“By September 2017, it was clearly established in this circuit that a person has constitutional right to be free from injury-threatening physical force when he or she is not actively resisting the police.”
How later courts described this case
- “By September 2017, it was clearly established in this circuit that a person has constitutional right to be free from injury-threatening physical force when he or she is not actively resisting the police.”
- “[A] person’s non-compliance with officer’s directions may rise to the level of active resistance when combined with ‘verbal hostility’ or ‘a deliberate act of defiance.’”
Written by the judges who cited it.
The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0039p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
LINDA MOSER,
│
Plaintiff-Appellant, │
> No. 21-5162
│
v. │
│
ETOWAH POLICE DEPARTMENT, │
Defendant, │
│
│
CITY OF ETOWAH, TENNESSEE; TIM DAVIS, JR., │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 1:18-cv-00225—Charles Edward Atchley, Jr., District Judge.
Argued: October 27, 2021
Decided and Filed: March 3, 2022
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: H. Franklin Chancey, CHANCEY – KANAVOS, Cleveland, Tennessee, for
Appellant. Philip Aaron Wells, ROBINSON, SMITH & WELLS, PLLC, Chattanooga,
Tennessee, for Appellee City of Etowah, Tennessee. Benjamin K. Lauderback, WATSON,
ROACH, BATSON & LAUDERBACK, P.L.C., Knoxville, Tennessee, for Appellee Tim Davis,
Jr. ON BRIEF: H. Franklin Chancey, CHANCEY – KANAVOS, Cleveland, Tennessee, for
Appellant. Philip Aaron Wells, Ronald D. Wells, ROBINSON, SMITH & WELLS, PLLC,
Chattanooga, Tennessee, for Appellee City of Etowah, Tennessee. Benjamin K. Lauderback,
WATSON, ROACH, BATSON & LAUDERBACK, P.L.C., Knoxville, Tennessee, for Appellee
Tim Davis, Jr.
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. Plaintiff Linda Moser claims that a police officer used
excessive force on her when she was trying to tell another officer that he was arresting the wrong
person. Her daughter, Johnnie Moser, had fled to a neighbor’s house one night after Johnnie
Moser’s boyfriend physically assaulted Johnnie. Officers Tim Davis and Austin Parton were
investigating at the neighbor’s house when Linda Moser approached, visibly upset and worried
about the condition of her daughter. Parton observed Johnnie Moser’s boyfriend following
behind Linda Moser and moved to arrest him. Linda Moser began shouting that Parton had the
wrong man and touched Parton’s arm. At this point, Officer Davis stepped onto the porch,
grabbed Linda Moser, took her to the ground, and then pinned her there, which resulted in a
fractured hip and femur. Linda Moser brought this action against Davis and the City of Etowah.
The district court granted the defendants’ motion for summary judgment. Viewing the facts in
the light most favorable to Moser, however, Davis violated her clearly established right to be free
from injury-threatening physical force when not actively resisting an arrest.
Plaintiff Linda Moser lived with her daughter Johnnie Moser. One night in September
2017, Johnnie Moser fled to a neighbor’s house after Johnnie’s boyfriend, James Ferguson,
physically assaulted Johnnie. The neighbor, Charles Bearden, reported the domestic violence to
the police, and Officers Tim Davis and Austin Parton from the Etowah Police Department were
the first to arrive at Bearden’s house. Parton spoke with Johnnie Moser and Bearden to gather
information about the incident, and Davis conducted a sweep of the outside of Bearden’s house
to look for the suspect. Johnnie Moser identified Ferguson as her assailant and gave Parton a
physical description of Ferguson.
Back at the Mosers’ house, Ferguson entered Linda Moser’s bedroom, woke her, and
asked for Johnnie Moser’s keys. Ferguson told Linda Moser that her daughter had run off, and
Linda Moser immediately got up and ran outside looking for her daughter. Linda Moser ran
toward Bearden’s house after spotting an ambulance headed in that direction. Ferguson followed
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 3
Linda Moser to Bearden’s house and, when they both reached the porch of the house, Officer
Parton recognized Ferguson as the individual that Johnnie Moser had identified as her assailant.
