Bibbs v. Allen

Filing 18

OPINION AND ORDER Denying Defendant's 12 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY L. BIBBS,
Plaintiff,

Case No. 13-cv-10362
Hon. Matthew F. Leitman

v.
DAVID ALLEN,
Defendant.
_________________________________/
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF #12)
INTRODUCTION

In this action, Plaintiff Jerry L. Bibbs (“Bibbs”) alleges that Defendant
David Allen (“Allen”), a Centerline police officer, violated his (Bibbs’) Fourth
Amendment rights by using excessive force when he arrested Bibbs. (See Compl.,
ECF #1.) Bibbs complains that during a 2011 traffic stop, Allen repeatedly and
without justification stunned Bibbs with a taser. Allen acknowledges that he used
his taser on Bibbs, but says he did so only after Bibbs actively resisted arrest and
refused to follow Allen’s orders.
Allen asserts that he is entitled to qualified immunity, and he has moved for
summary judgment on that defense. (See Allen Motion and Brief, ECF #12.)

1

Viewing the facts in the light most favorable to Bibbs (as the Court must), for all of
the reasons stated in this Opinion and Order, the Court DENIES Allen’s Motion.

FACTUAL BACKGROUND
A.

The Agreed-Upon Facts
The parties hotly dispute many of the facts underlying Bibbs’ excessive-

force claim. They appear to agree upon (or at least agree not to dispute for
purposes of this motion) the following facts:
On June 24, 2011, at about 1:30 a.m., Bibbs was driving in the City of
Centerline. (See Allen Deposition at 20, Pg. ID 232.) Allen was on patrol at that
time. According to Allen, he noticed that Bibbs’ car had a “cracked windshield
and … no visible license plate.” (Id.) Allen “proceeded to follow [Bibbs’] vehicle
and [Allen] initiate[d] a traffic stop.” (Id. at 21, Pg. ID 232.) After Allen initially
questioned Bibbs, Bibbs exited his vehicle with his hands in his pockets. (See id.
at 31-32, Pg. ID 235; see also Bibbs Dep. at 58-59, Pg. ID 248.) Allen told Bibbs
to remove his hands, and Bibbs did not immediately comply with Allen’s order.
(See id; Bibbs Dep. at 59-60, Pg. ID 248.) Instead of removing both hands right
away, Bibbs “fiddl[ed]” with his hands in his pockets in an effort to “make sure [he
removed] everything” from the pockets. (Bibbs Dep. at 60, Pg. ID 248.)

2

At this point in the encounter, the parties’ versions of events diverge.1
B.

Bibbs’ Version of Events
Bibbs recounts the disputed events at pages 63-77 of his deposition. (See

Bibbs Dep. at Pg. ID 249-252.) Bibbs says that while he was “fiddling,” Allen
repeated his command to remove both hands from his pockets, and Bibbs’
girlfriend (who was with him in his car) also screamed at him to remove his hands
from his pockets. (Id. at 59-60, Pg. ID 248.) According to Bibbs, at that point he
did remove both hands, just as Allen commanded him to do. (See id. at 63, Pg. ID
249.) Bibbs says that he then turned to his right, put a “real small” white tissue
containing marijuana into his mouth, and swallowed. (Id. at 63-65, Pg. ID 249250.) Apart from this small turn, Bibbs insists he never moved or walked away
from Allen at any time. (See id. at 67, Pg. ID 250.)
Bibbs says that immediately after he put the white tissue in his mouth, Allen
“shot [Bibbs] below the belt …. an inch of two from [Bibbs’] privates” with a
taser. (Id. at 65-66, Pg. ID 250.) Bibbs insists that Allen employed the taser
before directing Bibbs to remove the white tissue from his mouth. (See id.)
Indeed, Bibbs says that Allen deployed the taser without any warning or advance
notice that he was going to do so. (See id.) Bibbs says that apart from his initial

