Leticia Rudolph v. Daniel Babinec

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0248p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LETICIA RUDOLPH, ┐

Plaintiff-Appellee, │

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> No. 18-1901

v. │

│

│

DANIEL T. BABINEC and ROBERT A. ATKINSON, in their │

individual and official capacities, │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:17-cv-00125—Janet T. Neff, District Judge.

Argued: July 31, 2019

Decided and Filed: September 20, 2019

Before: MOORE, COOK, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: G. Gus Morris, MCGRAW MORRIS P.C., Southfield, Michigan, for Appellants.

Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, for

Appellee. ON BRIEF: G. Gus Morris, MCGRAW MORRIS P.C., Southfield, Michigan, for

Appellants. Amy J. DeRouin, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake,

Michigan, for Appellee.

The court delivered a PER CURIAM opinion in which THAPAR, J., joined in part.

THAPAR, J. (pp. 15–18), delivered a separate opinion concurring in part and dissenting in part.

No. 18-1901 Rudolph v. Babinec, et al. Page 2

_________________

OPINION

_________________

PER CURIAM. There are two sides to every story. Here, the two sides read like they

come from different books. What really happened on the night Officers Daniel Babinec and

Robert Atkinson seized Leticia Rudolph in her home for a psychiatric evaluation depends on

whom you ask. As Rudolph tells it, the officers violated her rights by seizing and injuring her.

As the officers tell it, they did what any reasonable officer would have done. Because this is a

limited appeal from summary judgment, we must accept Rudolph’s version and thus affirm the

district court’s denial of summary judgment on three of Rudolph’s four claims.

I. BACKGROUND

Late one night, Leticia Rudolph’s ex-husband, Kyle Rudolph, decided to pay her a visit.

Kyle1 went to check on her after their son had texted him: “[S]he has the .22 out[,] will you go

over there[?]” R. 53-3 (Incident Rep.) (Pg. ID 182). Rudolph, a single mother, slept with her .22

gun out every night to feel safe. When Kyle arrived at Rudolph’s home, the two spoke for close

to an hour about their daughters and their relationship. Kyle decided to take Rudolph’s gun with

him as he left, which Rudolph let him do. After Kyle left, Rudolph went to sleep. But the night

did not end there.

Later, around 3:00 A.M., Officer James Hodges stopped Kyle for speeding. Kyle

admitted he was carrying a gun. He explained that he took it from his ex-wife earlier that night

because he was worried about her. And Kyle showed Officer Hodges the text message from his

son saying Rudolph had her gun out, as well as a text message from Rudolph saying “good bye.”

R. 53-3 (Incident Rep.) (Pg. ID 182). Meanwhile, Officer Daniel Babinec arrived at the traffic

stop to assist and secure the gun. Ultimately, the officers let Kyle go with a warning, but they

felt obligated to do a wellness check on Rudolph.

1We mean no disrespect by the use of Kyle Rudolph’s first name. We use it here only to distinguish

between Kyle Rudolph and Leticia Rudolph.

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Officer Babinec, accompanied by Officer Robert Atkinson, went to Rudolph’s home and

banged on her doors and windows. She was asleep, so she did not answer. After Officers

Babinec and Atkinson informed Officer Hodges that they could not get a response, Officer

Hodges followed Kyle into his driveway and told him to call Rudolph. Rudolph answered and

stated on speakerphone that she was sleeping, and Officer Hodges told her that his officers were

at the door. Rudolph then got up and opened the door. The officers entered without her

permission and asked her whether she felt suicidal. Rudolph replied that she was not and felt

fine. Rudolph generally cooperated with the officers, but the officers, without much further

inquiry, gave her the option of going voluntarily to the hospital or being taken into custody

involuntarily for a mental-health check.

Then, according to Rudolph, things took a turn. Rudolph says that Officer Babinec

grabbed her by the arm without warning, slammed her body and face into the wall, and

handcuffed her. She told the officers that the handcuffs were “really tight,” and that the officers

were hurting her. R. 54-2 (Leticia Rudolph Dep.) (Pg. ID 570). They responded that she was

suicidal. The officers then “manhandled” her out of the house, without giving her a chance to

put shoes on, and dragged her across her forty-foot driveway. Id. (Pg. ID 570–72). Rudolph

could not keep up with the officers and asked them to slow down. They did not. Rudolph

stumbled and hurt her right ankle—so badly that she would later need two surgeries to treat that

injury. She complained repeatedly to Officers Babinec and Atkinson that the handcuffs were too

tight, but they did not respond.

