Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 1 of 10 Page ID#259
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`_____________________
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`MICHAEL REYNOLDS,
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`Plaintiff,
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`v.
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`
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`VILLAGE OF MATTAWAN,
`GARY JACOBS, in his official and
`individual capacities, and BRANDON
`WEBER, in his official and individual
`capacities,
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`Defendants.
`_______________________________/
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`Case No. 4:05-CV-60
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`Hon. Richard Alan Enslen
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`OPINION
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`Plaintiff Michael Reynolds has brought this suit pursuant to 42 U.S.C. § 1983 and state law
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`seeking compensation for injuries sustained due to alleged acts of excessive force, and assault and
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`battery by police officers (Defendants Gary Jacobs and Brandon Weber) employed by the Village
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`of Mattawan, Michigan on June 15, 2003. Plaintiff has also sued Defendant Village of Mattawan.
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`Defendants have moved for summary judgment as to all claims. Oral argument of the motion is
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`unnecessary given the briefing submitted by the parties. See W.D. Mich. L. Civ. R. 7.2(d).
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`FACTUAL BACKGROUND
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`This suit was filed on June 8, 2005. Plaintiff seeks compensation for facial and nose
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`fractures, severe bruising, and other both permanent and temporary injuries arising from his arrest
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`of June 15, 2003. (Compl. ¶ 26.) The Court has reviewed the entire record of said arrest, including
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`the police report, the police department audio and video of the arrest, and the divergent deposition
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`testimonies and affidavits of the parties. As required by Federal Rule of Civil Procedure 56, the
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 2 of 10 Page ID#260
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`Court must interpret the factual record in a light most favorable to the non-moving party, Plaintiff
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`Reynolds.
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`So interpreted, the evidence supports Plaintiff’s contention that the force used by the arresting
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`officers was unnecessary and excessive, and was inflicted for malicious purposes and not for the
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`purposes of maintaining public order and officer security. Plaintiff’s own account is summarized
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`in his briefing as follows:
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`. . . the officers became angry at Mr. Reynolds [because of] his “smart ass” attitude and lack
`of cooperation. Mr. Reynolds . . . was not being physically aggressive: . . . He is 5'6", 135
`lbs., . . . the officers . . . were each approximately 6'0", 200 lbs.
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`[1]
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`Officer Weber then, in response to Mr. Reynolds’ request that they read him his rights, told
`Mr. Reynolds, “I ain’t going to tell you shit, fuck, turn around and put your hands behind
`your back, you’re under arrest for drunk driving.” He then spun Mr. Reynolds around and
`bent him over the driver’s side [hood] of Mr. Reynolds’ car. Immediately thereafter Sergeant
`Jacobs grabbed Mr. Reynolds’ left arm, and Officer Weber grabbed the upper right side of
`Mr. Reynolds’ body. [The officers then] pushed in the same direction, which threw [him] off
`balance. . . . They then lifted up Mr. Reynolds and dropped him over the driver’s side hood
`of his car. . . .[2]
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`. . . Sergeant Jacobs . . . grabbed Mr. Reynolds [who was also held by Officer Weber] by the
`back of his head or the base of his ponytail . . . [and] slammed Mr. Reynolds’ face quickly
`and violently into the hood of the car at least twice. . . . Sergeant Jacobs then [again]
`violently slammed Mr. Reynolds’ face directly onto the hood of the car . . ., putting a large
`dent into the hood . . . . During this entire time, Mr. Reynolds was not resisting.
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`[3]
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`1
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`Reynolds Dep. 58-64; Jacobs Dep. 87-89; Weber Dep. 4-5.
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`2
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`Reynolds Dep. 60-68; Weber Dep. 65-66; Reynolds Aff. ¶ 1.
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`Reynolds Dep. 68-82. While Defendants’ position is that the officers were simply trying
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`to keep Plaintiff against the vehicle to apply handcuffs and counter resistence, Br. in Supp. at 2,
`the videotape and other evidence may be construed to support an inference that the officers
`initiated a confrontation with a suspect who was not physically hostile and then applied extreme
`force (repeatedly smashing his head into the hood) while he was non-resistant.
