Fleming v. Oakland County Sheriff's Deputy Brandon Scruggs et al

Filing 29

OPINION AND ORDER Granting in Part and Denying in Part Defendants' 18 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.594

Page 1 of 46

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONNIE FLEMING,
Plaintiff,

Case No. 18-cv-11573
Hon. Matthew F. Leitman

v.
BRANDON SCRUGGS, et al.,
Defendants.
__________________________________________________________________/
OPINION AND ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 18)
According to Plaintiff Ronnie Fleming, he was peacefully riding his bicycle
down a street in Pontiac, Michigan, when Defendants Brandon Scruggs and Ruben
Garcia, two Oakland County Sheriff’s Deputies, stopped him without reasonable
suspicion and used excessive force – a Taser – to effect the stop. In this action,
Fleming alleges that the stop and the Tasing violated his Fourth Amendment rights
and his rights under state law. He brings claims against the deputies and against
Defendant Oakland County.
The Defendants counter that the deputies stopped and Tased Fleming because
he (1) matched the description of a parole absconder, (2) fled from them after they
identified themselves and ordered him to stop, and (3) made what appeared to be an

1

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.595

Page 2 of 46

effort to retrieve a weapon from his front pocket. The Defendants have moved for
summary judgment on Fleming’s claims against the deputies based upon qualified
immunity and state-law immunity.
The Defendants’ motion does not take the facts in the light most favorable to
Fleming. On the contrary, in several key respects the Defendants’ legal arguments
rest upon a view of the facts – and inferences from the facts – that are most favorable
to the deputies, not to Fleming. Under the view of the facts that is most favorable to
Fleming, the deputies did unlawfully stop him and did use excessive force against
him when they Tased him. But that does not mean that Fleming may proceed on all
of his claims.
As explained below, the deputies are entitled to qualified immunity for their
unlawful stop of Fleming because they reasonably relied upon a police bulletin and
because their conclusion that they had reasonable suspicion to stop Fleming based
upon his resemblance to the parole absconder described in the bulletin did not violate
clearly established federal law. However, the deputies are not entitled to qualified
immunity for their use of excessive force because the Tasing of Fleming violated
clearly established federal law. Likewise, the deputies are not entitled to state-law
immunity for the Tasing because a jury could find that they did not act in good faith.
Finally, Oakland County is entitled to summary judgment on all of the claims against
it.

2

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.596

Page 3 of 46

Accordingly, the Court will DENY the Defendants’ motion for summary
judgment on Fleming’s Fourth Amendment claim and state-law tort claims against
Deputies Scruggs and Garcia to the extent those claims are based upon the Tasing.
However, the Court will GRANT the Defendants’ motion for summary judgment in
all other respects.
I
On July 25, 2017, an unidentified employee of the Michigan Department of
Corrections (the “MDOC”) sent Sergeant Hix of the Oakland County Sheriff’s
Office (the “OCSO”) a “be on the lookout” text message (“BOLO”) about a parole
absconder who had been observed on Nebraska Street in Pontiac, Michigan. (See
BOLO, ECF No. 21-8, PageID.450; see also Scruggs Dep. at 30:11–34:5, ECF No.
18-5, PageID.166–167; Garcia Dep. at 14:7–15:19, ECF No. 18-6, PageID.176.)
The BOLO, reproduced below, included a description and a photograph of the
suspected absconder:

3

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.597

Page 4 of 46

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.598

Page 5 of 46

record that Scruggs and Garcia, after receiving the BOLO, made any effort to learn
more about the pictured parole absconder or the nature of his conviction. As Garcia
has confirmed, the only information that he and Scruggs had about the suspected
absconder was the information contained in the BOLO. (See Garcia Dep. at 14:4–8,
ECF No. 18-6, PageID.176.1)
On July 26, 2017, Scruggs and Garcia were on vehicle patrol in Pontiac
roughly one mile from the address on Nebraska Street at which the parole absconder
had been spotted the day before. (See Scruggs Dep. at 34:8–9, ECF No. 18-5,
PageID.167.) Garcia drove while Scruggs sat in the passenger seat. (See id. at 28:9–
10, PageID.165.) The deputies were driving a black Impala. (See id. at 19:10–15,
PageID.163.) The vehicle did not have any outside markings that identified it as a
law enforcement vehicle. (See Garcia Dep. at 12:12–19, ECF No. 18-6, PageID.175.)
All of the windows in the vehicle except for the front windshield were tinted, and
the police lights for the vehicle were located inside the car. (See id. at 12:20–22;
Scruggs Dep. at 17:4–19:13, ECF No. 18-5, PageID.163.)
As the deputies were driving eastbound on South Boulevard to assist another
deputy who had initiated an unrelated traffic stop, they saw Fleming biking the

1

At the cited transcript pages, Garcia first said that the description of the absconder
was: “[b]lack male, baseball cap, facial hair, riding a bike in the area.” (Garcia Dep.
at 14:7–8, ECF No. 18-6, PageID.176.) Garcia was then asked if the “only other”
information they had was that the absconder was “riding a bicycle.” (Id.) Garcia
responded, “yeah.” (Id.)
5

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.599

Page 6 of 46

opposite direction – toward them – on South Boulevard toward Woodward Avenue.
(See Garcia Dep. at 13:2–3, ECF No. 18-6, PageID.176; Scruggs Dep. at 14:4–6,
ECF No. 18-5, PageID.162.) The dashcam video in their patrol vehicle recorded
Fleming as he rode past on his bike. (See Dashcam Video at 00:02, ECF No. 18-4.)
As the deputies saw Fleming ride by, they concluded that Fleming resembled
the BOLO’s description of the parole absconder. The deputies thought Fleming
matched the BOLO in the following respects:


Both Fleming and the parole absconder were African American men.



Fleming was wearing a ball cap, and the parole absconder had been
observed wearing a ball cap the day before.



Both Fleming and the parole absconder had facial hair.



Fleming was riding a bicycle, and the parole absconder had been
observed riding a bicycle the day before.



Fleming was located within a mile of the area in which the absconder
had been observed the day before.

(See Garcia Dep. at 14:4–15:1, ECF No. 18-6, PageID.176.)
The deputies decided to stop Fleming. (See Scruggs Dep. at 30:9–13, ECF No.
18-5, PageID.166.) The “sole basis for the stop” was the officers’ belief that Fleming
matched the BOLO’s description of the parole absconder in the five ways described
above. (Garcia Dep. at 14:9–10, ECF No. 18-6, PageID.176.)

6

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.600

Page 7 of 46

But there were several notable differences between Fleming’s appearance on
the date of the incident and the description of the parole absconder. First, Fleming
was wearing shorts, not blue jeans. (See Dashcam Video, ECF No. 18-4; Fleming
Photographs, ECF No. 21-7; BOLO, ECF No. 21-8, PageID.450.) Second, Fleming
was not wearing a chain around his neck, much less a prominent “big neck chain.”
(See id.) Third, Fleming’s facial hair was a graying goatee, whereas the absconder
had a dark-black beard. (See id.) Fourth, Fleming was roughly a mile away from
where the absconder had been seen a day earlier. (See Scruggs Dep. at 34:8–9, ECF
No. 18-5, PageID.167.)
After deciding to stop Fleming, the officers turned their vehicle around and
started following Fleming. (See id. at 12:1–5, PageID.161; Dashcam Video at 00:02–
00:23, ECF No. 18-4.) Fleming looked back and saw the deputies’ vehicle following
him, but since the vehicle was unmarked, he was unable to identify it as a police
vehicle. (See Fleming Dep. at 62:8–64:6, ECF No. 21-2, PageID.283–285.)
Moreover, he could not see the uniformed deputies through the vehicle’s tinted
windows. (See id. at 56:22–57:2, PageID.277–278.)
Fleming headed into a McDonald’s parking lot, and the deputies followed him
into that lot. Fleming then biked out of the McDonald’s lot and into the parking lot
of the Motor City Burger next door, and the deputies again followed. (See Scruggs
Dep. at 14:13–17:3, ECF No. 18-5, PageID.162–63; Dashcam Video at 00:35–01:06,

