NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0328n.06
Case No. 14-4066
UNITED STATES COURT OF APPEALS
FILED
Jun 16, 2016
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
SANDRA WILLIAMS, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JON MORGAN, ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
Defendant-Appellant. )
)
Before: BATCHELDER and STRANCH, Circuit Judges; and HOOD, District Judge.*
ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from a denial
of a motion for summary judgment, the defendant police officer, Jon Morgan, argues that the
plaintiff’s evidence did not create a genuine dispute of material fact so as to overcome his
assertion of qualified immunity. We establish our appellate jurisdiction and AFFIRM.
I.
The defendant-appellant in this appeal, Officer Jon Morgan, is an Akron (Ohio) Police
Officer, assigned as the School Resource Officer (SRO) at the Jennings Community Learning
Center (CLC), a public middle school. The plaintiff-appellee, Sandra Williams, is the mother of
a female minor, T.W., who claims that Officer Morgan used excessive force when physically
restraining and bodily seizing T.W. in response to T.W.’s misbehavior at the school. At the time
of the incident, October 26, 2012, T.W. was a 13-year-old, eighth grade student, who had just
transferred to Jennings CLC the day before, due to disciplinary problems at her prior school.
Officer Morgan had been an SRO at the Jennings CLC since 2010. Two additional facts bear
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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mention: (1) during this incident, Officer Morgan broke T.W.’s arm; and (2) much of the
incident was captured by video surveillance, albeit without sound, and that video was properly
before the district court and is before us here. This appeal concerns Officer Morgan’s claim of
qualified immunity in response to T.W.’s accusations of unlawful use of excessive force.
On the morning of Friday, October 26, 2012, T.W. and a classmate got into an argument
sufficiently serious that their teacher sent them both to the principal’s office. The principal met
with each of them and suspended T.W. from school for five days, but did not discipline the other
student. T.W. was admittedly upset, apparently enraged, by this outcome and, after leaving the
principal’s office, tore several paper posters from the school’s walls. Officer Morgan
characterized this tantrum as having “crossed the line to criminal disorderly conduct” and later
that day confronted T.W. in a school stairwell. Deciding that T.W. was being defiant (by putting
one foot behind her and her hands on her hips), Officer Morgan decided to seize her physically
by pushing her up against the hallway lockers, bending her left arm behind her back, and
eventually compelling her submission via this restraint. According to T.W., during this time,
Officer Morgan was making threatening comments, whereas T.W. was pleading to be let go due
to the pain in her arm. Eventually, still holding her by that arm, Officer Morgan escorted her to
the principal’s office. According to T.W., while they were waiting in the principal’s office,
Officer Morgan continued to hold her by that arm and to threaten her verbally.
The video captured the activity in the hallway, and though it lacks sound, the picture is
reasonably clear. The stationary camera is affixed near the ceiling, recording the length of a
hallway with lockers along the left and barren wall along the right, both interrupted by the
occasional doorway or hallway. The video time stamp depicts the recording as beginning at
12:16 p.m., which appears to coincide with a class change as there are numerous students
walking up or down the hallway (toward or away from the camera). Immediately to the right of
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the camera, mostly out of view, is a doorway which apparently opens to the stairwell where the
confrontation began. Before T.W. and Officer Morgan enter the view, the stream of students
entering this doorway can be seen pausing and gawking, though they all continue on their way.
About 15 seconds into the video, T.W. and Officer Morgan enter the picture from this
doorway (right side of the frame), as T.W. retreats backward and Officer Morgan pursues with
his hands either on or reaching for her neck or upper chest. Officer Morgan is wearing a police
uniform, including firearm, and he is significantly larger than T.W. As T.W. retreats into the
middle of the hall (center of the frame) apparently attempting to fend off his hands with her own,
Officer Morgan gets his hands on her enough to push her sharply against the lockers on the far
side of the hall (left side of the frame). As she bounces off the lockers, he takes hold of her and
turns her face-first into the lockers, leaning his weight against her and then taking hold of her left
arm and bending it behind her back. Students continue to walk past and gawk, but none stop.