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`2
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 3 of 10 Page ID#261
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`Officer Weber then conducted a pat down search of Mr. Reynolds. During this, he grabbed
`Mr. Reynolds’ groin. [Plaintiff was then placed into the squad car and] was bleeding from
`above and around his left eye, his nose and his mouth. . . . . He also had a cut on his arm.[4]
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`. . . The officers then took Mr. Reynolds to Lakeview Community Hospital for [blood alcohol
`and substance abuse testing] . . . . The officers [returned with] Mr. Reynolds . . .to [the] jail,
`but [in the process] . . . Sergeant Jacobs again slammed Mr. Reynolds’ head onto [the back
`fender of the police] car. . . .[5]
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`Later on the day of the incident Mr. Reynolds went back to Lakeview Community Hospital,
`where personnel gave him pain medication and x-rayed his orbital bones. . . .
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`[6]
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`(Br. in Opp. 2-4.)
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`Plaintiff’s account of these incidents is, as noted above, supported by his deposition
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`testimony and affidavit. It is also generally supported by the videotape of the arrest, which shows
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`the officers forcing Plaintiff’s head (while his hands were being restrained) onto the hood of the
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`police car on repeated occasions at 2:32 a.m. [Br. in Supp., Ex. A.] At 2:33 a.m., when he is led
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`back to the patrol car under arrest, his facial injuries are apparent. The videotape filed with the Court
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`only covers the initial arrest (from 2:28 a.m. to 3:00 a.m.) and does not portray the later incidents
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`with the police car when Plaintiff was returned to the jail from Lakeview Hospital. The videotape
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`is also generally consistent with Plaintiff’s contention that he did not physically resist or assault
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`officers during the recorded incidents. 7
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`4
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`Reynolds Dep. 75-77; videotape at 2:33 a.m.; Reynolds Aff. ¶ 2.; Br. in Opp., Exs. 2-7.
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`5
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`Reynolds Dep. 91.
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`Plaintiff received later medical treatment for orbital fractures, nose fractures, bleeding,
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`bruising and swelling. (Br. in Opp., attach. 8.) Plaintiff has also submitted photographs of his
`injuries, which show significant injuries even though the photographs were taken two weeks after
`the incidents. (Id. Exs. 2-7; Reynolds Aff. ¶ 2.)
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`While the officers’ testimony is to the contrary, the Court must credit the non-movant’s
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`testimony for the purpose of Rule 56 review.
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`3
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 4 of 10 Page ID#262
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`The record does not support any inference that the use of excessive force by the officers was
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`caused by any policy or defective training of the Village of Mattawan. For this reason, Plaintiff has
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`conceded that claims against the Village of Mattawan should be dismissed. (Br. in Opp. 15.)
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`SUMMARY JUDGMENT STANDARDS
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`Defendants’ Motion is brought pursuant to Federal Rule of Civil Procedure 56. Under the
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`language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to
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`interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine
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`issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The
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`initial burden is on the movant to specify the basis upon which summary judgment should be granted
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`and to identify portions of the record which demonstrate the absence of a genuine issue of material
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`fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant
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`to come forward with specific facts, supported by the evidence in the record, upon which a
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`reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477
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`U.S. 242, 248 (1986). If, after adequate time for discovery on material matters at issue, the non-
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`movant fails to make a showing sufficient to establish the existence of a material disputed fact,
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`summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
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`In assessing evidence, credibility determinations, the weighing of the evidence, and the
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`drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.
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`1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be
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`drawn in the non-movant’s favor. Celotex Corp., 477 U.S. at 323 (quoting Anderson, 477 U.S. at
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`255). The factual record presented must be interpreted in a light most favorable to the non-movant.