7

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.601

Page 8 of 46

ECF No. 18-4.) Finally, Fleming exited the Motor City Burger lot and began cycling
down Earlmoor Boulevard, and the deputies sped up to follow him. (See Scruggs
Dep. at 15:24–25, 22:3–24:25, ECF No. 18-5, PageID.162, 164; Dashcam Video at
01:06–01:40, ECF No. 18-4.) Throughout the time that the deputies followed
Fleming, they remained approximately 10 to 15 yards away from him. (See Scruggs
Dep. at 16:6, ECF No. 18-5, PageID.162.) Fleming did not speed up his pedaling at
any point while the deputies were following him. (See Fleming Dep. at 61:22–62:3,
ECF No. 21-2, PageID.282–283; Dwayne Hunter Dep. at 14:21–22, ECF No. 21-5,
PageID.380; Malcolm Watkins Dep. at 9:9–18, ECF No. 21-6, PageID.420.)
At no point while the officers were following Fleming did they identify
themselves. (See Fleming Dep. at 52:12–53:13, ECF No. 21-2, PageID.273–274.)
Likewise, they did not order Fleming to stop, and they did not activate their police
lights or siren. (See id.; Scruggs Dep. at 17:21–25, ECF No. 18-5, PageID.163.) In
fact, they “never gave [Fleming] a command of any kind.” (Fleming Dep. at 69:13,
ECF No. 21-2, PageID.290.)
As Fleming was riding his bike down Earlmoor Boulevard, he looked back at
the deputies’ vehicle and moved his left hand toward the left pocket of his shorts.
(See Dashcam Video at 01:40–01:46, ECF No. 18-4.) Shortly thereafter, Scruggs
deployed his Taser on Fleming. (See Scruggs Dep. at 27:13–14, ECF No. 18-5,
PageID.165; Garcia Dep. at 18:23, ECF No. 18-6, PageID.177; Fleming Dep. at

8

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.602

Page 9 of 46

61:25–62:3, ECF No. 21-2, PageID.282–283.) When the Taser struck Fleming, his
body locked up, and he fell head-first off his bicycle and onto the curb. (See Scruggs
Dep. at 27:25, ECF No. 18-5, PageID.165; Garcia Dep. at 19:5–9, ECF No. 18-6,
PageID.177; Fleming Dep. at 86:10–11, ECF No. 21-2, PageID.307.)
After Scruggs Tased Fleming, Scruggs exited the vehicle, handcuffed
Fleming, and radioed for medical assistance. (See Scruggs Dep. at 28:2–3, ECF No.
18-5, PageID.165.) A female deputy then arrived on the scene to assist. (See id. at
28:12–29:2, PageID.165–166; Fleming Dep. at 71:16–73:7, ECF No. 21-2,
PageID.292–294.)
As Fleming was lying wounded on the ground, he asked Scruggs: “why did
you Tase me? Why are you doing this?” (Hunter Dep. at 37:19–20, ECF No. 21-5,
PageID.403.) There is no evidence in the record that Scruggs responded directly to
those questions. But he did say to the female deputy who had arrived: “I’m just
going to tell the judge he ran.” (Id. at 38:23, PageID.404; see also id. at 14:13–14,
PageID.380; Fleming Dep. at 73:14, ECF No. 21-2, PageID.294.)
As the deputies were waiting for medical assistance to arrive, they searched
Fleming and found “a marijuana cigarette or a marijuana blunt” in Fleming’s left
front pocket. (See Scruggs Dep. at 28:7–8, ECF No. 18-5, PageID.165; Garcia Dep.
at 24:11–15, ECF No. 18-6, PageID.178.) Paramedics then arrived and transported
Fleming to McLaren Hospital. (See Garcia Dep. at 23:16–19, ECF No. 18-6,

9

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.603

Page 10 of 46

PageID.178.) The officers later traveled to see Fleming at the hospital, where they
photographed his injuries. (See id. at 23:24–24:1; see also Fleming Photographs,
ECF No. 21-7.)
Fleming suffered serious injuries from the incident. His face, head, and arms
were “bloody and messed up from . . . the accident.” (Fleming Dep. at 82:6–8, ECF
No. 21-2, PageID.303.) He also received stitches to the corner of his right eye, and
he now has scars on his face, forehead, hands, and knees from the incident. (See id.
at 83:4–8, 83:22-85:1 88:19, 90:23–24, PageID.304-306, 309, 311.) He continues
to suffer headaches and other pain (see id. at 83:15–17), and at one point Fleming’s
headaches were so bad that he “had to go to a vision doctor.” (Id. at 91:25–92:1,
PageID.312–313.)
II
Fleming brings this action under 42 U.S.C. § 1983. Fleming claims that
Scruggs and Garcia violated the Fourth Amendment when they subjected him to a
Terry stop that was not supported by reasonable suspicion.2 (See Compl., ECF No.
1, PageID.7.) Fleming also claims that Scruggs and Garcia violated the Fourth

2

“A Terry stop is a type of encounter between police officers and citizens that is
characterized as a ‘temporary involuntary detention . . . which must be predicated
upon reasonable suspicion’ on the part of the officers that criminal activity is afoot.”
United States v. Wilson, 506 F.3d 488, 492 (6th Cir. 2007) (quoting United States v.
Bueno, 21 F.3d 120, 123 (6th Cir. 1994)) (describing a Terry stop under Terry v.
Ohio, 392 U.S. 1 (1968)).
10

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.604

Page 11 of 46

Amendment by using excessive force in connection with the stop. (See id.) Finally,
Fleming brings a municipal liability claim against Oakland County and state-law tort
claims against all Defendants. (See id., PageID.7–13.)
Defendants filed their motion for summary judgment on July 26, 2019. (See
Mot. for Summ. J., ECF No. 18.) Defendants argue that Scruggs and Garcia are
entitled to qualified immunity for their stop and use of force against Fleming. (See
id., PageID.99–105.) Defendants also contend that Fleming’s municipal liability
claim against Oakland County fails because he cannot show that Scruggs and Garcia
violated his constitutional rights and, in the alternative, because he has not
established the elements of a failure to train claim for municipal liability. (See id.,
PageID.106–109.) Defendants further assert that Oakland County is immune from
Fleming’s state-law claims under Michigan’s Governmental Tort Liability Act (the
“GTLA”), Mich. Comp. Laws § 691.1407(1). (See id., PageID.109.)

Finally,

Defendants argue that Scruggs and Garcia are also immune from Fleming’s statelaw claims under the GTLA because they acted in good faith. (See id., PageID.109–
120; citing Mich. Comp. Laws § 691.1407(3).)
The Court held a hearing on Defendants’ motion on November 18, 2019. The
Court ordered the parties to submit supplemental briefing to address several issues
raised during the hearing, and the parties have done so. (See Fleming Supp. Br., ECF
No. 25; Defs.’ Supp. Br., ECF No. 28.)

11

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.605

Page 12 of 46

III
A
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact.” SEC v. Sierra Brokerage Servs., Inc., 712
F.3d 321, 326–27 (6th Cir. 2013) (citing Fed. R. Civ. P. 56(a)). When reviewing the
record, “the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” Id. (quoting Tysinger
v. Police Dep’t of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)). “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 v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Summary judgment is not appropriate when “the evidence presents a sufficient
disagreement to require submission to a jury.” Id. at 251–52. 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.
B
“Qualified immunity shields officials from civil liability so long as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Brown v. Chapman, 814 F.3d 447,
457 (6th Cir. 2016) (internal quotation marks omitted) (quoting Mullenix v. Luna,

12

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.606

Page 13 of 46

136 S. Ct. 305, 308 (2015)). “This immunity ‘gives government officials breathing
room to make reasonable but mistaken judgments about open legal questions,’
‘protect[ing] all but the plainly incompetent or those who knowingly violate the
law.’” Jacobs v. Alam, 915 F.3d 1028, 1039 (6th Cir. 2019) (quoting Ashcroft v. alKidd, 563 U.S. 731, 743 (2011)).
“A plaintiff bears the burden of showing that a defendant is not entitled to
qualified immunity.” Jacobs, 915 F.3d at 1039. “To do so, a plaintiff must show
‘(1) that the official violated a statutory or constitutional right, and (2) that the right
was clearly established at the time of the challenged conduct.’” Id. (quoting al-Kidd,
563 U.S. at 735). “On summary judgment, the court must analyze these questions
after construing the facts in the light most favorable to the party asserting the injury
and drawing all reasonable inferences in that party’s favor.” Brown, 814 F.3d at 457
(citing Scott v. Harris, 550 U.S. 372, 377 (2007)). The Court may answer these
questions in any order, but “if either one is answered in the negative, then qualified
immunity protects the official from civil damages.” Id.
Even in the qualified immunity context, “courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton,
572 U.S. 650, 656 (2014). Rather, summary judgment continues to be “appropriate
only if ‘the movant shows that there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law.’” Id. at 656–57 (quoting Fed.

