Jackson v. Highland Park,City of et al

Filing 47

ORDER Denying 39 Motion for Summary Judgment; and Denying 41 Motion for Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANDREW JACKSON, JR.,
Case No. 15-10678
Plaintiff,
Honorable Nancy G. Edmunds
v.
RONALD J. DUPUIS AND
JAMES M. VOGLER,
Defendants.
/

OPINION AND ORDER DENYING DEFENDANT VOGLER'S
MOTION FOR SUMMARY JUDGMENT [39] AND DENYING DEFENDANT
DUPUIS'S MOTION FOR SUMMARY JUDGMENT [41]
This civil rights lawsuit arises out of Plaintiff's arrest on January 12, 2015. On May
27, 2015 the Court dismissed Plaintiff's claims but allowed him to replead his excessive
force claim with greater specificity. (Dkt. # 22, Pg ID 280). Plaintiff filed a Second
Amended Complaint on May 28, 2015. (Dkt. # 23). Currently before the Court are
Defendant James M. Vogler's Motion for Summary Judgment (Dkt. # 39) and Defendant
Ronald J. Dupuis's Motion for Summary Judgment (Dkt. # 41). Defendant officers argue
that they are entitled to qualified immunity, and that their use of force was objectively
reasonable because Plaintiff was actively resisting arrest and refusing to move his arms
to be handcuffed. Plaintiff maintains that he was not resisting arrest, and that Defendants
severely kicked and beat him after he was handcuffed, face down on the ground. For the
reasons stated below, this Court DENIES Defendants' motions.

I.

FACTS
Defendants Grosse Pointe Park Public Safety Department Officer James M. Vogler

("Vogler") and Highland Park Officer Ronald J. Dupuis ("Dupuis") were assigned to the
ACTION Auto Theft Task Force, a multi-jurisdictional task force. (Dkt. # 39-2, Pg ID 405,
408). On January 12, 2015, Vogler received a phone call from a vehicle GPS tracking
service, which reported the location of a stolen vehicle in the City of Detroit. Id. at 408.
Vogler conducted a LEIN check, which indicated that the vehicle was registered to Phyllis
Knox and had been reported stolen to the Detroit Police Department ("DPD") on that date.
Id. Vogler received information from DPD that the vehicle was taken in an armed robbery
by a black male approximately 50 years old with a salt and pepper beard, wearing a black
security guard coat and armed with a semiautomatic handgun. Id. Vogler notified the
ACTION officers and began driving to the location of the stolen vehicle. Id.
While en route, Vogler received a second call from the GPS tracking service reporting
that the stolen vehicle had moved to a different location. Id. Vogler and other ACTION
officers responded to that area and began surveillance of the vehicle. Id. At approximately
1:30 p.m., one of the officers notified all team members that a subject matching the
description of the carjacking suspect, and later identified as Plaintiff Andrew Jackson, Jr.
("Plaintiff" or "Jackson"), had entered the stolen vehicle. Id. Jackson drove the stolen
vehicle to another location, and the ACTION officers followed. Id. Jackson parked in a
driveway, and three officers, including Dupuis, exited their vehicles and approached
Jackson as he exited the vehicle. Id. Jackson fled on foot and, according to Vogler, he
grabbed his right side near his hip. Id. Dupuis pursued him on foot, as the other ACTION
officers attempted to drive to a position to intercept Jackson. Id. Dupuis then notified the
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ACTION officers that he had Jackson, and additional officers arrived on the scene within
minutes. Id. Vogler was the first officer to reach Dupuis and Jackson.
According to Vogler, he arrived to find Dupuis on the ground attempting to place
Jackson in handcuffs, and Jackson resisting arrest by pulling his arms away and under his
body. Id. Vogler saw Jackson pull his right arm under his body with his right hand reaching
toward the pocket on the right side of his overalls. Id. Dupuis then yelled, "Give me your
arm!" Id. Fearing that Jackson was reaching for a weapon, Vogler kicked Jackson twice
in his right thigh, in the area of the common peroneal. Id. at 409. In his affidavit, Vogler
attests that this is a common law enforcement tactic used to gain control of a non-compliant
arrestee. Id. at 405. Dupuis was then able to put the handcuffs on Jackson. Id. at 409.
Vogler conducted a search and discovered a semiautomatic handgun in the right pocket
of Jackson's overalls. Id.
At his deposition, Jackson denied any carjacking and denied having a gun on his
person. (Dkt. # 44-1, Pg ID 739, 748). He testified that, on January 12, 2015, he had a flat
tire and that his cousin paid a friend for the use of the vehicle, which happened to be the
stolen vehicle, so that Jackson could go get another tire. Id. at 739-40. Jackson testified
that he does not know his cousin's friend's name. Id. at 739. About an hour and a half
after obtaining this vehicle, Jackson was approached by the officers. Id. at 739, 741.
According to Jackson, he ran from the police because he was in violation of his parole. Id.
at 741. He knew he was running from the police because he saw their badges, which the
officers were wearing around their necks, while he was fleeing. Id. at 743. Jackson
eventually got tired and could not run anymore. Id. at 741. Dupuis caught up to him,
ordered him on his knees, and shot him with a taser. Id. Jackson testified that the taser
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did not work because he was wearing a heavy Carhart suit. Id. Dupuis then pulled out his
service revolver and ordered Jackson to lie face down on the ground and put his hands on
his head. Id. Jackson testified that he complied and that Dupuis handcuffed him. Id.
Dupuis then began beating him. Id. According to Jackson, Dupuis hit him between ten and
twenty times in the face, eyes, head, and neck with an object or his fist after handcuffing
him. Id. at 742.
Jackson testified that, after this initial beating, Dupuis contacted the other officers.
Id. Vogler arrived within a minute and kicked him. Id. Dupuis and Vogler kicked him and
punched him after he was handcuffed, and the beating lasted approximately three minutes.
Id. at 742, 744, 749. Jackson knows that Vogler kicked him on his right side, but he does
not remember how many times Vogler kicked and punched him or exactly where on his
body. Id. at 749. Jackson testified that he knows Vogler also punched him because he
saw this in a video of the incident on the news, but he has no independent recollection of
this. Id. Jackson further testified that he was in a daze by the time that Vogler arrived on
the scene. Id. at 750.
A video taken by a third-party witness differs in part from both the officers' and
Jackson's accounts of the incident.

