Getz v. Swoap et al

Filing 41

Memorandum Opinion and Order: the Defendants' motion for summary judgment is granted. re 20 . Judge Jeffrey J. Helmick on 4/6/2015. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Beverly J. Getz,
Executrix for the Estate of Robert T. Getz,

Case No. 3:13 cv 1492

Plaintiff
v.

MEMORANDUM OPINION
AND ORDER

J. Swoap,
Wood County Sheriff’s Office, et al.,
Defendants
This matter comes before me on Defendants’ motion for summary judgment (Doc. No. 20),
Plaintiff’s opposition (Doc. No. 35), Defendants’ reply (Doc. No. 36), and Plaintiff’s sur-reply (Doc.
No. 40). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons set forth below,
I find Defendants’ motion well taken.
BACKGROUND
The following facts are undisputed. On November 27, 2011, at approximately 7:20 p.m.
Deputy Jody Swoap was sitting stationary in his police cruiser with his directional lights on while in
the northbound lane of Carter Road, outside of Bowling Green, Ohio. Robert Getz was driving his
2004 Chevy Cobalt and approaching Swoap from the southbound lane. Getz’s vehicle had only one
operational headlight.
Swoap turned and followed Getz to the intersection of Carter and Sugar Ridge Road. Swoap
did not activate his overhead lights until he saw that Getz was turning South on Sugar Ridge Road.

Swoap followed Getz until he turned into his driveway. Swoap followed Getz into the driveway and
radioed his location to the dispatch at 7:22 p.m.
Getz drove his vehicle past the house to the back of the driveway where he circled around in
front of a barn and then headed back in Swoap’s direction. Getz stopped his car pulling up
“bumper to bumper to [Swoap] close enough where [he] could not read his license plate.” (Swoap
Dep. at p. 24). Swoap radioed in again to the dispatch and provided a description of the vehicle.
Swoap put his spotlight on the car in order to see the occupants of the vehicle. As Swoap radioed
into the dispatch, he “saw the car lunge forward, probably less than a foot, and then start to back
up.” (Id. at p. 26). Swoap radioed a request for back-up.
Getz then backed his vehicle up and began to drive around Swoap’s vehicle. Swoap then
put his car into drive and angled it to prevent Getz from pulling out of the driveway. Swoap exited
his vehicle and yelled at Getz to stop his car. (Id. at p. 29). Swoap repeated the command to stop
the vehicle at least twice. Getz’s car continued to slowly advance toward Swoap. At that point,
Swoap drew his sidearm and gave Getz another command to stop the vehicle. (Id. at p. 30). Getz’s
vehicle stopped and Getz heeded a further command to shut off the car.
Getz then exited the car, per Swoap’s command. When Swoap saw that Getz did not have a
weapon, he re-holstered his sidearm. (Id.) After Getz got out of his car, he began yelling at Swoap,
telling him to get off his property. (Id. at p. 32). When Swoap tried to ask who he was, Getz told
him that “[e]verybody knows who I am.” (Id.) Swoap began to explain the basis for the stop but
Getz was argumentative, angry, and yelling. (Id. at p. 36-37).
Getz was frustrated and told Swoap he was leaving, as he stood next to his (Getz’s) vehicle
with the door open. According to Swoap, Getz made a motion towards his own vehicle and Swoap
advised him that he was “not free to leave.” (Id. at p. 38). Swoap repeated the statement multiple
times but Getz moved to get into his car. (Id. at p. 40). Swoap moved towards Getz and reached
2

