’s earlier sworn testimony. See Aerel, S.R.L. v. PCC Airfoils, LLC, 448 F.3d 899, 908 (6th Cir.
2006); Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). Pennington’s allegation that he was tased
directly contradicts his earlier deposition testimony that he was not tased and thus would be inadmissible even if
submitted in the correct form.

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torso,4 the district court analyzed whether such conduct violated Pennington’s constitutional right
to be free from excessive force. The court concluded that even if a jury could find Sergeant
Harris tased Pennington, there was no constitutional violation because this action “was
reasonable in light of the governmental interests in preservation of evidence and prevention of a
potential drug overdose.” The court therefore granted summary judgment to Sergeant Harris and
Officer Long on the basis of qualified immunity.
II.

JURISDICTION

The district court had jurisdiction over this § 1983 suit pursuant to 28 U.S.C. § 1343.
We have jurisdiction over Pennington’s appeal under 28 U.S.C. § 1291 as an appeal from the
final decision of a United States district court.
III.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. Ctr. for Bio-Ethical
Reform, Inc. v. City of Springboro, 477 F.3d 807, 820 (6th Cir. 2007). We similarly review a
lower court’s decision granting qualified immunity de novo. Id.; see also Binay v. Bettendorf,
601 F.3d 640, 646 (6th Cir. 2010).
Summary judgment is proper where the record 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). A dispute is genuine only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of
material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving
party has met that burden, the non-moving party must point to evidence supporting its position
4

The district court never explicitly stated that Sergeant Harris activated the Taser, but the court’s recitation
of the facts as well as its analysis of tasings aimed at preventing drug overdoses and destruction of evidence
indicates that it found or assumed that a jury could conclude Sergeant Harris did activate the Taser.

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that is “significantly probative” and more than “merely colorable.” Liberty Lobby, 477 U.S. at
249. “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient” to defeat a motion for summary judgment. Id. at 252.
In reviewing an appeal from a grant of summary judgment, we view the facts and draw
reasonable inferences in the light most favorable to the non-moving party. Harrow Prods., Inc.
v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1019 (6th Cir. 1995). In the context of qualified
immunity, this posture generally requires the court to adopt the plaintiff’s version of the facts.
Scott v. Harris, 550 U.S. 372, 378 (2007). There is an exception, however, “[w]hen opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it.” Id. at 380. This exception most commonly applies where the
record contains a videotape depicting the disputed facts and contradicting one party’s version of
events. See id. at 379-80; Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir. 2015). In such a
scenario, the court must view the facts “in the light depicted by the videotape.” Scott, 550 U.S.
at 381. The court must draw reasonable inferences in favor of the nonmoving party from the
video recording, but only “to the extent supportable by the record.” Id. at 381 n.8 (emphasis
omitted); see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014) (“a court
need draw only reasonable inferences in favor of the nonmoving party; it need not construe the
record ‘in such a manner that is wholly unsupportable—in the view of any reasonable jury—by
the video recording’” (quoting Marvin v. City of Taylor, 509 F.3d 234, 239 (6th Cir. 2007))).
IV.

ANALYSIS

A. Is There a Genuine Issue of Material Fact that Sergeant Harris Shot Pennington
with a Taser?
Pennington’s claim of excessive force, both on appeal and at the district court level, rests
solely on his allegation that Sergeant Harris tased him while he was lying on the ground,
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handcuffed, and not resisting. Appellant Br. 12. As a result, if Pennington has introduced
insufficient evidence to allow a jury to conclude that he was tased, his claim fails regardless of
whether such a tasing would violate clearly established constitutional rights as a matter of law.
Pennington concedes that the only evidence he offers to support the tasing is the
videotape. Appellant Reply Br. 4-8. Indeed, nothing else in the record suggests a tasing
occurred. Pennington testified under oath in his own deposition that the officers never used a
Taser.5 Pennington’s medical intake form filled out at Putnam County Jail immediately
following the arrest indicates he had no injuries at the time. Neither Sergeant Harris nor Officer
Long mentioned a Taser in their initial affidavits, and, following Pennington’s opposition to the
motion for summary judgment, both submitted additional affidavits denying a Taser was used.
Given that Pennington acknowledges the video is the only evidence supporting his
excessive force claim, the existence of a genuine issue of material fact in this case initially turns
on whether the video would allow a reasonable jury to find that Sergeant Harris tased
Pennington. There are two methods of deploying a Taser: drive-stun mode and dart mode. In
drive-stun mode, the operator places the Taser’s “two electrode contacts . . . . directly against the
5

Pennington attempts to diminish the self-inflicted damage of his deposition answer by characterizing the
defense attorney’s question as: 1) a compound question, and 2) an ambiguous question. Appellant Reply Br. 6.
Neither strategy succeeds. First, Pennington did not respond to a compound question but rather to a statement
followed by a question: “Well, nobody pulled a gun on you. They didn’t even pull a taser on you, did they?”
Second, neither the question nor the answer is ambiguous, especially when read in the full context of Pennington’s
response. Pennington did not merely respond, “No,” when defense counsel asked, “They didn’t even pull a taser on
you, did they?,” but further explained, “No. Because I wasn’t resisting. I give them no reason,” making clear his
understanding that no Taser was used.
The dissent similarly dismisses the contradiction between Pennington’s deposition testimony, given while
proceeding pro se, and his later statements in the response to the motion for summary judgment as an “expected and
appropriate” “development of the facts” following Pennington’s securing of counsel. Dissenting Op. at 26 n.1. But
the difference between Pennington’s deposition testimony (that he was not tased) and his later claim (that he was
tased) is more than a development of facts—it is an outright reversal. See, e.g., Pl.’s Mem. in Opposition to Mot. for
Summ. J. at 2, (“Then, Harris shoots him in the back with the tazer even though Penning is being held by Long and
was not resisting. Harris is then seen taking the tazer prongs out of Pennington’s back and putting them into his
tazer.” [sic throughout]). While the addition of counsel can foreseeably result in the development of legal theories
and litigation strategies, it is neither expected nor appropriate for it to produce a complete transformation of the
client’s story.