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 5 of 10 Page ID#263
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`LEGAL ANALYSIS
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`1. Section 1983 Liability of Defendants Jacobs and Weber
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` Even a person lawfully arrested has a right under the Fourth Amendment that the arresting
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`officials not use “excessive force” in the making of his or her arrest or detention. See Graham v.
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`Connor, 490 U.S. 386, 394-95 (1989). In considering “excessive force” claims to determine whether
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`the force used was excessive, the United States Supreme Court has instructed all federal courts to
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`examine objectively the totality of the circumstances and especially such factors as “the severity of
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`the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
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`others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”
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`Id. at 396. These factors are be reviewed “from the perspective of a reasonable officer on the scene,
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`rather than with the 20/20 vision of hindsight.” Id.
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`Drawing the various inferences in Plaintiff’s favor, the suspected crime at issue was a first
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`offense impaired driving misdemeanor (which is a 93 day misdemeanor under Michigan law, Mich.
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`Comp. Laws § 257.625). (See Br. in Supp., Ex. 1 at 3.) While this is a serious offense which
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`requires the driver to be taken into custody, it is not the kind of offense which would customarily
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`require use of blows to the head of a suspect absent resistence of arrest. In this case, Plaintiff was
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`unarmed and, once stopped and arrested, did not pose any threat to the officers or the public. Plaintiff
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`was also not resisting arrest (construing the disputed facts in his favor).
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`Applying the Graham criteria to this application of the use of force, the situation presented
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`to police officers required a deliberate and controlled use of force to arrest the subject. It decidedly
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`While the police report also mentions a possible resisting arrest charge, the record is
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`construed in favor of the non-movant and as inconsistent with resisting arrest.
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 6 of 10 Page ID#264
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`did not require the repeated and violent slamming of the suspect’s head onto his vehicle in a manner
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`to cause him serious and possibly permanent facial and neck injuries. Therefore, the Court
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`determines that Defendants Jacobs and Weber, given the genuine issues of material fact as to the use
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`of force, are not entitled to summary judgment since a jury could reasonably find that they had
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`together used excessive force against Plaintiff. 9
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`Defendants Jacobs and Weber have also argued that they cannot be liable given the
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`protections afforded by qualified immunity. Qualified immunity protects officers from section 1983
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`liability when the federal rights which were violated were not “clearly established” at the time of
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`violation. See Harlow v. Fitzgerald, 457 U.S. 800 (1982). Of course, the use of excessive force in
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`affecting the arrests of suspects has long been deemed a violation of the Fourth Amendment. The
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`general parameters of Fourth Amendment excessive force law were explained by the Supreme
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`Court’s Graham decision in 1989 and have been consistently applied since that time. The Supreme
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`Court in Brosseau v. Haugen, 543 U.S. 194, 199 (2004) in a nearly unanimous decision10
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`distinguished two types of excessive force case in terms of the application of qualified immunity.
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`The first type of case is one in which the application of the general rules from Graham (nonlethal
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`force) and Tennessee v. Garner, 471 U.S. 1 (1985) (lethal force) “clearly establish” an “obvious”
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`violation even without reference to a factually similar case adjudicating a Fourth Amendment
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`While this finding addresses both officers since they jointly applied the force in question,
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`even were it not so, section 1983 liability for Defendant Weber could also be premised on his
`failure to stop Defendant Jacobs’ repeated use of excessive force. See Bruner v. Dunaway, 684
`F.2d 422, 425-26 (6th Cir. 1982); McHenry v. Chadwick, 896 F.2d 184 (6th Cir. 1990); Durham
`v. Nu'man, 97 F.3d 862, 867 (6th Cir. 1996); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972).
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`Justice Stevens was the sole dissenter and applied a different vision of the qualified
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`immunity protection–that it be applied by juries and not by the presiding court in cases involving
`fact specific inquiries. See Brosseau, 543 U.S. at 206.
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 7 of 10 Page ID#265
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`violation.
