E. W. v. Detroit Pub. Sch. Dist.

NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0126n.06

Case No. 20-1790

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Mar 21, 2022

) DEBORAH S. HUNT, Clerk

E.W.; RONNITA BRYANT, Guardian of E.W.,

)

Plaintiffs-Appellees, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE EASTERN

DETROIT PUBLIC SCHOOL DISTRICT, et al., ) DISTRICT OF MICHIGAN

Defendants, )

)

BROADUS WILKINS; MYRON MONTGOMERY, )

) OPINION

Defendants-Appellants.

)

)

Before: McKEAGUE, BUSH, and READLER, Circuit Judges.

McKEAGUE, Circuit Judge. Defendants Montgomery and Wilkins appeal the denial of

qualified immunity in this § 1983 case. Plaintiff E.W., a high school freshman at the time of the

incident, claims that Assistant Principal Montgomery used excessive force when he forcibly

removed E.W. from the school building, threw E.W. to the ground, and pressed his knee into

E.W.’s chest. He also claims that Detroit Public School Officer Wilkins swung his arm at E.W.’s

face, dislocating and breaking his jaw. The district court found that material questions of fact

precluded summary judgment, analyzing Montgomery’s actions under the Fourteenth Amendment

and Wilkins’s actions under the Fourth Amendment. We agree and AFFIRM.

Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.

I.

At the summary judgment stage, we review the facts in the light most favorable to the

nonmovant. Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017). When events are captured on

video, “[t]o the extent that videos in the record show facts so clearly that a reasonable jury could

view those facts in only one way, those facts should be viewed in the light depicted by the videos.”

Id. (citing Scott v. Harris, 550 U.S. 372, 380 (2007)). In this case, the incident between E.W. and

Defendant Myron Montgomery was captured by three video cameras. No recording is available

of the incident between E.W. and Defendant Broadus Wilkins.1

When these events took place, E.W. was in the first few months of his freshman year at

West Side Academy high school. He was a skinny 14-year-old, standing 5′3″. Defendant

Montgomery was the assistant principal of the school and Defendant Wilkins was a school police

officer. Montgomery was around 5′10′′ tall, Wilkins, 5′8″; each weighed roughly 230 pounds.

A. Confrontation with Montgomery

On October 9, 2017, E.W. left his wallet with a teacher while he played basketball after

school. After making it to the bus stop to go home, he realized he forgot the wallet. He needed

his money to make it home from school. E.W. walked back to school intending to retrieve his

wallet from either the teacher or the principal. He reentered the school building from the side door

and was confronted by Montgomery. E.W. alleges Montgomery yelled at him to leave. E.W.

didn’t tell Montgomery that he was looking for his wallet because, in his words, Montgomery was

acting “hostile and angry.” R. 53-2, PageID 571. E.W. left the building on Montgomery’s

command but reentered from the rear door.

1

One recording skips forward eleven seconds. E.W. alleges that the incident between E.W.

and Wilkins occurred during those missing seconds. Defendants explain this anomaly as the

possible result of a lack of movement in front of the motion-sensitive cameras.

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Montgomery met E.W. at the rear door. This portion of events was captured on camera.

E.W. told Montgomery he needed to retrieve his wallet so that he could get home. E.W. alleges

that Montgomery did not listen to him, and instead told him to leave within three seconds and

began counting down. On the video, an increasingly agitated E.W. is shown speaking to

Montgomery. After some dialogue, Montgomery threw down a pile of papers he was holding and

got in E.W.’s face. When E.W. still did not leave, Montgomery grabbed E.W. and pushed him

through the school doors. As the video shows, Montgomery pushed E.W. out of the building,

pushing E.W. back on his heels through two sets of doors. Outdoors, E.W. contends that

Montgomery slammed E.W. to the pavement. Montgomery then held his knee on E.W.’s chest for

around five seconds. Montgomery then got off of E.W. and went back inside.

Montgomery’s account of the events differs somewhat from E.W.’s. Montgomery claims

that he told E.W. specifically upon E.W.’s first entry through the side door that he needed to reenter

through the student entrance at the front door and go through the metal detectors per school policy.

Montgomery claims he told E.W. to leave because he was in the building illegally. When E.W.

didn’t leave, he “escorted” E.W. out of the building. R. 53-3, PageID 642. Montgomery testified

that he did not slam E.W. but that both fell to the ground together “[a]s a result of our tussle.” Id.

at PageID 643. He also claims that he pinned E.W. to the ground with his knee in an effort to

restrain him. Montgomery then walked back into the building to his office, stating a need to

“separate” from the situation.