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victim” to deliver an electric shock. Cockerell v. City of Cincinnati, 468 F. App’x 491, 492 (6th
Cir. 2012) (quoting Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc)). To apply a
Taser in dart mode, the operator discharges the Taser to propel a pair of probes that deliver an
electric charge into the target’s muscles. Id. In dart mode (but not in drive-stun mode), the
electric charge overrides the target’s central nervous system. Id. The district court apparently
accepted Pennington’s argument that the video created a genuine fact issue as to whether
Pennington was tased, describing the video as showing that “Sergeant Harris appeared to touch
the taser to Plaintiff’s torso briefly” and Sergeant Harris “appeared to unpluck two objects,
perhaps taser prongs, from Plaintiff’s body.”
After careful review of the footage, we conclude that the video does not support a
reasonable jury finding that Sergeant Harris tased Pennington in either drive-stun or dart mode.
The image is clear enough to discern what happened and, more importantly, what did not
happen. The video’s visual and audio quality need not be flawless for us to conclude that it fails
to support, and in fact “blatantly contradict[s],” Pennington’s story, “such that no reasonable jury
could believe it.” Scott, 550 U.S. at 380.
The video shows that as Sergeant Harris leaned over Pennington’s body, his Taser neared
the right side of Pennington’s torso but never touched it. The video also shows that no probes or
prongs ever shot out of the Taser. Pennington does not convulse or otherwise physically react at
the moment of the alleged tasing. At most, Pennington incoherently yells, but that action fits
seamlessly into Pennington’s ongoing verbal protests throughout the arrest, rather than
representing a sudden reaction to an electric jolt. When Sergeant Harris later removes what the
district court speculated may have been Taser prongs from Pennington’s body, the objects are
located not on the right side of Pennington’s stomach where Sergeant Harris’s Taser came

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closest, but rather near his lower back—a region Sergeant Harris’s Taser-bearing right hand
never approached. An inference that the unknown objects were Taser prongs that pierced
Pennington’s body is not reasonably supported by the record where the video establishes that no
tasing occurred at all, much less to Pennington’s lower back area.6
The video shows only that Sergeant Harris removed a Taser from his holster, held it
inches away from the right side of Pennington’s body, and never brought it into direct contact
with Pennington’s body. Drawing all reasonable inferences in Pennington’s favor, Sergeant
Harris’s behavior demonstrates that he may have thought about and even momentarily intended
to tase Pennington. But the critical fact is that he could not have tased Pennington based on the
movements in the video. At best, the video provides a “scintilla of evidence” in support of
Pennington’s claim that he was tased. Liberty Lobby, 477 U.S. at 252. Absent any other
suggestion in the record indicating a tasing occurred, and—indeed—given evidence in
Pennington’s own deposition testimony to the contrary, the video’s meager shred of evidentiary
support cannot justify a reasonable jury ruling in Pennington’s favor on his excessive force
action.
The principle from Scott v. Harris, which both parties urge the court to apply here,
requires the same conclusion.

The video “blatantly contradict[s]” Pennington’s story that

Sergeant Harris tased him. Scott, 550 U.S. at 380. As a result, we must view the facts “in the
light depicted by the videotape” rather than in the light most favorable to Pennington. Id. at 3806

We acknowledge that if the Taser was used in drive-stun mode, no probes or prongs would shoot out of
the Taser, nor would application of the Taser “cause an override of the victim’s central nervous system.” Cockerell,
468 F. App’x at 492 (quoting Mattos, 661 F.3d at 443). Pennington, however, argued in his opposition to summary
judgment that the video shows Sergeant Harris “taking the tazer [sic] prongs out of Pennington’s back,” suggesting
that Pennington believed the Taser was deployed in dart mode. The district court accordingly considered the
possibility that the Taser was used in dart mode, and we similarly make these points about the probes and the lack of
convulsion to show that the video forecloses the possibility that Sergeant Harris deployed the Taser in dart mode.
Although Pennington has not expressly argued Sergeant Harris used the Taser in drive-stun mode, we observe that
other indications from the video foreclose the possibility of deployment in drive-stun mode: the lack of contact
between the Taser and Pennington’s body, and the absence of a reaction from Pennington.

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81. Because the video shows that no tasing occurred, it dissolves any benefit of the doubt we
would otherwise be obliged to give Pennington’s assertions.
In other words, the existence of a videotape contradicting Pennington’s assertion that he
was tased simultaneously precludes this court from accepting his version of events and dispels
the only evidence Pennington offers in support of his claim. Therefore, we affirm the district
court’s grant of summary judgment to Sergeant Harris and Officer Long on the grounds that
Pennington failed to meet his burden of producing evidence in support of his excessive force
claim.
B. Even If There Were a Genuine Issue of Material Fact as to Whether Sergeant
Harris Tased Pennington, Would the Officers Be Entitled to Qualified
Immunity?
Assuming that a reasonable jury could accept Pennington’s strained interpretation of the
videotape, Sergeant Harris and Officer Long would be entitled to qualified immunity based on
the set of facts confronting them when Sergeant Harris allegedly deployed his Taser.
1. Qualified Immunity
Qualified immunity shields police officers from civil liability unless the plaintiff can
show: (1) the official violated a statutory or constitutional right, and (2) that right was “clearly
established” at the time of the challenged action. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080
(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts have discretion to
analyze these steps in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Bypassing the
constitutional question is particularly appropriate where “it is plain that a constitutional right is
not clearly established but far from obvious whether in fact there is such a right.” Id. at 237.
An officer’s use of force does not run afoul of the Fourth Amendment as long as “the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
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them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.
386, 397 (1989). Evaluating the reasonableness of a particular use of force “requires 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.”

Id. at 396 (internal

quotation marks omitted). The Supreme Court has specified three factors relevant to assessing
the reasonableness of a particular application of force: the severity of the crime at issue, whether
the suspect posed an immediate threat of safety, and whether the suspect was actively resisting
arrest or attempting to flee. Id. These factors, however, are not exhaustive. St. John v. Hickey,
411 F.3d 762, 771 (6th Cir. 2005). Furthermore, courts must judge the reasonableness of force
“from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396.
Even if an officer’s actions amount to unconstitutional excessive force, qualified
immunity will still apply if the violated right was not “clearly established.”

Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Kijowski v. Niles, 372 F. App’x 595, 600 (6th Cir. 2010).
An officer’s conduct violates clearly established law “when, at the time of the challenged
conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’” al-Kidd, 131 S. Ct. at 2083 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although there need not be a case directly on
point for the law to be clearly established, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting al-Kidd,
131 S. Ct. at 2083). When a plaintiff can identify “cases of controlling authority in the[]
jurisdiction at the time of the incident” or “a consensus of cases of persuasive authority”

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affirming the allegedly violated right, the law is clearly established. Wilson v. Layne, 526 U.S.
603, 617 (1999).
The Supreme Court has repeatedly warned lower courts against defining the right “at a
high level of generality.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting alKidd, 131 S. Ct. at 2084). Rather, the clearly established inquiry “must be undertaken in light of
the specific conduct of the case,” id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(per curiam)), meaning the court must enunciate “a concrete, particularized description of the
right,” Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 508 (6th Cir. 2012). The
Supreme Court recently instructed in Mullenix v. Luna that where “none of our precedents
‘squarely governs’” the specific set of facts at hand, qualified immunity is proper. Mullenix, 136
S. Ct. at 310.
2. Clearly Established Analysis
Defining the right at issue in this case, therefore, demands a careful compilation of the
relevant facts confronting the officers at the moment Sergeant Harris allegedly deployed his
Taser.
For the first time on appeal, Pennington argues that the video shows Sergeant Harris
tased Pennington only after inspecting his mouth and determining he had already swallowed the
narcotics.7

Appellant Br. 15.

Issues not raised before the district court are generally

inappropriate for appellate consideration. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th
7

Pennington further contends that this version of facts is consistent with the district court’s assessment of
the evidence, citing the district court’s observation that the officers, as they were inspecting Pennington’s mouth the
moment before the tasing, “remarked that they could see orange residue on Plaintiff’s tongue and teeth, indicating
that Plaintiff had ingested the pills.” Appellant Br. 15-16. While Pennington’s citation to the district court’s opinion
is accurate, the district court’s representation of the video evidence is not. During the first inspection of
Pennington’s mouth preceding the alleged tasing, Officer Long does point to Pennington’s mouth and say, “It’s right
there on your teeth.” R. 29, at 4:07. But it is several minutes after the supposed tasing when, looking in
Pennington’s mouth a second time, Officer Long states, “His tongue’s orange.” Id. at 7:01. Therefore, the district
court’s statement that the officers saw “orange residue on Pennington’s tongue and teeth” before the alleged tasing
was, in fact, unsupported by the officer’s comments on the video.

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Cir. 2008). In order to “preserve the integrity of the appellate structure,” this Court has refused
to act the part of “a ‘second shot’ forum, a forum where secondary, back-up theories may be
minted for the first time.” Mich. Bell Tel. Co. v. Strand, 305 F.3d 580, 590 (6th Cir. 2002)
(quoting Isaak v. Trumbull S & L Co., 169 F.3d 390, 396 n.3 (6th Cir. 1999)). This principle
applies with even greater force when the issue “necessitates a determination of facts.” Taft
Broad. Co. v. United States, 929 F.2d 240, 244 (6th Cir. 1991); see also Russ’ Kwik Car Wash,
Inc. v. Marathon Petroleum Co., 772 F.2d 214, 217 (6th Cir. 1985).
Pennington’s theory that the officers knew he swallowed the pills before tasing him is a
fresh argument on appeal—not merely an expansion of his position below, as the dissent avers.
Dissenting Op. at 30-32. In his opposition to Defendants’ motion for summary judgment before
the district court, Pennington argued only that he was “handcuffed” and “not resisting” when
Sergeant Harris tased him. He made no allusion whatsoever to the status of the pills at that point
in time. Moreover, he chose not to respond to Defendants’ statements in their motion for
summary judgment arguing that Sergeant Harris “used reasonable force to prevent the
destruction of evidence and the ingestion of the illegal narcotics,” as well “used reasonable force
in determining whether or not Mr. Pennington continued to have illegal narcotics in his mouth
and at the scene.” Regardless of whether Defendants’ statements about their efforts to prevent
the destruction of evidence and ingestion of narcotics referred to the force before or during the
alleged tasing, Pennington had the burden to preserve an issue critical to his theory of excessive
force: that he was tased without justification.

The fact that the district court ultimately

researched and considered an issue related to Pennington’s new argument, whether the alleged
tasing was justified to prevent destruction of evidence, does not do away with this duty of
preservation. Cf. Scottsdale, 513 F.3d at 552-54 (refusing to consider a new argument raised in

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plaintiff’s district court reply brief even though the district court squarely addressed the
argument in its final order).
Moreover, Pennington’s newly raised argument is a largely factual one that the district
court should have been given the opportunity to consider and resolve. An exception to the
general rule against considering newly raised issues on appeal applies where the new issue
“presents only a question of law.” Taft Broad. Co., 929 F.2d at 244 (emphasis added). The
dissent construes Pennington’s newly raised issue as purely legal because conducting a qualifiedimmunity analysis does not require the court to make factual determinations. Dissenting Op. at
33. But evaluating whether an officer’s actions were objectively reasonable under the Fourth
Amendment necessarily entails reference to the factual record as well as a determination of
whether one party’s story is blatantly contradicted by the record under Scott v. Harris. The fact
that Pennington’s argument implicates factual considerations, even if it also implicates legal
ones, militates against review of this issue. See, e.g., Hayward v. Cleveland Clinic Found.,
759 F.3d 601, 615 (6th Cir. 2014) (refusing to consider whether a legal exception to the Heck
doctrine applied because “a district court should have had the opportunity to consider the facts in
this case to determine whether [the exception] applies”); Friendly Farms v. Reliance Ins. Co.,
79 F.3d 541, 545 (6th Cir. 1996) (refusing to consider the newly raised legal issue of when a
party discovered its loss under an insurance contract because deciding the issue “would require
reference to the underlying factual record”).
In addition, even if Pennington’s argument does not cause unfair prejudice to Defendants
on appeal, preventing unfair surprise is only one reason for the general rule against entertaining
new issues on appeal. The other reason—“to preserve the integrity of the appellate structure,”
Mich. Bell Tel. Co., 305 F.3d at 590, and “to ease[] appellate review,” Scottsdale, 513 F.3d at

