Brown v. Scaglione et al

Filing 99

AMENDED OPINION AND ORDER GRANTING 82 MOTION for Summary Judgment filed by Officer Joshua Scaglione; GRANTING 84 MOTION for Summary Judgment filed by Officer Cale Furney, Officer Andrew Teschendorf, Officer Robert Schurig, Officer Anthony Javonavich and DECLINING to Exercise Supplemental Jurisdiction Over State Law Claims Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
RAYMUREZ CHRISTOPHER BROWN,
Plaintiff,
v.
JOSHUA SCAGLIONE, et al.,

Case No. 20-10192

Defendants.
________________________________/
AMENDED OPINION AND ORDER GRANTING SUMMARY JUDGMENT TO ALL
DEFENDANTS AND DECLINING TO EXERCISE SUPPLEMENTAL
JURISDICTION OVER STATE LAW CLAIM 1
On August 17, 2018, while holding his two-month-old child, Plaintiff was tased
and forcibly arrested by Defendant Westland Police Officers. Plaintiff has asserted 42
U.S.C. § 1983 excessive force claims against Officers Joshua Scaglione and Robert
Schurig. Plaintiff also raises a failure to intervene claim against Officers Cale Furney,
Andrew Teschendorf, and Anthony Javonavich. Further, Plaintiff has asserted a state
law ethnic intimidation claim under Mich. Comp. Laws. § 750.147b against all
Defendants. Plaintiff’s arrest and preceding events are well documented through dash
cam footage and two bystander videos. Defendants have now filed two motions for
summary judgment that collectively seek summary judgment on all claims. (ECF Nos.
82, 84.) For the reasons explained below, the court concludes that summary judgment
should be granted in favor of Defendants on all asserted federal claims. But, the court

The court amended the opinion to correct a nonmaterial typographical error. The
reasoning and holdings of the court have not changed.
1

will decline to exercise supplemental jurisdiction over the remaining state law ethnic
intimidation claim.
I. BACKGROUND
On August 17, 2018, Defendant Westland Police officers Cale Furney and
Andrew Teschendorf were dispatched to the home of Barbara Joann Tackett. (ECF No.
88, PageID.2824.) Tackett reported she had been physically assaulted by her longtime
friend Nichole Skidmore and that Skidmore’s boyfriend, Plaintiff “Ray” Brown, had
repeatedly punched the hood of her car as she tried to drive away from Skidmore’s
Westland home. (Id.) Tackett’s statement to the two Officers is captured on a dashcam
recording. (Plaintiff’s Ex. 2, Furney Dashcam Video 2, ECF No. 88-3.) Tackett
recounted that the dispute began when she attempted to retrieve a borrowed roasting
pan from Skidmore and that it escalated because Skidmore and Brown “were drinking.”
(Id. at 0:45-2:00.) Tackett also told the Officers that Plaintiff brought four people with
him to help attack her vehicle and that Skidmore began choking Tackett when she
threatened to call the police. (Id.) Tackett stated that she “threw her car in reverse,”
drove back to her nearby home, and called 911. (Id.) Tackett’s mother, who was also
present at the time of the altercation, contemporaneously corroborated Tackett’s version
of the events. (Id.) Tackett provided both the location of the home (Alberta Street) and a
description of both Skidmore and Brown, along with their respective cell phone
numbers. (See id. at 4:00-4:30 (describing Plaintiff as a “mixed” race black male in his
twenties named “Ray Brown” wearing a black shirt and blue jeans).) Tackett also told
Officers that the couple was extremely intoxicated and that they had “a newborn baby”
in the house. (Id. at 8:00-8:15.) Officers Furney and Teschendorf—who “observed minor

2

redness around [Tackett’s] neck” and “scratch marks . . . as well as some handprints
on” the hood of her car—explained to Tackett that the Officers “would go have a chat”
with the couple and likely issue misdemeanor tickets. (Id. at 8:15-9:00; ECF No. 82-2,
PageID.2146.)
When Defendants Furney and Teschendorf arrived at the home on Alberta Street
around 9:00 pm, they “could hear loud music coming from the location and observed
multiple people on the porch.” (ECF No. 82-2, PageID.2146.) Plaintiff testified that he
had been hosting a neighborhood barbeque since 2:00 pm. (ECF No. 84-10,
PageID.2558.) Officers immediately made contact with a black male “matching the
description of ‘Ray’ on the front lawn” who appeared “visibly intoxicated.” (ECF No. 822, PageID.2146.) Dashcam audio records the initial encounter. (Defendant Scaglione
Ex. B, Furney In Car Video, ECF No. 82-3 at 0:30-1:10.) Plaintiff was immediately
hostile when approached by Defendants—asking why they were at his house,
demanding that they not stand on his property, and refusing to provide his name. (Id.
(Officer: “What’s your name;” Plaintiff: “Man, I’m asking you questions you [sic] at my
residence”).) Within forty-five seconds of Furney and Teschendorf's arrival, Plaintiff was
already refusing to answer most questions and was screaming over Defendants’
attempts at communication. (Id. at 1:10-2:00.) Defendants can be heard on the
recording explaining to Plaintiff, multiple times, that they were at the residence
investigating a reported crime. (Id.) Ninety seconds after Furney and Teschendorf's
arrival, Plaintiff is first warned by one of the Officers that he would “go to jail” if “he
continue[d] to run his mouth.” (Id. at 2:23-2:30.) When Defendant Officers Joshua
Scaglione, Robert Schurig, and Anthony Javonavich arrived on the scene as backup,