At this point, about 24 seconds into the recording, as Officer Morgan has T.W.’s left arm
bent severely behind her back, both of her feet come up off the floor. T.W. is squirming for
relief while Officer Morgan is leaning in with his face and mouth close to her ear and appears to
be talking to her. For the next 15 seconds, Officer Morgan holds her there, her face against the
lockers and left arm pinned behind her, apparently talking in her ear. Then he begins to walk her
roughly down the hall (away from the camera), still holding her arm behind her as she squirms.
Officer Morgan directs her into the first doorway on the left, presumably the principal’s
office, and stands in that doorway for the next 60 seconds. He disappears fully into the doorway
for about 45 seconds and reemerges without T.W. The video concludes with Officer Morgan
walking up the hallway, toward the camera, until eventually passing beneath the camera.
T.W.’s sister took T.W. to the hospital a short time later where a doctor diagnosed her as
having a broken arm (proximal humerus fracture). T.W. claims that Officer Morgan broke her
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arm when he applied such force that he physically lifted her off of the ground. Ultimately,
Officer Morgan did not actually arrest T.W. nor were criminal charges ever filed against her.
In March 2013, Sandra Williams, as T.W.’s Next Friend, filed suit in federal court,
pursuant to 42 U.S.C. § 1983, claiming that Officer Morgan used excessive force during his
physical seizure, restraint, and manipulation of T.W.1 Specifically, T.W. accused Officer
Morgan of needlessly accosting T.W. physically (ultimately breaking her arm) when she had
offered no resistance, was not fleeing, and posed no threat to him or anyone else on the scene.
Officer Morgan moved for summary judgment on grounds of qualified immunity, asserting that
his use of force was appropriate under the circumstances, not excessive, because the technique he
used was a low-level force, compliance tactic taught by the Akron Police Department.
The district court denied the motion based on its assessment of the record and its
identification of genuine disputes of material fact for determination by a jury, concluding:
Under the facts as viewed in a light most favorable to T.W., the [c]ourt
cannot find that Morgan’s conduct, as a matter of law, falls into this ‘hazy border’
[between excessive and acceptable force]. Herein, Morgan was confronted in a
school setting with an unruly student—a situation handled by teachers on a
routine basis without the use of any force. At the time of their encounter, T.W.
posed no threat to the safety of Morgan or any other students. Accordingly, a
reasonable jury could conclude that Morgan did not use reasonable force to bring
T.W. under control. First, Morgan did not simply use an arm-bar to restrain T.W.
He forced T.W. up against a stationary object—the metal lockers—to add to the
force used. Moreover, given the huge massive size discrepancy [of Morgan over
T.W.], Morgan physically lifted T.W. off the ground using the arm bar. This
conduct, it would appear from the record, resulted in breaking T.W.’s arm.
Moreover, there appears to exist a genuine issue of fact surrounding the
immediate aftermath of the arm-bar. T.W. claims that she immediately asked
Morgan to let go of her arm following the initial interaction because of the
amount of pain she was in. Morgan, however, maintained his grip on T.W.’s arm
and in fact directed her down the school hallway using that grip. Under those
facts, a reasonable jury could conclude that such continued force was also
1
She also raised other claims against other defendants, which caused those defendants to move for
summary judgment on separate bases and the district court to rule on those motions. None of those claims, motions,
or rulings is before us in this interlocutory appeal and, therefore, we have omitted substantive reference to them.
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gratuitous. Accordingly, the [c]ourt declines to afford Morgan qualified
immunity for his conduct.
Williams v. Nice, 58 F. Supp. 3d 833, 838 (N.D. Ohio 2014) (emphasis in original).
Officer Morgan filed this interlocutory appeal.
II.
Officer Morgan argues that he is entitled to qualified immunity. Specifically, he presses
four arguments in this appeal: (1) the district court improperly determined the facts and drew
improper inferences; (2) on the proper facts and inferences, the force he used was not excessive;
(3) the prohibition against such force was not clearly established; and (4) he is also entitled to
qualified immunity under state law. Because the district court based its denial of qualified
immunity on its determination that genuine disputes of material fact necessitated submission to a
jury and because Officer Morgan challenges that determination, his challenge invokes a question
concerning our jurisdiction. Thus we must first establish that we have appellate jurisdiction;
then we must determine the extent or limitations of that jurisdiction; and only then may we
exercise that jurisdiction to decide the merits of the argument that is properly before us.