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552, — applies with full force to this situation. The district court neither heard nor considered
Pennington’s argument, making it impossible for us to review the district court’s actions with
regard to this argument. See Estate of Quirk v. C.I.R., 928 F.2d 751, 758 (6th Cir. 1991)
(explaining that courts should refrain from hearing new arguments on appeal to avoid “usurping
the role of the first-level trial court with respect to the newly raised issue rather than reviewing
the trial court’s actions” (quoting Anschuz Land & Livestock Co. v. Union Pacific R.R. Co., 820
F.2d 338, 344 n.5 (10th Cir. 1987))). Therefore, we decline to consider Pennington’s newly
raised argument that Sergeant Harris tased him only after ascertaining Pennington had already
swallowed the pills.
The issue thus becomes whether Pennington had a clearly established right as of March 2,
2012 not to be tased when, on the one hand, he did not threaten the officers, was not resisting
arrest, and was not attempting to flee, but on the other hand, was attempting to destroy evidence,
disobeying police orders to spit out the pills, and potentially putting himself at risk of harm. As
the district court observed, Sixth Circuit precedent clearly establishes that using a Taser on a
non-resistant, non-threatening person violates the Fourth Amendment. See, e.g., Hagans v.
Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012); Kijowski, 372 F. App’x at
600-01. The district court, however, identified two governmental interests making the use of a
Taser constitutional in this case: (1) prevention of a potential drug overdose, and (2) preservation
of evidence. While we reserve judgment on the constitutional question, an examination of
controlling and persuasive case law demonstrates that it was not clearly established as of March
2, 2012 that using a Taser in furtherance of these two legitimate governmental interests violated
the Fourth Amendment.

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The Sixth Circuit recognized prevention of a drug overdose as a legitimate law
enforcement objective warranting the use of force in Monday v. Oullette, 118 F.3d 1099 (6th Cir.
1997). In Monday, officers responded to a radio dispatch reporting that the plaintiff, Monday,
had ingested pills and was drinking alcohol in an attempt to end his life. Id. at 1101. Upon
arriving, the officers counted Monday’s prescription Xanax pills and determined that at least
twenty were missing. Id. After Monday refused to go to the hospital voluntarily for twenty
minutes, the defendant, Officer Oullette, discharged pepper spray in Monday’s face to force him
onto a stretcher so emergency personnel could take him to the hospital. Id. The court held that
Oullette’s use of the pepper spray was reasonable because Oullette had reason to believe Monday
had overdosed on his medication and could suffer serious physical consequences if Oullette
failed to act. Id. at 1104.
More generally, the Sixth Circuit has recognized that law enforcement may
constitutionally apply force to neutralize a safety threat to the plaintiff himself. See Caie v. West
Bloomfield Twp., 485 F. App’x 92, 96 (6th Cir. 2012) (holding use of a Taser objectively
reasonable to subdue an intoxicated, resistant plaintiff partly because the plaintiff was suicidal
and thus “at a minimum, he was a threat to his own safety”); Williams v. Sandel, 433 F. App’x
353, 361-63 (6th Cir. 2011) (holding baton strikes, pepper spray, and thirty-seven Taser
deployments objectively reasonable to restrain an intoxicated, naked suspect resisting and fleeing
officers along a major interstate because the suspect “posed an immediate threat to the safety of
himself and the officers, as well as passing motorists” (emphasis added)); Cabaniss v. City of
Riverside, 231 F. App’x 407, 413-14 (6th Cir. 2007) (finding no constitutional violation when an
officer pepper-sprayed a handcuffed arrestee sitting in the backseat of the police car because the

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reportedly suicidal arrestee was banging his head against the plexiglass, thus posing “a real threat
to his own safety”).
No Sixth Circuit case or lower court case within the Sixth Circuit, however, has
addressed the specific balance between a subdued, non-threatening individual’s right not to be
tased and the governmental interest in preventing a potential drug overdose. One lower, out-ofcircuit case has ruled, on facts similar to this case, that multiple applications of a Taser to force a
suspect to spit out a bag of cocaine was a reasonable use of force to thwart a potentially fatal
overdose. Ellis v. Columbus Police Dep’t, No. 1:07CV124-A-A, 2009 WL 1663454, at *5-6
(N.D. Miss. June 15, 2009).
The Sixth Circuit has also recognized preservation of evidence as a valid governmental
interest in the context of warrantless entries but has never addressed its status in excessive force
cases. See, e.g., United States v. Campbell, 261 F.3d 628, 632-33 (6th Cir. 2001) (holding a
warrantless entry constitutional where officers reasonably believed a suspect would immediately
destroy a package of methamphetamine upon opening it and discovering the police-planted
transmitting device).

A few other federal appellate courts, however, have recognized

preservation of evidence as a legitimate reason for a police officer’s application of force as of
March 2, 2012. See Sanders v. City of Dothan, 409 F. App’x 285, 290 (11th Cir. 2011) (holding
use of a Taser to force an arrestee to open his mouth did not violate a clearly established right
where the officer reasonably believed the arrestee was trying to swallow drugs); United States v.
Harrison, 432 F.2d 1328, 1329-30 (D.C. Cir. 1970) (denying a motion to suppress evidence of
illegal narcotics obtained by grabbing the defendant’s throat to prevent the defendant from
swallowing the narcotics because these tactics were a reasonable use of force); Espinoza v.
United States, 278 F.2d 802, 803-04 (5th Cir. 1960) (denying a motion to suppress evidence of