Once in the car, Officers Babinec and Atkinson drove Rudolph to the hospital about ten

minutes away. The hospital measured her blood alcohol level at .153. The doctor had to wait a

few hours for Rudolph’s blood alcohol level to go down so he could perform a psychiatric

evaluation. When it did go down, the doctor performed the psychiatric evaluation and

determined that “[Rudolph] is at extremely low risk of self harm as she does not appear to want

to harm herself, has not tried to here and is sober and denies any sort of homicidal or suicidal

thought or desire.” R. 54-7 (ER Record) (Pg. ID 718); see also id. (noting that Rudolph “appears

completely sober frankly.”). Rudolph was released. She then sued Officers Babinec and

Atkinson and Fruitport Township, alleging various constitutional violations.

No. 18-1901 Rudolph v. Babinec, et al. Page 4

II. QUALIFIED IMMUNITY

This case comes to us after the district court denied Officers Babinec and Atkinson’s

motion for summary judgment. In this limited appeal, we consider only whether the officers are

entitled to qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Qualified

immunity shields government officials from individual liability if they did not violate a clearly

established right “of which a reasonable person” in the same situation would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). At this stage, we decide questions of law, not

questions of fact. The parties continue to disagree over what really happened. But “we must

ignore the defendant[s’] attempts to dispute the facts and nonetheless resolve the legal

issue[s] . . . .” Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018) (internal quotation

marks omitted). In doing so, we accept Rudolph’s “version of the facts” and draw all inferences

in her favor. Scott v. Harris, 550 U.S. 372, 378 (2007).

A. Mental-Health Seizure

Rudolph alleges that the officers violated her Fourth Amendment rights when they

executed a mental-health seizure. In denying qualified immunity to Officers Babinec and

Atkinson, the district court reasoned that “[t]he general level of uncertainty surrounding the

veracity of [Kyle’s] account as well as the disparate testimony about Plaintiff’s subsequent

interaction with the officers are questions of fact bearing on the probable cause issue . . . .” R. 57

(Dist. Ct. Op.) (Pg. ID 1039). We agree. Although the officers had a reason to show up at

Rudolph’s door for a wellness check, a jury could reasonably find that the officers lacked

probable cause when they executed this mental-health seizure.

It is clearly established law “that in the context of a mental health seizure an officer must

have probable cause to believe that the person seized poses a danger to [her]self or others.”

Fisher v. Harden, 398 F.3d 837, 842 (6th Cir. 2005). “A showing of probable cause in the

mental health seizure context requires only a ‘probability or substantial chance’ of dangerous

behavior, not an actual showing of such behavior.” Id. at 843 (quoting Monday v. Oullette,

118 F.3d 1099, 1102 (6th Cir. 1997)). If probable cause exists, a person’s denial that they are at

risk of suicide does not by itself eliminate that probable cause. See Ziegler v. Auckerman,

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512 F.3d 777, 779 nn.1–3, 784 (6th Cir. 2008) (granting qualified immunity even though

plaintiff denied making any suicidal comments, and “plaintiff allegedly suffer[ed] from a mental

illness that prevent[ed] her from realizing her own need for treatment.”). Further discussion of

Fisher and Monday reveals another significant point in the analysis for mental-health seizures:

whether a reasonable officer would question the veracity of a suicide report based on the facts at

the scene of the wellness check that is done in response to the suicide report.

The Fisher court held that the officers lacked probable cause to believe that the plaintiff

was a danger to himself or others. 398 F.3d at 843. In that case, an unrelated third party

reported that a man had tied himself to railroad tracks and might be attempting to commit

suicide. Id. When the officers arrived at the scene, however, the facts “would have caused a

reasonable officer to question the veracity of the attempted suicide report.” Id. Among these

were the fact that the plaintiff readily complied with the officers’ commands to walk toward

them, indicating that he was not tied to the railroad tracks; the plaintiff had a hunting rifle, and he

complied with the officers’ command to drop the gun; the plaintiff was dressed in hunting attire;

and the plaintiff exhibited no other suspicious or threatening behavior. See id. at 843–44. The

officers, meanwhile, “never questioned [the plaintiff] to determine if he might be depressed and

attempting to commit suicide.” Id. at 843. Therefore, although the officers had reason to arrive

at the scene based on the attempted-suicide report, once they arrived the facts did not give rise to

probable cause to execute a mental-health seizure.

By contrast, in Monday, the facts at the scene aligned with the suicide report, and the

court held that the officer had probable cause to believe that the plaintiff would harm himself.

118 F.3d at 1102. There, an officer responded to a report from a third-party mental-

health professional that the plaintiff may have been at risk of injuring or killing himself. Id. at

1101–02. The report indicated that the plaintiff “was upset over a divorce and had ingested some

pills and was drinking alcohol in an effort to commit suicide.” Id. at 1102. Then, upon arrival,

the officer observed that “plaintiff in fact was drinking alcohol and appeared intoxicated and

depressed. A count of his Xanax pills by the officer[] revealed that at least twenty were

missing.” Id. Based on these facts at the scene, the officer could reasonably conclude that “an

No. 18-1901 Rudolph v. Babinec, et al. Page 6

unacceptable risk remained that plaintiff was deceiving him in order to attain his apparently

declared goal of committing suicide.” Id. at 1103 (collecting cases).