into the car and grabbed Getz’s hand which was gripping the steering wheel. (Id. at pp. 40-41).
Getz attempted to push Swoap away with his shoulder and told Swoap to “get off of him.” (Id. at p.
41).
Swoap moved his hand from the steering wheel, “grabbed his wrist and his upper arm and
pulled him out” of the car.” (Id. at p. 42). According to Swoap, Getz offered resistance to this
action by pulling in the opposite direction. Swoap testified the he used “enough force to maintain
[his] control of [Getz] and remove him from the vehicle.” (Id. at p. 43).
Swoap then advised Getz to put his hands behind his back as he was under arrest. (Id. at p.
44). Getz then told Swoap that he was “ ‘going inside’ and began to walk in front of [Swoap’s] car,
which would be the direction of his house.” (Id.) Swoap told Getz he was not going into his house
and he stepped in his path. At the same time, Swoap grabbed Getz’s upper arm and advised Getz to
put his hands behind his back. (Id. at p. 46). Swoap then used his body to displace Getz’s balance
and as he did so, “Getz spun around and sprawled himself over the hood of [Swoap’s] vehicle.” (Id.)
Getz then reached out with his left hand, grabbed the push bar1 on Swoap’s car and with his right
hand, grabbed the top of the hood. (Id. at p. 47).
Swoap took a hold of his left hand and put the handcuff on his left wrist. When Getz did
not comply with Swoap’s request to bring his right wrist behind his back, Swoap took his right arm
and rotated Getz’s body so that his right hand wrist was in position to be handcuffed as well. (Id. at
p. 48). Swoap then attempted to walk with Getz but he “locked up his legs” and refused to walk for
Swoap. Swoap then guided Getz to the front of the cruiser. (Id. at p. 50). Swoap reported to
dispatch that he had Getz in custody at 7:24 p.m.
At this point the parties differ in their version of the events.

1 Also known as a push bumper grill guard or nudge bar, it is generally found on the front of police vehicles and used to
push inoperable vehicles off the roadway.
3

Plaintiffs’ version
According to Trisha Getz, Robert Getz’s daughter, upon her arrival, she recalled her
observations:
A: Okay. When I pulled in, there was the cop car and it was
flashing, and then I then immediately looked to see what was going
on, and my dad had his face pushed up against dad’s car, and Swoap
was leaning on him, on his left face, on the window.

(Getz Dep. at p. 41). After pulling into the driveway Trisha exited her car and approached her
father inquiring as to what was going on. (Id. at p. 45). Swoap told Trisha that her father was
resisting arrest. (Id.) Trisha “asked [Swoap] if dad could sit down” and Getz was allowed to sit in
his own car. (Id. at pp. 45-46) According to Trisha, her father told her the handcuffs were hurting
his hands and asked her to ask Swoap to loosen the handcuffs. (Id. ). Trisha also testified her father
told her he had asked several times to call the sheriff. (Id.)
Trisha reported her father was sitting handcuffed in his own vehicle, on the driver’s side,
with his feet toward the outside of the car. (Id.) She then went to her car to get wipes to clean the
injury to her father’s face and to his wrists, which according to her testimony, were bleeding. (Id. at
pp. 47-52). Trisha continued to ask Swoap to loosen the handcuffs, to “jokingly” call the sheriff,
since he lived down the road, and asked if she could take her father into the house for oxygen as his
COPD was flaring up. (Id. at p. 53-54). Swoap told Trisha that “the only place [her] father [wa]s
going [wa]s in the back seat of [his] car and to jail.” (Id. at p. 55).
Swoap did offer to call the E.M.S. but was told by Trisha and Mr. Getz that the E.M.S. was
unnecessary, what was needed was oxygen. (Id.) According to Trisha, Swoap asked her if she lived
at this address and she said yes. (Id. at p. 58). Swoap then gave her a choice to either get in her car
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and leave or to go into the house, otherwise she would be subject to arrest. (Id.) When Trisha
inquired why she would be subject to arrest, Swoap told her for invading the crime scene. (Id.)
Trisha then went into the house. (Id.) Trisha estimated she “was probably outside 20 minutes”
before going into the house. (Id. at p. 61). She dialed her brother Tim as she was walking in the
door to advise him of the events taking place. (Id.)
Trisha also got her mother, who was in the house at the time and advised her of the situation
and told her to get outside. (Id. at p. 60). Beverly Getz, Robert’s wife, then proceeded outside.
(Beverly Getz Dep. p. 81). Trisha Getz stayed in the house. (Trisha Getz Dep., p. 67).
According to Beverly Getz, Deputy Spees arrived on the scene and she asked him if she
could get his inhaler to administer the medicine to ease his breathing difficulties. (Id. at p. 81-81).
Beverly testified that Robert Getz also asked Spees to loosen the handcuffs as they were “quite
painful.” (Id. at p. 83). According to Beverly, Spees “took them right off.” (Id.) Beverly testified as
follows:
A: I know that Swoap said he took them off, but I don’t remember that. I know
that Spees said, I know Bob. You can take - - he doesn’t need those handcuffs.
Take them off.
Q: Spees said that?
A: Yes.

