Tanya Martin v. City of Broadview Heights

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 13a0101p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TANYA A. MARTIN, Administratrix of the

Plaintiff-Appellee, --

Estate of William Parker Martin,

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No. 11-4039

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v.

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CITY OF BROADVIEW HEIGHTS; CITY OF

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BROADVIEW HEIGHTS POLICE DEPARTMENT;

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RYAN TIEBER, Officer; MICHAEL SEMANCO,

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Officer; SCOTT ZIMMERMAN, Officer; ROB

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NOVOTNY, Officer; ROBERT LIPTON, Chief;

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STEVE KOPNISKE, Lt.; TIM SCARBROUGH,

Sgt.; JOHN DOE I THRU III, -

Defendants-Appellants. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:08-CV-2165—Solomon Oliver, Jr., Chief District Judge.

Argued: October 4, 2012

Decided and Filed: April 9, 2013

Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Frank H. Scialdone, MAZANEC, RASKIN & RYDER CO., L.P.A.,

Cleveland, Ohio, for Appellants. S. Michael Lear, ZUKERMAN, DAIKER & LEAR

CO., L.P.A., Cleveland, Ohio, for Appellee. ON BRIEF: Frank H. Scialdone, John T.

McLandrich, MAZANEC, RASKIN & RYDER CO., L.P.A., Cleveland, Ohio, for

Appellants. S. Michael Lear, Larry W. Zukerman, ZUKERMAN, DAIKER & LEAR

CO., L.P.A., Cleveland, Ohio, for Appellee.

1

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 2

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OPINION

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JANE B. STRANCH, Circuit Judge. This excessive force case against officers

of the Broadview Heights Police Department (BHPD) and the City of Broadview

Heights arises from the fatal arrest of William Parker Martin, an unarmed and mentally

unstable 19-year-old. Martin’s estate sued several BHPD officials asserting that the use

of excessive force during the arrest violated Martin’s rights under the Constitution and

Ohio law. The estate also sued the City under federal law for failing to train or supervise

its employees. The district court denied summary judgment to three officers on the basis

of qualified immunity and state-law immunity, and to the City. The officers and the City

now appeal. We hold that immunity does not shield the officers from liability in these

circumstances. And in the face of that conclusion, we lack jurisdiction to review the

municipal-liability claim. As a result, we AFFIRM.

I. BACKGROUND

William Parker Martin, a 19-year-old male, died in the early morning hours of

August 16, 2007, minutes after BHPD Officers Ryan Tieber, Scott Zimmerman, and

Michael Semanco physically restrained and arrested him. (A fourth officer, Robert

Novotny, was also on the scene but is not a party to this appeal because the district court

granted summary judgment in his favor on all counts asserted against him.) Shortly after

2:00 a.m., the officers responded to a dispatch call indicating that a male, wearing only

jeans at the time, was yelling for help outside an apartment at 1000 Tollis Parkway. On

his way there, Tieber heard from dispatch that a resident at 8633 Scenicview Drive

reported that a naked male entered a nearby apartment.

Approaching the Scenicview address, Tieber encountered a naked male, later

identified as Martin, running towards his patrol car, speaking quickly and nonsensically.

Martin momentarily calmed down and asked Tieber for help, placing his hands behind

his back and insisting that Tieber take him to jail. When Tieber grabbed Martin’s hands

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 3

and reached for his handcuffs, Martin “jogged away.” Tieber caught Martin before he

got further than 20 feet, and fell on top of Martin with his abdomen to Martin’s back.

Officer Semanco then arrived on the scene and, observing Martin trying to push

himself up, dropped his knee into Martin’s side to keep him on the ground. Semanco fell

on top of both Martin and Tieber, and delivered one or two “compliance body shots” to

Martin’s side with his knee. During the struggle, Martin bit Tieber’s knuckle. In

response, Tieber struck Martin in the face with two “hammer punches,” which, he later

explained, are closed-fist punches that strike a target using the area between the fifth

finger and the wrist. Semanco then used all of his force to strike Martin’s face, back,

and ribs at least five times. Meanwhile, Tieber folded his legs around Martin’s hips and

upper thighs, and gripped Martin’s chin with his right arm. The estate introduced

evidence suggesting his arm was wrapped around Martin’s neck.

Martin was face down on the ground when Officer Zimmerman arrived. As

Tieber and Semanco attempted to get Martin’s arms behind his back, Zimmerman

kneeled on Martin’s calves to prevent him from kicking and assisted in handcuffing him.