13

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.607

Page 14 of 46

R. Civ. P. 56(a)). Accordingly, when determining whether officers are entitled to
qualified immunity at the summary judgment stage, “a court must view the evidence
in the light most favorable to the opposing party.” Id. at 657 (quotation omitted).
IV
The Court first considers Fleming’s claim that Scruggs and Garcia violated
the Fourth Amendment by subjecting him to a Terry stop that was not supported by
reasonable suspicion. The Court concludes that the deputies did unlawfully stop
Fleming but that they are entitled to qualified immunity from Fleming’s claim
regarding the stop.
A
1
A law enforcement officer may conduct a Terry stop where he “has
‘reasonable suspicion’ that criminal activity may be afoot.” Dorsey v. Barber, 517
F.3d 389, 395 (6th Cir. 2008) (citing Terry v. Ohio, 392 U.S. 1, 30–31 (1968)). The
Sixth Circuit has provided the following guidance for courts evaluating whether an
officer’s decision to conduct a Terry stop was supported by reasonable suspicion:
“Reasonable suspicion” is an abstract concept: “It requires
more than a mere hunch, but is satisfied by a likelihood of
criminal activity less than probable cause, and falls
considerably short of satisfying a preponderance of the
evidence standard. If an officer possesses a particularized
and objective basis for suspecting the particular person of
criminal activity based on specific and articulable facts, he
may conduct a Terry stop. Courts must examine the
14

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.608

Page 15 of 46

totality of the circumstances to determine whether
reasonable suspicion existed to justify a Terry stop.”
Id. (quoting Smoak v. Hall, 460 F.3d 768, 778–79 (6th Cir. 2006)).
A reliable description of a suspect may provide a sufficient basis for a Terry
stop of a person matching that description so long as the description sufficiently
“winnow[s] the class of potential suspects.” United States v. Davis, 341 F. App’x
139, 140–41 (6th Cir. 2009) (quoting United States v. Powell, 210 F.3d 373 (table
op.), 2000 WL 357262, at *3 (6th Cir. Mar. 29, 2000)). But a Terry stop of a person
based on a description that “could describe any number of people in the
neighborhood where [the person] was walking” would not be supported by
reasonable suspicion because it “could not have provided a ‘particularized and
objective basis for suspecting [that] particular person.’” King v. United States, 917
F.3d 409, 426 (6th Cir. 2019) (quoting Dorsey, 517 F.3d at 395), cert. granted on
other grounds,3 Brownback v. King, No. 19-546, 2020 WL 1496620, at *1 (U.S.
Mar. 30, 2020).

3

The Supreme Court granted certiorari regarding a different issue that was also
presented in King: whether the so-called “judgment bar provision” of the Federal
Tort Claims Act precluded the plaintiff from pursuing his remaining claims against
defendants. See King, 917 F.3d at 421; Brownback v. King, No. 19-546, 2020 WL
1496620, at *1 (U.S. Mar. 30, 2020).
15

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.609

Page 16 of 46

2
“A tip – anonymous or not – may furnish reasonable suspicion necessary to
justify a [Terry] stop.” United States v. Keeling, 783 F. App’x 517, 521 (6th Cir.
2019). “Such a tip must pass muster under [Illinois v. Gates, 462 U.S. 213 (1983)],
which directs [a court] to consider an informant’s ‘veracity,’ ‘reliability,’ and ‘basis
of knowledge.’” Id. (quoting Gates, 462 U.S. at 230). A police officer’s “subsequent
corroboration” of a tip and whether the tipster was “known or anonymous” are also
“relevant factors” in assessing the trustworthiness of a tip. Id. “These considerations
are not independent requirements; instead, [a court must] consider them under the
totality of the circumstances.” Id. (citing Gates, 462 U.S. at 230); see also United
States v. Howard, 632 F. App’x 795, 798–800 (6th Cir. 2015) (providing an
overview concerning how to evaluate the reliability of a tip).
3
Moreover, an officer may make a Terry stop based upon a wanted bulletin
issued by another law enforcement agency even if the officer does not have personal
knowledge of the facts and circumstances supporting reasonable suspicion to make
the stop. See United States v. Hensley, 469 U.S. 221, 232–33 (1985). The lawfulness
of such a stop depends upon whether “the officer who issue[d] a wanted bulletin
[had] a reasonable suspicion sufficient to justify [the] stop.” Id. at 231 (citing United

16

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.610

Page 17 of 46

States v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976)). As the Supreme Court
held in Hensley:
We conclude that, if a flyer or bulletin has been issued on
the basis of articulable facts supporting a reasonable
suspicion that the wanted person has committed an
offense, then reliance on that flyer or bulletin justifies a
stop to check identification, to pose questions to the
person, or to detain the person briefly while attempting to
obtain further information. If the flyer has been issued in
the absence of a reasonable suspicion, then a stop in the
objective reliance upon it violates the Fourth Amendment.
Id. at 232 (citations omitted).
B
The Defendants contend that the deputies had reasonable suspicion to stop
Fleming because:
The physical description and location of Plaintiff was
consistent with the information provided to Defendants.
Plaintiff was an older African American male with facial
hair, wearing a hat, and riding a bicycle in the same area
as where the parole absconder was seen the day before. In
addition, the officers perceived Plaintiff’s actions as trying
to avoid them. The totality of the circumstances presented
justified the attempt to conduct a Terry stop of Plaintiff.
(Defs.’ Supp. Br., ECF No. 28, PageID.568.) The Defendants further insist that
“[t]he information [in the BOLO] came from MDOC so it was verifiable and
reliable.” (Id., PageID.565.) But as described below, in several important respects,
this argument does not take the facts in the light most favorable to Fleming and does
not draw all reasonable inferences in Fleming’s favor.
17

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.611

Page 18 of 46

1
First, under the view of the facts that is most favorable to Fleming, the
deputies were not told that the absconder was “older.” While Scruggs testified that
the description of the absconder stated that he was “older,” (Scruggs Dep. at 30:11–
32:17, ECF No. 18-5, PageID.166), Garcia’s testimony is to the contrary. Garcia
identified all of the information the deputies knew about the parole absconder, and
he did not say that the description of the absconder stated that the absconder was
“older.” (See Garcia Dep. at 14:4–19, ECF No. 18-6, PageID.176.)