A.
Qualified immunity shields government officials in the performance of discretionary
functions from standing trial for civil liability unless their actions violate clearly established
rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff who brings a § 1983 action
against such an official bears the burden of overcoming the qualified immunity defense. Quigley
v. Tuong Vinh Thai,
707 F.3d 675, 681 (6th Cir. 2013). At the summary judgment stage, the
plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was
clearly established.
Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient
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evidence to create a “genuine issue of fact,” that is, “evidence on which [a] jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986).
If the district court determines that the plaintiff’s evidence would reasonably support a
jury’s finding that the defendant violated a clearly established right, it must deny summary
judgment. DiLuzio v. Village of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). The denial of
summary judgment is ordinarily not a final decision within the meaning of
28 U.S.C. § 1291 and
is not immediately appealable. But the “denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of [] § 1291
notwithstanding the absence of a final judgment.” Mitchell v. Forsyth,
472 U.S. 511, 530 (1985).
Thus, we may decide an appeal challenging the district court’s legal determination that
the defendant’s actions violated a constitutional right or that the right was clearly established. Id.
We may also decide an appeal challenging a legal aspect of the district court’s factual
determinations, such as whether the district court properly assessed the incontrovertible record
evidence. See Plumhoff v. Rickard, 572 U.S. --,
134 S. Ct. 2012, 2019 (2014); Roberson v.
Torres,
770 F.3d 398, 402 (6th Cir. 2014). And we may decide, as a legal question, an appeal
challenging the district court’s factual determination insofar as the challenge contests that
determination as “blatantly contradicted by the record, so that no reasonable jury could believe
it.” Scott v. Harris,
550 U.S. 372, 380 (2007); Plumhoff,
134 S. Ct. at 2020.
We may not, however, decide an appeal challenging the district court’s determination of
“‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.”
Johnson v. Jones, 515 U.S. 304, 313 (1995). Because such a challenge is purely fact-based,
lacking any issue of law, it “does not present a legal question in the sense in which the term was
used in Mitchell,” Plumhoff,
134 S. Ct. at 2019, and is therefore not an appealable “final
decision” within the meaning of
28 U.S.C. § 1291. These types of prohibited fact-based
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(“evidence sufficiency”) appeals challenge only the plaintiff’s allegations (and the district court’s
acceptance) of “what [actually] occurred[] or why an action was taken or omitted,” Ortiz v.
Jordan, 562 U.S. 180, 190 (2011), who did it, Johnson,
515 U.S. at 307, or “nothing more than
whether the evidence could support a [jury’s] finding that particular conduct occurred,” Behrens
v. Pelletier,
516 U.S. 299, 313 (1996). We have also explained that the defendant-appellant may
not challenge the inferences the district court draws from those facts, as that too is a prohibited
fact-based appeal. See Romo v. Largen,
723 F.3d 670, 673-74 (6th Cir. 2013).
In the event that legal and factual challenges are confused or entwined, “we must separate
an appealed order’s reviewable determination (that a given set of facts violates clearly
established law) from its unreviewable determination (that an issue of fact is ‘genuine’).”
Roberson, 770 F.3d at 402 (citing Johnson,
515 U.S. at 319) (quotation marks omitted).
Similarly, we can separate an appellant’s reviewable challenges from its unreviewable. DiLuzio,
796 F.3d at 610. That is, we can “ignore the defendant’s attempts to dispute the facts and
nonetheless resolve the legal issue, obviating the need to dismiss the entire appeal for lack of
jurisdiction.” Estate of Carter v. City of Detroit,
408 F.3d 305, 310 (6th Cir. 2005).
When we accept the district court’s factual determinations and rely on the plaintiff’s
record evidence for the purpose of deciding the interlocutory appeal, we do not ourselves make
any findings of fact or declare any inferences for purposes of any subsequent proceedings.
DiLuzio, 796 F.3d at 611; see also Nelson v. Shuffman,
603 F.3d 439, 448 (8th Cir. 2010)
(“Whether [the plaintiff] is ultimately able to prove the alleged factual bases for his claims is a
matter left for the finder of fact [on remand]—not the appellate court on interlocutory appeal.”).