(Dkt. # 39-3).

The Livonia Police Department

Computer Forensics Unit extracted this video from the witness's phone. (Dkt. # 39-4). The
video begins with Jackson face down on the ground and Dupuis on top of him (straddling
Jackson with his back to the camera). (Dkt. # 39-3). Vogler is standing to the right of them.
It is not possible to tell from the camera angle where Jackson's arms are in that moment.
They could be behind his head, as he claims, or they could be under his body, as the
officers claim. The video shows Dupuis punching Jackson four times in a row. He delivers
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the first two punches and then says, "Give me your f***ing arm, give me your arm!," as he
delivers the following two punches. Vogler delivers two kicks to Jackson's right thigh area,
as Dupuis is yelling for Jackson's arm. Part of Jackson's right arm then becomes visible
for a brief moment, but it is not possible to tell where the arm came from. One can hear the
locking of the handcuff as Dupuis finishes the handcuffing. Dupuis then smacks Jackson
with an open hand, gets up, and calls him a "f***er." He walks away, and Jackson is heard
mumbling face down on the ground. Vogler then places a knee on Jackson's back and left
arm and leans his body weight into his knee several times, pressing it down on Jackson's
left side. Vogler states, "What did you say? Jesus? You're calling Jesus? Don't you dare!
Don't you f***ing dare!," as he smacks Jackson with an open hand in the area around his
face. Vogler then backs away from Jackson. Dupuis walks toward Jackson again and
turns him around on his back with some force while saying, "You think you can outrun me,
b****? You think you can outrun me, b****?" The camera begins to shake, and a third
officer walks into the frame, so it is difficult to tell whether Dupuis kicks Jackson or not while
turning him around. A fourth officer arrives, and the officers help Jackson to his feet and
search him. One of the officers states, "That was a justified a** whopping." Vogler
eventually pulls a gun out of Jackson's right pocket. The officers then escort Jackson into
a patrol vehicle. Photographs taken on January 14, 2015 at the Grosse Pointe Park Police
Department holding cells show Jackson's right eye swollen shut. (Dkt. # 41-2, Pg ID 566,
658-59).
On January 13, 2015, the day after Jackson's arrest, Phyllis Knox, the carjacking
victim, identified Jackson as the individual who pulled a gun on her and took her vehicle the
day before. (Dkt. # 39-2, Pg ID 409-10). Although Jackson maintains his innocence, he
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was convicted of several felonies, including armed robbery, carjacking, felon in possession
of a firearm, carrying a concealed weapon, felonious assault, felony firearms, and
assaulting/obstructing/resisting police officers, following a bench trial.1 Jackson is currently
serving a 47-year sentence.
Michigan State Police investigated the incident and turned the investigation over to
the Wayne County Prosecutor. (Dkt. # 39-5). The Wayne County Prosecutor determined
that no charges would be brought against the officers, adding as follows:
There is no question that some of the actions of Dupuis and Vogler were
inappropriate and, as an office, we obviously do not condone the striking of
any persons in police custody, regardless of how minor that contact may be.
Neither Dupuis nor Vogler should have smacked Jackson once he was
handcuffed; however, it is my opinion that those actions do not rise to the level
of criminal charges.
(Dkt. # 41-2, Pg ID 690).
II.