Garcia’s

testimony is more favorable to Fleming on the question of whether the deputies were
told that the absconder was “older,” and, based upon that testimony, the Court must
conclude for purposes of summary judgment that the deputies were not told that the
absconder was “older.”
Moreover, other portions of Scruggs’ testimony suggest that the deputies were
not told that the absconder was “older.” For instance, Scruggs testified that the
description of the absconder appeared in the BOLO (which does not say that the
absconder is “older”), and Scruggs acknowledged that he did not have an additional
description of the absconder from any “agent.” (Scruggs Dep. at 30:11–32:17, ECF
No. 18-5, PageID.166.) These portions of Scruggs’ testimony are more favorable to
Fleming than Scruggs’ other testimony that the description identified the absconder

18

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.612

Page 19 of 46

as “older,” and thus the Court must credit this testimony for summary judgment
purposes.
For all of these reasons, the view of the facts that is most favorable to Fleming
supports the conclusion that the deputies were not told that the absconder was
“older.” Therefore, the Court disregards the Defendants’ arguments that Fleming’s
“older” appearance supported reasonable suspicion to stop Fleming.
2
Next, the view of the facts that is most favorable to Fleming precludes the
Defendants’ argument that Fleming’s “perceived” efforts “to avoid” the deputies
supported reasonable suspicion. Garcia testified that the “sole basis” for the stop
was Fleming’s resemblance to the parole absconder and his location about a mile
from where the absconder had been spotted. (Garcia Dep. at 14:9–10, ECF No. 186, PageID.176.) Given that testimony, the Defendants may not now seek to justify
the stop on the ground that the deputies perceived Fleming to be fleeing.
Moreover, on this record, a reasonable jury could conclude that the deputies
did not actually believe that Fleming was attempting to flee or to avoid them.
Fleming has presented evidence that after Scruggs Tased him, Scruggs told another
deputy that he (Scruggs) was “just going to tell the judge he ran.” (Hunter Dep. at
38:23, PageID.404; see also id. at 14:13–14, PageID.380; Fleming Dep. at 73:14,
ECF No. 21-2, PageID.294.) A jury could reasonably interpret this statement as an

19

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.613

Page 20 of 46

admission by Scruggs that he was going to fabricate Fleming’s alleged flight in order
to justify his actions. That is not the only interpretation of Scruggs’ statement, but
it is a permissible one that must be adopted for purposes of summary judgment. And
it further precludes the Defendants from taking the position at this stage in the
proceedings that Fleming was fleeing from the deputies.
Finally, viewing the facts in the light most favorable to Fleming, the deputies
could not reasonably have perceived that Fleming was engaging in the type of flight
that would support reasonable suspicion. A suspect’s flight or efforts to evade may
support reasonable suspicion where the suspect knows that the persons from whom
he is fleeing are law enforcement officers. See, e.g., Illinois v. Wardlaw, 528 U.S.
119, 124 (2000) (holding that a suspect’s “unprovoked flight upon noticing the
police” supported reasonable suspicion); United States v. Caruthers, 458 F.3d 459,
466 (6th Cir. 2006) (holding that a suspect’s “semi-running” after “he recognized
Officer Stocks as a police officer” supported reasonable suspicion), abrogated on
other grounds by Cradler v. United States, 891 F.3d 659, 671 (6th Cir. 2018). Here,
the facts most favorable to Fleming are that the officers did not identify themselves,
did not tell Fleming to stop, and were driving a car without external markings.4

4

Fleming testified that the deputies did not identify themselves and did not give him
any commands. (See Fleming Dep. at 52:12–53:13, 69:13, ECF No. 21-2,
PageID.273–274, 290.) The Defendants nonetheless insist that the Court may credit
the deputies’ testimony that they did identify themselves and did tell Fleming to stop.
The Defendants contend that Fleming’s testimony establishes, at most, that he did
20

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.614

Page 21 of 46

Given those facts, it would have been unreasonable for the deputies to conclude that
Fleming knew he was being followed by law enforcement and, therefore,
unreasonable for them to conclude that his continued pedaling of his bike as they
trailed him was the type of flight that could support reasonable suspicion.5 For this
additional reason, the deputies’ alleged perception that Fleming was trying to
“avoid” them does not support reasonable suspicion.6

not hear the deputies addressing him and that it does not exclude the possibility that,
as they claim, they were, in fact, giving him commands. (See Reply, ECF No. 22,
PageID.456–457.) Seen from this perspective, the Defendants argue, Fleming’s
testimony does not necessarily conflict with the deputies’, and the Court may find
that the deputies did identify themselves and did give commands to Fleming. The
Court respectfully disagrees. The record establishes that the deputies were between
10 to 15 yards away from Fleming when they claim to have addressed him. A
reasonable jury could find, after viewing the evidence in the light most favorable to
Fleming, that (1) if the deputies had attempted to speak to Fleming from that range,
Fleming would have heard them and (2) since Fleming did not hear them, they did
not address him as they claim to have done. Thus, for the purposes of summary
judgment, the Court proceeds on the understanding that the deputies did not identify
themselves or address Fleming in any way while following closely behind him.
5

The Defendants correctly note that Fleming looked back toward the deputies’
vehicle several times before the Tasing. (See Mot. for Summ. J., ECF No. 18,
PageID.93.) But the fact that Fleming looked back toward the vehicle does not
compel a finding that Fleming knew that the vehicle contained police officers. As
described above, the vehicle did not have any markings identifying it as a police
vehicle, its lights were located inside the vehicle, and the windows were tinted. (See
Garcia Dep. at 12:12–22, ECF No. 18-6, PageID.175; Scruggs Dep. at 17:4–19:13,
ECF No. 18-5, PageID.163.) A reasonable jury could find, after viewing the
evidence in a light most favorable to Fleming, that he did not know the vehicle
contained law enforcement officers.
6

The Court’s determination, for summary judgment purposes, that Fleming was not
fleeing is not based upon Fleming’s subjective intent not to flee. As the Defendants
21

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.615

Page 22 of 46

3
In addition, the Defendants’ contention that the “physical description and
location of [Fleming] was consistent with the information” the deputies had received
also fails to take the evidence in the light most favorable to Fleming. As noted
above, in several respects, Fleming’s appearance and circumstances were not
“consistent” with the deputies’ information. Fleming was not wearing the distinctive
large neck chain mentioned in the BOLO. He was wearing shorts, not blue jeans.
He had a graying goatee, not a dark-black beard. And he was about one mile from
where the absconder had been seen the day before. Thus, when viewing the facts in
the light most favorable to Fleming, the Court cannot accept the Defendants’
repeated contention that Fleming’s appearance and circumstances “matched” those
of the absconder. (See Scruggs Dep. at 33:1–2, ECF No. 18-5, PageID.167.) Instead,
the Court must carefully consider both the points of similarity and the points of
difference between Fleming and the absconder.

correctly note, Fleming’s subjective intent does not control. (See Defs.’ Supp. Br.,
ECF No. 28, PageID.573.) Instead, what matters is how a reasonable officer would
view Fleming’s actions when the objective facts are viewed in the light most
favorable to Fleming. Here, for the reasons explained in text above, the Court
determines that a reasonable officer – viewing the objective facts in the light most
favorable to Fleming – would not have believed that Fleming was fleeing or
attempting to evade.
22

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.616

Page 23 of 46

4
Finally, the Defendants’ contention that the information in the BOLO came
from a known and reliable source fails to take the facts in the light most favorable to
Fleming. While it is true, as the Defendants note, that the BOLO came from the
MDOC, the BOLO does not say that the MDOC developed the information in the
BOLO. On the contrary, the BOLO simply says that the MDOC “got a call” passing
along the information in the BOLO. The BOLO does not identify the caller, nor
does the BOLO suggest that the call came from a law enforcement source or from
any known or trusted source. And there is no evidence in the record that the MDOC
knew the caller’s identity. Under all of these circumstances, the Court cannot
conclude for summary judgment purposes that the information in the BOLO came
from an identified caller who was known to be reliable.
C
With these clarifications of the record in mind, the Court concludes that, under
the totality of the circumstances, the deputies did not have reasonable suspicion to
stop Fleming.
First, the sole basis for the stop was the deputies’ belief that Fleming matched
the description of the parole absconder in the BOLO, but the Defendants have not
presented evidence that the BOLO, itself, was supported by reasonable suspicion.
See Hensley, 469 U.S. at 232–33 (holding that an officer may make a Terry stop