At the time of the incident, Tieber weighed approximately 180 pounds, Semanco

approximately 185 to 195 pounds, and Zimmerman approximately 245 pounds. Martin

was 5’ 10” and weighed 172 pounds.

Officer Novotny showed up shortly before Martin was handcuffed. When Martin

was secured, Novotny and Semanco left Martin with Zimmerman and Tieber, who

continued to hold Martin in a face-down position.1 The two officers soon heard Martin

make a “gurgling sound.” When they rolled Martin onto his side, he was unresponsive

and exhibited no signs of life. The officers tried to resuscitate him and called for

paramedics. At 3:06 a.m., Martin was pronounced dead.

1

The officers vigorously dispute this. They maintain that the district court did not find that any

of them put pressure on Martin’s back after he was handcuffed. But Zimmerman’s admission that he and

Tieber continued to hold Martin down—Tieber with his hand and Zimmerman with his arm, “just to make

sure [Martin] wasn’t going to get up and try to run away”—flatly contradicts their assertion. Zimmerman’s

admission is relevant for another reason. In their briefs and again at oral argument, the officers faulted the

district court for lumping Zimmerman’s actions together with the other two officers. Zimmerman himself,

though, admitted that he applied force to Martin’s body after Martin was handcuffed. How much force

was applied and for how long are disputed factual issues a jury must decide.

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 4

Martin’s cause of death is disputed. Dr. Frank Miller, III, the Cuyahoga County

Coroner, determined that Martin died from an acute psychotic episode with excited

delirium due to intoxication by lysergic acid diethylamide (commonly known as LSD

or acid) and cardiopulmonary arrest. Dr. Miller concluded the death did not result from

the force applied to Martin’s body.

Dr. Stanley Seligman, the forensic pathologist who conducted Martin’s autopsy,

found numerous injuries that suggested death by asphyxiation. Three months after the

autopsy, Dr. Seligman’s concern that Martin may have died as a result of asphyxiation

while the officers restrained him led him to ask an investigator in the coroner’s office

to conduct another inquiry into Martin’s cause of death. After the investigator produced

his follow-up report, Dr. Seligman confirmed that the officers’ actions during the arrest

were “compressive events” that could have caused Martin’s asphyxiation. He also

documented scattered areas of soft tissue hemorrhage at the lowest part of the neck

above the two collar bones, which he attributed to fingertip pressure consistent with

someone grabbing Martin’s neck. And he found that the gurgling noise Martin made

indicated asphyxiation. Dr. Seligman concluded that the evidence pointed to asphyxia

as the likely cause of death.

Dr. Werner Spitz, a pathologist hired by the estate, offered a similar opinion. He

criticized the coroner’s cause-of-death determination, stating that excited delirium is a

controversial, unproven, and unrecognized theory from which no death has ever resulted.

And he stated that physical manifestations on Martin’s body—including injuries that

suggested Martin was pulled backwards by the neck—“clearly support death by

asphyxiation.”

At the time of Martin’s arrest, BHPD had in place two policies meant to guide

the officers’ conduct in situations such as this one. The first, a use-of-force policy,

instructed the officers in the appropriate amount of force to use in a given situation. The

second was a “Positional Asphyxia Policy” implemented in April 2003 to inform the

officers of the dangers of asphyxiating an individual during a restraint procedure. The

asphyxiation policy provides the medical definition of asphyxia, as well as its effects.

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 5

In a section entitled “High Risk Subjects,” it describes conditions that may increase an

individual’s risk of death after being restrained, warning that a person who is psychotic

due to mental illness or the ingestion of drugs or alcohol may be particularly susceptible

to death. The policy further states:

Many individuals who suddenly die after being restrained have exhibited

bizarre, irrational, agitated behavior, including a violent struggle with

officers who are trying to restrain them, often with what seems like

superhuman strength. This condition is sometimes referred to as Excited

or Agitated Delirium. It can result from the use of alcohol or drugs or

from mental illness.

Officers Tieber and Semanco said they never considered this policy during Martin’s

arrest. Semanco also offered that he did not think about whether Martin might be a high-

risk subject under it.

Dr. R. Paul McCauley, the estate’s police-practices expert, offered his opinion

regarding the incident and BHPD’s operational practices. Dr. McCauley faulted BHPD

for its failure to: properly train officers with respect to the Positional Asphyxia Policy,

properly investigate use-of-force violations, and instruct officers on how to deal with

emotionally disturbed individuals. Dr. McCauley concluded that if BHPD followed

accepted police practices, Martin’s death “more than likely” would have been avoided.