3

Officer Teschendorf located Skidmore and began interviewing her separately in the
street while Plaintiff continued splenetically shouting at the other Officers in front of the
home as a crowd of bystanders gathered. (Id. at 2:25-6:00.)
In addition to dashcam footage, Plaintiff’s continued interactions with Defendants,
including the eventual taser application and arrest, are also captured in more detail by
two separate bystander videos. The first bystander cell phone video caught about two
minutes of the altercation between Plaintiff and the Officers from Plaintiff’s right side.
(See Defendant Scaglione Ex. C, Right Side Bystander Video, ECF No. 82-4.) The
second bystander video caught the majority of the altercation between Plaintiff and the
Officers from Plaintiff’s left side. (Defendant Scaglione Ex. D, Left Side Bystander
Video, ECF No. 82-5.)
These videos demonstrate that Plaintiff was again warned he would be arrested
if he continued his hostile behavior. (Scaglione Ex. B at 5:55-6:03; Scaglione Ex. D at
0:40-0:55 (Scaglione: “You’re two seconds away from being arrested;” Plaintiff: “For
what?”; Scaglione: “You’re drunk in public;” Plaintiff: “Bro I don’t even drink. Have you
done a breathalyzer on me? Have you done a breathalyzer on me to see if I’m
drunk?”).) And, when Officer Scaglione instructed a nearby individual—later described
as a neighbor—who was holding Plaintiff’s two-month-old son to “get the baby out of
here,” the video shows that Plaintiff reacted aggressively and grabbed the child.
(Scaglione Ex. D at 1:00-1:24.) Despite being repeatedly told by a neighbor and Officers
to “calm down,” Plaintiff continued to yell while holding his crying child against the right
side of his chest. (Id. (Plaintiff: “That’s my son, and he can be exactly where he’s at.

4

Give me my child. . . That’s my son, and he ain’t got to go nowhere n****r. . . This man
just told me to take my child in the house.”).)
The recordings show that Officer Furney told Plaintiff that he had “one last
chance” to “calm down” before he would be “tak[en] to jail for disorderly person.” (Id. at
1:43-1:58.) Furney then repeated this warning in quick succession approximately five
times as Plaintiff continued shouting at Officers about his property rights. (Id.) Finally,
Furney can be heard saying, “[y]ou’re going to jail for disorderly person if you keep
yelling. Okay? You’re going to jail.” (Id.; Scaglione Ex. B at 6:55-7:11 (emphasis
added).) When Plaintiff moved toward the door of the house, Officers Scaglione,
Schurig, and Teschendorf surrounded him, preventing him from moving further toward
the front door of the home, and an unidentified Officer can again be heard telling
Plaintiff, “you’re going to jail, man.” (Scaglione Ex. D at 1:58-2:01.)
With Plaintiff now closely surrounded, Officer Scaglione pointed a taser toward
the left side of Plaintiff’s chest and repeatedly ordered Plaintiff to “give the baby back,”
but Plaintiff refused. (Id., at 2:00-2:18.) On the dashcam footage, Officer Scaglione can
be heard ordering Plaintiff, approximately six times in rapid succession, to let go of the
baby, but Plaintiff continued shouting at Officers and did not put down his crying son.
(Id.; Plaintiff’s Ex. 4, Schurig Dash Cam Video, ECF No. 88-5 at 5:18-5:43.) At this
point, Officer Teschendorf and Skidmore both joined the circle surrounding Plaintiff.
(Scaglione Ex. D at 2:05-2:18.)
A few seconds later, Officer Scaglione deployed the taser into Plaintiff’s left chest
area (opposite where Plaintiff held the baby) and pulled the trigger for six seconds. (Id.
at 2:18-2:23; ECF No. 82, PageID.2112; ECF No. 88, PageID.2830; ECF No. 88-6,

5

PageID.2877.) The taser application caused Plaintiff to release the baby into Officer
Schurig’s hands; Schurig immediately passed the baby to Skidmore. 2 (ECF No. 88,
PageID.2831.) After releasing the baby, Plaintiff was taken to the ground by
Defendants, who attempted to handcuff him. (Scaglione Ex. C, Right Side Bystander
Video at 0:08-0:10.) While on the ground, Scaglione again tased Plaintiff, this time in his
left leg, as other Officers attempted to handcuff Plaintiff. (Scaglione Ex. B at 0:15-0:34;
ECF No. 82-14, PageID.2284-85.) Scaglione testified that, although it cannot be clearly
seen on the video, Plaintiff tried to grab the base of his taser in the ensuing struggle, a
factual point that Plaintiff directly contests. (ECF No. 82-6, PageID.2161; ECF No. 91,
PageID.2922.) The video does show that Officer Schurig struck Plaintiff in the upper
body approximately ten seconds after Plaintiff was taken to the ground. (Scaglione Ex.
C at 0:18-0:22; ECF No. 84-7, PageID.2488.) Schurig testified in his deposition that he
delivered one knee strike to Plaintiff’s shoulder area and then struck Plaintiff’s left cheek
area once with a closed fist. (ECF No. 84-7, PageID.2481.) Plaintiff testified that, in
addition to these two strikes, another unidentified Officer also punched him in the back.
(ECF No. 84-10, PageID.2574.)
Further, Plaintiff testified in his deposition that he hit his head on a landscape
rock when falling to the ground and only awoke when his hands were already behind his
back. (ECF No. 82-10, PageID.2195 (“At that point, I was unconscious from hitting the
rock. When I was tooken [sic] off of my porch and slammed onto my front lawn, when I

Plaintiff acknowledges that the taser “did not deliver a charge to the baby,
Nichole [Skidmore], or other officers,” and that there is no evidence that his son (who
was examined by Westland EMTs as a precautionary measure) suffered any physical
injury as the result of the incident. (See ECF No. 88, PageID.2831, 2833.)
2