23

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.617

Page 24 of 46

based upon a bulletin only where the bulletin was “issued on the basis of articulable
facts supporting a reasonable suspicion”). Indeed, there is no evidence in this record
that the MDOC author of the BOLO had a sufficient basis on which to conclude that
its contents were accurate. All of the information in the BOLO came from a caller,
and there is no evidence before the Court that the MDOC employee knew the caller’s
identity or knew anything about the caller’s veracity. Moreover, there is no evidence
in the record that the MDOC employee (or anyone else) did anything to corroborate
the information provided by the caller. Nor is there any evidence in the record as to
whether the MDOC employee knew the caller’s basis of knowledge – i.e., whether
the caller personally saw the absconder at the Nebraska Street address or whether a
third party told the caller that the absconder was at that address wearing the described
apparel and riding a bike. Under these circumstances, the MDOC employee who
issued the BOLO could not reasonably deem the tip from the caller to be reliable,
and thus the MDOC employee lacked reasonable suspicion to detain a person
matching the description of the absconder provided by the caller. And because there
is no evidence that the MDOC employee had reasonable suspicion, the Terry stop of
Fleming based on the BOLO authored by that employee was unlawful. See id.; see
also Feathers v. Aey, 319 F.3d 843, 849–50 (6th Cir. 2003) (holding under Hensley
that Terry stop based upon information from police dispatcher was unlawful where
dispatcher lacked reasonable suspicion to support the stop); Joshua v. DeWitt, 341

24

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.618

Page 25 of 46

F.3d 430, 440 (6th Cir. 2003) (explaining that a Terry stop based upon the
identification of a suspect in a law enforcement “Read & Sign” book was unlawful
where the prosecution failed to present evidence that the officer who provided the
information in the book had reasonable suspicion to believe that the person stopped
had committed a crime).
Second, even if the BOLO had been supported by reasonable suspicion, the
stop of Fleming would still have been unlawful under Terry because the deputies
lacked reasonable suspicion to believe that Fleming was the absconder described in
the BOLO. Several important differences between Fleming and the description in
the BOLO cut sharply against a finding that Fleming was the wanted man. In
contrast to the description, Fleming was not wearing any “neck chain,” much less a
distinctive “big neck chain.” He was not wearing jeans. He did not have a darkblack beard; he had a graying goatee. And he was roughly one mile from the location
where the absconder had been seen the day before. These differences made it much
less likely that Fleming was the parole absconder, and the deputies’ failure to
consider these distinctions undermines Defendants’ claim that the deputies had
reasonable suspicion to stop Fleming. See Stanley v. Finnegan, 899 F.3d 623, 628
(8th Cir. 2018) (explaining that a state “official is not free to disregard plainly
exculpatory evidence when it undermines inculpatory evidence that reasonable

25

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.619

Page 26 of 46

suspicion exists”); cf. Gregory v. City of Louisville, 444 F.3d 725, 743 n.6 (6th Cir.
2006) (applying same principle in context of probable cause to arrest).
Third, the similarities that did exist between Fleming and the BOLO did not
sufficiently suggest that Fleming was the absconder. The similarities were at a
relatively high level of generality – both Fleming and the absconder were black men
with facial hair and a ball cap riding a bike. As Fleming persuasively observes, that
description could have fit a reasonably large number of individuals in Pontiac – a
city with a large black population and a high poverty rate whose under-resourced
residents may be unable to afford cars and may rely on bicycles to get around.7
Because the similarities between Fleming and the BOLO would appear to be
common to “any number of people” in Pontiac, they fall short of establishing
particularized reasonable suspicion.8 King, 917 F.3d at 426.

7

“The ACS Demographic and Housing Estimates for 2013-2017 in the City of
Pontiac, Michigan (where the incident occur[r]ed), provides that the total population
during this time period is estimated at 60,039, with 29,106 being male and
approximately 17,641 persons being over the age of 45 years old, if you include
persons 35 to 44 years old there are approximately 33,438 persons in that age group.
The City is 20.28 square miles with a population density of 3,007 persons per square
mile. The race of individuals residing in Pontiac at the time is predominantly African
American with an estimate of 29,289 persons. The median household income is just
a little over $33,000. Approximately 31% live in poverty making it more likely than
not that these 31% have no transportation or transportation other than a motor
vehicle, i.e. bicycle.” (Pl.’s Supp. Br., ECF No. 25, PageID.474; citing Pontiac
Demographic Report, ECF No. 25-4.)
8

The cases cited by Defendants are not to the contrary. (See Reply, ECF No. 22,
PageID.455–456; Defs.’ Supp. Br., ECF No. 28, PageID.566–571.) In those cases,
26

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.620

Page 27 of 46

For all of these reasons, the Court concludes that the evidence, when viewed
in Fleming’s favor, supports the conclusion that Scruggs and Garcia violated
Fleming’s Fourth Amendment rights by conducting a Terry stop without “reasonable
suspicion, grounded in specific and articulable facts, that [the] person they
encounter[ed] was involved in or is wanted in connection with a completed felony.”
Id. at 423.
D
The Court concludes, however, that the deputies have qualified immunity for
the unlawful stop of Fleming. In Hensley, the Supreme Court explained that where,
as here, a law enforcement officer makes a Terry stop based upon a BOLO that is

officers stopped suspects who (a) were found in a location that bore a close and/or
logical relationship to a recent crime and (b) matched descriptions given by
witnesses. See United States v. Babb, 77 F. App’x 761, 763, 767 (6th Cir. 2003)
(upholding stop of suspect one hour after a bank robbery where suspect matched the
BOLO’s description of a “black male of a certain age and size, driving a silver or
grey Oldsmobile Alero with blue and white Michigan plates” and where the suspect
was spotted driving away from the area of the robbery); United States v. Caruthers,
458 F.3d 459, 462 (6th Cir. 2006) (upholding stop of suspect ten minutes after a
central dispatcher received a distress call where suspect matched the tipster’s
description of a “[m]ale black. . . . Red shirt, shorts, fired gun in the air” who was
located in a high-crime area, nobody else was spotted in the area, and the suspect
“took off in a hurried[] fashion” when approached by the officers); United States v.
Lindsey, 114 F. App’x 718, 722–23 (6th Cir. 2004) (upholding stop of suspect after
a shooting where suspect matched descriptions provided by a caller and other
witnesses of a black man wearing a dark-colored jacket and where the suspect was
observed running less than a mile from the scene). None of these cases support the
stop of Fleming a full day after, and roughly a mile away from, the sighting of the
alleged absconder – especially given the differences between Fleming’s appearance
and that of the absconder.
27

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.621

Page 28 of 46

issued in the absence of reasonable suspicion, the officer “may have a good-faith
defense to any civil suit” – i.e., may have qualified immunity from any claim –
arising out of the stop. Hensley, 469 U.S. at 232–33.9 “It is the objective reading of
the flyer or bulletin that determines whether other police officers can defensibly act
in reliance on it.” Id.
Under this test from Hensley, the Sixth Circuit has extended qualified
immunity to officers who made an unlawful Terry stop under circumstances like
those presented here. See Feathers, 319 F.3d at 851. In Feathers, a police dispatcher
received an anonymous tip that a bearded white male on a porch looked “pretty
drunk” and “pointed something” at the tipster as the tipster walked by on North
Howard Street in Akron, Ohio. The dispatcher informed patrol officers of the
tipster’s report and directed the officers to the North Howard Street area. The
dispatcher did not tell the patrol officers that the tipster had been anonymous.