Wilkins also testified to Montgomery’s interactions and the immediate aftermath. He had

witnessed Montgomery confront E.W. when E.W. first entered the building, and heard E.W. swear

at Montgomery. Later, Wilkins heard Montgomery yelling and counting down from three, and

witnessed Montgomery push E.W. out of the building. Wilkins testified that he did not see E.W.

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try to assault or injure Montgomery. Wilkins testified that he walked towards the rear door and

saw a Securitas private security officer picking up E.W. and trying to calm E.W. down. E.W. was,

at this point, cursing and ranting, while Montgomery walked back inside.

B. Confrontation with Wilkins

E.W. got himself off the ground as Wilkins and other people approached. The video shows

several individuals walking outside to speak with E.W., who from one angle can be seen to be

agitated. The video shows Wilkins walk out of the school to speak with E.W.

E.W. testified that Wilkins walked over to him and said “get away from the school.” R.

53-2, PageID 548. E.W. testified that Wilkins then swung his left arm, held straight, at E.W.,

hitting him in the face with his forearm.

Wilkins, for his part, claims that he turned to walk inside when he saw E.W. start to run at

the door. At that point, Wilkins turned and put his left arm straight out, and E.W. ran into his arm.

Wilkins did not testify that E.W. was trying to threaten or attack him but was instead trying to run

past him.

C. E.W.’s Injuries

E.W. was picked up by his mother and taken to the emergency room. The contact between

Wilkins’s forearm and E.W.’s face left him with a broken and dislocated jaw. E.W. testified that

he also experienced severe pain in his shoulder that prevented him from raising his arm for several

months following the incident. He also testified that he has suffered psychological harm, including

difficulty trusting police officers and men in general, bad dreams, trouble sleeping, and a loss of

dignity.

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Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.

D. Procedural History

Ronnita Bryant, E.W.’s guardian, filed this suit on behalf of E.W. against Montgomery;

Wilkins; the Detroit Public School District; and Securitas, the private security company. The suit

was originally filed in state court and removed by Defendants. The claims against Securitas were

settled and the claim for Monell liability against the Detroit Public School District was dropped

voluntarily. E.W. brought 42 U.S.C. § 1983 claims alleging violations of his Fourth and

Fourteenth Amendment rights against Wilkins and Montgomery, in addition to assault and battery

and gross negligence claims under state law against both. Defendants moved for summary

judgment. The district court held a hearing on Defendants’ motion. At the hearing, the court

granted the motion as to the state law claims and dismissed those claims without prejudice but

denied Defendants’ motion as to E.W.’s § 1983 claims. Defendants filed this interlocutory appeal

challenging the denial of qualified immunity. E.W. moved to dismiss Defendants’ appeal, arguing

that we lack jurisdiction over the appeal. A panel of this court denied E.W.’s motion to dismiss,

determining that this panel should consider jurisdiction at the conclusion of briefing. See E.W. v.

Detroit Public Sch., No. 20-1790 (6th Cir. Aug. 9, 2021) (order).

II.

We have jurisdiction to hear an interlocutory appeal to review a district court’s denial of

qualified immunity at summary judgment. 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). This review is limited to the extent that such a denial turns on an issue of law. Gillispie

v. Mia. Twp., 18 F.4th 909, 915 (6th Cir. 2021) (quoting Mitchell, 472 U.S. at 530). Because

Defendants’ appeal considers “the legal question of whether the law was clearly established,” we

have jurisdiction. Gordon v. Bierenga, 20 F.4th 1077, 1081 (6th Cir. 2021).

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Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.

This court reviews a district court’s denial of summary judgment de novo, reviewing facts

in the light most favorable to the nonmovant. Foster v. Patrick, 806 F.3d 883, 886 (6th Cir. 2015)

(citation omitted). Summary judgment is only appropriate if the record shows that “there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

III.

Both Montgomery and Wilkins appeal the denial of qualified immunity. Public officials,

like Defendants here, are immune from liability under 42 U.S.C. § 1983 unless the plaintiff

establishes both (1) a violation of a constitutional right, and (2) that “the right at issue was ‘clearly

established’ when the event occurred such that a reasonable officer would have known that his

conduct violated it.” Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). We may decide the prongs in either order.

Pearson, 555 U.S. at 236. Qualified immunity is analyzed separately for each defendant. Wright

v. City of Euclid, 962 F.3d 852, 865 (6th Cir. 2020).

A. Officer Wilkins

We begin with E.W.’s claim against Officer Wilkins for excessive force in violation of the

Fourth Amendment.

The Fourth Amendment’s prohibition against unreasonable seizures protects citizens from

excessive force by law enforcement officers. Latits, 878 F.3d at 547 (citing Godawa, 798 F.3d at

463). The Fourth Amendment requires that the amount of force used to effectuate a seizure be

“objectively reasonable” under the totality of the circumstances. Graham v. Connor, 490 U.S.