6

awoke, my hands were behind my back.”).) The videos appear to contradict this
testimony. The right-side bystander videos show Plaintiff was actively flailing, kicking,
and pulling his arms under his body for about thirty seconds after he was taken to the
ground. (Scaglione Ex. C, at 0:10-0:38.) Plaintiff can also be heard on one of the
recordings shouting while on the ground, repeatedly stating that “my hands are behind
my back bro,” and “I have epilepsy bro.” (See Plaintiff’s Ex. 4, Schurig Dash Cam Video
at 5:43-6:22.)
Once Plaintiff was handcuffed, he was returned to a standing position within sixty
seconds of being initially taken to the ground. (Scaglione Ex. C, at 0:10-1:08.) And
Plaintiff does not allege he was punched or kicked by Officers after he was handcuffed.
(See ECF No. 88, PageID.2837.) An EMT examined Plaintiff once he was in custody,
but the EMT’s report indicates that Plaintiff was “irate” and refused care. (See ECF No.
82-7, PageID.2166-67.)
Following his arrest, Plaintiff was charged with several misdemeanor violations of
Westland’s City Ordinances. The case went to trial, and Plaintiff was found guilty by a
jury of four misdemeanor violations. These include Disorderly (Intoxicated) Person Sec.
62-97, Resisting Arrest Sec. 62-36(a), Contributing to the Delinquency of a Minor Sec.
62-401, and Disturbing the Peace Sec. 62-99(b). 3 (Id., PageID.2833-34; ECF No. 84-16,
PageID.2633.) Plaintiff was acquitted of the other three misdemeanor charges, including
malicious destruction of Tackett’s property Sec. 62-127, assault and battery on a police
officer Sec. 62-67, and hindering a police officer Sec. 62-41. (Id.)

The applicable Westland ordinance provisions can be found at
https://library.municode.com/mi/westland/codes/code_of_ordinances?nodeId=PTIICOO
R_CH62OFMIPR_ARTIIOFAGGOFU (last visited July 11, 2022).
3

7

As a result of the encounter, Plaintiff alleged in his complaint that he suffered a
number of injuries, including concussion symptoms, a right wrist sprain, and a right
ankle/knee sprain. (ECF No. 1, PageID.14.) Plaintiff is not asserting a Monell claim, and
the court previously declined to exercise supplemental jurisdiction over two additional
state law claims. (See ECF No. 13.) Plaintiff’s complaint lists four claims against
Defendants that are presently at issue for purposes of summary judgment.
Count I: 42 U.S.C. § 1983 claim against Defendant Scaglione for excessive
force;
Count II: 42 U.S.C. § 1983 claim against Defendant Schurig for excessive
force;
Count III: 42 U.S.C. § 1983 claim against Defendants Teschendorf, Furney,
and Javonavich for failure to intervene;
Count IV: Ethnic intimidation claim against all Defendants.
(See ECF No. 1.)
Discovery in the case is now complete. Officer Scaglione has filed a motion for
summary judgment with regards to Counts I & IV (see ECF No. 82), while Officers
Furney, Javonavich, Robert Schurig, and Teschendorf have filed a joint motion for
summary judgment on Counts II through IV (see ECF No. 84). The two motions
collectively seek summary judgment on all claims remaining in this action.
II. STANDARD
To prevail on a motion for summary judgment, a movant must show—point out—
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). First, the moving party bears the
initial burden of presentation that “demonstrate[s] the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no
8

requirement, however, that the moving party “support its motion with [evidence]
negating the opponent’s claim.” Id. (emphasis removed); see also Emp’rs Ins. of
Wausau v. Petrol. Specialties, Inc., 69 F.3d 98, 102 (6th Cir. 1995).
Second, “the nonmoving party must come forward with ‘specific facts showing
that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (emphasis removed) (quoting Fed. R. Civ. P. 56(e)).
This requires more than a “mere existence of a scintilla of evidence” or “‘[t]he mere
possibility of a factual dispute.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (quoting Gregg v.
Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). For a court to deny summary
judgment, “the evidence [must be] such that a reasonable [finder of fact] could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. All reasonable inferences
from the underlying facts must be drawn “in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Moran
v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015).
In the present case, both parties agree that the relevant events were largely
captured on dashcam footage and relevant bystander video. While the court draws all
reasonable inferences in favor of Plaintiff as the non-moving party, the court need “not
accept Plaintiff’s facts to the extent that they are ‘blatantly contradicted by the record.’”
Mitchell v. Schlabach, 864 F.3d 416, 418 (6th Cir. 2017) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)) (citation omitted).

9

III. DISCUSSION
All Defendants move for summary judgment on qualified immunity grounds.
“[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In analyzing a party’s entitlement to
qualified immunity, the Supreme Court has noted: “If no constitutional right would have
been violated were the allegations established, there is no necessity for further inquiries
concerning qualified immunity. On the other hand, if a violation could be made out on a
favorable view of the parties’ submissions, the next, sequential step is to ask whether
the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Several
years later, the Supreme Court further honed its qualified immunity analysis, providing
that “judges . . . should be permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223,
236 (2009). “Each Defendant’s liability must be assessed individually based on his or
her own actions.” Pollard v. City of Columbus, 780 F.3d 395, 402 (6th Cir. 2015).
A. Excessive Force
A claim for excessive use of force is analyzed under the Fourth Amendment’s
“objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989).
Reasonableness “requires careful attention to the facts and circumstances of each
particular case.” Id. 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