Parton also observed that Linda Moser was visibly upset and attempted to calm her down
by telling her that her daughter was okay. Parton directed Moser to take a seat on the porch
while she waited to see her daughter, but Moser did not comply with these directions. Having
recognized Ferguson as the assailant, Parton stepped toward Ferguson and told him to turn
around and place his hands behind his back. When Parton moved to detain Ferguson, Moser
shouted “no” repeatedly, told the officers to leave Ferguson alone because he had not done
anything, and stated that Ferguson was with her. Officer Davis was standing out in the yard
observing the situation and began moving toward the porch as Moser started yelling. While
Parton was attempting to detain Ferguson, Moser placed a hand on Parton. A firefighter on the
porch moved toward Moser, presumably to separate her from Parton. Davis then stepped onto
the porch, grabbed Moser, and took her to the ground on the porch. Davis stated repeatedly “you
don’t grab my guy.” The body-camera footage does not clearly depict how Davis took Moser to
the ground, but Moser claims that Davis grabbed her hair and threw her to the ground. Moser
immediately stated that she was hurt.
Moser claims that, once Davis took her to the ground on the porch, he placed his knee on
her back and applied his full weight to pin her down. The body-camera footage indicates that
Davis could have kneeled on Moser for up to twenty-three seconds, and the footage does not
clearly contradict Moser’s claim that Davis kneeled on her. Despite this ambiguity in the body-
camera footage, Davis asserts that the footage proves he did not press his torso on Moser and that
he therefore could not have placed his full body weight on her. But the body-camera footage
shows a shadow of Davis’s figure that could depict him putting his leg or knee on Moser. Exh.
5, 10:41. Moser remained on the ground until she went to the hospital. At the hospital, Moser
learned that she had a fractured hip and femur.
Moser was ultimately charged with, and pleaded guilty to, interfering with the arrest of
another in violation of Tenn. Code Ann. § 39-16-602. Moser brought this action against the
Etowah Police Department, Tim Davis, Austin Parton, Chief Armstrong, and the City of Etowah,
alleging a variety of claims. The parties agreed to dismiss all of the defendants except Davis and
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 4
the City of Etowah. The district court granted summary judgment to Davis and the City of
Etowah for all claims against them. In relevant part, the district court ruled that neither taking
Moser to the ground nor pinning her to the ground amounted to excessive force because Moser
was actively interfering with Parton’s attempt to arrest Ferguson. In the alternative, the district
court ruled that Davis was entitled to qualified immunity because it was not clearly established
that either action constituted excessive force. Having concluded that Moser failed to state a
constitutional violation for the use of excessive force, the district court granted summary
judgment to the City of Etowah on the municipal-liability claim because Moser had not
established an underlying constitutional claim. Moser appeals the district court judgment as to
her excessive-force claim and her municipal-liability claim.
On appeal, we consider Moser’s allegations as one excessive-force claim because Davis’s
actions cannot be meaningfully separated into two distinct uses of force. When Davis decided to
intervene on the porch, he took Moser to the ground, and he immediately pinned her to the
ground. Exh. 5, 10:29–10:50. In other words, Davis’s alleged kneeling on Moser was
effectively a continuation of his efforts to bring Moser to the ground. To be sure, we typically
analyze “the subject event in segments when assessing the reasonableness of a police officer’s
actions.” Barton v. Martin, 949 F.3d 938, 952 (6th Cir. 2020) (quoting Morrison v. Bd. of Trs. of
Green Twp., 583 F.3d 394, 401 (6th Cir. 2009)). On the other hand, however, we have
considered immediately consecutive uses of force as one excessive-force claim when the plaintiff
asserted that the uses of force were excessive for the same reasons. See Rudlaff v. Gillispie,
791 F.3d 638, 641 (6th Cir. 2015). There, officers first tried to subdue the plaintiff with a knee
strike and then proceeded to tase the plaintiff after the strikes were unsuccessful. Id. at 640.