(Id. at pp. 83-84). Robert Getz was then told to go into the house and get his oxygen and Beverly
stated that he did use his inhaler after the handcuffs were removed. (Id. at p. 85).
A little later, Spees took pictures and Beverly stated that Swoap stood back and was silent as
it was clear that “Spees was in charge at that point.” (Id. at p. 86). Spees and Robert Getz engaged
in conversation with Getz asking Spees to call the sheriff because “he lived down the road from us.”
(Id.)
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When Robert Getz went into the house to get his oxygen, Beverly stayed outside and at that
point her son, Tim Getz, arrived. (Id. at pp. 98-99). Beverly recounted that after Tim showed up he
began talking to Spees. (Id. at p. 101).
Upon being contacted by his sister, Tim Getz immediately proceeded to his father’s house
and upon arriving approached the scene and spoke to Spees:
A: And he got out of his car, and I said, what’s going on here? And he said,
well, he said, we had a little situation here. Your dad had a headlight out. I said, a
headlight out? And from what I’m hearing, this went on for this?
And he said, well - - he said you got to understand, Tim, that your dad was
trying to move his car back and forth. I said, oh. I said, so who was the guy that
done this? And he said it was Deputy Swoap. Well, where’s he at? He’s in the car
writing his ticket up. I said, oh.
(Timothy Getz Dep. pp. 60-61).
Timothy Getz then asked to speak to Swoap. (Id. at p.61). Spees advised letting “the court
system figure this out.” (Id. at p. 62). Timothy Getz waited there until the ticket was brought out
and at that time spoke to Swoap:
A: I said, first of all - - and I pointed right at him just like I am right now. I said,
first of all - - I was real close to him. I pointed at him just like I am right now, and I
said, first of all, I hope you have a dad. Second of all, I hope you never have
anybody treat your dad the way you just treated my dad.
(Id. at p. 67).
Defendants’ version
According to Swoap, after Trisha Getz pulled in the driveway, she exited her vehicle and
Swoap told her to either “go inside or step back into her vehicle and I would explain what’s going
on after I was finished.” (Swoap Dep., p. 50). Swoap was in the process of “grabbing Robert” as he
gave Trisha Getz direction on how to proceed. (Id. at p. 51). Swoap testified that at the same time,
he was “dealing with Robert who was not being compliant.” (Id.)
6

Swoap walked Robert to the back of the cruiser and opened up the passenger side of the car
and asked Robert, more than once, to sit down on the seat. (Id. at p. 52). Robert did not sit down
and Swoap could hear the back-up unit approaching. (Id. at pp. 52-53). Swoap waited for Sergeant
Spees arrival on the scene. “When Sergeant Spees arrived and approached, he appeared to have a
better rapport with Robert. They must have spoken in the past.” (Id. at p. 53).
At this time, Trisha Getz remained by her car and Swoap estimated that Spees arrived
shortly after she came on the scene. (Id. at p. 54). As Spees was able to communicate with “Robert
on a civil level,” Swoap stepped back. (Id.) Spees was able to get Robert to sit in Swoap’s cruiser.
Spees returned to speak with Swoap and they discussed the situation. Spees asked Swoap if he knew
that Robert was bleeding and Swoap answered that he was not aware Getz was bleeding. (Id. at p.
56). Swoap then removed the handcuffs so that Getz could use his inhaler. (Id. at p. 62).
Swoap and Spees discussed charges and Spees directed him to contact the prosecutor to
discuss this. Ultimately Robert Getz was cited for a headlight violation and for obstructing official
business, a misdemeanor. (Id. at p. 65) Swoap approached Beverly and Timothy Getz with the
citation as it required a signature. Tim Getz told Swoap he “should be ashamed of [him]self,” and
Swoap noted on the citation the term “unable to sign,” and gave the copy to Beverly Getz. (Id. at p.
69). According to the communications event report, the scene was cleared by 8:33 p.m.
Subsequent events
The parties do not dispute that later that evening, at approximately 10:50 p.m., Getz went to
the emergency room at Wood County Hospital stating he was “alleged[ly] assault[ed] by [a] Wood
County Sheriff Deputy.” (Doc. No. 22-7 at p. 8). He was treated for a superficial skin tear on his
left wrist and a small abrasion on his right cheek. The hospital notes indicate “wrist skin tears,”
“multiple skin tears, skin thin, bruised, adaptic and gauze wrapped.” (Id. at p. 11). Getz was treated
and discharged.
7