10

20/20 vision of hindsight.” Id. There is a “built-in measure of deference to the officer’s
on-the-spot judgment about the level of force necessary in light of the circumstances of
the particular case.” Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 2002).
The reasonableness standard focuses on the specific moment in time the officer
made his decision to use force and the information he had at that time. Bouggess v.
Mattingly, 482 F.3d 886, 889 (6th Cir. 2007). It does not consider “whether it was
reasonable for the officer ‘to create the circumstances’” and “it does not require them to
perceive a situation accurately.” Thomas v. City of Columbus, 854 F.3d 361, 365 (6th
Cir. 2017) (citing Chappell v. City of Cleveland, 585 F.3d 901, 915-16 (6th Cir. 2009)).
“When, ‘as here, a plaintiff claims that excessive force was used multiple times, the
court must segment the incident into its constituent parts and consider the officer's
entitlement to qualified immunity at each step along the way.’” Hammond v. Cty. of
Oakland, Michigan, 825 F. App’x 344, 346 (6th Cir. 2020) (quoting Wright v. City of
Euclid, 962 F.3d 852, 865 (6th Cir. 2020)).
The Supreme Court in Graham “set[] out a three-factor test to aid courts in
assessing objective reasonableness.” Graves v. Malone, 810 F. App’x 414, 421 (6th Cir.
2020). “Those factors are: (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.’” Id.
(quoting Graham, 490 U.S. at 396-397).
1. Officer Scaglione
The excessive force claim raised against Officer Scaglione is based entirely on
his taser usage. (See ECF No. 88, PageID.2830.) Officer Scaglione acknowledges he

11

tased Plaintiff twice, once while he was standing on the porch holding his son and a
second time while Officers attempted to handcuff Plaintiff on the ground. (ECF No. 82,
PageID.2118 ¶60.) Data downloaded from the taser shows the trigger was pulled for six
seconds during its initial use and that it was then pulled for twenty-one seconds during
the second activation. (ECF No. 88-6, PageID.2877.) Officer Scaglione moves for
summary judgment, arguing that he is entitled to qualified immunity because “[t]he
undisputed record demonstrates that Plaintiff was actively resisting arrest when he was
initially tasered and continued to actively resist when the taser was reapplied.” (ECF No.
82, PageID.2123-24.) Scaglione further argues that Sixth Circuit precedent establishes
that it is not excessive force to tase someone who continues to resist arrest. (Id. (citing
Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015).)
In response, Plaintiff asserts that Officer Scaglione “used objectively
unreasonable force against [Plaintiff] by tasing him when he was unarmed, did not pose
a threat to others, was not under arrest and was carrying his infant child in his arms.”
(ECF No. 88, PageID.2841.) Reciting the Graham factors, Plaintiff argues that the crime
he was being arrested for was not serious, he posed no threat to arresting officers or
others, and that he was not actively resisting arrest when Officer Scaglione first tased
him. But Plaintiff’s interpretation both distorts the record and this circuit’s precedent
regarding taser usage.
The Sixth Circuit has repeatedly found that “there is no clearly established right
not to be tased when a suspect is actively resisting arrest.” Wright, 962 F.3d at 870
(citations omitted); Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015)
(“There is no clearly established right for a suspect who ‘actively resists’ and refuses to

12

be handcuffed to be free from a Taser application.”) (citations omitted); Hagans v.
Franklin Cty. Sheriff's Office, 695 F.3d 505, 509 (6th Cir. 2012) (“If a suspect actively
resists arrest and refuses to be handcuffed, officers do not violate the Fourth
Amendment by using a taser to subdue him.”). But “there is a clearly established right
not to be tased when the suspect is not actively resisting arrest.” Wright, 962 F.3d at
870 (citing Brown v. Chapman, 814 F.3d 447, 462 (6th Cir. 2016)).
Plaintiff does not directly contest that Officer Scaglione had probable cause to
arrest Plaintiff. Nor can he. As Plaintiff acknowledges, he was ultimately convicted by a
state court jury of multiple misdemeanor charges due to his pre-arrest conduct in the
front yard that evening. These convictions include disturbing the peace, disorderly
person–intoxicated, and contributing to the delinquency or neglect of a minor. (ECF No.
88, PageID.2834 ¶42.)
Officer Scaglione could lawfully arrest Plaintiff for any of these ordinance
violations/misdemeanors because they were “committed in [his] presence,” see Mich.
Comp. Laws § 764.15 (1)(a), so in this Circuit, Scaglione is entitled to qualified immunity
regarding the initial taser application if the record shows it was (1) “objectively apparent
that the Officers intended to take [Plaintiff] into custody” and (2) that Plaintiff
nevertheless “actively resist[ed]” arrest. See Goodwin, 781 F.3d at 325-26. Plaintiff
contests both these points, but the video evidence demonstrates that both these
conditions were clearly met by the time the taser was applied.
Plaintiff first argues that he “was not told he was under arrest, but rather that he
would be arrested if he did not calm down.” (ECF No. 88, PageID.2844.) But the
undisputed video exhibits show the Officers’ intent to arrest Plaintiff was objectively

13

apparent by the time Plaintiff was tased. Plaintiff was repeatedly warned by Officer
Furney before his arrest that he would be going to jail if he continued his behavior,
culminating in a final statement, “[y]ou’re going to jail for disorderly person if you keep
yelling. Okay? You’re going to jail.” (Furney In Car Video Ex. B, ECF No. 82-3 at 6:557:11 (emphasis added).) A few seconds later, an undefined Officer told Plaintiff, “you’re
going to jail, man.” (Left Bystander Video, Scaglione Ex. D, ECF No. 82-5 at 1:58-2:01.)
And Plaintiff’s own statement of facts in his response brief explicitly concedes that
Plaintiff “was told he was going to go to jail for disorderly person” before the taser was
applied. (ECF No. 88, PageID.2836 ¶55.) As Officers closely surrounded Plaintiff to
effectuate the arrest, he continued yelling and refused the officers’ commands to let go
of the child he had grabbed from a bystander. (Scaglione Ex. D at 1:10-1:20 (Officer:
“Get the baby out of here”; Plaintiff: “This is my son he ain’t got to go nowhere. . .”).) By
aiming his taser directly at Plaintiff and ordering Plaintiff to let go of the child, Officer
Scaglione reinforced that Plaintiff was now under arrest. 4 (Id. at 1:55-2:15.) Despite this
command, Plaintiff continued yelling at Officers and holding his child, who was clearly
distraught and crying loudly. 5 (Id.) At this point, the court finds that a reasonable person