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illegal narcotics obtained by grabbing the defendant’s throat, choking him, and prying open his
mouth because the officers used “no more force than was reasonably necessary under the
circumstances”). For example, the Eleventh Circuit has twice held that tasing an individual who
officers reasonably believed was attempting to swallow and destroy evidence of illegal drugs did
not violate a clearly established right. See Sanders, 409 F. App’x at 290; German v. Sosa, 399 F.
App’x 554, 557 (11th Cir. 2010) (per curiam). The court in Sanders reasoned that tasing an
uncooperative arrestee for one to two seconds to prevent the destruction of contraband by
swallowing could not clearly violate constitutional rights without a decision on point. Sanders,
409 F. App’x at 290.
Several lower courts and at least one state supreme court have also upheld law
enforcement’s use of force, including Tasers and mace, to prevent the destruction of evidence.
See Morris v. Tulsa Police Dep’t, No. 09-CV-797-JHP-TLW, 2011 WL 1542920, at *5 (N.D.
Okla. Apr. 21, 2011) (upholding the use of a Taser where the plaintiff ingested cocaine in an
attempt to destroy evidence and fought with police officers); Barber v. Santa Maria Police
Dep’t, No. CV 08-6273-DMG (MLG), 2010 WL 5559708, at *8 (C.D. Cal. Sept. 1, 2010)
(finding knee strikes to the plaintiff’s neck and face objectively reasonable where the plaintiff
refused to obey officers’ orders during a strip search, attempted to stuff the contents of a bag
down a drainage pipe, and resisted officers’ efforts to restrain the plaintiff); Simms v. City of
Harrodsburg, No. 06-CV-104-JMH, 2007 WL 2792174, at *4 (E.D. Ky. Sept. 21, 2007) (finding
that dragging a suspect who was attempting to destroy evidence of methamphetamine
manufacture during the execution of a search warrant was objectively reasonable to stop the
plaintiff from destroying evidence and resisting arrest); Singleton v. City of Newburgh, 1 F.
Supp. 2d 306, 313-15 (S.D.N.Y. 1998) (finding a discharge of pepper spray reasonable to induce

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an arrestee to spit out contraband); United States v. Holloway, 906 F. Supp. 1437, 1442-43 (D.
Kan. 1995) (denying a motion to suppress evidence obtained from the defendant’s mouth by
using pepper spray because this method was not unreasonable or shocking to the conscience);
State v. Jacques, 587 P.2d 861, 865 (Kan. 1978) (affirming the trial court’s refusal to suppress
evidence obtained by spraying the defendant with Mace because an officer “has the right and
duty to take reasonable measures to ensure that incriminating evidence is not destroyed,”
including by “reasonable force to . . . prevent the defendant from swallowing the evidence”).
Other courts have found use of a Taser to prevent destruction of evidence objectively
unreasonable, particularly where the facts featured multiple tasings or where the destruction of
evidence was unlikely. See Brown v. City of Golden Valley, 534 F. Supp. 2d 984, 993 (D. Minn.
2008) (denying qualified immunity where an officer tased a car passenger who had tumblers
containing alcohol at her feet because the passenger never reached for the tumblers to destroy
them or use them as a weapon); Hereford v. Texas, 339 S.W.3d 111, 125-26 (Tex. Crim. App.
2011) (upholding a lower court decision finding objectively unreasonable eight applications of a
Taser to an arrestee at a hospital some time after two unsuccessful tasings during the initial arrest
to force the arrestee to spit out the cocaine in his mouth, even though the arrestee was no longer
attempting to swallow the drugs). But as of March 2012, no Sixth Circuit cases, and only one
unpublished district court case within the Sixth Circuit, had addressed whether any measure of
force was objectively reasonable to preserve evidence in the process of being destroyed.
The case at hand implicates both of these legitimate governmental interests: preventing a
potential drug overdose and preserving evidence.

Sergeant Harris witnessed Pennington

surreptitiously place pills in his mouth, action that reasonably appeared to be an effort to swallow
and destroy the drugs. Pennington later acknowledged that he intended to destroy evidence by

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swallowing the pills. As depicted in the video, Sergeant Harris and Officer Long ordered
Pennington multiple times to spit out the pills, but Pennington continued to insist he had none,
despite his evident attempt (as shown on the video) to swallow something without Officer Long
noticing. The officers thus had good reason to believe Pennington was attempting to destroy
evidence. Additionally, because the officers could not know exactly what or how many narcotics
Pennington had consumed, they reasonably believed Pennington might be at risk of an adverse
reaction or overdose.8
Assuming counterfactually that Sergeant Harris tased Pennington, Pennington cannot
muster the necessary “controlling authority” or “consensus of cases of persuasive authority”
establishing a right not to be tased in this situation. Wilson, 526 U.S. at 617. None of our
precedents “squarely governs” this case. Mullenix, 136 S. Ct. at 310. While the Sixth Circuit
has recognized a valid governmental interest in preventing drug overdoses in an excessive force
case, see Monday, 118 F.3d 1099, as well as a valid governmental interest in preventing
destruction of evidence in other contexts, it has never discussed the boundaries of those interests
under facts even roughly analogous to this case. The persuasive authority on this subject itself is
not substantial, but, if anything, it actually points to an opposite conclusion: namely, that
Sergeant Harris’s conduct in this case was not unconstitutional or at least did not violate clearly
established rights. See Sanders, 409 F. App’x 285; German, 399 F. App’x 554; Morris, 2011
WL 1542920; Barber, 2010 WL 5559708; Singleton, 1 F. Supp. 2d 306. The dearth of Sixth
8

The officers’ repeated inquiries as to whether Pennington required medical attention tend to demonstrate
their subjective concern about the effect of the drugs on Pennington’s health, but the standard for excessive force is
objective—that is, “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397 (emphasis
added). The clearly established analysis is also objective—whether “every ‘reasonable official would have
understood that what he is doing violates that right.’” al-Kidd, 131 S. Ct. at 2083 (emphasis added) (quoting
Creighton, 483 U.S. at 640). As a result, the officers’ subjective belief that Pennington might be in physical danger
from ingesting the drugs does not affect our analysis as to whether a reasonable officer in Sergeant Harris’s situation
would have known that tasing Pennington violated a clearly established right.

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Circuit precedent and case law in general addressing—much less condemning—the use of force
to prevent a drug overdose or to preserve evidence would not put a reasonable officer on notice
that discharging a Taser to accomplish these goals violated constitutional rights.