A few days later, Trisha and Timothy Getz met with Sheriff Mark Washlyshyn and Chief
Deputy Eric Reynolds. The focus of the meeting was to complain about the incident involving
Deputy Swoap and to request he be disciplined or terminated. (Reynolds Dep., p. 19). The Sheriff
stated that he would initiate an investigation into the incident. (Wasylyshyn Dep., p. 23).
In December 2011, Chief Deputy Eric Reynolds, road patrol Lt. Rod Konrad, and Captain
Scott Frank conducted an internal review and found Deputy Swoap did not use excessive force.
(Doc. No. 21-25). In May 2012, over the objections of Deputy Swoap and the Sheriff, the Bowling
Green Prosecutor dismissed the citations.
In June 2012, the Sheriff requested the Buckeye Sheriff’s Association to investigate the
incident. Cliff Vandermark, a veteran officer and detective with Defiance County, was chosen to
carry out the investigation. On September 6, 2012, after collecting the incident reports, court
documents, use of force reports, and interviewing Detective Swoap, Vandermark concluded the use
of force by Deputy Swoap was appropriate. Vandermark attempted to interview Robert, Beverly,
Trisha, and Timothy Getz but they declined to speak with him.
On July 10, 2013, Robert Getz filed this civil rights action alleging violations of 42 U.S.C. §
1983, specifically false arrest and excessive force involving Deputy Swoap, as well as a claim of
failure to train and supervise against the Sheriff and Wood County. On March 7, 2014, Plaintiff’s
spouse, Beverly J. Getz was appointed Executrix of Robert T. Getz’s estate following his death, and
substituted as the Plaintiff in this litigation. (Doc. No. 16).
APPLICABLE LEGAL STANDARDS
Summary Judgment
Summary judgment is appropriate where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
8

56(a). The moving party bears the initial responsibility of “informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The movant may meet this burden by demonstrating the absence of evidence
supporting one or more essential elements of the non-movant’s claim. Id. at 323-25. Once the
movant meets this burden, the opposing party “must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV.
P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment
cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient “simply
[to] show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) “requires the nonmoving party to go
beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex, 477 U.S. at 324; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000).
Summary judgment must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322.
“In considering a motion for summary judgment, the Court must view the facts and draw all
reasonable inferences therefrom in a light most favorable to the nonmoving party.” Williams v.
Belknap, 154 F. Supp. 2d 1069, 1071 (E.D. Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822
F.2d 1432, 1435 (6th Cir. 1987)). However, “‘at the summary judgment stage the judge’s function is
not himself to weigh the evidence and determine the truth of the matter,’” Wiley v. U.S., 20 F.3d
222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, “[t]he Court is not required
or permitted . . . to judge the evidence or make findings of fact.” Williams, 154 F. Supp. 2d at 1071.
9

The purpose of summary judgment “is not to resolve factual issues, but to determine if there are
genuine issues of fact to be tried.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.
Supp.2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co.,
224 F.3d 537, 539 (6th Cir. 2000).
Qualified Immunity
Qualified immunity shields “government officials performing discretionary functions… 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 provides a broad range of protection, as it protects “all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506 U.S. 1080 (1993).
Qualified immunity balances two important interests—the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.
The protection applies regardless of whether the government
official’s error is “a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S.
551, 567, 124 S.Ct. 1247, 157 L.Ed.2d 1068 (2004) (Kennedy, J.
dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct.
2894, 57 L.Ed.2d 895 (1978), for the proposition qualified immunity
covers “mere mistakes in judgment, whether the mistake is one of
fact or one of law.”)
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Like absolute immunity, qualified immunity “is an immunity from suit rather than a mere
defense to liability . . . [and] is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).