While Plaintiff was not verbally warned that he would be tased if he continued to
resist arrest, the court finds that any objectively reasonable person would comprehend
that the pointing of the taser, combined with the Defendants’ repeated commands,
carried the implicit threat that continued resistance could result in Scaglione using his
taser. The court is aware of no case law clearly establishing that a suspect must be
given an explicit verbal warning before a taser can be used. See Jarvela, v. Washtenaw
Cty, --- F.4th ----, 2022 WL 2901128, at *3 (6th Cir. July 22, 2022) (citing Matthews v.
Jones, 35 F.3d 1046, 1048 (6th Cir. 1994) (observing that verbal warnings telling a
suspect to surrender carried an implicit “threat: that, if [the suspect] did not surrender,
the officer would unleash the [police] dog altogether”)).
5
Officer Scaglione also testified that he observed Plaintiff squeezing his child
tighter and tighter during the interaction and that “the baby was screaming louder and
louder” (see ECF No. 82-6, PageID.2160), a fact that Plaintiff denied in his testimony.
4

14

would have realized he was under arrest—the fact that Plaintiff was told he was “going
to jail” as opposed to under arrest is a distinction without a difference—yet Plaintiff
continued shouting and did not release the child.
Next, the court finds that the undisputed video evidence shows that Plaintiff’s
engaged in active resistance immediately before his arrest, justifying the initial taser
application. The Sixth Circuit has noted that “[a]ctive resistance to an officer's command
. . . legitimiz[ing] an officer's use of a [t]aser . . . can take the form of ‘verbal hostility’ or
‘a deliberate act of defiance.’” Goodwin, 781 F.3d at 323 (quoting Eldridge v. City of
Warren, 533 F. App'x 529, 535 (6th Cir. 2013); see also Shanaberg v. Licking Cty.,
Ohio, 936 F.3d 453, 459 (6th Cir. 2019) (Nalbandian, J., concurring) (quoting Eldridge,
533 F. App’x. at 534-35) (“When noncompliance is paired with a ‘verbal showing of
hostility,’ this combination can amount to active resistance, justifying the use of a
taser.”). It is apparent from the various videos that Plaintiff failed to comply with Officer
Scaglione’s commands, repeated at least six times, to release his crying child. Plaintiff’s
act of noncompliance here, which could reasonably be viewed as using the two-monthold child to prevent arrest, is likely on its own sufficient to justify Officer Scaglione’s use
of a taser, given that Plaintiff’s actions also created a substantial risk of injury to the
child.
But the court also finds that Plaintiff’s statements to Defendants immediately
before his arrest would constitute verbal hostilities that, when combined with his
noncompliance, certainly rises to the level of “active resistance.” As the court has

But putting aside the disputed squeezing allegation, for the purposes of summary
judgment, the videos alone clearly demonstrate that Plaintiff was actively resisting
arrest.
15

already recounted in the statement of facts, Plaintiff swore at Defendants and screamed
over their commands immediately before his arrest. Plaintiff’s drunken behavior falls
well within the gamut of “verbally hostile” conduct that can justify an officer’s taser. See,
e.g., Hall v. Huffman, No. 3:14-CV-02532, 2017 WL 1409971, at *3, *5 (N.D. Ohio Apr.
20, 2017) (holding that a plaintiff’s repeated profanity-laced statements to officers
including “shut the fuck up and leave me alone,” “you drama son of a bitch,” and “shoot
me you motherfucker! Are you stupid?” when combined with his noncompliance
constituted “active resistance”).
The objective reasonableness of Officer Scaglione’s conduct is further bolstered
by Plaintiff’s misdemeanor conviction for resisting arrest. After viewing essentially the
same video evidence at trial, the state jury’s concluded that Plaintiff resisted arrest, a
finding that validates Scaglione’s decision-making. 6 (See ECF No. 84-16,
PageID.2633.) In sum, case law does not clearly establish that Officer Scaglione’s first
taser application was excessive in view of Plaintiff’s behavior. And Plaintiff has failed to
“identify a single case predating the conduct at issue that prohibits” taser usage in “a
materially similar context,” so at minimum, Officer Scaglione did not have “fair notice”

Officer Scaglione also argues that Plaintiff’s excessive force claim is barred by
the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). (See ECF No. 82,
PageID.2130 (“[B]ecause the lawfulness of the use of force is a defense to the crime of
hindering, resisting, and obstructing an arrest, Plaintiff’s Fourth Amendment excessive
force claim is barred [by his excessive force conviction]”). However, given the court’s
holding that Plaintiff’s excessive force claim against Scaglione cannot survive an
ordinary qualified immunity analysis, the court declines to consider this argument which
would require a novel statutory analysis of Westland’s ordinance under which Plaintiff
was convicted. See Ruemenapp v. Oscoda Twp., Mich., 739 F. App’x 804, 810 (6th Cir.
2018) (“explain[ing] that the Heck doctrine applies only where a § 1983 claim would
‘necessarily’ imply the invalidity of a conviction” and declining to apply it to an
obstruction conviction under Michigan Compiled Laws § 750.81d) (quotation omitted).
6

