Thompson v. McCamman et al
OPINION and ORDER granting in part and denying in part motion for summary judgment 80 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) Modified text on 6/21/2017 (acr).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SEAN MCCAMMAN AND NATHAN MEAD, )
HONORABLE PAUL L. MALONEY
On a late summer night in 2014, the City of Grand Rapids received a 911 call from a
very concerned resident who identified herself to dispatch. She provided ample detail: A
group of young men, with one black, teenage male wearing white and possessing a gun, was
congregating in her neighborhood on bikes. The caller reported that it appeared, from her
view, the suspect had a gun in his waistband and others agreed; according to the caller, a
group of neighbor kids dared not to “walk up the hill” because they “saw a gun.”
A call for help to respond to a gun in this distressed neighborhood—the worst of the
worst in terms of violent crime in a city of 200,000—was unfortunately both routine and
dangerous for officers.
When officers located a group matching the caller’s description, one immediately
recognized Jaylen Braswell—a person known for his involvement in prior shootings. His
brother, Donovann, wearing white and digging in his waistband, matched the description of
the suspect with the gun.
When officers ordered the group to stop, everyone complied except Donovann
Braswell—who took off in headlong flight. An extensive chase ensued through many yards
and over many fences. Officer Sean McCamman—who arrived on the scene late but had
listened to radio and dispatch accounts of the 911 call and chase—observed another officer
draw his gun, but Braswell continued to sprint away. Officer McCamman finally caught up
to Braswell in a narrow corridor between a fence and house. Braswell started to climb the
fence, and Officer McCamman threw him to the ground. Braswell landed face down and his
hands were near his waist area. Officer McCamman, fearing for his safety, ordered Braswell
to show his hands not once, but twice . . . .
To this point in the continuum of incident, despite Plaintiff’s attempt to contort the
record, the Officers were fully justified in their actions—and no constitutional violation
occurred. Officers clearly had sufficient reasonable suspicion to justify a show of force and
attempt a Terry stop and seizure. However, mindful that the Court must view the facts in the
light most favorable to Braswell, a less clear record of subsequent law enforcement action
must be scrutinized.
After Braswell refused to comply with McCamman’s second order to remove his
hands from his waistband area, McCamman acted to protect himself. McCamman, who
cupped his flashlight in his hand, forcefully struck Braswell in the back of the head with the
flashlight—an application not disputed on this record as deadly force. Braswell immediately
felt pain and placed his hands on the back of his head to shield himself. Common sense and
instinct support—and photographs corroborate—Braswell’s account. McCamman continued
to hit Braswell in the back of his head and the back of his (empty) hands not once, not twice,
but three more times.
Officers who put themselves in danger to keep our communities safe “are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Graham v.
Connor, 490 U.S. 386, 396–97 (1989).
Nevertheless, “[e]ven a split-second decision, if sufficiently wrong, may not be
protected by qualified immunity”; and “even when a suspect has a weapon, but the officer
has no reasonable belief that the suspect poses a danger of serious physical harm to him or
others, deadly force is not justified.” Bouggess v. Mattingly, 482 F.3d 886, 896 (6th Cir.
2007); see id. at 889 (“[W]hether the use of deadly force at a particular moment is reasonable
depends primarily on objective assessment of the danger a suspect poses at that moment.”).
The Court must reach this resolution because while the record reflects Braswell’s
recklessness, a jury could accept Braswell’s version of the facts and conclude McCamman’s
repeated, forceful strikes to Braswell’s head and hands, even after Braswell no longer posed
a serious threat, violated Braswell’s Fourth Amendment right to remain free from excessive
force. Reckless conduct does not justify an unjustified application of force.
Accordingly, while Defendants’ motion must be granted as to Plaintiff’s Fourth
Amendment claims for unlawful search, arrest, and property seizure, factual disputes
preclude summary judgment on Plaintiff’s Fourth Amendment excessive force claim and
state-law battery claim against Officer McCamman.
On June 13, 2014, Plaintiff Donovann Braswell, a fifteen-year-old black male, was
walking along Dolbee Avenue in Grand Rapids, Michigan. (ECF No. 77 at PageID.437.) At
approximately 9:00 p.m., he ran into four friends. (Id. at PageID.507; ECF No. 77-3 at
Less than an hour later, Officers Mead and Thompson were summoned to the area
of Dolbee Avenue SE and Dunham Street SE. The dispatch was in response to a 911 call; a
woman who identified herself as Crystal Bobo had the following exchange with dispatch:
Caller: I need a police officer on the corner of . . . Dolb[ee] and Dunham. It
looks like a little boy got a gun in his waistband. I don’t know, but some
people’s walking up the street saying he has a gun.
Dispatch: Did you see it or you just heard people talking about it?
Caller: I heard people talking about it and then he keep holding his waist line.
I don’t know.
Dispatch: Okay. What does he look like, is he white, black, Hispanic?
Caller: He’s black with a white shirt on and some blue jeans, and there’s a
group of them right at the corner.
Dispatch: Okay. And about how old is he, do you know?
Caller: He look like he’s about 17, 18 years old. They don’t see me, but I can
Dispatch: And it was some neighbors that you heard saying this?
Caller: Yeah, some people walking down the street. They’re all on a corner
house, on a porch—sitting on a porch.
Dispatch: And do you—do you see a weapon or do you just see him like
messing around with his waistband?
Caller: Well, some people’s was up there, and they was scared to walk up the
hill. They were like he look like he has a gun. I can’t see anything. But a group
of kids was saying he has a gun.
Plaintiff has stipulated to the dismissal of his Monell claim (Count III), his prosecution without probable cause
claim (Count II), his malicious prosecution claim under state law (Count V), his failure to intervene claim against
Officer Mead and all claims against Officer Thompson. (See ECF Nos. 92, 97–98.)
Dispatch: Okay. And you see like a big group of people there?
Caller: Uh-huh, about like seven, eight little boys on bikes.
Dispatch: Does he have a bike with him?
Caller: Uh-uh, not that I know of.
Dispatch: So the neighbor—do you know if—I already have the call put out, so
we’re going to have help out there, I just want to ask a couple more questions
before they get there. The neighbors that said that—they actually said they saw
Caller: Well, one of them did, they was walking up the street. It wasn’t a
neighbor. It was some guys walking up the street saying oh, he has a gun. They
getting ready to ride off on the bikes.
Dispatch: Okay. Let me know which direction they go if they do ride off on
Caller: They—if they go down any direction, they coming down Dolb[ee] Hill,
Sherman (inaudible) to Baxter.
Dispatch: Towards Sherman Street?