10

The analysis employed by the Sixth Circuit in determining qualified immunity focuses on
whether a constitutional right was violated and whether that right was clearly established at the time
such that a reasonable official would have understood that his behavior violated that right. Occupy
Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014), citing Saucier v. Katz, 533 U.S. 194 (2001). In
Pearson, the Supreme Court approved disregarding the mandatory analytical sequence adopted in
Saucier and allowed district courts to “exercise their sound discretion in deciding which of the two
prongs in the qualified immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” 555 U.S. at 236.
While the order of these questions is left to the discretion of the district court, “if either one
is answered in the negative, then qualified immunity protects the officer from civil damages.”
Goodwin v. City of Painesville, No. 14-3120, __F.3d__ (6th Cir. March 19, 2015), citing Martin v. City of
Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). Once the defense of qualified immunity is raised,
the burden shifts to the plaintiff to prove defendants are not entitled to qualified immunity.
Rodriquez v. Passinault, 637 F.3d 675, 689 (6th Cir. 2011).
DISCUSSION
Positions of the Parties
While the Defendants seek summary judgment on all three causes of action, Plaintiff does
not contest the motion as to Counts I (false arrest) and III (failure to train and supervise). (Doc. No.
35 at p. 1, n. 1). Accordingly, summary judgment will be granted to Defendants on those claims and
the discussion will focus on the excessive force claims in Count II.
Plaintiff’s complaint takes issue with the manner in which he was handcuffed as well as the
duration as follows:
13. Defendant Swoap grabbed plaintiff’s arms and handcuffed him. The
handcuffs were placed on plaintiff in a brutal manner, specifically they were
placed on plaintiff very tightly, causing plaintiff extreme pain and serious injury.
11

Defendant Swoap also pushed plaintiff against his police car and placed his entire
weight into plaintiff as he (defendant Swoap) pushed him (plaintiff) against the
vehicle while tightening the handcuffs on plaintiff even more. . .
14. Because the handcuffs were so tight, plaintiff requested defendant
Swoap to loosen the handcuffs because they were so tight and hurting him.
Plaintiff told defendant Swoap that the handcuffs were too tight and were cutting
into his wrist. Defendant Swoap refused plaintiff’s request that the handcuffs be
loosened. Plaintiff made several requests to defendant Swoap that the handcuffs
be loosened due to the pain and injury it was causing and each time his request
was denied by defendant Swoap. At one point plaintiff told defendant Swoap
that the handcuffs hurt like hell and could he please loosen them or at least
change their position. Defendant Swoap refused plaintiff’s plea. Defendant
Swoap denied plaintiff’s requests regarding the handcuffs even though plaintiff’s
wrists were torn up from the too-tight handcuffs and plaintiff was bleeding at the
wrists.
...
19. The force used against plaintiff by defendant Swoap, including but
not limited to the manner in which the handcuffs were used, i.e., applying and
keeping the handcuffs on plaintiff too tightly, was unnecessary, unreasonable and
excessive.
(Compl. at pp. 3-5).
Excessive Force Claims Against Deputy Swoap
The Fourth Amendment guarantees the right to be free of excessive force where the arrest
or seizure is unreasonable under the law. Graham v. Connor, 490 U.S. 386, 394-95 (1989). In the
present case, Plaintiff asserts excessive force was used in the application and maintenance of the
handcuffs, despite requests for their removal. Because these are discrete actions, each will be
analyzed separately.
1. Application of the Handcuffs
As noted by the Sixth Circuit in Morrison v. Board of Trustees of Green Twp., 583 F.3d 394, 40001 (6th Cir. 2009)
Whether an officer has exerted excessive force during the
course of seizure is determined under an “objective reasonableness”
standard. Id. (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct.
12