16

that the child’s location made the initial tasing unlawful. See Lyons v. City of Xenia, 417
F.3d 565, 579 (6th Cir. 2005) (citing Brosseau v. Haugen, 543 U.S. 194, 200 (2004)).
Nor can Plaintiff show that Scaglione’s second, longer taser application while
Officers tried to handcuff Plaintiff on the front lawn was excessive, given clear evidence
of Plaintiff’s continued resistance contained in the record. The second taser application
must be analyzed for resistance as a separate “distinct period[] of possible resistance.”
See Goodwin, 781 F.3d at 323. “The constitutional analysis of the second period of
possible resistance turns on whether [Plaintiff] had ceased resisting as Officer
[Scaglione] administered” another taser shock as Officers attempted to handcuff Plaintiff
on the ground. Id. at 326. Again, active resistance includes “physically struggling with,
threatening, or disobeying officers,” see Cockrell v. City of Cincinnati, 468 F. App’x 491,
495 (6th Cir. 2012), but does not include being “compliant or hav[ing] stopped resisting,”
see Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012).
Plaintiff argues that “the use of a taser is considered a higher level of force than
physical hands-on contact,” so if “the objective of using physical force was to arrest”
Plaintiff, then Defendants should have relied only on the “strike techniques and tactics”
employed by Officer Schurig. (ECF No. 88, PageID.2847.) But Plaintiff cites no case law
supporting the proposition that Officers must default to “strike techniques” to subdue a
suspect resisting arrest, and the Sixth Circuit has “firmly establish[ed] that it is not
excessive force for the police to tase someone (even multiple times) when the person is
actively resisting arrest.” Rudlaff, 791 F.3d at 641 (citing Hagans, 695 F.3d at 509
(collecting cases)); see also Williams v. Sandel, 433 F. App’x. 353, 363 (6th Cir. 2011)
(finding that it was not excessive force to tase a suspect thirty-seven times, and use

17

batons and pepper spray, because he continued actively resisting arrest). Here, video
evidence demonstrates that Plaintiff was still physically resisting the Officers’ attempts
at handcuffing him once he was on the ground. When Plaintiff fell to the ground,
bystander video shows Officers unsuccessfully grabbing for Plaintiff’s arms, and an
Officer can be heard yelling: “stop resisting.” (Scaglione Ex. C at 0:17-0:21) After
approximately ten seconds on the ground, the video shows Plaintiff shoving or striking
Officer Schurig in the upper body with enough force that he is pushed up and away from
Plaintiff. (Id.) Although it cannot be definitively observed on the video, Scaglione also
testified that, in the melee, Plaintiff also tried to grab the base on his taser (see ECF No.
82-6, PageID.2161), a point Plaintiff disputes. But even if Plaintiff did not grab the taser,
the bystander video does clearly show Plaintiff continued struggling and attempting to
kick Scaglione as he deployed the taser. (See Scaglione Ex. C at 0:30-34.) Plaintiff
testified that he did not resist arrest because he hit his head on a landscape rock when
falling to the ground and only awoke when his hands were already behind his back (see
ECF No. 82-10, PageID.2195), but the court will not credit such testimony as it is
blatantly contradicted by the video. See Scott, 550 U.S. at 380. Because the bystander
video irrefutably demonstrates that Plaintiff continued to resist arrest, the court finds
both “that no constitutional violation occurred” when Scaglione deployed his taser a
second time and that the “right not to be tased while resisting arrest [is] not clearly
established” in this scenario. See Cockrell, 468 F. App’x at 495.
2. Officer Schurig
Plaintiff also claims Officer Schurig employed excessive force “by striking
[Plaintiff’s] back with his knee and striking [Plaintiff] in the face with a closed fist, while

18

[Plaintiff] was on the ground, and had his hands behind his back.” (ECF No. 91,
PageID.2927.) Because Plaintiff alleges only that Schurig used excessive force while
Plaintiff was on the ground, the analysis of Count II must focus on the sixty seconds
between the initial takedown and when Plaintiff was handcuffed and returned to his feet.
Considering the Graham factors and the relevant case law, the court finds that Officer
Schurig’s decision to strike Plaintiff was not objectively unreasonable and thus did not
violate the Fourth Amendment.
Plaintiff is correct when he asserts that the severity of the misdemeanor crimes
for which he was arrested, including public intoxication, disorderly conduct, and
contributing to the delinquency of a minor are not especially serious. See Smith v. Ray,
781 F.3d 95, 102 (4th Cir. 2015) (finding that “the misdemeanor of contributing to the
delinquency of a minor” is not a serious offense); Faulkner v. Mattina, No. 3:11-CV-250KKC, 2014 WL 201463, at *7 (E.D. Tenn. Jan. 17, 2014) (“Public intoxication and
disorderly conduct are not severe crimes.”). But the court finds this factor is outweighed
by the other two Graham factors, which weigh in favor of the objective reasonableness
of Schurig’s use of force.
By the time Defendants employed physical force to arrest Plaintiff, the court finds
that he posed an immediate threat to the safety of both officers and others. See
Graham, 490 U.S. at 396. Plaintiff undeniably escalated the situation that evening when
he grabbed his crying two-month-old child while continuing to shout aggressively. 7

Plaintiff’s response brief repeatedly argues that it was the Defendants who
needlessly “escalated the encounter” by speaking to Plaintiff in a “degrading and
demeaning” manner when they first encountered Plaintiff. (ECF No. 91, PageID.2928
(“[Officers] refused to explain why they were on his property and repeatedly called him
derogatory names such as ‘homie,’ and ‘homeboy,’ and used profanity by calling him a
7