Caller: Yeah, if they going to riding down—if they going to ride down hill, that’s
where they most likely going to go.
Dispatch: Do you know, does he have a bike, did you say yes or no?
Caller: Yeah, he’s on a bike now.
Dispatch: What color bike, can you tell?
Caller: I can’t really tell. Like I said, I can see them but they can’t see me
because I’m standing on my porch.
Dispatch: Just let me know if you see anything, okay?
Dispatch: Or if they do leave. We do have officers on the way.
Caller: Okay. Coming in my house, my daughter (inaudible).
Dispatch: Do you know who any of these people are at all, or are they just—
Dispatch: Do you know any—who these people are at all, like any of their
Dispatch: —anything like that?
Caller: No, never seen these little boys in my life, never. And I’m sick of this
chaos that’s going on at the top of this hill. Okay, I’m going back on my porch.
They riding off. It’s one, two, three, four riding off down Dolb[ee] Hill all the
way to Baxter.
Dispatch: Going towards Baxter northbound?
Dispatch: Okay. They are heading that way?
Caller: Okay. There’s one—he has a little boy on the front—front handlebars
of the bike with a red hoodie.
Dispatch: That’s the one with the possible weapon?
Dispatch: Is he the one that’s on the handlebars?
Dispatch: Or he has somebody on his handlebars.
Caller: He has—yeah, yeah.
Dispatch: Okay. Do you still see them out there or they—they went—
Caller: No, they—yeah, they gone.
Dispatch: Okay. All right. We have officers on the way out there to check the
area out. Just call us back if you see anything else, okay?
Caller: Okay. Thank you so much.
Dispatch: You’re welcome. Bye.
Caller: Yep, bye-bye.
(ECF No. 76-3 at PageID.351–56.)
Dispatch relayed the report to officers, reporting a “suspicious situation at Dolb[ee]
and Dunham.” (ECF No. 76-4 at PageID.359.) Dispatch relayed the “report of a black male
with a white shirt and blue jeans at the corner who possible has a gun on him”: “[h]e is with
a group of seven to eight other males and now he may be getting on a bike getting ready to
leave.” (Id.) Dispatch also noted an individual wearing a “red shirt” who the caller said was
riding on the suspect’s handlebars.
The responding officers approached with a heightened sense of alert—and
understandably so. This 911 call required responding to a report of “individuals [who]
possibly ha[d] guns” in a “very high crime area”—indeed, “typically the highest in violent
crimes” in the City of Grand Rapids, rife with “gun violence, gang violence, and drug
violence.” (ECF No. 76-5 at PageID.384.)
While canvassing the area for the suspect, Officers Thompson and Mead observed a
group of individuals walking, including “an individual wearing a white shirt or sweatshirt with
blue jeans, and also, an individual wearing a red shirt . . . walking next to a bike at that time,
which matched the description given by the caller.” (ECF No. 76-5 at PageID.374–75
(emphasis added).) The dispatch record confirms this contemporaneous identification:
“suspect description[:] black male, white sweatshirt, blue . . . jeans . . . .” (Id. at PageID.361.)
Officer Mead also noticed that two of the individuals were wearing sweatshirts, which
was “unusual in June.” (Id. at PageID.375.) Officer Thompson identified Jaylen Braswell,
Plaintiff Donovann Braswell’s brother, who was previously “involved in a couple shootings.”
(ECF No. 76-6 at PageID.394.) He relayed this information to Officer Mead. (Id..)
The two officers approached the group while turning on a spotlight for better vision
because “it was dusk at the time.” (Id.) Immediately, Donovann Braswell, who admitted he
was wearing “a white [sweat]shirt and some blue cargoes” at that time, fled in a headlong
sprint through the residential area. (ECF No. 77 at PageID.349.)
According to Braswell, he recalls hearing officers telling him to stop, but admits that
he kept running and “was going so fast.” (ECF No. 77 at PageID.439.) Officer Mead pursued
Braswell on foot, telling him to stop several times. (ECF No. 76-5 at PageID.375–76.) Officer
Mead noticed that Braswell was “digging in the front of his body, left side of his waistband as
he [was] running,” which was “abnormal for somebody running,” and which further led him
“to believe at that time [Braswell] was armed with some sort of weapon.” (Id.) Officer Mead
radioed to other officers indicating that Braswell was digging in his waistband while running.
Shortly after the chase began, by his own admission, Braswell removed his baseball
cap and his white sweatshirt and discarded them. (ECF No. 77 at PageID.439.)
Officer Manser arrived in the area and started chasing Braswell. (ECF No. 76-5 at
PageID.377.) Both Officers Mead and Manser told Braswell to stop, but when Braswell
reached a fence, he jumped it and continued. (Id.) Officer Mead was unable to scale the
fence and lost sight of Braswell, although he heard a “loud thud” on the other side, leading
him to believe that Braswell’s body had hit the ground. (Id. at PageID.385.)
Officer McCamman arrived in the residential area and spoke with Officer Manser,
who advised where he last saw Braswell. While Officers Manser and McCamman looked for
Braswell, Officer Manser observed him near a home on Diamond Street. (ECF No. 77-1 at
PageID.477.) At that point, Officer Manser drew his gun and told Braswell to get on the
ground. This “elevated [Officer McCamman’s] thought process a little bit” because he had
worked with Officer Manser, and “knew there would be a reason he would do that.” (Id.)
Braswell continued to run despite hearing officers ordering him to get on the ground.
At this point, Officer McCamman took up the chase. (ECF No. 77 at PageID.440; ECF No.
77-1 at PageID.478.)
Braswell jumped three more fences, and Officer McCamman followed Braswell over
each fence. (ECF No. 77-1 at PageID.478.) Officer McCamman was aware of the nature of
the call as a suspect with a firearm and that Braswell “was observed with or grabbing at his
left side area.” McCamman “was in fear for his safety,” so he drew his firearm.” (Id.) Officer
McCamman, like Officer Mead, observed Braswell grabbing at his waistband. (Id.) He gave
commands for Braswell to stop, and he continued to ignore them.
Since “it was getting dark, it was cloudy, and [they] were under tree cover,” Officer
McCamman struggled to see Braswell. Thus, he used his “flashlight to illuminate” Braswell.
(Id.) Officer McCamman observed Braswell gain access into the backyard of a home on
Logan—and ended up in a very narrow corridor between a tall fence and the home. (Id.)
Braswell tried to scale this fence, but was unsuccessful and “there was [sic] police on each
side of it, so [he] stopped.” (ECF No. 77 at PageID.440.)