Because the plaintiff treated the two uses of force similarly, we considered them as one
excessive-force claim. Id. at 641. Although here the parties treated these allegations as two
separate excessive-force claims in their briefing, it is unclear how separating the claims affected
the parties’ analysis. Instead, the parties center their arguments on the criminal severity of
Moser’s actions and whether she was actively resisting arrest when Davis decided to take action.
Since Davis’s actions cannot be meaningfully separated into two different uses of excessive
force, we consider Moser’s allegations as one claim that Davis used excessive force to throw
Moser to the ground and pin her there.
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 5
On appeal the parties differ as to the facts that a reasonable jury could find, and as to
whether their version of the facts is legally sufficient to show a clearly established constitutional
violation. We address the factual differences first.
Davis’s argument on appeal relies on the absence of any dispute with respect to the
following facts: there was a chaotic situation, with other citizens and medical personnel all
confined in close quarters; Moser had four times been given a direct order to go sit down; Moser
physically contacted the arresting officer and gave him commands to leave the suspect alone;
Moser’s contact “caused all involved parties to spin in a clockwise direction” and prevented the
arresting officer from promptly handcuffing Ferguson; Moser raised her cellphone toward the
arresting officer’s head and face; and the force used against Moser resulted in no hair being
pulled out, no bruises, no torn clothing and not even a red mark on her skin.
In contrast, however, Moser asserts that the body-camera footage shows that she put her
hand on Parton softly enough that Parton did not remember feeling it, and that she urgently told
him he had the wrong person. Davis reacted by grabbing her hair and taking her to the ground
with enough force to break her hip, and kept his body weight on her for over twenty seconds.
His contemporaneous statements were to the effect that “you don’t grab my guy.”
To the extent that these narratives differ, we take the facts in favor of the plaintiff as the
non-moving party. Wright v. City of Euclid, 962 F.3d 852, 864 (6th Cir. 2020). We do so by
giving full weight to any facts objectively compelled by the videotape. See Scott v. Harris,
550 U.S. 372, 379–81 (2007). Our careful and repeated view of the videotape does not compel
the officer’s version of the facts, to the extent that they differ from Moser’s version.
More specifically, the body-camera footage shows Moser audibly upset and confused
after she arrives at Bearden’s porch. As Parton moved to arrest Ferguson, Moser, thinking that
Bearden had assaulted her daughter, Exh. 2, 12:15–12:20, repeatedly yelled “no,” then
exclaimed, “[Ferguson] didn’t do nothing,” and “leave [Ferguson] alone, he is with me.”
Viewing these facts in a light most favorable to Moser as required at this stage, a reasonable
juror could conclude that Moser’s yelling was only an attempt to get Parton to listen to her
explain (incorrectly) that Ferguson was innocent.
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 6
Moser alleges that she “put her right hand on the arm of Officer Parton,” and Parton’s
own statements on the body-camera footage support Moser’s contention. Parton stated, “I didn’t
even feel her on me. I didn’t even know she was there” when he was explaining how he
approached and arrested Ferguson. At that time, Parton did not indicate that Moser impeded his
ability to arrest Ferguson in any way. A review of the body-camera footage does not clearly
contradict Moser’s assertion that she merely touched Parton’s arm. In a subsequent deposition,
Parton contradicted this evidence and claimed that he attempted to push Moser away because she
was trying to pull Parton away from Ferguson. Contradictions in Parton’s testimony must be
resolved in Moser’s favor at this stage, and a reasonable juror could conclude that Moser merely
touched Parton and that the touch was so slight that Parton didn’t even realize “she was there.”
The body-camera footage also does not clearly contradict Moser’s claim that Davis
slammed Moser to the ground, and a reasonable juror could accept that factual assertion.