9

While “Hensley spoke in terms of ‘a good-faith defense to any civil suit,’” “[t]he
result is the same under [the] qualified immunity analysis of Harlow and Anderson
v. Creighton, 483 U.S. 635 (1987).” Borlawsky v. Town of Wyndham, No. 99-272,
2000 WL 761016, at *1 n.2 (D. Me. Mar. 31, 2000). Indeed, the Sixth Circuit has
recognized the overlap between the Hensley good-faith defense and qualified
immunity. See, e.g., Feathers, 319 F.3d at 851 (explaining that officer was entitled
to qualified immunity for Terry stop made under “precisely the scenario” that would
have entitled him to the “good-faith” defense under Hensley); Humphrey v. Mabry,
482 F.3d 840, 848–49 (6th Cir. 2007) (citing Hensley as support for the test to be
applied for determining when an officer who acts based upon information received
from another officer is entitled to qualified immunity).
28

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.622

Page 29 of 46

Upon arriving in the area, the patrol officers saw Feathers sitting on his porch,
and they concluded that Feathers matched the description provided by the dispatcher.
They approached Feathers and commanded him to take his hands out of his pockets.
Feathers disobeyed the commands and began heading into the house. The officers
then grabbed Feathers, and a struggle ensued. The officers ultimately got Feathers
under control and arrested him. Feathers was charged with assaulting the officers,
carrying a concealed weapon, and resisting arrest. The resisting arrest and concealed
weapons charges were dismissed, and Feathers was acquitted of the assault charge
at trial. Feathers thereafter brought a civil action against the officers, and he alleged,
among other things, that the officers lacked reasonable suspicion for their Terry stop
of him (that occurred as he sat on his porch).
The Sixth Circuit agreed with Feathers that the Terry stop was unlawful. The
court explained that under Hensley, the lawfulness of the stop depended upon
whether “the dispatcher had sufficient information to find reasonable suspicion” for
the stop. Id. at 849. And the court concluded that the dispatcher lacked such
information because the dispatcher knew that the tipster was anonymous and
because the dispatcher had no basis on which to deem the tip reliable. See id. at 849–
50.
But the Sixth Circuit “[n]onetheless” concluded that “Feathers [could not]
overcome the officers’ qualified immunity.” Id. at 851. The officers were entitled

29

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.623

Page 30 of 46

to such immunity under Hensley because they reasonably relied upon the
information they received from the dispatcher:
Based on the information that [the officers] had
themselves, the Terry stop was reasonable. The dispatcher
informed the officers of a suspicious person who was
possibly intoxicated and supposed to be carrying a
weapon. Although this information was from an
anonymous tipster, whose information was not sufficient
to create reasonable suspicion under J.L., the officers
knew only what had been reported from the dispatch, and
efficient law enforcement requires—at least for the
purposes of determining the civil liability of individual
officers—that police be permitted to rely on information
provided by the dispatcher. If the dispatcher’s information
were accurate and reliable, as the police presumed, the
totality of circumstances would justify the Terry stop. This
is precisely the scenario contemplated in Hensley, in
which, after reasoning that a stop based on a bulletin that
was itself issued in the absence of reasonable suspicion
would violate the Fourth Amendment, the Supreme Court
stated that, “[i]n such a situation, of course, the officers
making the stop may have a good-faith defense to any civil
suit.” Hensley, 469 U.S. at 232, 105 S.Ct. 675. So
although the stop violated the Fourth Amendment because
the authorities’ collective information did not amount to
reasonable suspicion, Feathers cannot prevail in a § 1983
suit because the individual defendants had a sufficient
factual basis for thinking that they were acting consistently
with Terry.
Id. at 851 (emphasis added).
In this case, Scruggs and Garcia were in much the same position as the patrol
officers in Feathers. Like those officers, Scruggs and Garcia (1) were informed that
law enforcement (the MDOC) had received a report concerning a suspect and (2)

30

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.624

Page 31 of 46

were not given any information that directly called into question the reliability of the
report.10 Thus, as in Feathers, Scruggs and Garcia were “permitted to rely on [the]
information provided by” the MDOC – “at least for purposes of determining [their]
civil liability.” Id. Stated another way, Scruggs and Garcia may not be held liable
on the theory that they conducted a stop based upon a BOLO that was not supported
by reasonable suspicion.
But the question remains: may they be held liable for their erroneous
determination that they had reasonable suspicion to stop Fleming based upon his
resemblance to the parole absconder described in the BOLO? They may not. While
the Court has concluded that, under the totality of the circumstances, the
resemblance was not close enough to support reasonable suspicion, the Court cannot
say that that lack of reasonable suspicion would have been clear to every reasonable
officer. There were at least some meaningful similarities between Fleming and the
parole absconder, and it is possible that a reasonable officer could have mistakenly
deemed those similarities sufficient to establish reasonable suspicion that Fleming
was the absconder.

10

While the BOLO did not identify the tipster, it did not affirmatively state that the
tipster was anonymous or wished to remain anonymous. If the BOLO had so stated,
then Scruggs and Garcia could not have reasonably relied upon it. See Srisavath v.
City of Brentwood, 243 F. App’x 909 (6th Cir. 2007).
31

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.625

Page 32 of 46

Fleming has not cited any clearly established federal law that would have put
Scruggs and Garcia on notice that they lacked reasonable suspicion for the stop. See
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasizing that a plaintiff’s burden
to cite an on-point case demonstrating that “the violative nature of particular conduct
is clearly established” is “especially important in the Fourth Amendment context,
where the Court has recognized that [i]t is sometimes difficult for an officer to
determine how the relevant legal doctrine . . . will apply to the factual situation the
officer confronts” (quotation marks and emphasis omitted)). Fleming primarily
relies upon the Sixth Circuit’s decision in King, supra. But that case falls short for
at least two reasons. First, the Sixth Circuit decided King several years after Scruggs
and Garcia stopped Fleming. Thus, Scruggs and Garcia were not on notice as to
how the court would have applied the governing law to facts like those presented in
King. Second (and more importantly), the facts in King are not close enough to those
present here that the decision in King may be said to put the deputies’ lack of
reasonable suspicion “beyond debate.” Hernandez v. Boles, 949 F.3d 251, 261 (6th
Cir. 2020) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)). The
officers in King conducted a Terry stop of King based upon a seven-year-old photo
of a suspect that bore essentially no resemblance to King. And the officers did not
observe King engage in the behaviors that the suspect was known to engage in. Here,
in contrast, Fleming did bear at least some resemblance to the parole absconder

32

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.626

Page 33 of 46

pictured on the BOLO, and Fleming, like the absconder, was riding a bike. For these
reasons, King would not have put every reasonable officer on notice that reasonable
suspicion to stop Fleming did not exist. And because Fleming has not cited any
other cases that would have provided such notice to Scruggs and Garcia, they are
entitled to qualified immunity for the unlawful stop of Fleming.
V
Next, the Court turns to Fleming’s allegation that the Tasing was an excessive
use of force. (See Fleming Resp., ECF No. 21, PageID.209–212.) The deputies are
not entitled to qualified immunity on that claim.
A
Fleming’s excessive force claim arises under the Fourth Amendment. See
King, 917 F.3d at 429. The claim is to be evaluated under the following standard:
“[T]he right to be free from the excessive use of force is a
clearly established Fourth Amendment right.” Champion
v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.
2004) (quoting Neague v. Cynkar, 258 F.3d 504, 507 (6th
Cir. 2001)). The Supreme Court has explained that “[n]ot
every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers, violates the Fourth
Amendment.” Graham v. Connor, 490 U.S. 386, 396, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989). Rather, “the question
is whether the officers’ actions [were] ‘objectively
reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent
or motivation.” Id. at 397, 109 S.Ct. 1865. “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,
33

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.627

Page 34 of 46

and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. at 396, 109 S.Ct.
1865. Therefore, to determine whether the use of force in
a particular situation was reasonable, this Court must look
to the totality of the circumstances. See id.; Dickerson v.
McClellan, 101 F.3d 1151, 1161 (6th Cir. 1996) (citing
Tennessee v. Garner, 471 U.S. 1, 8–9, 105 S.Ct. 1694, 85
L.Ed.2d 1 (1985)). In doing so, the court must assume “the
perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396, 109 S.Ct. 1865. The analysis of whether an
officer’s use of force was reasonable is guided by the
following three factors: (1) the severity of the crime at
issue; (2) whether the suspect posed an immediate threat
to the safety of the officers or others; and (3) whether the
suspect was actively resisting arrest or attempting to evade
arrest by flight. Sigley v. City of Parma Heights, 437 F.3d
527, 534 (6th Cir. 2006).
Id. at 429–30.
The Sixth Circuit has adopted a “segmented analysis” for analyzing excessive
force claims. Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007).
Under this approach, a court must consider “the totality of the circumstances facing
[a police officer] at the time [he] made [his] split-second judgment[] immediately
prior to using . . . force.” Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir.
2009).