1

Allen’s police car is equipped with an in-car video system. However, the video
system was not working on the morning in question – indeed, according to Allen,
all of Centerline’s police cars at that time had broken camera systems – and thus no
video exists of the Bibbs’ traffic stop. (See Allen Dep. at 23-34, Pg. ID 233.)
3

and short-lived non-compliance with Allen’s order to remove his hands from his
pockets, he complied fully with all of Allen’s orders. (See id. at 76, Pg. ID 252.)
The “very powerful” force from the taser “knocked [Bibbs] off [his] feet”
and “[e]verything just tensed up.” (Id. at 66, Pg. ID 250.) Bibbs says that as he
was “on the ground, [] in pain,” he “roll[ed] over on [his] stomach” because his
“saliva was [] choking [him].” (Id.) Bibbs claims that he was otherwise unable to
move due to the effects of the taser. (See id.) Bibbs then says he remained on the
ground, unable to resist or move, while Allen repeatedly tased him and ordered
him to spit out the white tissue. (See id. at 75, Pg. ID 252.) In Bibbs’ words: “All
I know is he just – every time he kept saying, you know ‘spit it out,’ … it was just
shocks.” (Id.)
Bibbs believed Allen tased him “about four [separate] times.”

(Id.)

According to data retrieved from Allen’s taser, it fired on six separate occasions
within an 87-second span during the relevant time frame. (See the “Taser Log,”
ECF #13-2 at 3-4, Pg. ID 225-226.) The total “duration” of these firings was 38
seconds. (See id.)
When another officer arrived on the scene, the tasing stopped. Bibbs says at
that point he felt “paralyzed,” “drained,” and was in “total submission.” (Id. at 76,
Pg. ID 252.)

4

C.

Allen’s Version of Events
Allen’s starkly-contrasting version of events can be found at pages 32-52 of

his deposition. (See Allen Dep. at Pg. ID 235-240). According to Allen, when he
ordered Bibbs for a second time to take his hands out of his pockets, Bibbs
removed only his left hand and began to “walk away.” (Id. at 33, Pg. ID 235.)
Allen says that at that point he “pulled [his] taser and again ordered Bibbs to
remove his right hand. Mr. Bibbs [though] … continue[d] to go ahead and walk
away … in a hurried manner.” (Id. at 37, Pg. ID 236.)
Allen says that he then saw Bibbs “put a white object or substance in his
mouth.” (Id. at 41, Pg. ID 237.) Allen believed the substance to be cocaine. (See
id.) Allen then “ordered Mr. Bibbs not to put [the substance] in his mouth and to
spit it out.” (Id. at 42, Pg. ID 238.) According to Allen, Bibbs refused and
“continued to shove the white object in his mouth as he walked away.” (Id.) Allen
then “advised Mr. Bibbs if he didn’t go ahead and do it [i.e. follow Allen’s orders
to spit out the white substance and stop walking away], [Allen] was going to tase
him.” (Id.) Allen says that despite that clear warning, Bibbs “continu[ed] to walk
away.” (Id. at 43, Pg. ID 238.) Only then did Allen “deploy[] [his] taser” by
shooting two taser darts at Bibbs. 2 (Id.)

2

Tasers can be placed in one of two modes: ‘dart’ mode and ‘drive stun’ mode. In
‘dart mode’ “the gun propels a pair of barbed darts that penetrate [a] person’s skin
and override[s] [their] central nervous system, causing ‘excruciating pain that
5

Allen says that his initial use of his taser was not fully effective because
when he “pulled the trigger” on his taser, only “one dart” impacted Bibbs. (Id.) In
dart mode, the taser is not effective unless both darts lodge in a suspect, thus
creating a complete electrical circuit. (See id. at 46, Pg. ID 239.) Allen says that
even though the single dart did not deliver an electric shock to Bibbs, it
nonetheless knocked Bibbs to the ground. (See id. at 45-46, Pg. ID 238-239.)
While on the ground, Bibbs “continued to stuff the [white] object in his mouth.”
(Id. at 45, Pg. ID 238.) Allen says that Bibbs then stood up and again “attempt[ed]
to walk away,” and he (Allen) “again order[ed] Mr. Bibbs to take [the substance]
out of his mouth….” (Id. 45-46, Pg. ID 238-239.) Bibbs supposedly refused to
obey that command, and Allen therefore pulled the trigger on his taser a second
time. (See id. at 47, Pg. ID 239.) Allen says that, as with his first use of the taser,
only a single dart was lodged in Bibbs during this second tasing. (See id.)
According to Allen, the second firing of his taser knocked Bibbs back onto
the ground again. (See id.) While on the ground a second time, Bibbs “tried to
crawl away.” (Id.) Allen says he again “ordered Mr. Bibbs to take [the substance]
out of his mouth [and] [a]s [Bibbs again] went to … shove the white object and his