This case falls more on the Fisher side of the line. A review of the facts provides a basis

for the officers to have arrived at Rudolph’s house to check on her. Upon arrival, however, the

totality of the circumstances “would have caused a reasonable officer to question the veracity of

the attempted suicide report.” Fisher, 398 F.3d at 843. Or at least a jury could see this case that

way, and consequently a jury reasonably could determine that the officers lacked probable cause.

We start with the traffic stop of Rudolph’s ex-husband. Officer Hodges pulled over Kyle

for speeding, and he then observed that Kyle exhibited some signs of intoxication. When Officer

Hodges asked Kyle to step out of the vehicle for sobriety tests, Kyle then pulled out the .22

caliber pistol and said he took it from his ex-wife and that she was intoxicated. Importantly,

there is a question of fact whether Kyle stated that Rudolph was suicidal,2 and there is no

evidence that Kyle requested the officers to check on Rudolph. See, e.g., Fisher, 398 F.3d at 843

(a third party called the police to report a suspected suicidal person); Monday, 118 F.3d at 1101–

02 (same); Gooden v. Howard County, 954 F.2d 960, 967 (4th Cir. 1992) (en banc) (same). Kyle

also showed Officer Hodges some ambiguous text messages. R. 53-3 (Incident Rep.) (Pg. ID

182) (noting a 1:06 AM text stating “good bye,” and a text from Rudolph’s son stating “she has

the .22 out will you go over there”). To be sure, a reasonable officer would have some reason to

be concerned about Leticia Rudolph given these facts—mainly, the son’s text and her alleged

intoxication. But a reasonable officer also would have thought that it is possible the ex-husband

was trying to use his ex-wife to get out of his receiving a ticket. After all, in cases like Monday

and Fisher (and many others), someone affirmatively requested the police to check on the

potentially suicidal person; here, however, an ex-husband (not a current spouse) made no such

2Compare R. 53-3 (Incident Rep.) (Pg. ID 182) (noting Kyle said that Rudolph was suicidal), with R. 54-3

(Kyle Rudolph Dep.) (Pg. ID 619) (Kyle testifying that he does not remember whether he said that Rudolph was

suicidal), id. (Pg. ID 628–29) (“I really just wanted to go back home and go to bed, so. . . . You know, she was

intoxicated and so I just was going to take [the gun] and go home.”), and id. (Pg. ID 644) (Q: “Do you recall ever

recommending at any point during the conversation that you should take her to the hospital [be]cause you were

concerned for her life?” A: “No.”). See also R. 57 (Dist. Ct. Op.) (Pg. ID 1039) (“The general level of uncertainty

surrounding the veracity of [Kyle’s] account as well as the disparate testimony about Plaintiff’s subsequent

interaction with the officers are questions of fact bearing on the probable cause issue, and the function of the district

court is not to determine the truth of the matter.”).

No. 18-1901 Rudolph v. Babinec, et al. Page 7

request, and he did not reveal that his ex-wife was supposedly suicidal until only after he himself

had a run-in with the police.

Then Officers Babinec and Atkinson drove to Rudolph’s house because of their concern

for her wellbeing. They knocked on the door, but no one responded (and recall, it is after 3:00

A.M. at this point). So the officers contacted Officer Hodges, who had followed Kyle back to

his residence, to have Kyle call Rudolph. Kyle complied, and once Rudolph answered, Kyle

handed the cellphone, which was on speaker phone, to Officer Hodges. Rudolph stated that she

was sleeping. (Yet Officer Hodges apparently failed to mention this fact to Officers Babinec and

Atkinson.) At this point, one begins to realize it is likely that Rudolph simply got drunk and fell

asleep after Kyle left, and Rudolph perhaps did something dumb if she drank alcohol while

cleaning her gun—but that is a far cry from being suicidal.

The phone call succeeded in getting Rudolph to answer the door, at which point Officers

Babinec and Atkinson immediately entered her home without her permission. See R. 54-5

(Babinec Dep.) (Pg. ID 693–94). The officers observed that Rudolph in fact appeared to be

intoxicated, but she denied being suicidal and stated that she was cleaning her gun. The record

does not indicate that the officers otherwise asked Rudolph whether she attempted to harm

herself without the gun (perhaps with a knife or pills), why she did not answer the door, why her

son might have been concerned about her, or whether she had kids in the house, nor did they ask

if they could breathalyze her. Indeed, the record is devoid of any mention from the officers that

they thought Rudolph might overdose on drugs or have drunk alcohol to the point of risking

death. See Simon v. Cook, 261 F. App’x 873, 880 (6th Cir. 2008) (“Unlike the officers in Fisher,

[the officer in this case] questioned and observed [plaintiff] at length.”); Monday, 118 F.3d at

1102–03; Harris v. Pirch, 677 F.2d 681, 689 (8th Cir. 1982) (based on the fact that plaintiff had

been recently hospitalized, was upset when the officer arrived, and showed the officer a partially

empty bottle of pills, the court held the officer “had reasonable cause to believe that [plaintiff]

had attempted to overdose.”).