B.
Officer Morgan’s first argument is that the district court misconstrued the evidence and
drew improper inferences. He challenges the sufficiency of the plaintiff’s evidence to prove her
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claims, the district court’s assessment of the events depicted in the video recording, and the
inferences the district court drew from the evidence. Thus, as just explained, because we have
no appellate jurisdiction over purely factual (evidence sufficiency) disputes, we must begin by
separating his reviewable challenges from his unreviewable. See DiLuzio, 796 F.3d at 610.
1.
At her deposition, T.W. testified to her version of events. According to T.W., after the
principal issued her a suspension, she waited in his office until the end of that class period and
then proceeded to her next class on her understanding that she would finish the school day and
begin the suspension the next day. R. 30-3 at 37-38; PageID # 592-93. Sometime later, but
while class was in session and the hallways were otherwise empty, the principal located her and
told her to return to his office to get her paperwork, at which point she ripped the posters from
the wall, while still in the presence of the principal. R. 30-3 at 40-41; PageID # 595-96. She
went to her locker and retrieved her cell phone, went downstairs to the main office and called her
sister to pick her up, and then headed back upstairs to get the paperwork from the principal. R.
30-3 at 41-44; PageID # 596-99. At that point, she encountered Officer Morgan in the stairwell:
T.W. He looked at me, I looked at him. He asked me what I was looking at. I
said I’m looking at you. Then he was like, I was trying to ignore you.
Then he was like - - he just grabbed me and threw me into the lockers.
R. 30-3 at 46; PageID # 601. Upon some clarification and further questioning, she reiterated:
T.W. Like he grabbed me, like up here (indicating), and he like grabbed me by
the arm and then like threw me against the locker. And then the bell had
rung, people was coming out, and then I was just telling him like please let
go of my arm, my arm is hurting. My arm cracked. I heard it pop.
R. 30-3 at 48; PageID # 603.
Q. . . . did you turn into Officer Morgan and chest bump him?
T.W. No, I didn’t chest bump him or nothing.
R. 30-3 at 48-49; PageID # 603-04.
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Q. . . . when Officer Morgan had you, I’ll say restrained up against the
lockers, did you say anything to Officer Morgan at that point?
T.W. No, I was just like can you let go of my arm, my arm hurts. He still
having it. He said when I heard you was here I told you I was going to
jack your ass up.
Q. Again, are those the exact words you remember him saying?
T.W. He whispered in, I told you I was going to jack your ass up.
Q. Did you say anything in response to that?
T.W. I was just like, can you let go of my arm? My arm aching, like it hurt.
R. 30-3 at 50; PageID # 605. To summarize, according to T.W., as she was innocuously making
her way back to the principal’s office, as instructed, Officer Morgan needlessly confronted her
and, even though she offered no resistance, was not fleeing, and posed no threat to anyone at that
point, he grabbed her physically, slammed her into the lockers, and broke her arm. Furthermore,
as she pled for relief due to the pain in her arm, Officer Morgan continued the pressure on her
arm and whispered menacing comments into her ear. All this, she claims, was excessive.
The district court, properly considering the evidence in the light most favorable to T.W.,
drew certain inferences in reaching its conclusion that genuine disputes of material fact
warranted consideration and determination by a jury. These were inferences such as: on whole,
this was merely an unruly student in a school setting (a commonplace occurrence that teachers
handle routinely, without the use of any force); at this moment, T.W. posed no safety threat to
Officer Morgan or any other students; and Officer Morgan did more than just restrain T.W. with
an “arm-bar,” he forced her up against the lockers to add to the force and used his “massive” size
advantage to physically lift her off the ground by the arm, which apparently broke her arm. The
district court also recognized that Officer Morgan refused to let her go, despite her pleading, and
instead escorted her using that continued pressure, which a jury could deem gratuitous.