radiates throughout the body,’ paralyzing the person and rending them ‘limp and
helpless.’” Lucier v. City of Ecorse, 12-cv-12110, 2014 WL 1260651 at *9, n. 3
(E.D. Mich. Mar. 27, 2014) (quoting and citing Cockrell v. City of Cincinatti, 468
Fed. App’x 491, 492, n.3 2012)).
6

fingers in his mouth, [Allen] conducted a drive stun to his right buttocks area.”3
(Id. at 48, Pg. ID 239.) Allen confirmed that at this time Bibbs was “prone on the
ground face down … [i]n a T fashion.” (Id. at 50, Pg. ID 240.) Allen says that
Bibbs nonetheless continued “to go ahead and push the object [or] the substance in
his mouth[,]” and Allen “conducted a drive stun [with the taser to Bibbs’] right
shoulder area in an attempt to have Mr. Bibbs go ahead and remove the object
from his mouth.” (Id. at 49-50, Pg. ID 239-240.) Allen then “put his taser away[,]
handcuffed Mr. Bibbs,” and a second officer arrived on the scene. (Id. at 51, Pg.
ID 240.)
GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage Services,
Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)) (quotations omitted). “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. However, summary judgment is not

3

Allen explained that in ‘drive stun’ mode, instead of firing darts at a suspect,
“you actually place the TASER itself on the person” in order to “complete the
circuit.” (Allen Dep. at 48-49, Pg. ID 239.) ‘Drive-stun’ mode “deliver[s] an
electric shock, but [does] not override[] the nervous system as in dart mode.”
Lucier, 2014 WL 1260651 at *9, n. 3.
7

appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251-252.
When reviewing the record, “the court must view the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in its
favor.” Id. Indeed, “[c]redibility determinations, the weighing of the evidence,
and the drafting of legitimate inferences from the facts are jury functions, not those
of a judge…” Id. at 255.
The Supreme Court recently stressed that these rules are fully applicable in
qualified immunity cases like the one the Court confronts here. See Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (“Our qualified immunity cases illustrate the
importance of drawing inferences in favor of the nonmovant.”) In Tolan, the
Supreme Court vacated a grant of qualified immunity to a police officer in an
excessive force case because, in part, the lower court “credited the evidence of the
party seeking summary judgment and failed to properly acknowledge key evidence
offered by the party opposing that motion.” Id. at 1867-1868. “By weighing the
evidence and reaching factual inferences contrary to [the nonmoving party’s]
competent evidence, the court below [in Tolan] neglected to adhere to the
fundamental principle that at the summary judgment stage, reasonable inferences
should be drawn in favor of the nonmoving party.” Id. at 1867.

8

ANALYSIS
A.

The Court’s Two-Pronged Qualified-Immunity Analysis
“In resolving questions of qualified immunity at summary judgment, courts

engage in a two-part inquiry.” Tolan, 134 S.Ct. at 1865. “[B]oth [parts] must be
answered in the affirmative for the case to go to a factfinder…If either one is not
satisfied, qualified immunity will shield the officer from civil damages.” Martin v.
City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). “[U]nder either
prong [of this inquiry], courts may not resolve genuine disputes of fact in favor of
the party seeking summary judgment.” Tolan, 134 S.Ct. at 1866.
“The first [prong] asks whether the facts taken in the light most favorable to
the party asserting injury show the officer’s conduct violated a federal right.” Id.
1865 (internal quotation and quotation marks omitted). Where, as here, “a plaintiff
alleges excessive force during an investigation or arrest, the federal right at issue is
the Fourth Amendment right against unreasonable seizures.” Id. “The inquiry into
whether this right was violated requires a balancing of the nature and quality of the
intrusion of the individual’s Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion.” Id. (internal quotation
marks omitted).
“The second prong of the qualified-immunity analysis asks whether the right
in question was ‘clearly established’ at the time of the violation.” Id. at 1867

9

(internal quotation marks omitted).