Without

deciding the underlying constitutional issue of whether tasing Pennington constituted excessive
force, we hold that it was not clearly established as of March 2, 2012 that tasing an arrestee
attempting to swallow illegally possessed drugs constituted excessive force. Because we cannot
say every reasonable official would have known it was excessive force to tase an individual
attempting to destroy evidence and potentially endangering him or herself in the process,
Sergeant Harris and Officer Long would be entitled to qualified immunity even if there were a
genuine issue of material fact as to whether Sergeant Harris tased Pennington.
C. Officer Long’s Independent Entitlement to Qualified Immunity
Additionally, even if we were to hold that Sergeant Harris’s deployment of a Taser in this
situation violated clearly established rights, Officer Long would be entitled to qualified
immunity on yet another basis: lack of opportunity to intervene.
Liability for excessive force requires a showing that the defendant either (1) actively
participated in the use of excessive force, (2) supervised the officer who used excessive force, or
(3) owed the victim a duty of protection against the use of excessive force. Turner v. Scott,
119 F.3d 425, 429 (6th Cir. 1997). Because Officer Long did not himself discharge the Taser,
did not hold or restrain Pennington while Sergeant Harris allegedly discharged the Taser, and did
not exercise any authority over Sergeant Harris, the only basis for Officer Long’s liability would
be failure to protect Pennington against the use of excessive force.
An officer may be liable for failing to prevent an act of excessive force if he or she:
(1) observed or had reason to know that excessive force would be or was being used, and (2) had

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both the opportunity and means to prevent the harm from occurring. Id. Where an act of
excessive force unfolds in a matter of seconds, the second requirement is generally not satisfied.
Ontha v. Rutherford Cnty., Tenn., 222 F. App’x 498, 506 (6th Cir. 2007). This court has
reasoned that it demands too much of officers to require that they intervene within a sudden and
quickly-expired moment of opportunity. See id. at 506-07. We have twice applied this rationale
to cases involving use of a Taser, finding that nearby officers lacked a realistic opportunity to
stop a tasing that occurred for a single, transitory moment. See Wells v. City of Dearborn
Heights, 538 F. App’x 631, 640 (6th Cir. 2013) (finding no opportunity to intervene and prevent
a knee strike and a single tasing because the acts occurred “at two discrete, fleeting points in
time” and did not develop into an “extended string of abuses”); Kowolonek v. Moore, 463 F.
App’x 531, 539 (6th Cir. 2012) (finding no opportunity for officers to prevent a tasing that
“could only have lasted for a fraction” of the entire incident, which itself “lasted only
‘minutes’”); cf. Goodwin v. City of Painesville, 781 F.3d 314, 329 (6th Cir. 2015) (finding
sufficient opportunity for officers to intercede during a “prolonged application of force”: a
twenty-one second tasing followed by an additional five-second tasing). We have similarly
found insufficient opportunity to intervene in other types of excessive force that lasted less than
ten seconds. See Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013) (holding that an officer
and nurse lacked opportunity to intercede in a takedown that lasted no more than ten seconds);
Ontha, 222 F. App’x at 506-07 (holding that an officer who was a passenger in a patrol car that
ran over a fleeing suspect lacked opportunity to develop preventative measures “within a short
time span of six to seven seconds”).
Much like the isolated and brief tasings that left insufficient opportunity for intervention
in Wells and Kowolonek, the alleged tasing in this case occurred a single time and lasted mere

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seconds.

Measured by the amount of time Sergeant Harris held the Taser near or on

Pennington’s body, the alleged excessive force lasted about three seconds. Measured from the
moment Sergeant Harris retrieved his Taser until he returned it to his holster, the purported
excessive force lasted seven seconds.

By either measure, Officer Long lacked a realistic

opportunity to stop Sergeant Harris from discharging the Taser. In this fleeting span of time,
Officer Long would have had to realize what Sergeant Harris intended to do, recognize that
action was unconstitutional, develop a plan to prevent the tasing, and execute that plan. As our
case law acknowledges, it is impractical to expect an officer to proceed through these steps in
less than eight seconds. Pennington makes no allegation that he was tased multiple times or
otherwise suffered a “a prolonged application of force” that would lend Officer Long more time
to recognize the nature of Sergeant Harris’s actions and take action to stop it.
781 F.3d at 329.

Goodwin,

Therefore, even if Sergeant Harris’s use of the Taser violated clearly

established rights, Officer Long is entitled to qualified immunity because he lacked a realistic
opportunity to prevent the tasing.
V.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court granting
summary judgment to Sergeant Harris and Officer Long.

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KAREN NELSON MOORE, Circuit Judge, dissenting. I would hold that there is a
genuine dispute of material fact as to whether the use of force was excessive, that appellant has
not waived his argument on appeal, and that neither officer is entitled to qualified immunity.
I. Whether There is a Genuine Dispute of Material Fact
Like Scott v. Harris, this case hinges on a videotape of the incident. 550 U.S. 372, 378
(2007). But unlike Scott v. Harris, the videotape does not warrant summary judgment, as it does
not foreclose Scottie Pennington’s version of the facts.1 See id. at 386.
The videotape is far from a pellucid recording: the audio is muffled and the image
quality is poor. The videotape also goes in and out of focus and, perhaps coincidentally and
perhaps not, is out of focus during the most crucial moments of the arrest. When the officers
first pull up behind Robert Caudill, and Brian Long walks up to the passenger’s side of Caudill’s
truck, the image is clear enough to see Long’s duty belt and to distinguish the different objects
attached to it (one, which he rests his left hand on momentarily, is in the shape of a gun or a
taser). R. 29 (Videotape at 1:26‒2:04) (Page ID #167). Less than a minute later, as Long and
James Harris hold Pennington and tell him to spit out the pills he has swallowed, the image goes
out of focus. Id. at 2:29‒2:50. Though the viewer should be able to see Harris’s duty belt and
the objects attached to it, as Harris’s side and part of his back are turned toward the camera, the
image is too blurry to make them out with any confidence. The image is clearer as the officers
pin Pennington down on his stomach and Long handcuffs Pennington. See id. at 3:03‒3:21.