Further, Moser claims that Davis kneeled on her using his full body weight to pin her to the
ground. The body-camera footage indicates that Davis could have kneeled on Moser for up to
twenty-three seconds, and the footage does not clearly contradict Moser’s claim that Davis
kneeled on her. Despite this ambiguity in the body-camera footage, Davis asserts that the
footage proves that he did not press his torso on Moser and that he therefore could not have
placed his full body weight on Moser. But the body-camera footage shows a shadow of Davis’s
figure that could depict him putting his leg or knee on Moser. A reasonable juror could therefore
conclude that Davis put his full weight on Moser despite not touching her with his torso simply
by bearing his weight on his knee to pin her to the porch. As a result, a reasonable juror could
reject Davis’s claim that he did not use any injury-threatening force at all against Moser.
On these facts, which of course may ultimately be rejected in whole or part by the jury,
Davis violated a clearly established constitutional right, and Davis was therefore not entitled to
summary judgment on the excessive-force claim. Of course, to prevail on an excessive-force
claim, Moser must show that Davis’s use of such force amounted to a violation of Moser’s
clearly established constitutional rights. Pearson v. Callahan, 555 U.S. 223, 232 (2009). By
September 2017, it was clearly established in this circuit that a person has a constitutional right
to be free from injury-threatening physical force when he or she is not actively resisting the
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 7
police, and Davis violated this right by taking Moser to the ground with such force that she broke
two bones and then pinning her to the ground. Put another way, since a reasonable juror could
conclude that Davis knew Moser was not actively resisting arrest, Davis was not entitled to
throw Moser to the ground and pin her there.
This conclusion is most closely required by our decision in Smith v. Stoneburner,
716 F.3d 926 (6th Cir. 2013). One plaintiff was the mother of the other plaintiff, whom the
defendant officer had been moving to arrest. Id. at 929. The mother told the officer not to touch
her son and moved between them. Id. The officer collided with the mother, causing her to hit
the side of the house. Id. There was a factual issue for the jury whether the collision was an
inadvertent bump or whether the officer gratuitously shoved the mother against the house. Id. at
934. We held that this factual issue “ma[de] a difference” with respect to the mother’s
excessive-force claim. Id. The facts in this case are not materially distinguishable from
Stoneburner. Here, Moser asserts that she merely touched Parton and shouted as he was
attempting to arrest Ferguson. She further alleges that Davis responded by grabbing her by the
hair and shoving her to the ground with such force that she broke her hip.
In further support, our precedents clearly establish that a suspect has a “constitutional
right to be free from the use of physical force by police officers when he is not resisting efforts to
apprehend him.” Coffey v. Carroll, 933 F.3d 577, 589 (6th Cir. 2019) (citing Hagans v. Franklin
Cnty. Sheriff’s Off., 695 F.3d 505, 509 (6th Cir. 2012)); see also Goodwin v. City of Painesville,
781 F.3d 314, 328 (6th Cir. 2015) (quoting Wysong v. City of Heath, 260 F. App’x 848, 856 (6th
Cir. 2008)). Recognizing that we are “not to define clearly established law at a high level of
generality,” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), we have held that “[d]rawing the line
at a suspect’s active resistance defines the right at a level of particularity appropriate for a claim
pursued under § 1983.” Coffey, 933 F.3d at 589. On the facts viewed in a light favorable to
Moser, she had a clearly established right to be free from injury-threatening physical force when
she was not actively resisting Officer Parton’s attempt to arrest Ferguson.