DUPUIS'S REQUEST FOR JUDGMENT ON THE PLEADINGS
As a preliminary matter, the Court notes that Defendant Dupuis filed a Motion for

Summary Judgment, citing Rule 56 of the Federal Rules of Civil Procedure; however,
Dupuis also cites the standard for a motion to dismiss. Dupuis argues that Plaintiff's
Second Amended Complaint does not meet the heightened pleading standard set forth in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
because Plaintiff has not alleged specific conduct on the part of Dupuis that violated his
rights. Dupuis filed an answer to Plaintiff's Second Amended Complaint. (Dkt. # 24).

1

See Michigan Department of Corrections, Offender Tracking Information System Profile
for Andrew Jackson,
https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=243078, last visited Feb.
28, 2018.
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Accordingly, the Court will consider Dupuis's request under Rule 12(c) of the Federal Rules
of Civil Procedure.
A. Standard of Review
Federal Rule of Civil Procedure 12(c) authorizes parties to move for judgment on the
pleadings "[a]fter the pleadings are closed — but early enough not to delay trial." Fed. R.
Civ. P. 12(c). Motions for judgment on the pleadings are analyzed under the same
standard as motions to dismiss under Rule 12(b)(6). See Warrior Sports, Inc. v. Nat'l
Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). "For purposes of a motion for
judgment on the pleadings, all well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment." Id.
The Sixth Circuit has noted that under the United States Supreme Court's heightened
pleading standard laid out in Twombly and Iqbal, “a complaint only survives a motion to
dismiss if it contains sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Estate of Barney v. PNC Bank, Nat'l Assoc., 714 F.3d 920, 924-25
(6th Cir. 2013) (internal quotation marks and citations omitted). The court in Estate of
Barney goes on to state that under Iqbal, “[a] claim is plausible when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. (internal quotation marks and citations omitted).
Furthermore, “[w]hile the plausibility standard is not akin to a ‘probability requirement,’ the
plausibility standard does ask for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. "[O]n a motion to dismiss, courts are not bound to

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accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555 (internal quotation marks and citation omitted).
B. Analysis
Dupuis argues that Plaintiff's Fourth Amendment claim is vague, unspecific, and
implausible. Plaintiff does not directly respond to this argument.
In his Second Amended Complaint, Plaintiff alleges that Defendants placed him under
arrest, that he did not resist arrest, and that he followed all officer commands. Plaintiff
further alleges that, after being handcuffed while face down on the ground, Defendants
severely kicked and beat him, and that Dupuis gratuitously struck him in his head. (Dkt.
# 23, Pg ID 284).
The sole constitutional standard for evaluating claims of excessive force during the
course of an arrest is the Fourth Amendment's objective reasonableness standard.
Graham v. Connor, 490 U.S. 386, 395 (1989). The Court concludes that Plaintiff's
assertions, if believed, may give rise to an excessive force claim against Dupuis.
Accordingly, the Court denies Dupuis's request.
III.