The officers thus apparently executed this mental-health seizure because they determined

that Rudolph’s intoxication alone provided support for her ex-husband’s alleged assertion that

she was suicidal. See, e.g., R. 54-4 (Atkinson Dep.) (Pg. ID 674). That is an unreasonable

No. 18-1901 Rudolph v. Babinec, et al. Page 8

logical leap. Cf. People v. Triplett, 192 Cal. Rptr. 537, 541 (Cal. Ct. App. 1983) (defendant’s

“intoxication and weeping standing alone would not justify detention under [a California

statute],” but the officer had probable cause to detain a woman because of “these symptoms

coupled with obvious physical signs of a recent suicide attempt”), accord Gooden, 954 F.2d at

967 (holding that officers were entitled to qualified immunity when a woman was screaming and

whose condition had caused another person to twice call the officers to the scene). Given the

totality of the circumstances, Rudolph’s intoxication standing alone cannot provide a basis to

support her ex-husband’s supposed statement that she was suicidal.

Without any further evidence at the scene of the wellness check or inquiry into whether

Rudolph tried to harm herself, the officers therefore lacked probable cause to execute this

mental-health seizure. It is undoubtedly dangerous for a person to clean her gun while drinking

an excessive amount of alcohol, and if Rudolph had been doing that when the officers arrived,

then they would have probable cause to believe that Rudolph was a danger to herself. But

everyone in this case was concerned only about the gun, which had been taken away from

Rudolph.3 Once the danger—i.e., the gun—was removed from the equation, there was no longer

an unacceptable risk of Rudolph harming herself. Unless, of course, she exhibited suicidal

behavior. But without the gun, what is left to support probable cause at the scene of the wellness

check that Rudolph was suicidal? Based on this record and in the light most favorable to the

plaintiff, we do not see much of anything.

Critically, the “touchstone of the Fourth Amendment is reasonableness. But this standard

does not become more forgiving as the quality of evidence (or of police work) decreases.” King

v. United States, 917 F.3d 409, 426 (6th Cir. 2019) (internal quotation marks and citation

omitted). “Rather, as the” alleged assertion by an ex-husband that his ex-wife is suicidal

“becomes less reliable . . . an officer’s reliance on that [assertion] becomes objectively less

reasonable and less likely to support a” mental-health seizure. See id. That was the case here, as

3See R. 54-3 (Kyle Rudolph Dep.) (Pg. ID 628–29); id. (Pg. ID 619); id. (Pg. ID 644); R. 54-4 (Atkinson

Dep.) (Pg. ID 673–74) (stating that “given the time of the . . . night . . . it seemed a little out of the ordinary [to be

cleaning a gun],” and that there were no other statements on the scene that would indicate Rudolph needed to be

taken in for a mental-health exam); id. (Pg. ID 674) (Q: “Other than that, any other statements?” A: “Just the odor

of intoxicants that I got from her during her statement.”); R. 54-5 (Babinec Dep.) (Pg. ID 693) (Q: “Were you

concerned that she had other weapons?” A: “Wasn’t really a thought.”).

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it was similarly the case in Fisher: As the events unfolded, the officers’ reliance on the initial

attempted-suicide report became less reasonable—so much so that a jury could reasonably

conclude that a reasonable officer lacked probable cause to support the mental-health seizure.

See Jacobs v. Alam, 915 F.3d 1028, 1041 (6th Cir. 2019) (explaining that “just because we must

look at the circumstances through the eyes of a reasonable officer does not mean . . . that we

must accept the officers’ subjective view of the facts when making this assessment. Given the

interlocutory nature of this appeal, rather, we must conduct the reasonable officer analysis using

the facts in the light most favorable to plaintiff.”).

The district court questioned Kyle’s credibility in this case, and a reasonable officer

would certainly have reason to be at least a little suspicious of his assertions. Moreover,

Rudolph did not otherwise exhibit any signs during the wellness check that would provide an

arguable basis to confirm the alleged assertion that she was suicidal. Individuals become

intoxicated late at night in their own homes all the time. Put simply, that alone cannot provide a

basis for a mental-health seizure. All that remains are Rudolph’s ex-husband’s statements and a

text from her son that he is concerned about a gun (which had been removed). Once the officers

arrived, however, they were apparently there for the sole purpose of executing a mental-health

seizure (not to determine whether she was going to harm herself), and there are no circumstances

that could have changed their decision to seize Rudolph. Based on the circumstances at least, a

jury could see it that way.

Finally, the officers were under no legal duty to intervene, DeShaney v. Winnebago Cty.