Officer Morgan would have us reject T.W.’s evidence and the district court’s inferences
and undertake a plenary review of the record, using his preferred view of the facts. According to
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Officer Morgan’s version of events, his intervention with T.W. was necessary, proper, and
justified. In his brief, he offers five factual allegations in support of this argument:
(1) “the teachers and administrators had attempted to ‘handle’ the situation
prior to Officer Morgan’s involvement, and their efforts seemingly failed”;
(2) “T.W. had truly committed criminal offenses (criminal damaging and
disorderly conduct)”;
(3) “T.W. displayed no signs of calming her defiant and aggressive behavior”;
(4) “use of a control hold on an aggressive person, who breaches the officer’s
reactionary gap, is proper” and “immobilizing the aggressor against a
stationary object [such as the hallway lockers] for stabilization purposes,
is also proper”; and
(5) “There is no direct evidence that T.W. did not pose a threat to other
students with her defiant and hostile behavior.”
Apt. Br. at 19-21. More to the point, Officer Morgan insists that the district court misconstrued
the evidence and erred by drawing the opposite inference on each of these assertions.
While we are certainly skeptical about the truth of Officer Morgan’s assertions, our
assessment of the evidence at this point is irrelevant. Simply put, this is exactly the type of
factual dispute for which we have no interlocutory appellate jurisdiction. See, e.g., Ortiz,
562 U.S. at 190; Johnson,
515 U.S. at 307; Romo,
723 F.3d at 673-74; DiLuzio,
796 F.3d at 611.
2.
Alternatively, Officer Morgan argues that the district court misconstrued the events
depicted in the video, such that its determination was “blatantly contradicted by the record, so
that no reasonable jury could believe it,” see Scott, 550 U.S. at 380. As we have explained,
whether the district court properly assessed incontrovertible record evidence is a legal challenge
over which we have appellate jurisdiction on interlocutory appeal. Plumhoff,
134 S. Ct. at 2019.
In his appellate brief, Officer Morgan makes five specific factual allegations, based on
his interpretation of the video recording, which he offers as support for this argument:
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(1) “the video depicts T.W. ratcheting up her defiant behavior by grabbing at
Officer Morgan and completely disregarding Officer Morgan’s
authoritative posture”;
(2) “the video depicts T.W. well within Officer Morgan’s reactionary gap and
grabbing at his arm”;
(3) “the video clearly depicts T.W. as defiant and uncooperative to police
authority, i.e., reaching toward Officer Morgan and kicking her feet”;
(4) “There is no reasonable dispute that T.W. was uncooperative based on the
school surveillance video”; and
(5) “the video clearly depicts T.W. displaying confrontational behavior.”
Apt. Br. at 24-28 (emphases omitted). We described this video fully at the outset of this opinion.
In the video, Officer Morgan is the clear aggressor; he pursues T.W. into the hallway, reaching
for her neck or upper chest; when he catches her, he pushes her sharply against the lockers,
physically turns her body towards the lockers, bends her left arm behind her back, and leans in
close, apparently pressing his body against hers and speaking into her ear. He is significantly
larger than T.W. and either lifts her or holds her off the floor by that arm, as both of her feet are
off the floor while he holds her by the arm, which is bent severely behind her back. While T.W.
does appear to squirm or writhe in response to the pressure on, and likely pain in, her arm, she
does not necessarily appear defiant, uncooperative, or confrontational. She appears scared and
wounded. Early in the video, as Officer Morgan attempts to grab her by the throat or upper
chest, T.W. does attempt to fend off his hands as she retreats from him into the hallway, but such
an instinctive defensive response does not, at least in this video, demonstrate a need for physical
restraint. At no point does T.W. appear to be grabbing or kicking at Officer Morgan.
Given our review of the incontrovertible video recording evidence, we cannot say that the
district court’s determination or inferences were “blatantly contradicted by the record, so that no
reasonable jury could believe it,” see Scott, 550 U.S. at 380. Thus we reject this portion of the
appeal and affirm the district court’s determination. See Plumhoff,
134 S. Ct. at 2019.
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3.
One final aspect of this factual dispute bears mention, as it is the predicate for Officer
Morgan’s principal theory of qualified immunity, which is that “Officer Morgan’s control hold
tactic is considered low level force . . . consistent with the defensive tactics training of the Akron
Police Department,” Apt. Br. at 8 (citations omitted), and “[a] single, brief and limited act of
placing T.W., an uncooperative minor, against the lockers (or any stationary object) for control
purposes does not rise to the level of an unreasonable use of force,” Apt. Br. at 25. That being a
true statement, standing on its own, we are compelled to point out two qualifiers.