MOTIONS FOR SUMMARY JUDGMENT
A. Standard of Review
It is well established that summary judgment under Federal Rule of Civil Procedure

56 is proper when the movant “shows that there is no genuine dispute as to any material
fact, and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (quotation marks omitted).
When reviewing the record, “the court must view the evidence in the light most favorable
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to the non-moving party and draw all reasonable inferences in its favor.” Id. Furthermore,
the “substantive law will identify which facts are material, and summary judgment will not
lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. When considering the
material facts on the record, a court must bear in mind that “[t]he mere existence of a
scintilla of evidence in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at
252. The nonmoving party's version of the facts must be relied upon unless blatantly
contradicted by record evidence, such as a video recording. Scott v. Harris, 550 U.S. 372,
378, 380-81 (2007).
B. Analysis
1. Qualified Immunity
Dupuis and Vogler argue that they are entitled to qualified immunity on Plaintiff's
excessive force claim. Plaintiff responds that there are genuine issues of material facts to
preclude summary judgment.
Government officials are entitled to qualified immunity where their actions do not
"violate clearly established statutory or constitutional rights of which a reasonable person
would have known." Green v. Reeves, 80 F.3d 1101, 1104 (6th Cir. 1996) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). A government official will not be immune if, on
an objective basis, it is obvious that no reasonably competent officer would have concluded
that the action at issue was lawful; but if the officer of reasonable competence could
disagree on this issue, immunity should be recognized. Malley v. Briggs, 475 U.S. 335, 341
(1986). Qualified immunity is an initial threshold question the court is required to rule on
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early in the proceeding so that the costs and expenses of trial are avoided where the
defense is dispositive. Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity is
"an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Id.
The first inquiry to determine qualified immunity is whether, taken in the light most
favorable to the party asserting the injury, the facts alleged show the official's conduct
violated a constitutional right.

Siegert v. Gilley, 500 U.S. 226, 232 (1991).

If no

constitutional right would have been violated, there is no necessity for further inquiries
concerning qualified immunity. Saucier, 533 U.S. at 201. If a violation could be made out,
the next step is to determine whether the right was clearly established in light of the specific
context of the case, not as a broad general proposition. Id. Under the doctrine of qualified
immunity, an official will not be found personally liable for money damages unless the
official's actions violate "clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow, 457 U.S. at 818. The "clearly established"
rights allegedly violated by the officials cannot be considered at an abstract level, but must
be approached at a level of specificity: "The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 639 (1987). "Reasonableness" is a question of law
to be decided by the trial court.
2. Excessive Force

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Vogler and Dupuis argue that they are entitled to qualified immunity because their use
of force was objectively reasonable and did not violate Plaintiff's constitutional rights. They
stress that Plaintiff was suspected of armed carjacking, that the officers had reason to
believe that Plaintiff was armed, and that Plaintiff actively resisted and attempted to evade
arrest. Vogler and Dupuis further argue that Plaintiff can present no case law clearly
establishing that their actions violated the Fourth Amendment.
Plaintiff responds that, viewing the facts in the light most favorable to Plaintiff,
Defendants' use of force was not objectively reasonable and violated Plaintiff's
constitutional rights because Defendants beat Plaintiff while he was lying face down,
handcuffed, and not resisting arrest. Plaintiff argues that it is clearly established that there
is no need for force after an arrestee has been subdued such that he is no longer trying to
flee and no longer a threat to anyone.2
Where a plaintiff complains of excessive force in the course of an arrest, investigatory
stop, or other seizure, the claim must be analyzed under the Fourth Amendment’s objective
reasonableness standard, not under a substantive due process standard. Walton v. City
of Southfield, 995 F.2d 1311, 1342 (6th Cir. 1993) (citing Graham v. Connor, 490 U.S. 386,
395 (1989)). The proper application of the objective reasonableness standard “requires