1865, 104 L.Ed.2d 443 (1989)). This entails “balanc[ing] the
consequences to the individual against the government’s interests in
effecting the seizure.” Burchett v. Keifer, 210 F.3d 937, 944 (6th Cir.
2002) (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865). The
assessment involves a fact-specific inquiry based on the totality of the
circumstances that “pay[s] particular attention to ‘the severity of the
crime at issue, whether the suspect poses an immediate threat of
safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.’” Kostrzewa, 279 F.3d at
639 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
Turning to the three factors to be considered in this assessment, I also am directed by the
Circuit’s guidance noting “[t]hese factors are assessed from the perspective of a reasonable officer
on the scene making a split-second judgment under tense, uncertain, and rapidly evolving
circumstances without the advantage of 20/20 hindsight.” Brown v. Lewis, 779 F.3d 401, 2015 WL
794705 *13 (6th Cir. Feb. 26, 2015), quoting Burgess v. Fischer, 735 F.3d at 472. I also consider the
totality of the circumstances in determining whether those circumstances justified Deputy Swoap’s
conduct in handcuffing Robert Getz.
In the first factor under Graham, the severity of the crimes here, a headlight violation and
obstructing official business are certainly not serious offenses in and of themselves. See e.g. Thomas v.
Plummer, 489 Fed. Appx. 116, 125-26 (6th Cir. 2012). Therefore, this factor weighs in Plaintiff’s
favor.
The second factor in Graham addresses the reasonableness of the force and whether the
suspect posed an immediate threat to the safety of the officer. Here, the record reflects from the
beginning of the encounter the cruiser’s overhead lights were activated and clearly visible by Getz.
Getz then stopped his car just short of Swoap’s cruiser “bumper to bumper” and so close that
Swoap could not read the license plate. As Swoap radioed into the dispatch on his status, Getz’s car
lunged forward then started to back up. Getz’s vehicle then began to go around the cruiser and
Swoap positioned his vehicle at an angle to block Getz’s exit from the driveway. Swoap then exited

13

his vehicle and commanded Getz to stop his vehicle. Getz’s vehicle continued to slowly advance
toward Swoap, who then drew his sidearm and again ordered Getz to stop his vehicle.
Even when viewed in the light most favorable to the Plaintiff, Getz’s actions were sufficient
to place Swoap on notice of an immediate threat. When Getz’s car was nearly bumper to bumper
with the cruiser, Swoap directed his spotlight into the vehicle, seeing Getz for the first time.
According to Swoap, Getz “appeared agitated. He was saying something. His mouth and his
forehead just looked like he was not happy.” (Swoap Dep. at pp. 25-26). Getz’s car lurched forward
and then backed up as he attempted to go around the cruiser. Although Getz was travelling at a
slow rate of speed, he was driving straight at Swoap, who drew his sidearm and again commanded
him to stop the car. Therefore, the second Graham factor weighs in the Defendant’s favor.
Consideration of the third factor under Graham contemplates active resistance or the attempt
to flee. The circumstances here contain examples of both types of behavior.
After Getz got out of his car he yelled at Swoap to “get the fuck off” his property. (Id. at p.
32). When Swoap asked him to identify himself, Getz refused to give Swoap his name stating, “You
know who I am. Everyone knows who I am.” (Id.) Getz continued to yell and argue as Swoap
attempted to calm him down. As Getz was standing outside of his vehicle with the door open, he
told Swoap he was leaving and made a motion towards his vehicle. (Id. at pp. 37-38). Swoap
repeatedly told Getz he was not free to leave. (Id. at p. 40).
Despite Swoap’s clear instruction, Getz got into his car in an attempt to start the vehicle.
(Id.) Swoap moved towards Getz and while Getz’s car door was still open, reached in and took hold
of Getz’s left hand, which was gripping the steering wheel. (Id. at pp. 40-41). Getz attempted to
push Swoap away with his shoulder and told the deputy to get off him. (Id. at p. 41).