“The relevant time for the purposes of this inquiry is the moment

immediately preceding the shooting,” or – in Fleming’s case – the Tasing. Bouggess
v. Mattingly, 482 F.3d 886, 890 (6th Cir. 2007).

In other words, “it is the

reasonableness of the ‘seizure’ that is the issue, not the reasonableness of the
[officers’] conduct in time segments leading up to the seizure.” Chappell, 585 at 909.
34

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.628

Page 35 of 46

B
The Defendants insist that the Tasing of Fleming was justified for the
following reasons:
From the officer’s perspective, when they attempted to
approach Plaintiff, he avoided them on his bicycle,
disregarded verbal commands to stop, and then placed his
hand in his pocket as the officers[] approached. From the
perspective of an officer, he was approaching a convicted
felon that was actively trying to flee and reached into his
pocket to possibly retrieve a weapon. These actions
constitute active resist[a]nce and the use of a taser under
the circumstances was a proper use of force. Even if
Plaintiff is not deemed to be trying to flee, placing his hand
in his pocket posed a threat to the officers that justified the
use of force to protect Defendants’ own safety. While
Plaintiff’s explanation may offer some information about
why he did not stop, the events must be viewed from the
perspective of an officer on the scene.
***
[A]n officer is able to use force in response to
circumstances presenting a risk of harm to the officer or
others. In addition, the above cases support Defendant
Scruggs’ belief that an individual reaching into a pocket
presents the risk of retrieving a weapon and that the use of
force, even deadly force, in response to the potential harm
presented by an individual pulling out a weapon does not
constitute excessive force. Plaintiff’s actions of reaching
into his pocket posed a risk to the officers that makes the
use of a taser to protect the officers objectively reasonable
and defeats Plaintiff’s claim for excessive force.

35

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.629

Page 36 of 46

(Defs.’ Supp. Br., ECF No. 28, PageID.573, 576.) But the Defendants again fail to
take the facts in the light most favorable to Fleming and fail to draw all reasonable
inferences in Fleming’s favor.
To begin, as described above (see supra, Section IV.B.1–4), the facts in the
light most favorable to Fleming do not support the Defendants’ contention here that
Fleming was fleeing from them or that they reasonably could have believed that
Fleming was fleeing. Likewise, under the most favorable view of the facts for
Fleming, the deputies did not give Fleming any commands, and he did not ignore
any commands. Moreover, viewing the facts in the light most favorable to Fleming
does not support the deputies’ claim that Fleming “placed his hand in his pocket as
the officers’ approached.” (Defs.’ Supp. Br., ECF No. 28, PageID.573.) Video
footage from the deputies’ vehicle is inconclusive on this point; at most, the video
shows that Fleming moved his left hand toward his left pocket, but it is not clear that
Fleming reached his hand into his pocket. (See Dashcam Video at 01:40–01:46, ECF
No. 18-4.) And Fleming testified that “I never put my left hand in my pocket.”
(Fleming Dep. at 66:17, ECF No. 21-2, PageID.287.) For purposes of summary
judgment, the Court may conclude only that Fleming moved his hand toward his
pocket, not that he reached his hand into his pocket.

36

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.630

Page 37 of 46

C
Having clarified the facts in the light most favorable to Fleming, the Court
concludes that a reasonable jury could find that the Tasing of Fleming amounted to
excessive force. As noted above, the analysis of whether an officer’s use of force
was reasonable is guided by the following three factors: (1) “the severity of the crime
at issue”; (2) “whether the suspect posed an immediate threat to the safety of the
officers or others”; and (3) whether the suspect was “actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see also Sigley, 437
F.3d at 534. When the evidence is viewed in Fleming’s favor, a reasonable jury
could find that none of these three factors support the Tasing of Fleming.
First, the crime at issue – failing to report for parole – was not severe. Failing
to report is not a crime of violence and poses only an indirect threat to the public.
Moreover, the deputies did not know anything about the underlying offense for
which the absconder was on parole. (See Garcia Dep. at 14:4–8, ECF No. 18-6,
PageID.176.) They had no idea, for instance, whether the absconder was on parole
for a non-violent offense like fraud or drug possession or whether he had committed
a more serious offense. Thus, a jury could reasonably find that the mere fact that the
absconder was on parole does not support the decision to deploy a Taser.
Second, a jury could reasonably find that Fleming did not pose an immediate
threat to the safety of the deputies or others. He was riding away from the deputies,

37

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.631

Page 38 of 46

not seeking to confront them. And the deputies had no reasonable basis to believe
that Fleming was armed. They had no information that the parole absconder whom
they believed Fleming to be was armed, and they did not see Fleming with a weapon
(or with any bulge in his pockets that could potentially have been a weapon). They
saw only an ambiguous move of Fleming’s hand toward his pocket as he rode away
from them. On this record, a jury could reasonably find that that one vague
movement, standing alone, did not amount to a threat to officer safety. Indeed, there
is a question of fact as to what that vague movement actually was. Moreover, there
is evidence in the record from which a reasonable jury could conclude that the
deputies, themselves, did not believe that they needed to Tase Fleming to neutralize
a threat that he posed. As noted above, after Scruggs Tased Fleming, Scruggs said:
“I’m just going to tell the judge he ran.” (Hunter Dep. at 38:23, PageID.404; see also
id. at 14:13–14, PageID.380; Fleming Dep. at 73:14, ECF No. 21-2, PageID.294.)
A jury could reasonably interpret this statement by Scruggs as an admission that he
had no basis for Tasing Fleming and that he thus had to fabricate a justification. For
all of these reasons, on this record a reasonable jury could conclude that Fleming did
not pose an immediate threat to the deputies’ safety or to the safety of others.
Third, as explained in detail above, a jury could reasonably conclude that
Fleming was not actively resisting arrest or attempting to evade arrest by law

38

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.632

Page 39 of 46

enforcement. Instead, a jury could conclude that he was steadily riding his bicycle
away from an unidentified vehicle that he perceived as a possible threat.
Since a jury could reasonably find that none of the relevant factors weigh in
favor of the Tasing of Fleming, the Defendants are not entitled to summary judgment
on the ground that the Tasing did not amount to an excessive use of force.
The cases cited by the Defendants to support the deputies’ use of force are
easily distinguishable. Those cases involved more credible and immediate threats
to officer safety than Scruggs and Garcia faced. (See Defs.’ Supp. Br., ECF No. 28,
PageID.571–577.) For instance, in one of the cases cited by the Defendants, the
court held that an officer reasonably used deadly force against a suspect where the
suspect “had made threats to kill any officer that came to arrest him,” the officer who
fired the deadly shot saw another officer running down the suspect’s front yard with
his gun drawn, and the shooting officer had heard other officers yelling “sheriff’s
office,” “let us see your hands,” and “gun, gun, gun.” Hickman v. Moore, Nos. 3:09cv-69, 3:09-cv-102, 2011 WL 122039, at *9 (E.D. Tenn. Jan. 14, 2011). In another
case cited by the Defendants, the court held that an officer reasonably believed that
a suspect was armed based upon a citizen’s report that the suspect was armed, the
officer’s uncontradicted observation of a gun-shaped bulge near the suspect’s
waistband, and the suspect – after being ordered to put his hands over his head –
“lowering his hands in the direction of the bulge in disregard of the officers’ order.”

39

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.633

Page 40 of 46

Anderson v. Russell, 247 F.3d 125, 130 (4th Cir. 2001). The facts of these cases bear
scant resemblance to the facts of this case (when the facts are viewed in the light
most favorable to Fleming).
For all of these reasons, a jury could reasonably find the deputies violated
Fleming’s Fourth Amendment right to be free from the use of excessive force when
they Tased him.