2

In addition to his excessive force argument, Plaintiff's Response contains one
paragraph arguing that Defendants were deliberately indifferent to Plaintiff's serious
medical needs following the arrest. (Dkt. # 44, Pg ID 729). The Court agrees with
Defendants that this claim must be rejected, as Plaintiff failed to raise it in his Second
Amended Complaint. See Dkt. # 23; Tucker v. Union of Needletrades, Indus. & Textile
Emps., 407 F.3d 784, 788 (6th Cir. 2005) (explaining that a plaintiff cannot raise a claim for
the first time in opposition to a motion for summary judgment). The Court further notes
that, in its May 27, 2015 Opinion and Order, the Court allowed Plaintiff to replead his
excessive force claim only. (Dkt. # 22, Pg ID 280).
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careful attention to the facts and circumstances of each particular case, including [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 he is actively resisting arrest or attempting
to evade arrest by flight.” Graham, 490 U.S. at 396. “The ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Id. The Supreme Court has further
explained:
The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.
Id. at 396-97. The question for the Court 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.” Id. at 397. This test “requires a ‘careful balancing’ of the
individual interest in being free from unreasonable seizures and the important governmental
interest in protecting the safety of its peace officers and the public.” Williams v. City of
Grosse Pointe Park, 496 F.3d 482, 486 (6th Cir. 2007) (citing Graham, 490 U.S. at 396).
The Sixth Circuit has explained that “[t]he general consensus among our cases is
that officers cannot use force . . . on a detainee who has been subdued . . . or is not
resisting arrest.” Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (finding excessive
force where the officer discharged pepper spray while the suspect had his hands against
the wall after waiting for the officer to catch up to him without any indication of resistance).
“[T]he use of force after a suspect has been incapacitated or neutralized is excessive as
a matter of law.” Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) (finding that

12

a reasonable juror could conclude that the officer’s strike to the suspect’s head was
excessive where the suspect had surrendered before being struck, despite a prior attempt
to flee). There is no governmental interest in continuing to beat a suspect after he has
been neutralized. See, e.g., Phelps v. Coy, 386 F.3d 295, 301 (6th Cir. 2002) (finding a
reasonable officer would not strike on the head a suspect who has already been tackled
and handcuffed); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988) (finding that the
need for application of force is nonexistent where a suspect is handcuffed and not trying
to escape or hurt anyone).
It is clearly established in the Sixth Circuit that “the gratuitous use of force on a
suspect who has already been subdued and placed in handcuffs is unconstitutional.”
Bultema v. Benzie Cnty., 146 F. App'x 28, 35 (6th Cir. 2005) (unpublished); see, e.g., Harris
v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009) (“there undoubtedly is a clearly
established legal norm precluding the use of violent physical force against a criminal
suspect who already has been subdued and does not present a danger to himself or
others”); Polk v. Hopkins, 129 F. App’x 285 (6th Cir. 2005) (unpublished) (finding the right
not to be subjected to excessive force after being handcuffed clearly established where the
suspect was flat on the ground, handcuffed, and did not present a threat); Smoak v. Hall,
460 F.3d 768, 783-84 (6th Cir. 2006) (finding that, despite the suspect suddenly jumping
to his feet upon witnessing his dog being shot, a reasonable officer would have known that
knocking the suspect to the ground was excessive in light of the fact that the suspect was
already handcuffed); Morrison v. Bd. Of Trustees Of Green Twp., 583 F.3d 394, 407 (6th
Cir. 2009) ("'Gratuitous violence' inflicted upon an incapacitated detainee constitutes an
excessive use of force, even when the injuries suffered are not substantial.").
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The Court now turns to the facts of this case. Regarding the first Graham factor, the
severity of the crime at issue, it is undisputed that Defendants had reason to believe that
Plaintiff had committed a carjacking at gunpoint, a serious felony.