Dep’t of Soc. Servs., 489 U.S. 189, 196–97 (1989), though the law surrounding mental-health

seizures encourages them to do so. Once officers decide to intervene, however, certain

constitutional requirements kick in—in this case, the officers needed probable cause to believe a

person was suicidal. Although qualified immunity grants officers leeway for mistakes on

probable-cause determinations, based on the facts of this case, the probable-cause question is

better left to the jury.

Officers Babinec and Atkinson are not entitled to qualified immunity on this claim.

No. 18-1901 Rudolph v. Babinec, et al. Page 10

B. Handcuffing

Rudolph alleges that the officers used excessive force when they handcuffed her too

tightly. The Fourth Amendment prohibits excessive force when arresting someone, which

includes “unduly tight handcuffing.” Lyons v. City of Xenia, 417 F.3d 565, 575 (6th Cir. 2005);

Walton v. City of Southfield, 995 F.2d 1331, 1342–44 (6th Cir. 1993), superseded by statute on

other grounds as recognized in Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th

Cir. 2007). Rudolph demonstrated the three elements needed to make out an excessive-

handcuffing claim: (1) she complained that the handcuffs were too tight, (2) the officers ignored

her complaints, and (3) she suffered “some physical injury” from the handcuffing. Miller v.

Sanilac County, 606 F.3d 240, 252 (6th Cir. 2010) (citation omitted). And a reasonable officer

would have known that Rudolph had a clearly established right not to be subject to excessive

handcuffing. See, e.g., Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401–04 (6th Cir.

2009). So Officers Babinec and Atkinson are not entitled to qualified immunity from this claim.

The officers, however, argue that Miller demonstrates that even under Rudolph’s version

of the facts, they did not violate clearly established law. But Miller is inapposite. There, the

plaintiff did not complain about the tightness of the handcuffs until he arrived at the jail, at which

point the handcuffs were removed. Miller, 606 F.3d at 252. Here, Rudolph alleges that she

complained when Officers Babinec and Atkinson first put on the handcuffs, continued to

complain on the way to the hospital, and stopped complaining only when the officers finally

removed the handcuffs. At this stage, we must accept Rudolph’s testimony, so Miller is

distinguishable.

Officers Babinec and Atkinson also argue that the handcuffs were on Rudolph for too

little time to constitute excessive force—in other words, as a matter of law, Rudolph has nothing

to complain about. The officers propose a bright line rule: ten minutes of handcuffing is not

long enough for excessive force. And in a prior case, albeit unpublished, we noted that simply

complaining during a ten-minute car ride was not enough to state a claim. Fettes v. Hendershot,

375 F. App’x 528, 533–34 (6th Cir. 2010). But Fettes did not set a bright-line rule. Instead, it

noted that during a short trip, where officers adhere to police protocol and act reasonably, they

cannot be held liable. Id. Conduct, not time, is the measurement of a violation. To see why,

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imagine that someone was handcuffed so tightly that she was bleeding from her wrists and

screaming in pain while an officer ignored the complaint. The law would not require us to

ignore that excessive force claim because the bleeding went on for ten minutes instead of eleven.

Rather than specific time limits, what matters in an excessive force claim is whether the Miller

requirements—complaint, ignoring of complaint, and injury—are met, and whether the officers

acted reasonably in the circumstances. 606 F.3d at 252; see also Graham v. Connor, 490 U.S.

386, 388 (1989) (noting that all excessive force claims must be considered under an “objective

reasonableness” standard).

In any case, Rudolph says she was handcuffed for longer than ten minutes. The officers

say Rudolph “acknowledged that she was only handcuffed for 10 minutes.” Appellant Br. at 18.

Not so. Rudolph acknowledges that the drive to the hospital lasted ten minutes. But she alleges

she was handcuffed before the ride to the hospital, and the handcuffs were not removed until

after she got there—she says the total time was thirty minutes. To back up this claim, she notes

that the officers arrived at her house at 3:24 A.M., and she was seen at the hospital at 3:54 A.M.

So even if Officers Babinec and Atkinson were right that ten minutes in handcuffs is too short as

a matter of law, Rudolph alleges that she was handcuffed for longer. And at this stage of the

proceedings, we accept her version of the facts as true. See Scott, 550 U.S. at 378. Under that

version of the facts, Rudolph told the officers the handcuffs were too tight and that they were

hurting her, and the officers “[d]idn’t say anything at all[.]” R. 54-2 (Leticia Rudolph Dep.) (Pg.

ID 571). In fact, no one ever adjusted the handcuffs. So the officers violated Rudolph’s clearly

established right to be free from too-tight handcuffing by unreasonably ignoring her repeated

complaints.

Finally, Officers Babinec and Atkinson say that Rudolph has failed to provide enough

evidence to prove that they violated her right against excessive handcuffing. According to them,

Rudolph provided only a “subjective assessment” of her injury. Appellant Br. at 16–18. They

are incorrect. True, a subjective recounting of pain without some corroboration is not enough.