Officer McCamman caught up to Braswell, pulled Braswell off the fence, and threw
him on the ground. (ECF No. 77 at PageID.441; ECF No. 77-1 at PageID.478.) Braswell
landed “facedown in the dirt” and Officer McCamman landed in a very narrow location
between Braswell and the house. (ECF No. 77 at PageID.441; ECF No. 77-1 at PageID.479;
ECF No. 77-2 at PageID.503.)
When they first fell, Officer McCamman saw that Braswell’s hands were underneath
his body near his waist area. (ECF No. 77-1 at PageID.479.) Braswell does not rebut this and
concedes that he does not recall the position of his hands at that point. (ECF No. 77 at
PageID.441.) Officer McCamman ordered Braswell to show his hands, but Braswell refused
and his hands remained in his waistband. (Id.) Again, Braswell does not recall the placement
of his hands at this point in time.
Meanwhile, Officer Thompson was on the other side of the fence, and he could not
assist Officer McCamman because there was “no way to open the fence.” (ECF No. 76-6 at
PageID.397.) Officer Thompson recalls another officer telling him to “rip the fence open,
rip the fence open.” (Id.) It took approximately 30 seconds to rip the fence down.
Thus, forced to handle Braswell on his own, Officer McCamman feared for his life
and believed “at that point that [Braswell] had a firearm in his waistband.” (ECF No. 77-1 at
PageID.485.) “[K]nowing the short amount of time it would take [Braswell] to pull” a firearm
and use it, Officer McCamman “made a split second decision” to strike Braswell on the head
four times with a flashlight cupped in his hand. (Id.) Officer McCamman delivered each
strike in quick succession. (Id. at PageID.499.)
However, according to Braswell, he “tried to put [his hands] on top of [his] head.”
(ECF No. 77 at PageID.441.) “[A]s soon as I felt the first blow,” Braswell testified, “that’s
when I put my hands on top.” (Id. at PageID.441.) In other words, he “tried to guard [his]
head once [he] got hit.” (Id.) He confirms that he “got hit in [his] hands,” but does not know
how many times.
Braswell’s hand injuries, as reflected in a photograph taken at the hospital after his
arrest, supports his testimony. Likewise, Braswell’s head injuries, as reflected in photographs
taken after Braswell’s arrest, were confined to areas above and below where his hands would
have been. These photographs support Braswell’s testimony and call into doubt at least some
of McCamman’s testimony. (ECF No. 92-3.)
When viewing the photographs and accepting the testimony in the light most
favorable to Braswell, the evidence confirms McCamman struck Braswell in the head with a
flashlight at least three times after Braswell had put his hands on the back of his head.
Legal Framework: Summary Judgment
Summary judgment is appropriate only if the pleadings, depositions, answers to
interrogatories and admissions, together with the affidavits, show there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008). The burden is on the
moving party to show that no genuine issue of material fact exists, but that burden may be
discharged by pointing out the absence of evidence to support the nonmoving party’s case.
Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). The facts, and the inferences drawn from them, must be
viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)).
Once the moving party has carried its burden, the nonmoving party must set forth
specific facts, supported by evidence in the record, showing a genuine issue for trial exists.
Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586. The question is “whether the evidence
presents a sufficient disagreement to require submission to the jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–252. The
function of the district court “is not to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Resolution Trust Corp.
v. Myers, 9 F.3d 1548 (6th Cir. 1993) (citing Anderson, 477 U.S. at 249).
Legal Framework: Qualified Immunity
“[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).
Qualified immunity is a legal question for the Court to resolve. Everson v. Leis, 556
F.3d 484, 494 (6th Cir. 2009) (citing Elder v. Holloway, 501 U.S. 510, 516 (1994)). When
resolving an officer’s assertion of qualified immunity, the court determines (1) whether the
facts the plaintiff has alleged or shown establishes the violation of a constitutional right, and
(2) whether the right at issue was clearly established at the time of the incident. Stoudemire
v. Michigan Dep’t of Corr., 705 F.3d 560, 567 (6th Cir. 2013) (citing Pearson v. Callahan
555 U.S. 223, 232 (2009)). Courts may examine the two prongs in any order, depending on
the facts and circumstances of the case. Id. at 567-68.
Once the qualified immunity defense is raised, the plaintiff bears the burden of
demonstrating both that the challenged conduct violates a constitutional or statutory right
and that the right was so clearly established at the time that “‘every reasonable official would
have understood that what he [was] doing violate[d] that right.’” T.S. v. Doe, 742 F.3d 632,
635 (6th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “Qualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions. When properly applied, it protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” al-Kidd, 563 U.S. at 743 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In determining whether a law is clearly established, ordinarily this Court looks to
decisions of the Supreme Court and the Sixth Circuit. Carver v. City of Cincinnati, 474 F.3d
283, 287 (6th Cir. 2007); see Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 853 (6th Cir.
2012) (“When determining whether a constitutional right is clearly established, we look first
to the decisions of the Supreme Court, then to our own decisions and those of other courts
within the circuit, and then to decisions of other Courts of Appeals.”); see also Wilson v.
Layne, 526 U.S. 603, 617 (1999). “[E]xisting precedent must have placed the statutory or
constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
The clearly established prong will depend “substantially” on the level of generality at
which the legal rule is identified. Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Ordinarily, the right must be clearly established in a particularized sense, and not at a general
or abstract sense. Id. at 640. Ordinarily, “[t]his standard requires the courts to examine the
asserted right at a relatively high level of specificity and on a fact-specific, case-by-case basis.”
Cope v. Heltsley, 128 F.3d 452, 458–59 (6th Cir. 1997)).
However, on the other hand, the Sixth Circuit recently affirmed that “reading the
cases together, the Supreme Court has made clear that the sine qua non of the ‘clearly
established’ inquiry is ‘fair warning.’” Baynes v. Cleland, 799 F.3d 600, 612–13 (6th Cir.
2015). Thus, “[w]hile it is apparent that courts should not define clearly established law at a
high level of generality, it is equally apparent that this does not mean that ‘a case directly on
point’ is required”; the question is, again, whether “precedent [has] placed the statutory or
constitutional question beyond debate.” Id. (citing al-Kidd, 563 U.S. at 741).2
The Eleventh Circuit puts it this way with respect to certain cases:
As a threshold matter, the Court must admonish Plaintiff’s counsel. Plaintiff’s
response brief makes repeated exaggerated or even erroneous assertions that distort the
record—even in the light most favorable to Plaintiff.
“[N]one of the information from dispatch reflected what the officers encountered.”