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`11
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` The instant case, if Plaintiff’s testimony is credited, presents multiple examples of
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`“obvious” Fourth Amendment violations. The easiest example is the alleged untaped forcing of
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`Plaintiff’s head against the police vehicle after he was in handcuffs. This kind of force contradicts
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`each of the Graham factors and cannot be reasonably defended on any policy ground. As such, it
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`is properly deemed an “obvious” Fourth Amendment violation. So too, forcing Plaintiff’s head
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`repeatedly against his own vehicle while his one hand was held secured by Defendant Weber, his
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`second arm was pinned against his vehicle and he was not resisting arrest, is the kind of random
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`official violence which cannot be defended on the Graham factors and which so construed is an
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`“obvious” violation of the Fourth Amendment.12
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`For cases which are not obvious, such as the car chase/use of deadly force case adjudicated
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`in Brosseau, the Supreme Court requires the existence of factually specific precedent to inform
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`officers before the constitutional right is deemed “clearly established.” Because of divergent
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`precedent in the car chase arena, though, the Supreme Court decided that the constitutional right was
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`not “clearly established” and “fell in the ‘hazy border between excessive and acceptable force.’” Id.
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`at 201 (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). Assuming for the purpose of argument
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`that the instant alleged constitutional violations were not “obvious,” then prior precedent,
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`For this proposition, the Supreme Court cited its decision in Hope v. Pelzer, 536 U.S.
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`730, 738 (2002), which had earlier established this proposition as to Eighth Amendment
`excessive force/punishment cases.
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`To the extent that the Sixth Circuit three-factor test (see Williams v. Mehra, 186 F.3d
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`685, 691 (6th Cir. 1999) (en banc)) for the application of qualified immunity has not been
`displaced by the Brosseau analysis and/or the Supreme Court’s analysis in Saucier v. Katz, 533
`U.S. 194, 201 (2001), see Dunigan v. Noble, 390 F.3d 486, 491 n.6 (6th Cir. 2004) (noting
`disagreement among Sixth Circuit panels), the Court finds that each of the factors have been
`proven by Plaintiff. (See also Br. in Opp. 9-10.)
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 8 of 10 Page ID#266
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`nevertheless, clearly establish the conduct to constitute excessive force in violation of the Fourth
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`Amendment.
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`As to the alleged use of gratuitous force following Plaintiff’s handcuffing (during the
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`transport between Lakeview Hospital and the jail), prior precedent, including the Sixth Circuit
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`decisions in Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002), McDowell v. Rogers, 863 F.2d 1302,
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`1307 (6th Cir. 1988), the Eleventh Circuit decisions in Lee v. Ferraro, 284 F.3d 1188, 1198 (11th
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`Cir. 2002) and the Fourth Circuit decision in Jones v. Buchanan, 325 F.3d 520, 529-30 (4th Cir. Apr.
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`15, 2003), clearly establish the violation. Indeed, this is essentially conceded at page 10 of
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`Defendants’ Motion (“. . . there was certainly case law that existed on June 15, 2003 that put police
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`officers on notice that it was unconstitutional to use gratuitous force against a[n] [unarmed] suspect
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`who had been handcuffed and subdued, Phelps v. Coy . . . .”)
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`Further, there is no shortage of prior precedent indicating that the gratuitous use of violence
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`against an unarmed misdemeanor suspect is a Fourth Amendment violation. First of all, when a
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`suspect’s hands are otherwise restrained (as some testimony suggests here), the above cited cases are
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`sufficient to provide the rule of decision even though the means of restraint are different from
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`handcuffs. Second, the McDowell case stands, in part, for the proposition that the gratuitous use of
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`force against an unarmed suspect constitutes a violation of the Fourth Amendment. McDowell, 863
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`F.2d at 1307. McDowell long ago cited in favor of this proposition the case of Dugan v. Brooks, 818
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`F.2d 513, 516-17 (6th Cir. 1987)–a case which involved the gratuitous use of a nightstick to strike
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`from behind an unarmed and unrestrained suspect. Dugan found the facts alleged to constitute a
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`Fourth Amendment violation. It makes little sense to argue that substituting a car hood for a
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`nightstick should result in a different rule. See also Lester v. City of Dugan, 830 F.2d 706, 714 (7th
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 9 of 10 Page ID#267
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`Cir. 1987) (holding that jury should consider whether kneeing a non-resistant subject in the back
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`during arrest may constitute a Fourth Amendment violation); Shillingford v. Holmes, 634 F.2d 263,
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`266 (5th Cir. 1981) (holding that bludgeoning an unarmed bystander during a disturbance without
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`cause constituted a Fourth Amendment violation).