14

While Swoap then removed Getz from his vehicle, he encountered active resistance to his
efforts as Getz “was pulling back in the opposite direction that I was pulling.” (Id. at p. 43). Once
Getz was out of the vehicle, Swoap advised him to put his hands behind his back as he was under
arrest. (Id. at p.44). Getz did not comply. Getz told Swoap he was “going inside” and began to walk
towards his house. (Id.) Swoap then stepped in front of him and advised him to put his hands
behind his back but Getz again failed to comply. (Id. at p. 45).
Swoap then grabbed Getz’s upper arm and employed a technique to displace Getz’s balance.
(Id.) Getz then spun around and sprawled himself, stomach first, over the hood of Swoap’s cruiser.
(Id. at p. 46). With one hand, Getz grabbed the push bar on the front of the cruiser and grabbed at
the top of the hood with his other. (Id. at p. 47). Swoap then reached over and grabbed Getz’s left
wrist (gripping the push bar) and handcuffed that wrist. (Id. at pp. 47-48). Getz was instructed to
bring his right wrist behind his back, but he did not comply and was still gripping the push bar with
his left hand. (Id. at p. 48). Swoap then took hold of Getz’s right arm, rotated his body around, and
handcuffed his right wrist. At this point, Getz stood up. (Id.)
Swoap told Getz they were going to the other side of the cruiser but Getz repeated he was
going inside and tried to pull away from Swoap. (Id.) As Swoap was walking Getz to the car, the
plaintiff locked up his legs and upper body, requiring Swoap to guide him in the right direction, all
the while keeping a firm grip so Getz did not fall as they moved together toward the car. (Id. at pp.
48-49).
When viewed in the light most favorable to the Plaintiff, these circumstances demonstrate
repeated instances of active resistance and attempts to flee or leave the scene in the face of clear
commands to the contrary by the officer. Getz disregarded Swoap’s directives, displayed a pattern
of continued resistance, and responded to the law enforcement officer’s directives with yelling and
cursing. Clearly, when viewed through a totality of the circumstances, Getz exhibited uncooperative
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and hostile behavior which went beyond mere protestations. I cannot find Deputy Swoap’s actions
in handcuffing Getz rise to the level of unreasonable force under these circumstances. Therefore,
the Plaintiff has failed to establish a constitutional violation under the Fourth Amendment in the
application of the handcuffs by Deputy Swoap and Defendants’ motion is well taken as to the
application of handcuffs branch of their dispositive motion.
2 Maintenance of the Handcuffs
To survive summary judgment on an excessive force claim based upon handcuffing, the
following must be established: (1) the plaintiff complained the handcuffs were too tight; (2) the
officer ignored the complaints; and (3) the plaintiff experienced some physical injury. Morrison, 583
F.3d at 401 citing Lyons v. City of Xenia, 417 F.3d 565, 575-76 (6th Cir. 2005). Here, the first and third
elements are not disputed. The focus of the discussion and analysis centers on whether Defendant
Swoap ignored the complaints and whether his actions or inactions were objectively reasonable and
rose to the level of a constitutional violation under the Fourth Amendment.
In this instance, the Plaintiff contends Swoap ignored complaints to loosen or remove the
handcuffs despite repeated pleas to do so. According to Plaintiff, Swoap’s refusal to loosen the
handcuffs was objectively unreasonable. I disagree.
Considering the facts in the light most favorable to the Plaintiff, Getz’s statement to his
daughter that he had asked Swoap to loosen the handcuffs “was made within two to four minutes
after his arrest and handcuffing, and no more than three minutes from when Trisha first saw him
with his face up against his car and Swoap leaning against him.” (Plaintiff’s opp. at p. 18).
According to the Wood County Sheriff Department’s radio log, Deputy Swoap reported
Getz was “in custody” at 7:24 p.m. Sergeant Spees arrived at approximately 7:29 p.m. Spees
testified that upon his arrival, both Robert Getz and Deputy Swoap were standing next to the