First, the mere fact that this particular hold, when executed properly, is considered low-
level force and is a recommended tactic, is meaningless in a circumstance of misuse or
misapplication, as is alleged here. For example, a handshake, in and of itself, can hardly be
considered force at all, let alone excessive force; but if the larger, stronger participant were to
squeeze so hard or twist so far as to break the other’s bones, we would not hold as a matter of
law that the force was not excessive just because the interaction was “merely a handshake.” Nor
could we reasonably conclude that the prohibition against such bone-crushing force was not
clearly established because the case law is devoid of cases specifically forbidding handshakes.
See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that “officials can still be on
notice that their conduct violates established law even in novel factual circumstances”). This
argument, premised as it is on faulty or omitted facts, is as irrelevant as it is misguided.
And that leads to the second qualifier: this argument relies entirely on facts that
contradict the plaintiff’s proffered evidence, the incontrovertible video recording, and the district
court’s determinations and inferences. Consequently, we must reject or ignore this argument.
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C.
Officer Morgan next argues that, when considered in light of the proper facts and
inferences, the force he used was not excessive. And, as explained, we may discard the
appellant’s fact-based or “evidence sufficiency” challenges and exercise the jurisdiction we do
have to reconsider the district court’s legal determinations, based on the plaintiffs’ version of the
facts and the inferences as articulated by the district court. See DiLuzio, 796 F.3d at 610.
“It is axiomatic that individuals have a constitutional right not to be subjected to
excessive force during . . . [a police] ‘seizure’ of his [or her] person.” Chappell v. City of
Cleveland, 585 F.3d 901, 908 (6th Cir. 2009); Graham v. Connor,
490 U.S. 386, 388 (1989). In
measuring “excessiveness,” we ask whether the officer’s conduct was “objectively reasonable”
under the circumstances, considering the severity of the underlying crime, whether the suspect
posed an immediate threat to the safety of the officers or others, or whether the suspect was
actively resisting arrest or attempting to evade arrest by flight.
Id.
Here, according to T.W.’s version of the evidence, the irrefutable video recording
evidence, and the district court’s findings and inferences, Officer Morgan needlessly instigated
an altercation with this 13-year old girl, first verbally and then physically. Using his size
advantage and compliance-hold training, he aggressively pursued, seized, and manipulated her to
the point that he broke her arm. He then maintained this physical restraint and pressure on her
broken arm, despite her pleas for relief, all the while threatening or menacing her verbally.
The underlying “crime” in this case was that T.W. tore some paper posters off the school
hallway wall, which the district court characterized as merely a temper tantrum or unruly student
behavior. Despite Officer Morgan’s contention that was a serious crime (criminal damaging and
disorderly conduct), we are doubtful that a court would convict her of such charges, a prosecutor
would pursue such charges, or a reasonable police officer would arrest her on such charges. In
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fact, Officer Morgan did not actually arrest her here, nor did the Jennings CLC administration
pursue any school discipline, let alone any criminal complaint.
Under these facts, a jury could conclude that Officer Morgan’s conduct was not
objectively reasonable and the force he used on T.W. was excessive, in violation of her
constitutional right to be free of such force. His claim of qualified immunity must fail.
D.
Officer Morgan also argues that the prohibition against this force was not clearly
established. That is, under the facts established for purposes of this appeal, Officer Morgan is
contending that he had no forewarning that it would be improper for him to accost a 13-year old
girl, without provocation or resistance, use his size advantage to place her physically against a
wall; verbally menace or threaten her while he twisted her arm behind her back and lifted her off
the floor until he broke that arm; and then maintain pressure on that broken arm, despite her
pleas for relief, as he forced her down the hall to the principal’s office with further verbal threats.
We disagree. This was clearly established. See Norton v. Stille, 526 F. App’x 509, 513-
14 (6th Cir. 2013) (holding that the prohibition against gratuitous force was clearly established as
of October 2010). But, even lacking a specific case on point, we conclude that this conduct, as
alleged, was so gratuitous that Officer Morgan was nonetheless “on notice that [this] conduct
violate[d] established law even in novel factual circumstances.” See Hope,
536 U.S. at 741.
Officer Morgan is not entitled to qualified immunity on this basis.