This statement is flatly false. Officers encountered a group of young men who
matched the description of the caller, including the suspect wearing white who immediately
fled, in a location consistent with the caller’s report. Bikes were also present, as reported.
“It is clear that the caller, not known to the officers, only heard about a gun from some
unknown source, and referenced that the individual with the gun was on a bicycle and
wearing a red sweatshirt.”
First, whether the 911 caller was known to the Officers matters not, and the Court will
discuss this more later. While the caller cited another source who directly witnessed a gun,
When looking at case law, some broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future to different sets of
detailed facts. For example, if some authoritative judicial decision decides a case by determining
that ‘X Conduct’ is unconstitutional without tying that determination to a particularized set of
facts, the decision on ‘X Conduct’ can be read as having clearly established a constitutional
principle: put differently, the precise facts surrounding ‘X Conduct’ are immaterial to the
violation. These judicial decisions can control ‘with obvious clarity’ a wide variety of later
Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002); see U.S. v. Lanier, 520 U.S. 259, 271 (1997) (noting
that in some instances “a general constitutional rule in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in question has [not] previously been held unlawful”). In
Hope v. Pelzer, the Supreme Court clarified the reach of Lanier:
Our opinion in Lanier thus makes clear that officials can still be on notice that their conduct
violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly
rejected a requirement that previous cases be “fundamentally similar.” Although earlier cases
involving “fundamentally similar” facts can provide especially strong support for a conclusion that
the law is clearly established, they are not necessary to such a finding. The same is true of cases
with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court
of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair
warning that their alleged treatment of Hope was unconstitutional.
536 U.S. 730, 741 (2002); see also Baynes, 799 F.3d at 612–13 (“[R]eading the cases together, the Supreme Court
has made clear that the sine qua non of the ‘clearly established’ inquiry is ‘fair warning.’”).
she also said that a group of neighbor kids was scared to approach Donovann’s group
because of the gun. The caller also based her belief that a gun was present on her personal
observation: “It looks like a little boy got a gun in his waistband.” (ECF No. 76-3 at
PageID.351.) The caller did not report the individual who wore a red sweatshirt had the gun.
The caller was clear that the individual with the white shirt had the gun, and another person
who had a red sweatshirt rode on the same bike on the handlebars. The caller made perfectly
clear her belief that the person who allegedly had the gun was a young black male who wore
blue pants and a white shirt.
“[T]he caller had indicated that the individual with a gun was wearing a red sweatshirt, on a
bicycle with another person on the handlebars, none of which fit the description of
Again, this is not true. The caller distinguished the person on the handlebar, the one
who wore red, from the person who possessed the gun, the one who wore white.
“The caller . . . gave contradictory descriptions of the alleged gun-possessor, none of which
matched Donovann who was not on a bicycle and was not wearing a red sweatshirt or white
The caller did not give contradictory descriptions of the alleged gun-possessor.
Moreover, Donovann was wearing white—and he discarded his white sweatshirt while
running. He admitted this in his deposition.
“Defendants assert that Donovann ‘matched the description given by the caller’ of ‘an
individual wearing a white shirt or sweatshirt with blue jeans . . . ,’ despite the
incontrovertible fact that Donovann was wearing a blue t-shirt on the evening in question,
as evidenced by the photos police officers took at the scene.”
Finally, in a fit of irony, Plaintiff’s counsel distorts the record in the same breath as
accusing Defendants’ counsel of distorting the record.
Braswell removed his white sweatshirt during flight by his own self-admission.
Accusing Defendant of distorting the facts by citing a photograph of Donovann after he
removed his white sweatshirt by his own admission is incredibly disingenuous.
Q: Help me understand something. When you started running, you were
wearing a white sweatshirt?
Q: And by the time you were apprehended by the police, you had on a
different color, what, undershirt, T-shirt?
Q: And what was the color of the T-shirt that you ended up in when you got
Count I (Fourth Amendment: Unreasonable Stop, Seizure, and Arrest)
(Officers Mead and McCamman)
Count I of Plaintiff’s Complaint asserts a claim based upon an alleged unreasonable
stop, seizure, and arrest against Officers Mead and McCamman.
“A seizure occurs where, ‘in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.’” Smoak v. Hall, 460
F.3d 768, 778 (6th Cir. 2006) (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980)). “An officer may conduct a seizure by a show of authority and without the use of
physical force, but there is no seizure without actual submission; there is at most an attempted
seizure, so far as the Fourth Amendment is concerned.” Brendlin v. Calif., 551 U.S. 249,
254 (2007). Put simply, there is no seizure when a suspect flees until he is physically
restrained. See Calif. v. Hodari D., 499 U.S. 621, 626 (1991).
Courts recognize three categories of seizure that each have a different level of scrutiny.
Smoak, 460 F.3d at 779–81; see Arizona v. Johnson, 555 U.S. 323, 326–27 (2009). An
investigatory Terry stop requires reasonable suspicion that criminal activity is afoot; a Terry
frisk requires reasonable suspicion that the suspect stopped is armed and dangerous; and an
arrest requires probable cause that a crime has occurred. See Johnson, 555 U.S. at 326–27.
Because Plaintiff has alleged violations under the Fourth Amendment throughout the pursuit
to Braswell’s eventual arrest, the Court will address each stage separately.
Terry Stop and Pursuit
An officer may conduct a Terry stop if the officer “possesses a particularized and
objective basis for suspecting the particular person of criminal activity based on specific and
articulable facts.” Smoak, 460 F.3d at 778. In other words, “[a]n investigatory stop must be
justified by some objective manifestation that the person stopped is, or is about to be, engaged
in criminal activity.” United States v. Cortez, 449 U.S. 411, 417 (1981).
“Reasonable suspicion depends on ‘the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.’” Navarette v.
Calif., 134 S. Ct. 1683, 1690 (2014) (quoting Ornelas v. United States, 517 U.S. 690, 695
“An individual’s presence in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion that the person is committing a
crime.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). “But officers are not required to
ignore the relevant characteristics of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation,” id.; “the fact that the stop occurred in
a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.” Id.
In this case, the Officers not only were in a high-crime area—they responded to a 911
call reporting a group of kids, one of whom had a white shirt on and allegedly carried a gun
in his waistband. The caller, Crystal Bobo, identified herself to dispatch (which does not
make her an anonymous caller as Plaintiff argues3), and although there was some ambiguity
in whether she personally saw a gun, she noted that it looked like he had a gun in his
waistband and the neighborhood kids were afraid to approach the group because they had
seen a gun. The identified caller’s report contained ample detail and was based on her
personal observations of Braswell himself and others who were scared to approach Braswell
and his friends. Moreover, when the police spotted the group, the caller’s description of the
group, including Braswell, not only matched—it gave the caller’s information credibility.