See Miller, 606 F.3d at 252. But Rudolph provided photos she took one day after the incident,

showing the injuries on her hands, wrists, and arms. And a picture is often worth a thousand

No. 18-1901 Rudolph v. Babinec, et al. Page 12

words. The pictures coupled with her testimony suffice at this stage to withstand a qualified

immunity challenge.

C. Other Excessive Force

Rudolph also alleges that the officers used excessive force when they pushed her against

the wall and dragged her to the police car. The right to be free from excessive force during an

arrest is clearly established. Kostrzewa v. City of Troy, 247 F.3d 633, 641–42 (6th Cir. 2001).

But not every use of force violates the Constitution. Police officers may “use some degree of

physical coercion or threat thereof to effect [an arrest].” Id. at 639 (citation omitted). That force

must be objectively reasonable, judged “from the perspective of a reasonable officer on the

scene.” See Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008) (citation omitted); see also

Kostrzewa, 247 F.3d at 639 (explaining that the force should be considered in the context of the

arrest scene, not “the peace of a judge’s chambers” (citation omitted)). The Supreme Court has

urged “careful attention to the facts and circumstances of each particular case” but noted two

factors to guide our inquiry: (1) “whether the suspect poses an immediate threat to the safety of

the officers or others,” and (2) “whether [she] is actively resisting arrest or attempting to evade

arrest by flight.” Graham, 490 U.S. at 396.

Officers Babinec and Atkinson argue that, even taking the facts as Rudolph alleges them,

their use of force was objectively reasonable. They provide four reasons why that is so: (1) they

believed Rudolph was intoxicated; (2) she did not answer the door when they first knocked

between 3:00 A.M. and 4:00 A.M.; (3) she denied being suicidal; and (4) she moved away from

Officer Babinec when he first tried to handcuff her.

Those reasons are not enough. The officers are asking us to weigh their evidence over

Rudolph’s. This we cannot do. Construing the facts in Rudolph’s favor, the officers slammed

her face and body into a wall, pulled her out of her house, and dragged her down a long driveway

so roughly that she needed multiple surgeries. And all this even though she alleges that she

complied with their orders, was not attempting to flee, and in that moment posed no apparent

threat to herself or others. Our court has found excessive force in analogous cases. Solomon v.

Auburn Hills Police Dep’t, 389 F.3d 167, 173–75 (6th Cir. 2004) (denying qualified immunity

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for excessive force claim where officers tried to knock a woman down with a leg sweep, shoved

her against a display case, and yanked her arm so hard it fractured—even though she was

compliant). In Solomon, the plaintiff even “admitted that she pulled her arms together as the

officers seized her to avoid the officers’ attempt to handcuff her,” id. at 176 (Rogers, J.,

dissenting), while Rudolph denies anything of the sort. The officers are not entitled to qualified

immunity.

III. STATE-LAW CLAIMS & MICHIGAN GOVERNMENTAL IMMUNITY

Rudolph alleges that the officers violated Michigan state law when they seized her and

took her involuntarily to the hospital. The district court denied the officers immunity under

Michigan law. Our court has held that a denial of Michigan governmental immunity may be

immediately appealed. Kindl v. City of Berkley, 798 F.3d 391, 403 (6th Cir. 2015); Smith v.

County of Lenawee, 600 F.3d 686, 689 (6th Cir. 2010) (“[T]his court has consistently . . .

allowed interlocutory appeals to be taken from orders granting or denying governmental

immunity under [Mich. Comp. Laws] § 691.1407.”). So we review the denial de novo and, as

above, draw reasonable inferences in favor of Rudolph. Kindl, 798 F.3d at 403.

The district court applied the wrong legal standard when it analyzed this claim. The

district court resolved this claim based on the lack of objective probable cause for Rudolph’s

mental-health seizure. But since Rudolph brought these claims under Michigan law, the usual

objective reasonableness standard is not relevant here. Though federal law usually examines

whether the officers had probable cause or reasonably could have believed that they did,

Michigan law asks a different question: whether the arrest was “undertaken in good faith, or

w[as] not undertaken with malice . . . .” Odom v. Wayne County, 760 N.W.2d 217, 228 (Mich.

2008). Thus, the question is whether the officers showed “malicious intent, capricious action or

corrupt conduct” or “conduct or a failure to act that was intended to harm the plaintiff [or] . . .

that shows such indifference to whether harm will result as to be equal to a willingness that harm

will result.” Id. at 225 (citation and internal quotation marks omitted).

Rudolph has not alleged such malice. Instead, she rests her argument on the lack of

probable cause, further arguing that the officers were “blatantly indifferent” to that fact.