E.
Finally, Officer Morgan argues that he is also entitled to qualified immunity under state
law on the assault charge, for the same reasons that he is entitled to qualified immunity under
federal law. Specifically, in his brief, he offers this pithy argument, without elaboration: “As
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Officer Morgan is entitled to qualified immunity on Williams’ excessive force claim, he is
likewise entitled to qualified immunity on the assault claim under state law.” Apt. Br. at 38.
Given our holding that Officer Morgan is not entitled to qualified immunity on the
excessive force claim, this argument necessarily fails for lack of a valid premise. We reject this
challenge and affirm the district court’s judgment on this particular claim.
III.
We AFFIRM the judgment of the district court denying qualified immunity.
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STRANCH, Circuit Judge, concurring in the judgment. I agree with much of the
reasoning and the outcome of the majority opinion. I write separately to address how we have
jurisdiction over this case in light of the final judgment rule, reflected in 28 U.S.C. § 1291, and
its function of protecting the role of trial courts and the efficiency of the appellate system.
Specifically, my point concerns our jurisdiction over interlocutory appeals from denials of
qualified immunity that involve factual disputes.
We have long recognized that we have jurisdiction to review neat legal questions on
interlocutory appeal. In Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005),
we explained that if “aside from [any] impermissible arguments regarding disputes of fact, [a]
defendant [appealing a qualified immunity denial] also raises the purely legal question of
whether the facts alleged . . . support a claim of violation of clearly established law, then there is
an issue over which this court has jurisdiction.”
Id. (quoting Berryman v. Rieger,
150 F.3d 561,
562 (6th Cir. 1998)). But there we also noted another limited area of jurisdiction. Relying on
our precedent in two prior cases—Phelps v. Coy,
286 F.3d 295 (6th Cir. 2002), and Beard v.
Whitmore Lake School District,
402 F.3d 598 (6th Cir. 2005)—Estate of Carter noted that “this
court can ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal
issue, obviating the need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter,
408 F.3d at 310 (citing Phelps, 286 F.3d at 298–99; Beard,
402 F.3d at 602 n.5). Phelps and
Beard provide both the authority for and the parameters governing this proposition. Phelps
explains that we have jurisdiction to disregard defendants’ attempts to dispute plaintiffs’ facts
only in cases where “the legal issues are discrete from the factual disputes[.]”
286 F.3d at 298.
Beard holds that interlocutory jurisdiction over appeals from denials of qualified immunity
involving disputed facts only exists where “some minor factual issues are in dispute” and “it
does not appear that the resolution of [such] factual issues is needed to resolve the legal issues”
16
No. 14-4066
Sandra Williams v. Jon Morgan
also presented. 402 F.3d at 602 n.5; see also Claybrook v. Birchwell,
274 F.3d 1098, 1103 (6th
Cir. 2001). If, on the other hand, disputed factual issues are “crucial to” a defendant’s
interlocutory qualified immunity appeal, we remain “obliged to dismiss it for lack of
jurisdiction.” Phelps,
286 F.3d at 298; see also McKenna v. City of Royal Oak,
469 F.3d 559,
561 (6th Cir. 2006). It is clear in the instant case that Officer Morgan disputes factual issues that
are crucial to his interlocutory appeal, therefore we do not have jurisdiction over this case under
the line of cases including Phelps, Beard, Estate of Carter, and McKenna.
There is another limited exception to the final judgment rule, however, that is present in
this case. We have recognized that the Supreme Court’s opinion in Scott v. Harris, 550 U.S. 372
(2007), created a narrow exception to the jurisdictional limitations on interlocutory appeals,
allowing courts of appeal to assert interlocutory jurisdiction in qualified immunity appeals where
a defendant claims that a “trial court’s determination that a fact is subject to reasonable dispute is
blatantly and demonstrably false[.]” Moldowan v. City of Warren,
578 F.3d 351, 370 (citation
omitted). Because Officer Morgan has made such a claim here, I agree that this court has
jurisdiction to hear his appeal, and I respectfully concur in the outcome reached by the majority.
17