D
The Court further concludes that the deputies are not entitled to qualified
immunity because Fleming’s right to be free from Tasing when neither fleeing nor
actively resisting was clearly established at the time Fleming was Tased. Before
Fleming was Tased, the Sixth Circuit had held that the “use of a Taser on a nonresistant subject” violates clearly established federal law. Kijowski v. City of Niles,
372 F. App’x 595, 601 (6th Cir. 2010); see Brown, 814 F.3d at 461–62 (“[A]n
individual’s right to be free from a taser is clearly established when the individual is
not actively resisting arrest or is already detained.”); Hagans v. Franklin Cty.
Sheriff’s Office, 695 F.3d 505, 509–10 (6th Cir. 2012) (“[W]hen we have found
excessive force, the suspects were compliant or had stopped resisting. . . . A
suspect’s active resistance also marks the line between reasonable and unreasonable
tasing in other circuits.”). As explained above, on the facts most favorable to
Fleming, he was neither resisting nor fleeing at the instant he was Tased. And a

40

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.634

Page 41 of 46

Tasing under those circumstances would have violated clearly established federal
law.
E
In sum, Scruggs and Garcia are not entitled to qualified immunity on
Fleming’s excessive force claim because (1) the facts, viewed in the light most
favorable to Fleming, are sufficient to support a finding that the Tasing of Fleming
amounted to excessive force and (2) Fleming’s right to be free from a Tasing under
those facts was clearly established.
F
The above analysis holds both deputies – Scruggs and Garcia – equally
accountable for the Tasing. Defendants argue that Fleming “cannot assert a claim
against Deputy Garcia for excessive force or any other tort claim” because Garcia
was only driving the police car and Fleming failed “to even allege [that] Deputy
Garcia was involved in tasing Plaintiff.” (Mot. for Summ. J., ECF No. 18,
PageID.105–106.) The Court disagrees. As the driver of the police vehicle, Garcia
was responsible for following Fleming and positioning the vehicle so that Scruggs
could deploy his Taser on Fleming. Thus, Fleming has shown that Garcia “actively
participated in the use of excessive force” and therefore is subject to liability. Binay
v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010) (quoting Turner v. Scott, 119 F.3d
425, 429 (6th Cir. 1997)).

41

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.635

Page 42 of 46

VI
The Court next turns to Fleming’s municipal liability claim under 42 U.S.C.
§ 1983. Fleming argues that Defendant Oakland County is liable for the deputies’
use of excessive force because it had a “practice, policy, or custom which caused a
violation of his rights.” (Fleming Resp., ECF No. 21, PageID.213; citing Monell v.
Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658 (1978).) Fleming’s Monell
claim is premised on the County’s alleged failure to train its deputies. (See id.,
PageID.213–216.)

The Court concludes that Fleming’s Monell claim against

Oakland County fails as a matter of law.
“To succeed on a municipal liability claim, a plaintiff must establish that his
or her constitutional rights were violated and that a policy or custom of the
municipality was the ‘moving force’ behind the deprivation of the plaintiff’s rights.”
Miller v. Sanilac Cty., 606 F.3d 240, 254–55 (6th Cir. 2010). A plaintiff may
demonstrate such a policy or custom by showing that the municipality’s training of
its police officers was so inadequate that its “failure to train amounts to deliberate
indifference to the rights of the persons with whom the police come into contact.”
Id. (quotation omitted) (emphasis in original). “To establish deliberate indifference,
the plaintiff must show prior instances of unconstitutional conduct demonstrating
that the County has ignored a history of abuse and was clearly on notice that the

42

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.636

Page 43 of 46

training in this particular area was deficient and likely to cause injury.” Id. (quotation
omitted).
Fleming has not demonstrated that Oakland County “has ignored a history of
abuse.” Id. In support of his municipal liability argument, he cites the deposition of
Oakland County Sherriff’s Lieutenant Russell Yeiser, who has instructed OCSO
deputies on Taser use since approximately 2007. (See Fleming Resp., ECF No. 21,
PageID.215–216; citing Yeiser Dep. at 20–21, ECF No. 21-4, PageID.359–360.)
When Yeiser was asked whether he was aware of “an Oakland County deputy or
sheriff or anybody using a Taser that you thought was improper,” Yeiser answered
“I’m sure there has. I don’t remember specifics.” (Yeiser Dep. at 20:15–23, ECF
No. 21-4, PageID.359.) But Yeiser’s speculation that a deputy or sheriff might have
used a Taser in an “improper” manner is not evidence that an OCSO deputy deployed
a Taser against a suspect in an unwarranted manner. There are many ways to use a
Taser “improperly,” including, for instance, by using an improper technique.
Fleming did not follow-up with Yeiser to determine whether Yeiser was admitting
that deputies had used a Taser against a suspect under circumstances that did not
warrant the use of the device. Yeiser’s vague acknowledgment of “improper” Taser
use is insufficient to support a finding that (1) Oakland County was aware that
deputies were using Tasers under circumstances that amounted to excessive force
and (2) failed to act on that knowledge. Moreover, Fleming has not presented any

43

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.637

Page 44 of 46

specific evidence a history of Taser abuse by OCSO deputies, nor specific evidence
that Oakland County has ignored such a history. Under these circumstances,
Fleming’s municipal liability claim fails.
VII
Finally, the Court turns to Fleming’s state-law tort claims against the
Defendants for gross negligence, willful and wanton misconduct, assault, battery,
and intentional infliction of emotional distress. (See Compl., ECF No. 1, PageID.7–
10.)
Defendant Oakland County is immune against these tort claims under the
GTLA. Under the GTLA, “a governmental agency is immune from tort liability if
the governmental agency is engaged in the exercise or discharge of a governmental
function.” Mich. Comp. Laws § 691.1407(1). Oakland County is a “governmental
agency” under the GTLA, see North v. Macomb Cty., No. 10-11377, 2011 WL
4576848, at *5 (E.D. Mich. 2011) (citing Mich. Comp. Laws § 691.1401(a)–(d)),
and “the operation of a law enforcement agency is a governmental function.” Wright
v. Genesee Cty. Corp., 659 F. Supp. 2d 842, 852 (E.D. Mich. 2009). Thus, Oakland
County is immune from Fleming’s tort claims because the claims arose from its
operation of its law enforcement agency (the OCSO). See id.
Defendants Scruggs and Garcia, however, are not immune from Fleming’s
tort claims. Under Michigan law, a law enforcement officer is entitled to GTLA

44

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.638

Page 45 of 46

immunity against intentional tort claims if, among other things, the officer acts in
good faith:
If the plaintiff pleaded an intentional tort, determine
whether the defendant established that he is entitled to
individual governmental immunity under the Ross test by
showing the following:
(a) The acts were undertaken during the course of
employment and the employee was acting, or
reasonably believed that he was acting, within the
scope of his authority,
(b) the acts were undertaken in good faith, or were
not undertaken with malice, and
(c) the acts were discretionary, as opposed to
ministerial.
Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008).
Viewing the evidence in the light most favorable to Fleming, a reasonable jury
could conclude that Scruggs and Garcia did not act in good faith in connection with
the Tasing of Fleming. As noted above, after Scruggs Tased Fleming, Scruggs said
that he would “tell the judge he ran.” (Hunter Dep. at 38:23, ECF No. 21-5,
PageID.404; see also id. at 14:13–14, PageID.380; Fleming Dep. at 73:14, ECF No.
21-2, PageID.294.) A jury could reasonably interpret this statement by Scruggs as
an admission that there was no basis for the Tasing of Fleming and that he thus had
to fabricate a justification. Since a jury could find that Scruggs admitted a lack of
justification for the Tasing, there is at least a question of fact as to whether the
deputies acted in good faith when they Tased Fleming. Accordingly, the deputies

45

Case 4:18-cv-11573-MFL-EAS ECF No. 29 filed 06/03/20

PageID.639

Page 46 of 46

are not entitled to summary judgment on Fleming’s state-law tort claims arising out
of the Tasing.
VIII
Accordingly, for all the reasons stated above, Defendants’ Motion for
Summary Judgment (ECF No. 18) is DENIED with respect to Fleming’s
constitutional and state-law claims against Defendants Scruggs and Garcia arising
out of the Tasing, and those claims may proceed to trial. In all other respects, the
motion is GRANTED.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 3, 2020

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on June 3, 2020, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

46