No. 18-1901 Rudolph v. Babinec, et al. Page 14

Appellee Br. at 41–42; id. at 41 (“Defendants-Appellants still unlawfully and falsely arrested

Plaintiff-Appellee and transported her to a hospital for an unnecessary medical evaluation against

her will though she had committed no crimes and did not pose an immediate threat of danger to

herself or others.”). But the absence of probable cause does not automatically lead to malice,

and Rudolph alleged no facts to support her bare conclusion that the officers acted with malice.

The closest Rudolph comes to showing bad faith is pointing to Officer Babinec’s testimony that

he never inquired if there were any other weapons in Rudolph’s home, and he admitted that it

was not a concern to him at the time. This failure to inquire further does not rise to the level of

“wantonness or a reckless indifference to the common dictates of humanity.” Odom,

760 N.W.2d at 225 (emphasis omitted) (quoting Firestone v. Rice, 38 N.W. 885, 888 (Mich.

1888)). Thus, we reverse the district court’s denial of Michigan governmental immunity.

IV. CONCLUSION

We AFFIRM the district court’s denial of summary judgment on Rudolph’s claims of an

unlawful mental-health seizure, excessive force for too-tight handcuffing, and excessive force

during the seizure. We REVERSE the district court’s denial of summary judgment on

Rudolph’s state-law claim of false arrest and imprisonment.

No. 18-1901 Rudolph v. Babinec, et al. Page 15

__________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

__________________________________________________________

THAPAR, Circuit Judge, concurring in part and dissenting in part. To get the right

answer, we must ask the right question. For qualified immunity, the right question is not

whether Officers Babinec and Atkinson took the best possible course of action when they

brought Leticia Rudolph to the hospital for a mental health evaluation. The right question is not

even whether they were correct to fear that Rudolph might harm herself. Instead, the right

question is whether the officers were “plainly incompetent” in fearing that Rudolph might harm

herself. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). They were not.

Though the parties tell different stories, the core facts underlying the seizure are

uncontested. The officers pulled Kyle Rudolph over for speeding. He admitted to carrying a gun

and told the officers that he took the gun from Rudolph “so she wouldn’t harm herself.” R. 53-4,

Pg. ID 204. The officers also recall him saying that Rudolph was suicidal.1 Kyle Rudolph then

showed Officer Hodges text messages from both Rudolph’s son and Rudolph herself suggesting

she might be at risk. Finally, the officers found Rudolph intoxicated. So the officers knew that

(1) close family members were worried that Rudolph might harm herself, (2) one family member

was so worried that he had taken away Rudolph’s registered weapon at the request of another

concerned family member, and (3) Rudolph was intoxicated. Given these facts, an officer in the

field could have reasonably concluded that Rudolph might harm herself.

The law is also clear. First, we must view these facts in totality, not in isolation. See

Wesby, 138 S. Ct. at 588–89. It is all too easy to “identif[y] innocent explanations” for specific

facts. Id. at 589. But this kind of “divide-and-conquer approach is improper.” Id. Second,

when it comes to probable cause, we deal in “probabilities,” not certainties. Id. at 586

1Although Kyle Rudolph does not recall saying that Rudolph was suicidal, that is of no moment for

summary judgment purposes. A mere memory lapse does not discredit the officers’ testimony; Rudolph cannot

“beat something with nothing.” Wysong v. City of Heath, 260 F. App’x 848, 858 (6th Cir. 2008). And even if Kyle’s

forgetfulness cast doubt on the officers’ story, it would not matter because “discredited testimony is not [normally]

considered a sufficient basis for drawing a contrary conclusion.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256–57 (1986) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984)).

No. 18-1901 Rudolph v. Babinec, et al. Page 16

(“Probable cause is not a high bar.” (internal quotation marks omitted)). And third, we are

ultimately trying to determine whether, given the undisputed facts, the officers were “plainly

incompetent” when they concluded that Rudolph might harm herself. Id. at 589. They were not.

The majority missteps because it takes undisputed facts—the texts—and construes them

in isolation and in a particular light. But if facts are undisputed, the question is not whether we

can think of an alternative, innocent explanation. The question is whether any reasonable officer

could draw a different inference without crossing into plain incompetence. See id. at 587 (asking

whether “[a] reasonable officer could infer” a conclusion from the undisputed facts). Take

Rudolph’s text “Good bye.” No one disputes the officers saw it. Rather, the dispute is how a

reasonable officer could understand those words given the circumstances. Could they construe it

as good riddance? Sure. But was it unreasonable for the officers to worry the text meant

goodbye forever? No. Given the information known to the officers—that Rudolph’s gun had

been confiscated, that her own son was concerned, and that her ex-husband told the officers that

Rudolph might harm herself—the officers were not plainly incompetent to err on the side of

caution.

In addition, while intoxication alone means little, it means much more given the

surrounding facts. Id. at 588 (“Our precedents recognize that the whole is often greater than the

sum of its parts—especially when the parts are viewed in isolation.”). No one can dispute that

intoxicated people make detrimental choices they otherwise would not make if they were sober.