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cruiser. (Spees Dep. at p. 9). Robert Getz appeared to Spees to “be rigid” and Spees did not recall
“any conversation going on when [he] approached.” (Id.)
Spees began talking with Robert Getz and Deputy Swoap in an attempt “to calm it down”
because Getz “seemed upset and was yelling,” “calling Deputy Swoap a son of a bitch.” (Id.) Spees
observed Getz in handcuffs upon his arrival. (Id. at p. 10). After Spees engaged Getz in
conversation, Swoap stepped back towards Spees’ cruiser. (Swoap Dep. at p. 54). Spees asked Getz
to have a seat in the police cruiser and Getz did so voluntarily. (Id at p. 55; Spees Dep. at p. 12).
Spees also spoke with Swoap about the events which had transpired.
Spees recalls Robert Getz telling him that the handcuffs “were uncomfortable or they hurt.”
(Id. at p. 20). Around this same time, Beverly Getz appeared on the scene and there was
conversation about contacting the rescue squad regarding his medical condition. When it was
determined that he only wanted access to his inhaler and oxygen, Spees asked Swoap if he would be
okay with removing the handcuffs to allow Getz to use his inhaler. (Swoap Dep. at pp. 62-63).
Swoap agreed, removed the handcuffs and Getz then used his inhaler. (Id.) Spees estimated the
handcuffs were removed from Getz less than ten minutes after he arrived on the scene. (Spees Dep.
at p. 19).
Trisha Getz testified that she “was probably outside 20 minutes” before going into the house
to get her mother. (Trisha Getz Dep. at pp. 60-61).
According to the varying accounts, the handcuffs remained on Robert Getz for anywhere
from ten to twenty minutes. In assessing whether Swoap’s conduct regarding complaints to loosen
the handcuffs rises to a constitutional violation, I am mindful of the Sixth Circuit’s guidance:
Our precedents fail to notify officers that any response to a complaint of
tight handcuffing other than an immediate one constitutes excessive force. Indeed, a
constitutional requirement obligating officers to stop and investigate each and every
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utterance of discomfort and make a new judgment as to whether the handcuffs are
“too tight” is neither reasonable nor clearly established.
Fettes v. Hendershot, 375 Fed. Appx. 528, 533 (6th Cir. 2010).
In this case, from the time Deputy Swoap first encountered Mr. Getz, he was met with
active resistance, a belligerent attitude, and Mr. Getz’s repeated failure to comply with the officer’s
directives. Compare Brown v. Lewis, 779 F.3d 401 (6th Cir. 2015) (excessive force found where plaintiff
was entirely compliant throughout the stop, did not flee from the police, put her hands up, and
exited the car when directed by the officer, yet was grabbed by the back of her shirt by two officers
and thrown to the ground).
As attested to by Trisha Getz, Deputy Swoap told her he was in the process of arresting
Robert Getz as she arrived on the scene. At that point Swoap was attempting to subdue Robert
Getz who, while not being aggressive towards the officer, was being resistant to even walking to the
police cruiser voluntarily. As Spees arrived on the scene, he witnessed Getz being uncooperative
and yelling at Swoap. However, once Spees engaged Getz in conversation and took control of the
situation, Getz calmed down and complained to Spees about the handcuffs. At that point, Spees
engaged Swoap in a request to remove the handcuffs, which was done to allow Getz to use his
inhaler.
Given the events which were unfolding at the time, the Defendant officer was presented
with a non-compliant subject, and the disruption of a third-party (Trisha Getz), who came upon the
scene as he was arresting Mr. Getz. The officer was also alone and still awaiting a back-up unit to
arrive. Even assuming Mr. Getz initially complained about the tightness of the handcuffs, the time
frame between his arrest and request to Spees to loosen the handcuffs was not an inordinate amount
of time.

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Deputy Swoap testified he did not force Mr. Getz to sit in the cruiser because he could hear
the back-up unit approaching and waited for Sergeant Spees to arrive. (Swoap Dep. at p. 53). Upon
his arrival, Sergeant Spees observed Mr. Getz being combative as he was yelling profanities at
Deputy Swoap. It was not until Sergeant Spees intervened that Mr. Getz calmed down, voluntarily
sat in the cruiser and that Plaintiff (again) complained the handcuffs were hurting him. With the
situation under control, Deputy Swoap removed the handcuffs and allowed Mr. Getz to use his
inhaler.
Viewing the facts in the light most favorable to the Plaintiff, even if the handcuffs were not
removed for fifteen to twenty minutes, I do not find this to be objectively unreasonable under these
circumstances. Given the evolving events of this situation, I cannot find a reasonable officer would
have known that a failure to respond to an immediate complaint about tight handcuffs violates the
Constitution. The relatively short time frame in which Mr. Getz was in handcuffs, coupled with the
officer’s prompt action in removing them upon a subsequent request after he had subdued Mr.
Getz, at worst, falls into a category “in which qualified immunity operates to shield officers from
discretionary, on-the-spot judgments.” Fettes, 375 Fed. Appx. at 534. Accordingly, Defendant
Swoap is entitled to qualified immunity on the excessive force claim alleging unlawful maintenance
of the handcuffs.
CONCLUSION
For the reasons stated above, the Defendants’ motion for summary judgment (Doc. No. 20)
is granted.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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