“Headlong flight—wherever it occurs—is the consummate act of evasion: It is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such. . . .” Wardlow, 528
U.S. at 124.
Under the facts of Wardlow alone, officers clearly had reasonable suspicion under
the totality of the circumstances to effect a Terry stop. Indeed, the facts presented to officers
gave even more reasons to effect a Terry stop than the facts in Wardlow and a subsequent
Sixth Circuit case, Lee v. Hefner, 136 F. App’x 807, 811–12 (6th Cir. 2005) (“[T]he presence
in a high crime area, plus evasive behavior, can constitute reasonable suspicion.”). Officers
All of the case law Plaintiff cites concerning “anonymous tipsters” is inapt; Crystal Bobo was not anonymous. See,
e.g., United States v. Long, 464 F.3d 569, 573 (6th Cir. 2006) (citing Illinois v. Gates, 462 U.S. 213 (1983))
(affirming the magistrate judge’s determination that the caller who identified herself to dispatch
“counted as a known citizen as opposed to an anonymous tipster”); Feathers v. Aey, 319 F.3d 843, 849 (6th Cir.
2003) (citing United States v. Hensley, 469 U.S. 221, 232 (1985)) (“[F]or purposes of determining whether the
Terry stop was reasonable, we must impute to the individual officers the dispatcher’s knowledge . . . .”); see id.
(“[I]f the dispatcher had sufficient information to find reasonable suspicion for a Terry stop, the stop was
were not on a late-night fishing expedition; they responded to a detailed 911 call in a highcrime area and Braswell, who matched the description of the individual who allegedly had a
gun in his waistband, immediately took off in headlong flight. See Wardlow, 528 U.S. at 124.
Thus, this is not even a close call—the Officers clearly had reasonable suspicion to
stop and pursue Braswell and remain entitled to qualified immunity on that claim. And
again—since Braswell fled, a seizure was not even effected until Officer McCamman subdued
Braswell on the ground. See Cortez, 449 U.S. at 417. Thus, no constitutional violation
occurred during the attempted Terry stop and pursuit.
Reasonable Suspicion Justifying the Use of Force during the
Next, the analysis must turn to whether there was reasonable suspicion justifying the
use of force during Braswell’s flight.
“This Circuit permits the use of force, such as handcuffs and guns, to effect a stop
when such a show of force is reasonable under the circumstances of the stop.” United States
v. Heath, 259 F.3d 522, 530 (6th Cir. 2001); accord United States v. Lindsey, 114 F. App’x
718, 721 (6th Cir. 2004); see, e.g., United States v. Merritt, 695 F.2d 1263, 1273 (10th Cir.
1982) (“[T]he use of guns in connection with a [Terry] stop is permissible where the police
reasonable believe they are necessary for their protection.”); accord United States v. Mosley,
743 F.3d 1317, 1329 (10th Cir. 2014).
In this case, the factual record clearly supports the conclusion that Officer
McCamman and his colleagues had reasonable suspicion to believe Braswell was armed and
dangerous and that the show of force was necessary for the Officers’ protection. The Officers
responded to a detailed report of a person with a gun from an identified 911 caller; the area
in which officers responded represented the “worst of the worst” in terms of being a highcrime area in the City of Grand Rapids; Officer McCamman watched at least one other
officer bear his firearm in response to Braswell’s behavior; Braswell’s brother, who was in
the group of kids, had previous involvement in shootings in that area; Braswell consistently
grabbed at his waistband; and Braswell recklessly continued to flee from officers even after
repeated commands to stop.
Every officer on the scene that night felt Braswell was armed and dangerous during
the pursuit. Indeed, Braswell himself never denied that he was armed during the pursuit,
instead choosing to invoke the Fifth Amendment when asked about possessing the gun that
was found along his flight path and near the base of a fence Braswell scaled during the chase.
(See ECF No. 77 at PageID.420; ECF No. 77-3 at PageID.508); cf. S.E.C. v. Colello, 139
F.3d 674, 677 (9th Cir. 1998) (“Parties are free to invoke the Fifth Amendment in civil cases,
but the court is equally free to draw adverse inferences from their failure of proof.”).4
To this point in time, the Court cannot conclude that any officer was unreasonable as
a matter of law. And ultimately, as the Court will discuss further, Officer McCamman had
probable cause to arrest Braswell for failing to obey McCamman’s lawful order.
Ultimately, the Court does not draw a negative inference because it is not necessary to resolve this motion. Officers
had ample reasonable suspicion to believe that Braswell was armed—whether or not, in fact, he was armed. The
Court will note, however, that Defendants have submitted evidence that Braswell possessed the gun found on the
scene, whereas Plaintiff never denies possessing the gun and presents no controverting evidence in this regard. See
Colello, 139 F.3d at 677.
Probable Cause for Arrest5
Finally, there was probable cause to ultimately arrest Braswell.
A warrantless arrest by a police officer is reasonable if “there is probable cause to
believe that a criminal offense has been or is begin committed.” Devenpeck v. Alford, 543
U.S. 146, 152 (2004). It is not necessary that the crime for which there is probable cause be
the same as the stated crime of arrest. Id. at 155. Probable cause exists when “at the moment
the arrest was made, the facts and circumstances within the officers’ knowledge and of which
they had reasonably trustworthy information were sufficient to warrant a prudent man in
believing that the arrestee had committed an offense.” Lilly v. City of Erlanger, 598 F. App’x
370, 376 (6th Cir. 2015).
Even if the Court assumes that Officer McCamman effected an “arrest” immediately
after Braswell was subdued on the ground,6 there was probable cause to believe that Braswell
had unlawfully resisted and obstructed. See MCL 750.81d(1), (7)(A). “[T]he law can be
violated . . . by refusing to comply with a lawful command without using force.” Brooks v.
Rothe, 577 F.3d 701, 707 (6th Cir. 2009). In contrast to People v. Moreno, 814 N.W.2d
624 (2012)—which merely held that a person has a right to resist an unlawful command—the
Officers’ commands to stop based on their reasonable suspicion that criminal activity was
afoot were unquestionably lawful.
As an initial matter, Officer Mead did not participate in Braswell’s frisk or arrest. Accordingly, he cannot be liable
for any constitutional violation arising from the arrest. See, e.g., Radvansky v. City of Olmsted Falls, 395 F.3d 291,
311 (6th Cir. 2005).