1

Though Pennington’s version of events has evolved since he filed his complaint, he was
proceeding pro se for the first part of the litigation (including when he was deposed). He did not
secure counsel until shortly before he filed his response to defendants’ motion for summary
judgment. See R. 47 (Notice of Appearance) (Page ID #213). Thus, some development of the
facts was both expected and appropriate.
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The videotape goes out of focus again when Harris flips Pennington over on his back.
See id. at 3:47‒3:54. Long, standing up, holds a flashlight in his right hand and points it at
Pennington. Id. at 3:54‒3:58. Harris, standing to Long’s right, reaches for Long’s flashlight
with his left hand. Id. at 4:01. Harris bends over, passes the flashlight from his left hand to his
right hand, and shines it in Pennington’s mouth. Id. at 4:02‒4:04. Long bends down, joining
Harris, and points at Pennington’s mouth, remarking, “it’s right there on your teeth.” Id. at 4:04‒
4:06. Harris then stands up and hands the flashlight to Long, passing it back from his right hand
to his left hand. Id. at 4:06‒4:08. Harris then reaches his right hand around his body to his duty
belt and grabs a dark object—an object which we know is a taser because Harris swore it was in
an affidavit before the district court. Id. at 4:08‒4:09; see also R. 57-2 (Second Harris Affidavit
at 1) (Page ID #244). The taser, against Harris’s dark uniform and the night sky, is barely
discernable: it is only Harris’s hand, which looks like it is holding something, that suggests its
presence.2 R. 29 (Videotape at 4:08‒4:09) (Page ID #167). Harris says “here, here you go,”
turns Pennington over, and straddles him. Id. at 4:09‒4:12. Bending over Pennington, Harris
moves his right hand, which appears to still have the taser in it, toward Pennington’s shoulder or
side:

2

The majority acknowledges how hard it is to see the taser: “Although difficult to
discern with certainty from the video, we assume that Sergeant Harris did retrieve a [t]aser from
his holster because Sergeant Harris concedes both in his appellate brief and in his affidavit
before the district court that he removed a [t]aser from his holster during the arrest.” Maj. Op. at
3.
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Id. at 4:14. Pennington says “oh, oh, I ain’t got it!” Id. at 4:14‒4:16. As he does, the image
snaps back into focus, and Harris can be seen more clearly, the taser in his right hand and a
smaller object in his left hand. Id. Harris appears to attach the smaller object to the front of the
taser, which he then holsters. Id. at 4:16‒4:22.
Though the viewer can glean the broad strokes of what happened from the videotape, the
viewer cannot determine the specific details with any certainty, and it is the specific details that

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are critical to Pennington’s case. The majority’s error is in treating the videotape as if it depicts
all details clearly such that the majority can simply view the videotape, compare it to
Pennington’s version of the incident, and conclude that the videotape forecloses his claim. See
Maj. Op. at 10–11.
For example, the majority asserts that “Harris’s right hand, holding the [t]aser, came
close to the right side of Pennington’s stomach but never touched it.” Id. at 4. Later in its
opinion, the majority goes even further, claiming that “Harris removed a [t]aser from his holster
[and] held it inches away from the right side of Pennington’s body”—a fine line to draw for such
a blurry video. Id. at 11. The majority further asserts that in response to Harris’s movements,
“Pennington did not exhibit any signs of pain or physical agitation.” Id. at 4.
The problem with these statements is that the videotape does not support them. The
outline of the taser is barely discernable. R. 29 (Videotape at 4:08‒4:09) (Page ID #167). It is
impossible to tell how close the taser gets to Pennington, and whether it touches him. Id. As for
Pennington’s reaction, when Harris moves his right hand toward Pennington, Pennington lets out
what sound like two cries (the district court described them as “two short yells”) before he says
“I ain’t got it!” Id. at 4:14‒16: R. 69 (Dist. Ct. Op. at 3) (Page ID #287). Admittedly, these cries
may not be in reaction to the taser. Indeed, they may not even be cries: Pennington may simply
be raising his voice in agitation. But the videotape is not clear either way.
What the majority has done is make its own factual determinations. And in making these
determinations, the majority has overlooked the genuine disputes of material fact that the
videotape creates. Because it is not clear whether the taser touched Pennington or whether he
reacted to it, these questions deserve to go to a jury. It is not our place to decide them. Taking
the evidence, blurry as it is, in the light most favorable to Pennington, the majority should have

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concluded that a reasonable jury could find that Harris’s taser touched Pennington and that
Pennington reacted with two cries. The videotape is far too unclear and Pennington’s claim far
too nuanced for the videotape to warrant summary judgment.3
II. Whether Pennington Waived his Qualified-Immunity Argument
On appeal, Pennington argues that Harris cannot claim to have tasered Pennington to
preserve evidence or prevent an overdose, as Harris had already checked Pennington’s mouth
and knew there were no pills in it. Appellant Br. at 19‒20. The majority refuses to consider this
argument because “[i]ssues not raised before the district court are generally inappropriate for
appellate consideration.” Maj. Op. at 14–15 (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546,
552 (6th Cir. 2008)). I do not think this argument can be fairly characterized as an issue not
raised before the district court; it is simply an expansion of Pennington’s response to defendants’
claim of qualified immunity—one that is warranted in light of the district court’s opinion. Even
if it is a newly raised issue, our precedent establishes simply a general rule against considering it,
not an absolute bar. Because Pennington’s argument does not unfairly prejudice defendants or
require a factual determination, an exception to the general rule is appropriate.
Pennington brought an excessive-force claim in his complaint before the district court.
R. 1 (Compl. ¶ 11) (Page ID #3). Defendants responded with a motion for summary judgment
arguing that there was no genuine dispute of material fact and that, in the alternative, the officers
were entitled to qualified immunity. R. 20 (Mot. for Summ. J. at 1‒5) (Page ID #46‒50). In