The Stoneburner case is not distinguishable on the ground that, unlike in Stoneburner,
Moser’s attempt to stop the arrest of the Ferguson was “active resistance.” Davis argues that his
conduct does not amount to excessive force under the Graham factors for determining whether
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 8
police officer use of force is constitutionally excessive. See Graham v. Connor, 490 U.S. 386,
396 (1989). But analyzing the Graham factors has developed a simple dichotomy in our
precedent with respect to resisting arrest: “[w]hen a suspect actively resists arrest, the police can
use [force] to subdue him; but when a suspect does not resist, or has stopped resisting, they
cannot.” Carter v. Carter, 728 F. App’x 419, 423 (6th Cir. 2018) (alteration in original) (quoting
Rudlaff, 791 F.3d at 642). The key question is therefore whether Moser actively resisted the
police activity she objected to.
Davis argues that Moser actively resisted arrest because she admits that she touched
Parton and simultaneously raised her other hand, which held her cell phone, somewhere around
Parton’s head. But some physical contact does not automatically rise to the level of active
resistance. In Smith v. City of Troy, we concluded that a jury must decide whether a suspect’s
pulling his arm away from an officer during a hand-to-hand encounter was active resistance or
minimal resistance. 874 F.3d 938, 945 (6th Cir. 2017). A reasonable juror could likewise
conclude that Moser offered minimal resistance when she touched Parton’s arm and raised her
cell phone.
Davis also contends that Moser actively resisted arrest because she was refusing to obey
Parton’s commands and yelling at Parton to leave Ferguson alone. But Moser’s yelling at Parton
did not evidence an intent to physically interfere with the arrest. It is true that a person’s non-
compliance with officer’s directions may rise to the level of active resistance when combined
with “verbal hostility” or “a deliberate act of defiance.” In Goodwin, we held that the plaintiff’s
refusal to exit his apartment after the officer asked him to do so was not active resistance.
781 F.3d at 323. We relied in part upon Eldridge v. City of Warren, 533 F. App’x 529, 534–35
(6th Cir. 2013), which held that repeatedly refusing an officer’s order to exit a vehicle was only
passive resistance. Goodwin, 781 F.3d at 323. Eldridge in turn distinguished cases where
refusing to comply with officer instructions was “the final straw in a series of consciously-
resistive acts, one of which included a statement that the suspect would ‘fight the officers so that
they would have a reason to kill him.’” Eldridge, 533 F. App’x at 534–35 (quoting Caie v.
W. Bloomfield Twp., 485 F. App’x 92, 94 (6th Cir. 2012)). Moser’s statements are similarly
distinguishable because a reasonable juror could conclude that her statements did not evidence
No. 21-5162 Moser v. Etowah Police Dep’t, et al. Page 9
an intent to physically prevent Parton from arresting Ferguson nor did they evidence an intent to
physically harm Officer Parton.
Davis further argues that Moser actively resisted arrest because Moser subsequently
pleaded guilty to interfering with Ferguson’s arrest in violation of Tenn. Code Ann. § 39-16-602.
But Davis points to no caselaw where a guilty plea to obstruction of law enforcement
conclusively established that a suspect actively resisted arrest. On the other hand, the plain
language of Tenn. Code Ann. § 39-16-602 would support a conviction where a suspect only
minimally resisted, like the plaintiff in Smith discussed above, and such minimal resistance alone
does not justify the use of physical force sufficient to cause bodily injury. See Smith, 874 F.3d at
945. Moser’s subsequent conviction is therefore not determinative of whether Moser actively
resisted Parton’s attempt to arrest Ferguson.
Moser finally contends that the district court erroneously granted qualified immunity to
the City of Etowah. Municipal entities are not entitled to qualified immunity, and the district
court made no such ruling; instead, the district court dismissed Moser’s municipal-liability claim
because it concluded that there was no underlying Fourth Amendment violation. Because Moser
has sufficiently alleged an excessive-force violation, the basis for the district court’s dismissal at
present no longer obtains, and a remand for additional consideration is required.
For the foregoing reasons, we reverse the judgment of the district court with respect to
Moser’s excessive-force claim. In addition, we reverse the judgment of the district court as to
the municipal-liability claim because Moser has sufficiently alleged an underlying constitutional
violation. We remand this case for further proceedings consistent with this opinion.