386, 396 (1989). The court considers the situation at the moment force is used, “judged from the

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perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Id.

While this inquiry into the totality of the circumstances is wide-ranging, three factors are

particularly important: “[1] the severity of the crime at issue, [2] whether the suspect poses an

immediate threat to the safety of the officers or others, and [3] whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. We have held that these standards govern the

use of force by a police officer in the school setting. See, e.g., Williams v. Morgan, 652 F. App'x

365, 374 (6th Cir. 2016) (applying Graham factors to conclude a school resource officer used

excessive force by breaking a student’s arm in response to the student’s misbehavior).

Taking the facts in the light most favorable to E.W. as we must, all of those factors suggest

that Wilkins’s use of force against E.W. was unreasonable. Wilkins had witnessed E.W. twice

violate a school rule regarding which door to enter. He did not suspect E.W. of any crime. The

first factor “thus cuts against a finding of justified use of force because there was no probable cause

that [E.W.] had committed any crime at all” before Wilkins applied force. Wright, 962 F.3d at

867.

Second, on E.W.’s version of the facts, he posed no threat to Wilkins or others. There were

multiple security officers present, and Wilkins was an adult man significantly larger than E.W.

Wilkins himself testified that he never saw E.W. strike or threaten Montgomery. Neither E.W.’s

nor Wilkins’s version of events suggests that E.W. took any action to indicate that he wanted to

strike or threaten Wilkins. Thus, on E.W.’s version of the facts, he posed no threat.

Third, material disputes of fact exist as to whether E.W. was resisting at the time of

Wilkins’s use of force. On E.W.’s account, he was standing still and was outside the school doors

when Wilkins confronted him. Wilkins contends that E.W. verbally resisted Wilkins and that E.W.

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was running at the school doors when he was struck. But because we must take the facts in the

light most favorable to E.W., we must conclude that E.W. was not resisting when Wilkins struck

E.W.

Taken together, on E.W.’s version of the facts, Wilkins’s use of force was unreasonable in

violation of the Fourth Amendment. E.W. was not suspected of any serious crime, was not posing

a threat at the time he was struck and was not resisting arrest. On those facts, Wilkins’s striking

E.W. with such force as to break his jaw is gratuitous violence amounting to unreasonably

excessive force under the Fourth Amendment. See Grawey v. Drury, 567 F.3d 302, 311 (6th Cir.

2009) (use of force was unreasonable as applied to nonresistant arrestee suspected of a minor

crime).

E.W.’s right to be free from such violence was also clearly established at the time of

Wilkins’s actions. A defendant is entitled to qualified immunity “so long as their conduct ‘does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (citing Pearson v. Callahan,

555 U.S. 223, 232 (2009)). “[E]xisting precedent must have placed the statutory or constitutional

question beyond debate,” though there does not need to be “a case directly on point.” Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021) (quoting White v. Pauly, 137 S. Ct. 548, 551

(2017)).

On E.W.’s facts, he was not resisting (or indeed under) arrest, did not pose a threat to

Wilkins or anyone else, and was not suspected of a crime when Wilkins swung at E.W. and broke

his jaw. Thus, a reasonable officer in Wilkins’s position would have been on notice that he was

violating E.W.’s Fourth Amendment rights. We very recently held that “[w]ell before [June 2016],

our precedent had ‘clearly establish[ed] the right of people who pose no safety risk to the police to

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be free from gratuitous violence during arrest.’” Gambrel v. Knox Cnty., 25 F.4th 391, 403 (6th

Cir. Feb. 8, 2022) (quoting Shreve v. Jessamine Cnty. Fiscal Ct., 452 F.3d 681, 688 (6th Cir.

2006)).

Wilkins urges us to weigh the facts differently. He asks us to consider E.W.’s purported

verbal resistance as the sort of active resistance to arrest that might justify his use of force. He

also quibbles with the district court’s characterization of his straight-armed forearm strike as a

“punch,” and disputes the accusation that he swung at E.W. But this account is disputed by E.W.’s

version of the facts, and we must view these facts in the light most favorable to E.W. These factual

disputes are for a jury to resolve, not for us to consider on interlocutory appeal.

B. Assistant Principal Montgomery

E.W. also claims that Montgomery’s use of force violated his clearly established

constitutional rights. The district court determined that material questions of fact precluded

summary judgment as to whether Montgomery violated E.W.’s substantive due process rights

under the Fourteenth Amendment. See E.W. v. Detroit Public Sch., No. 18-12964, 2021 WL

3089380 at *5 (E.D. Mich. July 22, 2021). We agree.

We have held that the Fourteenth Amendment’s due process rights provide public school

students with the right “to be free of state intrusions into realms of personal privacy and bodily

security through means so brutal, demeaning, and harmful as literally to shock the conscience.”

Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987) (quoting Hall v. Tawney, 621 F.2d 607,

613 (4th Cir. 1980)). In evaluating claims that a teacher or school administrator’s actions violated

that right, we apply a test “asking four guiding questions: (1) ‘Was there a pedagogical justification

for the use of force?’ (2) ‘Was the force utilized excessive to meet the legitimate objective in this

situation?’ (3) ‘Was the force applied in a good-faith effort to maintain or restore discipline or

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maliciously and sadistically for the very purpose of causing harm?’ And (4) ‘Was there a serious

injury?’” Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 678–79 (6th Cir. 2016) (quoting Domingo

v. Kowalski, 810 F.3d 403, 411 (6th Cir. 2016)).

In this case, material questions of fact preclude summary judgment as to each question. A

reasonable jury could conclude that Montgomery had little pedagogical justification for his actions.

Montgomery himself stated that he sought to “restrain” E.W. and remove him from the school

building because he was there “illegally.” R. 53-3, PageID 629, 644.

To be sure, school “administrators” have a “substantial interest . . . in maintaining

discipline in the classroom and on school grounds,” and such an interest does not fully abate after

the school day has concluded. New Jersey v. T.L.O., 469 U.S. 325, 339 (1985). And such an

interest may have justified removing E.W. from the school building. But E.W. alleged that

Montgomery not only removed E.W. from the building but proceeded to slam him to the ground

and press his knee into E.W.’s chest. Taking the facts in the light most favorable to E.W.,

Montgomery used an excessive amount of force to accomplish his interest.

A reasonable jury could also conclude that Montgomery did not act in good faith. In

addition to allegedly throwing E.W. to the ground and pressing his knee into E.W.’s chest, E.W.

testified that Montgomery was angry and hostile. A jury could conclude that Montgomery acted

principally out of anger or malice, rather than through any good-faith desire to secure the school

building. See Webb, 828 F.2d at 1158.

Finally, material questions of fact pervade as to serious injury. We have suggested that a

claim of malicious force by a school administrator, delivered without pedagogical purpose, can

survive summary judgment without a showing of injury. Domingo, 81 F.3d at 416 (citing Webb,

828 F.2d at 1154). But E.W. has also put forward evidence of injury to his shoulders, potentially

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attributable to Montgomery’s actions. E.W. has also shown evidence of lasting psychological

harm. Together, a reasonable jury could find that E.W. suffered a serious injury.

Of course, a reasonable jury could decide these facts differently. The parties dispute

whether E.W. was thrown to the ground. E.W. maintains he was slammed; Montgomery says that

as a “result of [their] tussle” they “both went to the ground.” R. 53-3, PID 643. The video does

not definitively rule out either possibility. Cf. Scott, 550 U.S. at 378 (“Respondent’s version of

events is so utterly discredited by the record that no reasonable jury could have believed him.”).

If E.W. was not slammed to the ground and Montgomery had not used gratuitous force in removing

E.W. from the school, Montgomery’s actions would not be violative of E.W.’s Fourteenth

Amendment rights. But because the record is disputed as to this fact, this question is for the jury

to decide.

Webb v. McCollough clearly establishes the law in this case. 828 F.2d at 1158–59. In

Webb, we held that a school principal violated a student’s constitutional rights when he grabbed a

student, threw her against the wall and slapped her during a school field trip. Id. at 1158. In that

case, we found that the principal’s use of force, undertaken outside “the school context,” could not

be interpreted as disciplinary but rather “arose . . . in anger or from malice.” Id. at 1158–59. On

E.W.’s version of the facts, a reasonable official in Montgomery’s position would have been on

notice that his actions were constitutionally violative.

IV.

Defendants also contend that the district court erred in granting their motion for summary

judgment as to E.W.’s state law claims. The district court dismissed E.W.’s state law claims

without prejudice, declining supplemental jurisdiction under 28 U.S.C. § 1367(a). E.W., 2021 WL

3089380, at *1. On interlocutory appeal, in addition to considering federal law qualified

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immunity, we have jurisdiction to review the determination of governmental immunity on

Michigan state law claims. Rudolph v. Babinec, 939 F.3d 742, 753 (6th Cir. 2020). But such

jurisdiction is limited to exactly that: we may only consider the appeal of “an order granting or

denying governmental immunity under M.C.L. § 691.1407.” Smith v. City of Lenawee, 600 F.3d

686, 689 (6th Cir. 2010). The district court’s order is neither. We thus lack jurisdiction to consider

this portion of Defendants’ appeal.

V.

Because material factual disputes preclude summary judgment in Defendants’ favor, we

AFFIRM the district court’s denial of summary judgment.

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