Plaintiff was

subsequently convicted of several felonies as enumerated above. The Court finds that this
factor weighs in favor of Defendants.
Regarding the second Graham factor, whether the suspect poses an immediate
threat to the safety of the officers or others, Plaintiff was suspected of armed carjacking and
had fled from the police, suggesting that he may have had something to hide. Vogler's
affidavit and its attached exhibit indicate that Plaintiff continued to reach for the right side
of his pants, and that the officers believed he was reaching for a gun. The video shows
that Plaintiff did indeed have a gun in his right pocket. Although Defendants claim that the
video shows Plaintiff continuing to reach for the right side of his pants as Dupuis attempts
to handcuff him, the video is not so clear. Defendants claim that they hit and kicked
Plaintiff while he was resisting and they were attempting to handcuff him. On the other
hand, Plaintiff testified that, once he stopped running, he complied with the officers'
directives, yet Defendants hit and kicked him after he was handcuffed. The video does not
blatantly contradict Plaintiff's claim that, once he could not run anymore, he complied with
the officers' directives and lay face down on the ground with his hands behind him. While
the video does contradict Plaintiff's claim that the beating began after he was handcuffed,
and while Dupuis can be heard giving Plaintiff loud commands to give him his arm after his
first two punches but before he completes the handcuffing, the video is not clear enough
to blatantly contradict Plaintiff's claim that he was no longer resisting arrest. It is not
possible to tell from the camera angle where Jackson's arms are in the beginning of the
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video. Viewing the facts in the light most favorable to Plaintiff, his arms were behind him
and available to the officers, and he was complying with the officers' directives when
Dupuis began punching him. Under this version of events, he was no longer an immediate
threat to the safety of anyone where he was in a prone position, face down on the ground
with his hands behind him and Dupuis sitting on his back straddling him. Accordingly, this
factor weighs in favor of Plaintiff. Furthermore, even if the video did clearly show Plaintiff
reaching for his right pocket such that Dupuis's initial punches and Vogler's initial kicks
could be said to be objectively reasonable, later on, the video clearly shows both Dupuis
and Vogler smacking Plaintiff after he is handcuffed face down on the ground, at which
point he was no longer a threat. See McDowell, 863 F.2d at 1307(finding that the need for
application of force is nonexistent where a suspect is handcuffed and not trying to escape
or hurt anyone).
Regarding the third Graham factor, whether the suspect is actively resisting arrest
or attempting to evade arrest by flight, Plaintiff testified that he eventually could not run
anymore, stopped, and complied with the officers' directives. According to Plaintiff, he did
not resist arrest or attempt to flee after he stopped running. Instead, he lay face down on
the ground and put his hands behind him. According to Plaintiff, Dupuis and Vogler hit and
kicked him over twenty times after he was handcuffed. According to Defendants, they hit
and kicked Plaintiff while he was resisting and they were attempting to handcuff him.
Again, the video does not blatantly contradict Plaintiff's claim that he was no longer
resisting arrest or attempting to flee. The video does not show any resistance or attempt
to flee on Plaintiff's part. The video does clearly show Dupuis smacking Jackson right after
he finishes handcuffing him. The video also clearly shows Vogler placing his knee on
15

Jackson's back and left arm and leaning his body weight into his knee several times,
pressing it down on Jackson's left side while Jackson is handcuffed face down on the
ground. Vogler then smacks Jackson in the area around his face. Viewing the facts in the
light most favorable to Plaintiff, he was not actively resisting arrest or attempting to evade
arrest by flight during the time period depicted in the video. Accordingly, this factor also
weighs in favor of Plaintiff.
The Court concludes that there remain genuine issues of material facts to preclude
summary judgment in favor of Defendants. The “careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake” called for in Graham indicates that a reasonable juror
could find that Dupuis's use of force as well as Vogler's use of force, in particular their posthandcuffing use of force, violated Plaintiff's Fourth Amendment right to be free from
excessive force. Sixth Circuit precedent addressing the use of force on handcuffed
individuals who have been subdued and neutralized is clear and was established prior to
January 2015, as discussed above.

IV.

CONCLUSION
For the reasons set forth above, the Court hereby DENIES Defendant Vogler's

Motion for Summary Judgment (Dkt. # 39) and DENIES Defendant Dupuis's Motion for
Summary Judgment (Dkt. # 41).
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
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Dated: March 1, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 1, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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