3

The majority’s statements also imply that the district court’s conclusions were
unreasonable. Maj. Op. at 8 (explaining that “a court need draw only reasonable inferences in
favor of the nonmoving party; it need not construe the record in such a manner that is wholly
unsupportable—in view of any reasonable jury—by the video recording” (emphasis in original)
(internal quotation marks omitted) (quoting Shreve v. Franklin Cty., 743 F.3d 126, 132 (6th Cir.
2014))); R. 69 (Dist. Ct. Op. at 3) (Page ID #287) (observing that “Harris appeared to touch the
taser to [Pennington’s] torso briefly” and that “[Pennington] gave two short yells”).
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their memorandum, defendants listed five facts that they claimed the videotape established,
including that Harris “used reasonable force to prevent the destruction of the evidence and the
ingestion of the illegal narcotics” (a fact defendants listed immediately before the fact that Harris
and Long “used reasonable force in placing Mr. Pennington on the ground and applying the
handcuffs to him”). R. 27 (Mem. in support of Mot. for Summ. J. at 23) (Page ID #156). The
order of these facts suggests that the force to which defendants were referring in the earlier fact
was the force Harris used when lunging at Pennington, not when tasering him, which was done
after Pennington was handcuffed.
Defendants also never explicitly connected their contention that Harris “used reasonable
force to prevent the destruction of the evidence and the ingestion of the illegal narcotics” to their
contention that Harris was entitled to qualified immunity. After listing the remaining facts,
defendants concluded, “The video clearly and conclusively establishes that neither Sergeant
Harris nor Officer Brian Long were guilty of excessive force as a matter of law and the force
which they used was objectively reasonable under the circumstances.” Id. at 24 (Page ID #157).
Defendants then asserted, “In the alternative, these Officers are entitled to qualified immunity.”
Id. To be clear, nowhere in their memorandum did defendants advance the argument that Harris
was trying to preserve evidence and prevent an overdose by tasering Pennington, and that these
objectives entitled him to qualified immunity. In response, Pennington, not surprisingly, argued
only that the officers were not entitled to qualified immunity because he was not actively
resisting when they tasered him. R. 56 (Resp. to Mot. for Summ. J. at 3) (Page ID #235).
Defendants did not further develop their argument that Harris “used reasonable force to
prevent the destruction of the evidence and the ingestion of the illegal narcotics” in their reply
brief. R. 57 (Reply Br. at 1‒3) (Page ID #237‒39). The district court, however, did: in its

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opinion, it explained that the use of a taser may be reasonable where a suspect poses a threat to a
law-enforcement aim, such as the preservation of evidence or the prevention of an overdose.
R. 69 (Dist. Ct. Op. at 9‒10) (Page ID #293‒94) (citing Boyden v. Twp. of Upper Darby, 5 F.
Supp. 3d 731, 738 (E.D. Pa. 2014); Love v. Rockford Ill. Mun. Police Dep’t, No. 08 C 50254,
2013 WL 159246, at *2 (N.D. Ill. Jan. 15, 2013); Monday v. Oullette, 118 F.3d 1099, 1101 (6th
Cir. 1997); Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 308 (S.D.N.Y. 1998)). The district
court appears to have done this research on its own, as none of the cases it cites are in
defendants’ motion for summary judgment. Id.; see also R. 20 (Mot. for Summ. J.) (Page ID
#46); R. 27 (Mem. in support of Mot. for Summ. J.) (Page ID #134).
In appealing the district court’s decision, Pennington maintains that he was not actively
resisting and adds that Harris cannot claim that he tasered Pennington in order to preserve
evidence or prevent an overdose because Harris had already inspected Pennington’s mouth—an
addition that makes perfect sense given the district court’s development of defendants’
assertions. Appellant Br. at 17‒24. Pennington’s argument, therefore, is not an issue raised for
the first time on appeal. It an expansion of Pennington’s earlier argument and a response to the
district court’s opinion.
Even if Pennington’s argument is an issue raised for the first time on appeal, it merits an
exception. First, considering Pennington’s argument does not unfairly prejudice defendants, as
the argument is not an “unfair surprise[].” See Allstate Ins. Co. v. Glob. Med. Billing, Inc.,
520 F. App’x 409, 412 (6th Cir. 2013). Defendants had the videotape in their possession, and the
videotape includes the following exchanges which all occur before Harris allegedly tasers
Pennington:

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Pennington:
Harris:

I ain’t got no evidence.
I know you don’t. It’s in your belly now.

R. 29 (Videotape at 3:34‒3:36) (Page ID #167).
Harris:

You just swallowed it then!

Id. at 4:00‒4:02.
Long:

It’s [referring to residue] right there on your teeth.

Id. at 4:04‒4:06. Defendants also acknowledged in their motion for summary judgment that the
officers searched Pennington’s mouth shortly after handcuffing him:
Officer Long and Sergeant Harris then took Mr. Pennington to the ground where
Officer Long handcuffed Pennington’s hands behind his back. Sergeant Harris
continued to examine Pennington’s mouth for evidence of the narcotic drugs
which he had seen him put in his mouth. One pill was spit out. Another pill may
have been found on the ground where Pennington dropped it. Sergeant Harris
turned Pennington over and examined his mouth to determine if any more pills
remained in his mouth.
R. 27 (Mem. in support of Mot. for Summ. J. at 3) (Page ID #136).
Second, the majority’s assertion that the general rule against considering newly raised
issues “applies with even greater force when the issue ‘necessitates a determination of the facts’”
makes the same error as its summary-judgment analysis. Maj. Op. at 15. In a qualifiedimmunity inquiry, the court takes the facts “in the light most favorable to the party asserting the
injury.” See Scott, 550 U.S. at 377. “At the summary judgment stage, . . . once we have
determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to
the extent supportable by the record, . . . the reasonableness of [the defendants’] actions . . . is a
pure question of law.” Id. at 381 n.8 (emphasis removed). Thus, there is no need for a factual
determination. With no prejudice to defendants or factual determination required, an exception
to the general rule is warranted.

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Accordingly, I would conclude that Pennington’s argument is not waived and that
therefore the questions before the court are whether Pennington had a clearly established right
not to be tasered while handcuffed and complying, and whether the officers violated that right.
Given our case law on the subject, as well as our obligation to take the facts in the light most
favorable to the party asserting the injury, I would answer yes to both questions. See, e.g.,
Thomas v. Plummer, 489 F. App’x 116, 127‒29 (6th Cir. 2012); Kijowski v. City of Niles, 372 F.
App’x 595, 600‒01 (6th Cir. 2010); Landis v. Baker, 297 F. App’x 453, 461‒64 (6th Cir. 2008).
The majority seeing this differently, I respectfully dissent.

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