For purposes of this motion, the Court need not decide precisely where the seizure “ripen[ed] into an arrest and
thus require[d] probable cause.” Lindsey, 114 F. App’x at 721. If that point was not until after Braswell was placed
in handcuffs and officers located the firearm along Braswell’s flight path, then clearly probable cause existed for
possession of a firearm by a person less than eighteen years of age, see Mich. Comp. Laws § 750.234f(1), and
possession of a concealed pistol without a license, see Mich. Comp. Laws § 750.227(2).
At this point, the Court must point out an important absence in any dispute of material
fact: Officer McCamman ordered Braswell to show his hands while on the ground, and
Braswell initially refused to do so. (Compare, e.g., ECF No. ECF No. 77-1 at PageID.479
(“When he fell, his hands fell underneath him at his waist area. It was my belief that he was
armed at that point . . . . I gave him his commands to show me his hands, put his hands
behind his back. I gave him two commands. He did not, at which point I struck him . . . .”)
with ECF No. 77 at PageID.441 (Q: “[D]o you recall if the officer asked you to put your
hands—or to show him your hands or to put your hands behind your back? A: I don’t
remember. . . . Q: “Is it your memory you were hit in the head before you put your hands
behind you? A: Actually, like as soon as I felt the first blow, that’s when I put my hands on
Braswell did not deny his hands were near his waistband; he did not deny he failed to
obey Officer McCamman’s two commands to show his hands. Simply put, he has not
“submitted any . . . controverting evidence in this regard.” Salazar-Limon v. City of Houston,
826 F.3d 272, 279 (5th Cir. 2016), cert. denied 581 U.S. __ (2017).
Thus, and crucially, Braswell’s failure to obey Officer McCamman’s initial, lawful
orders to show his hands formed a separate independent basis for probable cause under this
statute. Cf. Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 187
(2004) (“A state law requiring a suspect to disclose his name in the course of a valid Terry
stop is consistent with Fourth Amendment prohibitions against unreasonable searches and
seizures.”). When officers “reasonably believe [force] [is] necessary for their protection,”
they may indeed use force in the context of a Terry stop, see, e.g., Merritt, 596 F.2d at 1273.
Ordering a suspect to show his hands is implicit in the lawful authority to “handcuff” the
suspect “to effect a stop.” See Heath, 259 F.3d at 530. It would be strange, indeed, if an
officer who had the lawful authority to handcuff a suspect lacked the lawful authority to order
the suspect to show his hands to begin with.
Finally, at a minimum, there was no clearly established law saying that a person’s
failure to obey an officer’s lawful order to stop and show his hands for a Terry investigation
does not constitute probable cause as a matter of law in Michigan.
Count I (Fourth Amendment: Excessive Force) (Officer McCamman)
Count I of Plaintiff’s Complaint also asserts a claim against Officer McCamman for
“unreasonable and excessive force.”
Excessive force claims are analyzed under the Fourth Amendment’s reasonableness
standard, which looks to “whether the officers’ actions are ‘objectively reasonable’ in light of
the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Connor v. Graham, 490 U.S. 386, 397 (1989).
“The operative question in such cases is ‘whether the totality of the circumstances
justifie[s] a particular sort of search or seizure,’” Cty. of Los Angeles v. Mendez, 137 S. Ct.
1539, 1542 (2017) (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)), in this case,
Officer McCamman’s application of deadly force.7
“The reasonableness of the use of force is evaluated under an ‘objective’ inquiry that
pays ‘careful attention to the facts and circumstances of each particular case.’” Id. (quoting
Graham, 490 U.S. at 396). And “[t]he ‘reasonableness’ of a particular use of force must be
Officer McCamman concedes that his strikes to Braswell’s head with a flashlight constituted “deadly force.”
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id.
“Excessive force claims . . . are evaluated for objective reasonableness based upon the
information the officers had when the conduct occurred.” Saucier v. Katz, 533 U.S. 194, 207
(2001). “That inquiry is dispositive: When an officer carries out a seizure that is reasonable,
taking into account all relevant circumstances, there is no valid excessive force claim.”
Mendez, 137 S. Ct. at 1542.
When viewing the facts in the light most favorable to Plaintiff, questions
of fact exist as to whether Officer McCamman violated Braswell’s
Fourth Amendment right to remain free from the application of
excessive, deadly force.
The facts surrounding this claim make it a very close call.
“[A]n officer may use deadly force whenever he or she, in the face of a rapidly
evolving situation, has probable cause to believe that a suspect poses a serious physical threat
either to the police or members of the public.” Williams v. City of Grosse Pointe Park, 496
F.3d 482, 487 (6th Cir. 2007). Officer McCamman concedes his forceful strikes to Braswell’s
head is properly “considered deadly force.” (See ECF No. 77-1 at PageID.490.)
When viewing the facts in the light most favorable to Braswell, his hands were initially
underneath his body and he did not comply with the Officer McCamman’s order that he put
his hands behind his head. (Compare, e.g., ECF No. ECF No. 77-1 at PageID.479 (“When
he fell, his hands fell underneath him at his waist area. It was my belief that he was armed at
that point . . . . I gave him his commands to show me his hands, put his hands behind his
back. I gave him two commands. He did not, at which point I struck him . . . .”) with ECF
No. 77 at PageID.441 (Q: “[D]o you recall if the officer asked you to put your hands—or to
show him your hands or to put your hands behind your back? A: I don’t remember. . . . Q:
“Is it your memory you were hit in the head before you put your hands behind you? A:
Actually, like as soon as I felt the first blow, that’s when I put my hands on top.”).)
Officer McCamman had reasonable suspicion that Braswell was armed, had his hands
in his waist area, and would not show his hands as ordered during the scuffle; thus,
McCamman at least initially arguably “ha[d] probable cause to believe that the [Braswell]
pose[d] a significant threat of death or serious physical injury . . . .” Garner, 471 at 3; accord
Moore v. City of Memphis, 853 F.3d 866, 871 (6th Cir. 2017) (noting that all that is required
to justify deadly force is “that the officer [have] probable cause to believe that the suspect
poses a threat of serious physical harm to either the officer or to others”).
Indeed, all officers who responded to the call for help had suspicion to believe that
Braswell was armed based on the prior caller’s description, the high-crime area, the officers’
familiarity with some of the individuals in the group, including Braswell’s brother, Braswell’s
immediate flight upon seeing the police, his repeated reaches to his waist area while running
and evading, fellow officers’ weapons drawn in response to Braswell’s actions toward them,
and Braswell’s ultimate failure to move his hands from his waist area when ordered while on
However, even assuming Officer McCamman had probable cause—as opposed to
mere reasonable suspicion—to apply the first strike to Braswell’s head, Braswell was struck
with the flashlight in the back of his head and his hands three times over a period of time
after Braswell had placed his hands on the back of his head. Photographs corroborate
Braswell’s account. (See, e.g., ECF No. 92-3; ECF No. 92-4.)