“Governmental actors are shielded from

liability for civil damages if their actions did not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Id. (internal citations and quotation marks omitted.)

“The sources of clearly

established law to be considered are limited. [This Court must] look first to
decisions of the Supreme Court, then to decisions of [the Court of Appeals for the
Sixth Circuit] and other courts within [that] circuit, and finally to decisions of other
circuits.” Martin, 712 F.3d at 961 (internal quotation marks omitted).
Here, viewing the evidence in the light most favorable to Bibbs, a jury could
find that Allen used excessive force against Bibbs, and the Court concludes that
Bibbs’ right to be free from that force was clearly established. Allen is therefore
not entitled to summary judgment on his qualified immunity defense.
B.

A Jury Could Find That Allen’s Use of His Taser on Bibbs Was
Objectionably Unreasonable and Therefore Violated Bibbs’
Constitutional Rights (Prong One)
The determination as to whether a police officer has exerted excessive force

during the course of a seizure – and thus violated a suspect’s Fourth Amendment
rights for purposes of prong one of the qualified-immunity inquiry – is reviewed
“under the Fourth Amendment’s objective reasonableness standard.” Graham v.
Connor, 490 U.S. 386, 388 (1989). “[T]he question is whether the officers’ actions
are objectively reasonable in light of the facts and circumstances confronting them,

10

without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397
(internal quotation marks omitted). The Court must analyze this conduct “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. at 396. Three factors guide the Court’s determination of whether
a particular use of force is reasonable: “[1] the severity of the crime at issue, [2]
whether the suspect poses an immediate threat to the safety of the officers or
others, and [3] whether [the suspect] is actively resisting arrest or attempting to
evade arrest by flight.” Id.
Applying the Graham factors here, a jury could find that Allen’s use of a
taser on Bibbs was not “objectively reasonable.” As an initial matter, the “severity
of the crime at issue” was relatively minor. Allen initiated a traffic stop because of
two insignificant traffic violations: a cracked windshield and license plate that was
not visible. (See Allen Dep. at 20, Pg. ID 232.) And Bibbs did not take any action
during the traffic stop that materially increased the severity of his suspected
criminal activity. According to Bibbs, his only criminal conduct during the stop
was his possession of, and attempt to swallow, the de minimis amount of marijuana
he had wrapped in a white tissue – a quantity small enough to fit into his mouth.
That did not convert Bibbs into a serious criminal offender who needed to be
immediately subdued, without prior warning, by a debilitating taser strike. See,
e.g., Turner v. Hill, 2014 WL 549462 at *5 (W.D. Ky. Feb. 11, 2014) (finding that

11

“misdemeanor charges of marijuana possession and receiving stolen property were
not “particularly serious or severe” crimes.)
And even if Bibbs had a very small amount of cocaine, as Allen perceived,
that would not change the Court’s analysis. The simple possession of a very small
amount of illegal drugs is not sufficiently severe to justify repeated, debilitating
stuns with a taser under the circumstances that exist here. Indeed, even if Bibbs’
possession of drugs (and his attempt to destroy evidence by swallowing the drugs)
was deemed to be somewhat severe, for all the reasons stated herein, Allen’s
repeated use of his taser on the defenseless, non-resisting Bibbs could be found to
be objectively unreasonable under Graham. See, e.g. Cole v. City of Dearborn, 448
Fed. App’x 571, 576 (6th Cir. 2011) (finding that the Graham factors “point to a
Fourth Amendment violation” even though plaintiffs “were believed to have
committed an armed robbery, a severe crime…”).
Moreover, it cannot be said, viewing the evidence in Bibbs’ favor, that Bibbs
“pose[d] an immediate threat to the safety” of Allen or others, “actively resist[ed]
arrest,” or “attempt[ed] to evade arrest by flight.” Indeed, according to Bibbs, at
the time Allen tasered him, he was not resisting arrest, was following Allen’s
orders, and had both hands in the air. (See Bibbs Dep. at 63, 68, Pg. ID 249-250.)
Nor did Bibbs ever brandish a weapon or threaten anybody in any way. The Sixth
Circuit “has found that defendants pose no immediate threat where they are not