19

Given Plaintiff's intoxicated and agitated state, as unmistakably demonstrated in the
recordings, any reasonable policeman would have concluded that leaving the child in
Plaintiff’s arms posed a risk of injury to the child. See, e.g., Wilson v. Flynn, 429 F.3d
465, 468 (4th Cir. 2005) (finding that a suspect “posed a threat to the safety of his wife
[and] children” under Graham because the suspect “had been drinking[,] . . . t[ore] up
the house, and . . . disable[d] the car his wife had been driving to prevent her from
leaving”). Simply leaving a baby in the hands of an individual displaying such behaviors
certainly poses a risk to the child, but from Defendants’ perspective, the threat was
further heightened because they also observed Plaintiff “squeez[ing] the child harder
and harder.” (ECF No. 82-6, PageID.2159.) Furthermore, the fact that Plaintiff had
never been patted down for weapons combined with his aggressive behavior meant that
Plaintiff posed at least a limited threat to Defendant themselves. Consequently, the
second Graham factor weighs in favor of Officer Schurig’s use of force to arrest Plaintiff.
Plaintiff’s continued physical resistance to Defendants’ attempts at taking him
into custody here weighs heavily in favor of Officer Schurig’s use of force. Plaintiff
argues it was “objectively unreasonable to kick and strike with a closed fist an unarmed,
nonviolent man, who was surrounded by four officers and posed no threat to himself or
the officers.” (ECF No. 91, PageID.2929-30.) While Plaintiff acknowledges he can be
“seen flailing on the ground” in the bystander video, he argues that a genuine factual

jackass escalating the encounter.”).) But the Sixth Circuit has explicitly rejected the idea
that defendants can “be held liable for using excessive force because their reckless and
unconstitutional provocation created the need to use force.” See Livermore ex rel Rohm
v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (finding that “the proper approach” is to
“first identify the ‘seizure’ at issue here and then examine whether the force used to
effect that seizure was reasonable in the totality of the circumstances, not whether it
was reasonable for the police to create the circumstances”) (quotation omitted).
20

dispute exists because a witness heard on the video stated that Plaintiff had his hands
behind his back when Officer Schurig punched him. (Id., PageID.2930-31.) Further,
Plaintiff points out that he can be heard making similar statements at points while on the
ground. (Id.) The problem with Plaintiff’s argument is that actions (especially those
recorded on video) speak louder than words. As the court has previously recounted, at
approximately eighteen seconds into the right-side bystander video, after Plaintiff had
already been taken to the ground, Plaintiff can be seen striking or shoving Officer
Schurig forcing him up and away from Plaintiff’s body. (Scaglione Ex. C, at 0:10-0:38.)
Approximately two seconds later, when Officer Schurig strikes Plaintiff in the upper
body, the bystander can be heard exclaiming, “hands behind his back they [sic]
punching him.” (Id.) As the bystander makes a similar statement, approximately fifteen
seconds later, Plaintiff can be seen on the video failing and kicking Officer Scaglione in
his left side. (See id. at 0:30-35) Again, the video undisputedly demonstrates that
Plaintiff was actively resisting throughout the very short period of time that Officer
Schurig delivered his blows. The court is not required to credit any inaccurate
contemporaneous commentary by either the Plaintiff himself or a bystander that clearly
contradicts what can be seen on the video. See Mitchell, 864 F.3d at 418. Nor should
the court do so where, as here, the non-movant’s account of the facts is completely at
odds with the record.
Considering the totality of the circumstances, undisputed evidence establishes
that Officer Schurig’s relatively limited use of physical force against Plaintiff was
objectively reasonable because Plaintiff was actively resisting arrest. Indeed, courts in
this Circuit have repeatedly found that physical strikes, including close-fisted punches,

21

are not objectively unreasonable in similar circumstances. See, e.g., Brax v. City of
Grand Rapids, 742 F. App’x 952, 957 (6th Cir. 2008) (holding that defendant officer’s
“split-second judgment that a single punch was necessary to subdue a drunk, strong,
and resisting young [suspect]” did not violate the Fourth Amendment); Schliewe v. Toro,
138 F. App’x 715, 722 (6th Cir. 2005) (finding that a blow that broke a plaintiff’s jaw was
not objectively unreasonable, where the “apparently intoxicated,” plaintiff who “was not
charged with a serious crime . . . attempt[ed] an escape from the holding area of the
police station”); Bland v. Wagner, No. 1:19-CV-297, 2021 WL 311375, at *6 (W.D. Mich.
Jan. 4, 2021), report and recommendation adopted, (“[I]n the instant case, it cannot be
said that Defendants’ use of force on Plaintiff, including Defendant Wagner's punches to
Plaintiff's face resulting in Plaintiff's loss of teeth, was objectively unreasonable where
Plaintiff fought Defendants’ attempts to handcuff him and made it clear to the officers
that they would have to use force to control him.”). And even Plaintiff's own summary
judgment briefing implicitly concedes that Officer Schurig’s use of force was reasonable
when he argues that Defendants should have relied on Officer’s Schurig physical strikes
to subdue Plaintiff in lieu of a second taser application. (See ECF No. 88,
PageID.2847.)
B. Failure to Intervene
Defendants also contend that they are entitled to summary judgment on Plaintiff's
claims for failure to intervene asserted against Officers Furney, Teschendorf, and
Javonavich. To establish liability for failure to intervene in another officer's excessive
use of force, the plaintiff must demonstrate that “(1) the officer observed or had reason
to know that excessive force would be or was being used, and (2) the officer had both

22

the opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119
F.3d 425, 429 (6th Cir. 1997). Mere presence during an altercation is insufficient to
establish liability—the plaintiff must make some showing of “direct responsibility.”
Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013). Applying this test, the court finds
that Plaintiff has failed to establish a viable claim against any of the Defendant Officers
that can survive summary judgment for two independent reasons.
First, the court has already found that Officers Scaglione and Schurig did not
violate Plaintiff’s constitutional rights by using excessive force. Plaintiff cannot pursue a
failure to intervene claim in the absence of an underlying constitutional violation. See
Craft v. Billingslea, 459 F. Supp. 3d 890, 912 (E.D. Mich. 2020) (Drain, J.) (“[A]s there
was no constitutional violation, the other officers present cannot be held on a failure to
intervene claim.”).
Second, the court finds that Plaintiff has failed to show that any of the Defendant
Officers had “a realistic opportunity to intervene and prevent harm.” Ontha v. Rutherford
Cty., Tenn., 222 F. App’x. 498, 507 (6th Cir. 2007). Both parties agree that Officer
Scaglione never verbally stated he was going to deploy his taser, and it is also
undisputed that this initial tasing lasted only six seconds. 8 The Sixth Circuit has held
that “an excessive use of force lasting ten seconds or less does not give a defendant
enough time to perceive the incident and intervene to stop such force.” Pineda v.
Hamilton Cty., Ohio, 977 F.3d 483, 493 (6th Cir. 2020) (quoting Alexander v. Carter for