Thus, the facts and inferences in the light most favorable to Braswell establish that
McCamman applied excessive, deadly force to Braswell when he no longer posed a “serious
physical threat either to the police or members of the public.” Williams, 496 F.3d at 487.
Accordingly, the Court must proceed to decide whether Officer McCamman’s
qualified immunity defense nonetheless warrants summary judgment in his favor on the basis
of the second prong: Was Braswell’s right to be free from excessive force under these
circumstances clearly established at the time of the violation?
Plaintiff’s Fourth Amendment right to remain free from the application
of excessive, deadly force was clearly established, and the law gave
Officer McCamman fair notice that his conduct, evaluated by viewing
the facts in the light most favorable to Braswell, was unlawful.
The Supreme Court made clear long ago that “[a] police officer may not seize an
unarmed, nondangerous suspect by shooting him dead.” Id. at 11.
However, “to satisfy the second prong of the [qualified-immunity] standard, plaintiff
must show that the right was clearly established in a ‘particularized sense,’ such that a
reasonable officer confronted with the same situation would have known that using deadly
force would violate that right.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir.
2009); see, e.g., Littlejohn v. Myers, 2017 WL 1242130, at *4 (6th Cir. 2017) (“Undoubtedly,
a suspect’s right to be free from excessive force is clearly established. However, it is not
appropriate to define a right at such a broad level of generality.”); see also Scott v. Harris,
550 U.S. 372 , 382 (2007) (“Whatever Garner said about the factors that might have justified
shooting the suspect in that case, such ‘preconditions’ have scant applicability to this case,
which has vastly different facts.”).
“[C]ourts must be careful to avoid unduly burdening officers’ ability to make splitsecond decisions.” Bouggess v. Mattingly, 482 F.3d 886, 893–94 (6th Cir. 2007). With that
said, “[e]ven a split-second decision, if sufficiently wrong, may not be protected by qualified
immunity.” Id. at 894. And the law has evolved to the point that “only in rare instances may
an officer seize a suspect by use of deadly force.” Whitlow v. City of Louisville, 409 F.3d
689, 697 (6th Cir. 2005); accord Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005).
Plaintiff extensively relies on Littlejohn; but, as Defendants argue, Littlejohn was
issued this year, after the events in question, and the Officers did not have the benefit of that
case. Nonetheless, Littlejohn relied upon Bouggess, which had been clearly established law
for many years prior to the application of deadly force in this case. In Bouggess, the Court
affirmed “[t]he relevant time for the purposes of th[e] inquiry is the moment immediately
preceding the shooting.” Id. at 890 (emphasis added). In other words, if a suspect does not
“pose an imminent danger of serious physical harm to [the officer] or others” at the
moment immediately preceding the application of deadly force, then the Officer may not
use deadly force. Id.; see, e.g., Sherrod v. Berry, 856 F.2d 802, 805–06 (7th Cir. 1988);
accord Dickerson v. McClellan, 101 F.3d 1151, 1162 n.9 (6th Cir. 1996); see also Ellis v.
Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (“When an officer faces a situation in which he
could justifiably shoot, he does not retain the right to shoot at any time thereafter with
But not so fast. In certain cases, the Sixth Circuit has sustained the application of
deadly force in the “seconds after a suspect was no longer a threat.” Rush v. City of Lansing,
644 F. App’x 415, 422 (6th Cir. 2016) (citing Mullins v. Cyranek, 805 F.3d 760, 765 (6th
Cir. 2015)); see, e.g., Untalan v. City of Lorain, 430 F.3d 312, 315 (6th Cir. 2005) (“Within
a few seconds of reasonably perceiving a sufficient danger, officers may use deadly force even
if in hindsight the facts show that the persons threatened could have escaped unharmed.”);
Boyd v. Baeppler, 215 F.3d 594, 602–04 (6th Cir. 2000) (holding an officer is entitled to
qualified immunity where he shot the suspect seven times after the suspect had been brought
down by another officer’s shot).
However, even assuming Officer McCamman had probable cause to apply the first
strike to Braswell’s head, each of these cases are distinguishable.
In Mullins, the Sixth Circuit held it was “not a case where ‘a jury could conclude that
[the officer] was not in any danger . . .,’” 805 F.3d at 767 (quoting Smith v. Cupp, 430 F.3d
766, 775 (6th Cir. 2005)), in part because the suspect had his finger on the trigger of a gun
and the second shot “came within the time frame in which a reasonable officer could have
acted under the perception that [the suspect] was still armed.” Id. at 768. Likewise in Untalan,
430 F.3d at 315. Here, by contrast, Officer McCamman was on top of Braswell and
continued to forcefully strike Braswell in his head and empty hands after Braswell complied
with the Officer’s order.
In Boyd, the Officer fired “seven more rounds at [the suspect]” because he had not
yet, in fact, “dropped his weapon.” 215 F.3d at 603. Here, by contrast, Officer McCamman
did not observe Braswell wield a handgun, and after the first strike, Braswell no longer posed
any threat(—again, when viewing the record in the light most favorable to Braswell).
Finally, in Rush, the suspect was in an active scuffle and had “slash[ed] at [the officers]
with a knife . . . .” Id. at 423. The Court noted that because, “following the first shot, there
was no clear or unmistakable surrender, or any other action that would compellingly show
that the threat had abated,” the officer’s continued use of deadly force was reasonable under
the circumstances. Id. In this case, again, Braswell’s hands were on the back of his hands
when Officer McCamman forcefully struck him in the head with a flashlight three times.
That was at least three times too many. When Officer McCamman was on top of Braswell
and Braswell’s hands were on his own head, there was “clear [and] unmistakable surrender,”
and “the threat had abated.” Compare id.
Moreover, while the Court has concluded the Officers initially had reasonable
suspicion that Braswell was armed and dangerous, Braswell never in fact brandished any
weapon. See Bouggess, 482 F.3d at 894. And even assuming Braswell was armed, after he
put his hands on the back of his head, he no longer posed a threat to Officer McCamman,
who had pinned Braswell down; and Braswell was neither “fleeing” nor “present[ing] a risk
to others.” Compare Brosseau v. Haugen, 543 U.S. 194, 200 (2004). “[D]eadly force is not
justified” under these circumstances, Bouggess, 482 F.3d at 396, at least the circumstances
viewed in Braswell’s most favorable light.