12

resisting and have their hands up in the air.” Correa v. Simone, 528 Fed App’x
531, 534 (6th Cir. 2013) (citations omitted).
And even if Bibbs arguably posed some sort of threat to Allen while Bibbs
remained on his feet, that threat disappeared once the initial taser strike dropped
Bibbs to the ground and rendered him helpless, as Bibbs claims it did. Thus, the
final five taser shocks cannot be considered an objectively reasonable means of
subduing an imminent threat.
Allen counters that his decision to tase Bibbs was reasonable because (1) he
believed that Bibbs posed a threat to himself by attempting to swallow suspected
cocaine and (2) Bibbs disobeyed repeated pre-tasing commands to “spit it out.”
When the facts are viewed in the light most favorable to Bibbs, however, Allen is
not entitled to summary judgment on this theory.

Bibbs testified that Allen

initially fired the taser at Bibbs before ordering Bibbs to spit the white substance
out and without any warning. Given this testimony, the Court cannot conclude, as
a matter of law, that Allen’s first use of the taser was a reasonable effort to secure
compliance with an order that Bibbs had disregarded. See Grawey v. Drury, 567
F.3d 302, 312 (6th Cir. 2010) (officer’s “contentions … must be rejected for
qualified immunity analysis because they are premised on [the officer’s] version of
the facts. […] These material facts are disputed by [the plaintiff] and are therefore
for a jury to decide at trial”).

13

While Allen apparently did order Bibbs to spit out the white substance
before and during his subsequent taser deployments (i.e., all of the trigger pulls
after the first pull), those deployments cannot be justified as reasonable efforts to
secure compliance with the “spit-it-out” order. Where, as here, an officer seeks to
justify his use of force as necessary to secure compliance with a command, the
officer must show that before he employed the force, he afforded the suspect a
reasonable opportunity to comply with the command.4 Indeed, the Sixth Circuit
and district courts within this Circuit have repeatedly rejected claims that an officer
reasonably used force to secure compliance with an order where the officer failed
to give the suspect a reasonable chance to comply with the order.5 Viewed in the
light most favorable to Bibbs, the record establishes that (1) Allen tased Bibbs

4

There may, of course, be instances in which an officer may reasonably determine
that circumstances are so dire that he must employ force without first giving a
command and/or giving a suspect an opportunity to comply with the command.
Those circumstances are not present here. Allen’s own testimony – that he gave
the “spit-it-out” command and fired his taser only after Bibbs disobeyed – shows
that Allen believed he had time to issue a command and to allow Bibbs an
opportunity to comply with the command.
5

See, e.g., Brown v. Weber, 555 Fed. App’x 550, 554-55 (6th Cir. 2012) (rejecting
argument that officers reasonably used taser to gain suspect’s compliance with
their orders “because there simply was no time for [the suspect] to comply with the
officers’ directions); Kijowski, 372 Fed. App’x at 599 (same); McCaig v. Raber,
2012 WL 1032699 at *4 (W.D. Mich. Mar. 27, 2012) (“If [the defendant officer]
did not give [the plaintiff suspect] ample opportunity or ability to comply with his
verbal command prior to engaging in the takedown maneuver, his actions could be
viewed as objectively unreasonable”); Watkins v. Kanitz, 2004 WL 3457634 at *6
(W.D. Mich. Sept. 24, 2004) (denying summary judgment on claim of excessive
force where plaintiff testified that officer began hitting her without giving her any
time to comply with command to exit her vehicle). 
14