To be clear, while Officer Scaglione did point the taser at Plaintiff before the initial
tasing, Plaintiff does not allege that merely pointing a taser at an uncooperative suspect
to effectuate an arrest was itself a use of excessive force. So even under Plaintiff’s
theory of the case, the other Defendants had no independent duty to intervene to
prevent Officer Scaglione from merely pointing the taser at Plaintiff.
8

23

Byrd, 733 F. App'x 256, 265 (6th Cir. 2018)) (internal quotation marks omitted). So, the
court finds that the “fleeting” nature of “the [first] tasing den[ied]” Furney, Teschendorf,
and Javonavich “the opportunity to intervene and prevent any harm.” Wells v. City of
Dearborn Heights, 538 F. App'x 631, 640 (6th Cir. 2013).
And during the sixty seconds Plaintiff was on the ground, the bystander videos
demonstrate that neither Furney, Teschendorf, nor Javonavich would have had a
meaningful opportunity to intervene and prevent Scaglione and Schurig from additional
fleeting applications of force to effectuate the arrest. Furney’s deposition testimony that
he was engaged in controlling the large crowd that had formed at the scene during the
time period at issue is supported by the bystander video, which shows he walked away
from the group of Officers surrounding Plaintiff and out of the frame approximately six
seconds before the initial taser application. (See Scaglione Ex. D at 0:40-0:55.)
Likewise, during the second segment, a failure to intervene claim cannot reasonably be
sustained against Officers Teschendorf and Javonavich, who were otherwise
“preoccupied with attempting to detain” Plaintiff, ensure the safety of Plaintiff’s child, and
control the forming crowd. See Wright, 962 F.3d at 872.
C. Ethnic Intimidation
Plaintiff has also asserted an ethnic intimidation claim against all Defendants
under Michigan law. (See ECF No. 1, PageID.19.) In contrast to the federal claims
considered above, which required assessing Defendants’ conduct from an objective
view, an ethnic intimidation claim requires a finding that Defendants acted “maliciously,
and with specific intent to intimidate or harass another person because of that person's
race, color, religion, gender, or national origin.” Mich. Comp. Laws. § 750.147b; see

24

also People v. Schutter, 265 Mich. App. 423, 428, 695 N.W.2d 360, 362 (2005).
“‘[S]pecific intent has been defined as the subjective desire or knowledge that the
prohibited result will occur.’” People v. Gould, 225 Mich. App. 79, 86, 570 N.W.2d 140,
144 (1997) (quoting People v. Spry, 74 Mich. App. 584, 596, 254 N.W.2d 782 (1977))
(emphasis added). So, to adjudicate the pending ethnic intimidation claim, the court
would need to conduct a distinct factual analysis to determine the Defendants’
respective intents.
Because the court has already awarded summary judgment to Defendants on all
federal claims at issue, the court declines to exercise supplemental jurisdiction over the
single remaining state law claim (Count IV). Plaintiff's suit is brought under federal
question jurisdiction. 28 U.S.C. § 1331. (ECF No. 1, PageID.2.) The only basis of
jurisdiction for Plaintiff's state law claim is supplemental jurisdiction under 28 U.S.C. §
1367 because both Plaintiff and Defendants are citizens of Michigan. (Id.) A district
court may decline to exercise supplemental jurisdiction when “the district court has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
“When all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing the state law claims.” Musson Theatrical, Inc. v. Federal
Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). Only “overwhelming interests in
judicial economy may allow a district court to properly exercise its discretion and decide
a pendent state claim even if the federal claim has been dismissed before trial.”
Aschinger v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th Cir. 1991). Here, the
court has already remanded other state law claims from this suit to Michigan court (see
ECF No. 13), so given the distinct factual analysis required to adjudicate the ethnic

25

intimidation claim, the judicial economy interests with regard to this remaining claim are
not “overwhelming.” Therefore, the court will also remand Plaintiff’s ethnic intimidation
claim.
IV. CONCLUSION
Through undisputed video exhibits, Defendants Scaglione and Schurig have
shown that they did not use excessive force in violation of Plaintiff’s constitutional rights
when they arrested Plaintiff. Furthermore, the court finds that no reasonable jury could
conclude that Defendants Furney, Teschendorf, or Javonavich had a duty to intervene
at the time of the arrest. Therefore, the court will grant Defendants’ summary judgment
on all counts brought under federal law. Finally, since all the Federal claims are
resolved, the court will decline to exercise jurisdiction over Count IV—a Michigan law
ethnic intimidation claim requiring a distinct factual analysis—so the count is dismissed
without prejudice. Accordingly,
IT IS ORDERED that Defendant Scaglione’s Motion for Summary Judgment
(ECF No. 82) is GRANTED.
IT IS ORDERED that Defendants Schurig, Furney, Teschendorf, and
Javonavich’s Joint Motion for Summary Judgment (ECF No. 84) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's State law ethnic intimidation claim
(Count IV) is DISMISSED WITHOUT PREJUDICE.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: August 1, 2022

26

/

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 1, 2022, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C1 ORDERS\20-10192.BROWN.MSJ.AAB.2.docx

27

/