Thus, the facts in this case are more analogous to those in another strain of cases,
where a suspect had been subdued or no longer posed a serious risk to the officer when the
deadly force was applied. See Bouggess, 483 F.3d at 896. Similar to the facts in Bouggess,
“[u]nder the facts viewed in the light most favorable to [Braswell], [Braswell] . . . uttered no
threatening remarks toward [officers] . . . never drew a weapon . . . struggled with
[McCamman] in order to flee . . . did not reach for [McCamman’s] gun . . . did not fire
[McCamman’s] gun . . . fac[ed] away from [McCamman] . . . and . . . was [hit] three times in
the back [of the head].” See id.
“[E]ven when a suspect has a weapon, but the officer has no reasonable belief that the
suspect poses a danger of serious physical harm to him or others, deadly force is not justified”
under these circumstances.” Id. at 896 (collecting cases); see also, e.g., Baker v. City of
Hamilton, Ohio, 471 F.3d 601, 607 (6th Cir. 2006) (collecting cases) (“We have repeatedly
held that the use of force after a suspect has been incapacitated or neutralized is excessive as
a matter of law.”); Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002) (“[T]here was simply no
governmental interest in continuing to beat Phelps after he had been neutralized . . . .”);
Darnell v. Caver, 156 F.3d 1229, at *3 (6th Cir. 1998) (table) (holding that although officers
used reasonable force by applying pepper spray and forcibly removing a suspect from his
car, they were not entitled to qualified immunity when they “either pushed [his] head into
the pavement or lifted it and let it drop”); cf. McDowell v. Rogers, 863 F.2d 1302, 1307 (6th
Cir. 1988) (“But our court has repeatedly found that a totally gratuitous blow with a
policeman’s nightstick may cross the constitutional line . . . .”).
The Court notes that the four strikes to Braswell’s head were in quick succession. By
the time Braswell put his hands up to react to the first blow, a jury could conclude the second
one may have even been on the way.
However, since Officer McCamman struck him even two more times, including on
the back of the hands, “at that moment,” Braswell did not “pose an imminent danger of
serious physical harm to [the officer] or others.” See Bouggess, 482 F.3d at 889–90.
Accordingly, clearly established law provided “fair warning,” Baynes, 799 F.3d at 612–13, to
Officer McCamman that continuing to apply deadly force after Braswell was pinned to the
ground, had his hands on the back of his head, and no longer posed a threat to McCamman
or others, would violate the Fourth Amendment’s prohibition on excessive force.
Count IV (Assault and Battery) (Officer McCamman)
Over five years ago, the Sixth Circuit sketched out the framework for governmental
immunity under state law in the context of intentional torts:
In Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008), the Michigan
Supreme Court stated that the proper method for determining whether
governmental immunity applies to intentional torts, such as assault and battery,
is to apply the test set forth in Ross v. Consumers Power Co., 363 N.W.2d
641, 647 (Mich. 1984). Under the Ross test, an employee enjoys a right to
immunity if (1) the employee undertook the challenged acts during the course
of his employment and was acting, or reasonably believed he was acting, within
the scope of his authority; (2) the employee undertook the challenged acts in
good faith or without malice; and (3) the acts were discretionary, rather than
ministerial, in nature. Odom, 760 N.W.2d at 228. Defendants bear the burden
of establishing their entitlement to immunity from plaintiff’s state-law claims.
Id. at 227–28.
Unlike qualified immunity under federal law, which uses an objective standard,
‘[t]he good-faith element of the Ross test is subjective in nature. It protects a
defendant’s honest belief and good-faith conduct with the cloak of immunity
while exposing to liability a defendant who acts with malicious intent.’
Therefore, ‘[t]he proponent of individual immunity must establish that he
acted without malice.’ Id. at 225. See also Miller v. Sanilac Cty., 606 F.3d 240,
254 (6th Cir. 2010 (applying Michigan law) (“The only factor at issue here is
‘good faith,’ which is defined as ‘without malice.’”).
Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011).
However, under Michigan law, “Plaintiff does not bear the burden of producing direct
evidence that the Officers acted with malice.” Scozzari v. City of Clare, 723 F. Supp. 2d 974,
978 (E.D. Mich. 2010). McCamman has not sufficiently shown at summary judgment “that
he acted without malice.” Id. When viewing the facts in the light most favorable to Plaintiff,
a jury could conclude that Officer McCamman’s additional strikes to McCamman’s head—
after he no longer posed a threat—were born out of frustration and malice.
Count I (Seizure of Cell Phone) (Officers Mead and McCamman)
This claim arises from the seizure of Braswell’s cell phone after his (lawful) arrest—
and holding the cell phone in evidence for eight months prior to seeking a search warrant.
Defendants persuasively argue that Plaintiff has produced no evidence that any of the
named defendants actually participated in the alleged failure to timely seek a search warrant.
It is undisputed that Officer Mead logged the cell phone into evidence after the initial seizure,
which was constitutional. See Riley v. Calif., 134 S. Ct. 2473, 2486 (2014). Then, a warrant
was sought in February 2015 by an investigating detective. However, Plaintiff has pointed to
no evidence in the record indicating why a warrant was not sought immediately or who would
have been responsible for doing so. Since the arrest was lawful, the initial seizure was lawful.
The fact the cell phone sat for eight months prior to another detective seeking a warrant
cannot be chalked up to these defendants.
Finally, any seizure amounted to a de minimis invasion of Braswell’s’ constitutional
interests. See U.S. v. Jacobsen, 466 U.S. 109, 125–26 (1984) (citing Cardwell v. Lewis, 417
U.S. 583, 591–92 (1974)) (“[S]ince the property had already been lawfully detained, the
‘seizure’ could, at most, have only a de minimis impact on any protected property interest.”).
This case presents difficult questions. With recognition that this motion has been
evaluated “in the peace of a judge’s chambers,” Graham, 490 U.S. at 386 (internal citation
omitted), “the judge’s function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S.
at 249. In this case, a genuine issue remains for trial on one count of excessive force.
For the reasons contained in the accompanying opinion, the Court GRANTS IN
PART and DENIES IN PART Defendants’ motion for summary judgment.
Defendants’ motion is granted as to Plaintiff’s Fourth Amendment claims for unlawful
search, arrest, and property seizure, but factual disputes preclude summary judgment on
Plaintiff’s Fourth Amendment excessive force claim and state-law battery claim against
All other defendants are dismissed from this action.
IT IS SO ORDERED.
Date: June 21, 2017
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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