repeatedly and within a very short period of time as Allen was yelling at Bibbs to
spit out the white substance and (2) during this time, Bibbs was helpless on the
ground with saliva spewing from his mouth. From these facts, is far from clear
that Allen gave Bibbs a sufficient opportunity to comply with the “spit-it-out”
command. Accordingly, Allen is not entitled to summary judgment on the ground
that he reasonably used the taser as a means of securing compliance with that
command.
The primary case cited by Allen to justify his use of the taser to prevent
Bibbs from swallowing the suspected cocaine actually supports the conclusion that
his use of force was unreasonable. Allen cites Monday v. Oullette, 118 F.3d 1099
(6th Cir. 1997), for the proposition that: “[t]his Circuit has recognized that the use
of non-lethal force is allowable to take custody of a suspect who presents a danger
to himself.” (Allen Reply Br. at 5, Pg. ID 296.) In Monday, police were called to
a residence after receiving a report that the plaintiff had ingested an overdose of
pills. The police spoke with the plaintiff for “about twenty minutes.” Id. at 1101.
After the plaintiff refused to go to the hospital voluntarily, an officer warned him
that he would be sprayed with pepper spray if he did not cooperate. See id. When
the plaintiff still refused, the officer “sprayed [him] in the face with a single blast
of pepper spray.” Id. The Sixth Circuit held that the officer’s single use of the
pepper spray was reasonable, in part, because he tried to reason with the plaintiff

15

and warned plaintiff before using the pepper spray. See id. at 1104-1105. Monday
thus underscores that force may be justified to secure compliance with an order
where the police allow a reasonable opportunity to comply with the order – which,
Bibbs insists, did not happen here.
For all of these reasons, the Court concludes that “if [Bibbs’] version of
events is correct, [Allen] deployed his Taser unreasonably, thereby violating
[Bibbs’] Fourth Amendment right to be free from the use of excessive force.”
Kijowski, 372 Fed. App’x at 600.
C.

Bibbs’ Right to Be Free From Multiple Tasings When He Was Not
Resisting Arrest Was Clearly Established (Prong Two)
Allen argues that even if his use of the taser was unreasonable, he is

nonetheless entitled to summary judgment because Bibbs right to be free from a
taser shock under the circumstances presented here was not clearly established.
The Court rejects that argument. Given the Sixth Circuit’s clear guidance in
myriad taser cases, “a reasonable official [in Allen’s position] would [have
understood] that what he [was] doing violate[d] [Bibbs’] right[s].” Kijowski, 372
Fed. App’x at 600-601 (internal quotation marks omitted).
The Sixth Circuit has repeatedly addressed the use of tasers by police
officers in the context of a qualified-immunity analysis. Its summary of the law in
this Circuit as of May 2010 (which did not substantially change before the June
2011 traffic stop at issue in this case) is worth quoting at length:
16

Looking at cases before May 2010, this Court's analysis of
whether a defendant's right to be free from a taser shock was
clearly established can be split into two lines of cases. First, this
Court has generally found no clearly-established right where the
suspect is actively resisting arrest, which can include physically
resisting, fleeing the scene despite police orders, and not
responding to orders to move. Hagans v. Franklin Cnty.
Sheriff's Office, 695 F.3d 505, 509 (6th Cir. 2012) (finding it
was not 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); Caie v. W.
Bloomfield Twp., 485 Fed.Appx. 92, 95–96 (6th Cir. 2012)
(right not clearly established in 2009 when suspect refused to
follow police orders and move his arms from under his body);
Cockrell v. City of Cincinnati, 468.491, 495 (6th Cir. 2012)
(holding no clearly established right in 2008, because flight is a
form of resistance); Williams v. Ingham, 373 Fed.Appx. 542,
548 (6th Cir. 2010) (officers acted reasonably by tasing suspect
who would not move his hands from under his body); Russo v.
City of Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992) (finding
qualified immunity for police officers who tased a potentially
homicidal man who stood a few feet away with knives in each
of his hands).
In a second set of cases, this Court has found that plaintiffs'
right to be free from a taser shock is clearly established where
they have done nothing to resist arrest or are already detained.
For example, in Thomas v. Plummer, the suspect was
repeatedly told to get down on the ground. Thomas, 489
Fed.Appx. at 118. When the suspect responded by only
dropping to her knees with her hands in the air, the police tased
her. Id. This Court held that the suspect “posed absolutely no
threat” as she hadn't offered any “active resistance.” Id. at 126.
Similarly in Kijowski v. City of Niles, we found the right to be
free from excessive force clearly established when police
dragged an unresisting man from his truck and immediately
tasered him. Kijowski, 372 Fed.Appx. at 601. In some cases,
tasing a previously resistant and violent suspect who no longer
poses a threat to the police officers also violates clearly
established law. Landis, 297 Fed.Appx. at 461 (finding that
17