So the officers were surely reasonable in concluding that Rudolph’s intoxication heightened the

risk of harm.

Nor does it matter that the officers relied on family members rather than a medical

professional to determine that Rudolph was at risk. Officers do not have the luxury of consulting

a mental health professional when they are deciding whether to take someone to a mental health

professional. See, e.g., Simon v. Cook, 261 F. App’x 873, 874, 877, 881 n.4 (6th Cir. 2008).

After all, the officers took Rudolph to see a medical professional, not to jail.

Qualified immunity grants police officers leeway to exercise reasonable judgment.

Sometimes that judgment will mean the difference between life and death. For this reason, the

No. 18-1901 Rudolph v. Babinec, et al. Page 17

Supreme Court has “stressed that the specificity of the [clearly established] rule is especially

important in the Fourth Amendment context.” Wesby, 138 S. Ct. at 590 (internal quotation

marks omitted). In Fourth Amendment cases, it is especially difficult for an officer to apply the

relevant legal doctrine to the ongoing situation in front of him. Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018). Thus, the Supreme Court has repeatedly “stressed the need to identify a case

where an officer act[ed] under similar circumstances” and was found to violate the Fourth

Amendment. Wesby, 138 S. Ct. at 590 (emphasis added) (internal quotation marks omitted).

The Majority Opinion has not identified such a case. It notes instead that this case “falls

more on the Fisher side of the line.” Majority Op. at 6 (citing Fisher v. Harden, 398 F.3d 837

(6th Cir. 2005)). That is a far cry from identifying a specific case with similar circumstances that

would give an officer fair notice. Wesby, 138 S. Ct. at 590; see also Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011) (warning courts “not to define clearly established law at a high level of

generality”; what matters is “whether the violative nature of particular conduct is clearly

established” (emphasis added)). But even if falling more on one side of a line were enough,

I respectfully disagree that this case is like Fisher. In Fisher, an unrelated passerby called the

police because they thought a man 250 yards in the distance might be attempting suicide by tying

himself to the railroad tracks. Fisher v. Harden, 398 F.3d 837, 840 (6th Cir. 2005). Because the

tip lacked veracity, this circuit held the officers did not have probable cause for a mental health

seizure. Id. at 843. Here, by contrast, the concern came not from a random passerby far in the

distance, but from two family members who knew Rudolph very well, including her own son.

A reasonable officer would not have read Fisher to prohibit reliance on concern from family

members. See Wesby, 138 S. Ct. at 590; al-Kidd, 563 U.S. at 742. So it did not provide fair

notice to the officers here.

Courts must remember that law enforcement officers must protect the public in an

uncertain and dangerous world, not the cold crucible of the courtroom. See City & Cty. of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1775 (2015); Cole v. Carson, No. 14-10228, 2019 WL

3928715, at *22 (5th Cir. Aug. 21, 2019) (en banc) (Ho, Oldham, JJ., dissenting) (noting that

most judges have not experienced the real-world difficulties of policing). In that world, officers

don’t have time to debate whether the emergency in front of them falls “more on [one] side of

No. 18-1901 Rudolph v. Babinec, et al. Page 18

the line” of precedent than another. Majority Op. at 6. Indeed, the specificity requirement of

qualified immunity protects officers from this very paralysis by analysis. As the Supreme Court

repeatedly reminds us, “[a] rule is too general if the unlawfulness of the officer’s conduct does

not follow immediately.” Wesby, 138 S. Ct. at 590 (emphasis added) (quotation marks and

citations omitted). In short, the rule must “obviously resolve whether the circumstances

. . . constitute[d] probable cause.” Id. The majority’s “which side of the line rule” simply does

not.

One need only consider some examples to see the importance of this point. Imagine the

police receive a tip from a man’s ex-wife and daughter saying they confiscated his weapons

because they feared he would commit a mass shooting. His family members were worried about

his mental state and believed him to be at risk of violence. Surely the police should not refrain

from taking the man in for a mental health evaluation just because the concern came from family

members alone. Or imagine that a man’s children tell police officers on the street that they are

worried their father might hurt their mother because he is having flashbacks that cause him to

lash out violently. When the officers arrive at the home, they find the man intoxicated, though

he denies that there is any problem. Should the officers really take a chance in that situation?

Qualified immunity exists to insulate these difficult judgment calls. We would all be ill-served if

it did not.

I fear we have placed officers in an untenable catch-22. No doubt, if the officers here had

failed to act and were wrong, they would have faced significant criticism and personal guilt.

Maybe even legal consequences. Qualified immunity does not enforce a regime of “damned if

they do, damned if they don’t.” Just the opposite. It protects reasonable but mistaken judgment

calls made in extremely difficult situations. Because the officers could have reasonably believed

that they had probable cause for a mental health seizure under these facts, they should receive

qualified immunity. Thus, I respectfully dissent from the denial of qualified immunity for the

mental health seizure and concur on all other issues.