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`Even more significant is the Sixth Circuit’s decision in Darnell v. Caver, 1998 WL 416000,
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`*3 (6th Cir. July 7, 1998), which though an unpublished opinion, was expressly approved by the
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`Sixth Circuit in its 2002 published decision of Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002). In
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`Darnell, as in the present case, a driver was rightly arrested for drunken driving. Id. at *1.
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`Nevertheless, the Sixth Circuit held that Darnell was entitled to a jury trial as to the supporting
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`testimony that the police officer–while Darnell was unarmed, unrestrained, drunken and not
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`completely cooperative–injured him by throwing and/or slamming his head to the asphalt. This case
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`is functionally identical to the Darnell scenario and, if anything, makes a stronger showing of a
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`Fourth Amendment violation due to the repeated nature of the excessive force.
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`Another similar case by the Sixth Circuit is its unpublished decision in Michella v. Bauman,
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`72 Fed. Appx. 405 (6th Cir. Aug. 13, 2003). In that case, the Sixth Circuit reversed a grant of
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`summary judgment on both qualified immunity and Fourth Amendment grounds. The Sixth Circuit
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`found that there were sufficient evidence of a clearly established Fourth Amendment violation
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`relating to a misdemeanor arrest in June 1999 wherein the arrestee was allegedly slammed into the
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`police car to subdue her. Id. at 408-09. Interestingly, the Michella case likewise involved videotape
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`footage which was subject to diverse interpretations of the parties on the issue of whether the
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`plaintiff was resisting arrest at the time force was used.
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`Case 4:05-cv-00060-RAE Doc #27 Filed 05/15/06 Page 10 of 10 Page ID#268
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`For all of these reasons, the Court finds that Defendants Jacobs and Weber are not entitled
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`to qualified immunity.
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`2. State Law Assault and Battery Claims
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`Michigan law follows the common law rule that a police officer is entitled to use reasonable
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`force to detain a suspect, but the use of excessive force against a citizen will constitute an assault and
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`battery, provided that the elements of the torts are otherwise proven. See White v. City of Vassar,
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`403 N.W.2d 124, 130 (Mich. Ct. App. 1987); Mich. Civ. J.I. 115.91. Because there are genuine
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`issues of material fact as to whether the force used was excessive, Defendants Jacobs and Weber are
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`not entitled to summary judgment on the state law claims.
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`3. Section 1983 Claims against Defendant Village of Mattawan
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`Defendant Village of Mattawan has requested summary judgment as to the section 1983
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`claims against it under the rules in Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658
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`(1978) and City of Canton v. Harris, 489 U.S. 378 (1989). Plaintiff agrees with this contention.
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`Therefore, summary judgment shall enter dismissing those claims (Count II of the Complaint)
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`against Defendant Village of Mattawan.
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`CONCLUSION
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`In accordance with this Opinion, a Partial Judgment shall enter dismissing claims against
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`Defendant Village of Mattawan, but otherwise denying Defendants Jacobs and Weber’s Motion for
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`Summary Judgment.
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`DATED in Kalamazoo, MI:
`May 15, 2006
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` /s/ Richard Alan Enslen
`RICHARD ALAN ENSLEN
`SENIOR UNITED STATES DISTRICT JUDGE
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`10