where the defendant released the police officer and walked into
the woods there was “no longer a threat to any of the officers”
because the defendant was “not belligerent or verbally
resistant” and did not have a weapon).
Correa v. Simone, 528 Fed. App’x at 535.

Just this year, the Sixth Circuit

reiterated that a suspect who does not pose a threat and is not resisting arrest has a
clearly-established right not to be tased. See Brown, 555 Fed. App’x at 551.
Indeed, Allen himself properly concedes that “a suspect who is not resisting arrest
or is already detained has a clearly established right not to be tased.” (Allen Mot.
and Br. at 24, Pg. ID 73.)
As described in detail above, viewing the evidence in the light most
favorable to Bibbs, the Court must conclude that Bibbs was not resisting arrest,
was not disobeying orders, and did not pose a threat at the time Allen tased him.
Under these circumstances, Bibbs’ right not to be tased repeatedly was clearly
established.

See Kijowski, 372 Fed. App’x at 601 (internal quotation marks

omitted) (finding “little difficulty in concluding the right [the police officer]
allegedly violated was clearly established” because “[e]ven without precise
knowledge that the use of the taser would be a violation of a constitutional right,
[the officer] should have known that based on analogous cases that his actions
were unreasonable”).
The Sixth Circuit’s application of the “clearly-established” test in Correa is
particularly instructive. In that case, a police officer tased “a non-resistant but
18

possibly armed suspect.” Correa, 528 Fed App’x at 535. The officer argued that
the suspect had no clearly established right to be free from a taser shock “because
none of [the Sixth Circuit’s] cases has dealt specifically with a suspect who was
armed with a firearm.” Id. The Sixth Circuit “disagree[d].” Id. It explained:
Simone's argument is that the law regarding tasing a nonresistant but possibly armed suspect was not clearly established
because none of our cases has dealt specifically with a suspect
who was armed with a firearm. We disagree. As noted above,
this Court's precedent has emphasized the concept of resistance
when considering whether an officer's conduct violates
established law. As we noted in Wysong, 260 Fed.Appx. at 856,
“the right to be free from physical force when one is not
resisting the police is a clearly established right.” The absence
of case law specifically addressing gun possession does not
bear on whether the law is clearly established. The precedent in
this Circuit clearly holds that a police officer must encounter
some level of resistance by the defendant to justify using a
taser. The mere possession of a gun is not, in and of itself,
resistance unless coupled with something more, such as a
physical or verbal action. Holding otherwise would mean
ignoring a significant amount of precedent establishing the
importance of a defendant's resistance to an officer's calculation
of whether to use his or her taser. Using a taser on a potentially
armed suspect who is complying with all officer commands and
not resisting violated clearly established law as of May 2010.
Id. at 535-36 (emphasis added).
Like the suspect in Correa, Bibbs was complying with all commands and
not resisting arrest when he was tased (at least when the facts are viewed in his
favor). Thus, as in Correa, Bibbs had a clearly-established right not to be tased.

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Accordingly, Allen is not entitled to summary judgment on his qualified immunity
defense.
CONCLUSION
For all of the reasons stated in this Opinion and Order, Allen’s Motion for
Summary Judgment (ECF #12) is hereby DENIED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: August 13, 2014

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 13, 2014, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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