Tanya M. Martin, Martin’s mother and the administratrix of his estate, filed suit

against several BHPD officers and the City, pleading federal claims under 42 U.S.C.

§ 1983 and multiple state-law claims. In their motion for summary judgment, the three

officers involved in this appeal asserted qualified immunity as a defense to liability for

the estate’s federal claims and statutory immunity under Ohio law for the state-law

claims. The City argued that the estate could not show it violated Martin’s rights.

The district court denied summary judgment to Officers Tieber, Semanco, and

Zimmerman on the estate’s § 1983 claim alleging unreasonable seizure and excessive

force, concluding that the estate put forward sufficient facts and evidence to show that

the officers’ use of force was objectively unreasonable. The court also denied summary

judgment to the City on the estate’s negligent hiring, training, and supervision claim.

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 6

It found that the training the City provided on its use-of-force and asphyxiation policies

was inadequate to prepare the officers for their confrontation with Martin. And the court

determined that the estate presented enough evidence to raise a genuine issue of material

fact regarding the City’s deliberate indifference to Martin’s rights. As to the state-law

claims, the court held the officers were not entitled to statutory immunity as a matter of

law because a reasonable jury could conclude that they acted with malice, bad faith, or

recklessness when they restrained and placed excessive weight on Martin while he was

face down. The officers and City appeal these rulings.

II. ANALYSIS

A. Qualified immunity

A district court’s denial of qualified immunity is an appealable final decision

under 28 U.S.C. § 1291 only “to the extent that it turns on an issue of law.” Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). “Cases fitting that bill typically involve contests not

about what occurred, or why an action was taken or omitted, but disputes about the

substance and clarity of pre-existing law.” Ortiz v. Jordan, 131 S. Ct. 884, 892 (2011).

We review the denial of summary judgment on the basis of qualified immunity

de novo. Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 399 (6th Cir. 2009).

Summary judgment may be granted where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

(internal quotation marks omitted). In considering the record, we “‘view the facts and

any inferences reasonably drawn from them in the light most favorable to the nonmoving

party.’” Griffith v. Coburn, 473 F.3d 650, 655 (6th Cir. 2007) (quoting St. John v.

Hickey, 411 F.3d 762, 768 (6th Cir. 2005)).

Qualified immunity protects public officials from liability for civil damages if

their conduct does not violate “clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 7

231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We follow a

“two-tiered inquiry” to determine if an officer is entitled to qualified immunity. Austin

v. Redford Twp. Police Dept., 690 F.3d 490, 496 (6th Cir. 2012) (citing Saucier v. Katz,

533 U.S. 194, 201 (2001)). The first step is to determine if the facts alleged make out

a violation of a constitutional right. Pearson, 555 U.S. at 232. The second is to ask if

the right at issue was “clearly established” when the event occurred such that a

reasonable officer would have known that his conduct violated it. Id.; see also St. John,

411 F.3d at 768. These two steps may be addressed in any order. Pearson, 555 U.S. at

236. But both must be answered in the affirmative for the case to go to a factfinder to

decide if each officer’s conduct in the particular circumstances violated a plaintiff’s

clearly established constitutional rights. If either one is not satisfied, qualified immunity

will shield the officer from civil damages. Id.

The officers urge that their actions were objectively reasonable and contend that

it was not clearly established in August 2007 that their conduct violated Martin’s

constitutional rights.

1. Constitutional violation

The Fourth Amendment protects against “unreasonable seizures” and guarantees

citizens the right to be “secure in their persons.” U.S. Const. amend. IV. Whether an

officer’s use of force in effecting an arrest violates the Fourth Amendment is a question

of whether his actions are “‘objectively reasonable’ in light of the facts and

circumstances confronting [him], without regard to [his] underlying intent or

motivation.” Graham v. Connor, 490 U.S. 386, 388 (1989). The test is “reasonableness

at the moment” force is used, “judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. at 396.

The court must carefully balance “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental

interests at stake.” Id. (internal quotation marks omitted). Three factors guide this

balancing: “the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest or

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 8

attempting to evade arrest by flight.” Id. Though important, these factors are not the end

of the matter, as the court ultimately must determine “‘whether the totality of the

circumstances justifies a particular sort of seizure.’” St. John, 411 F.3d at 771 (quoting

Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

Applying the first Graham factor, the severity of the crime at issue, the officers

may have been justified in deploying some force against Martin. They responded to a

disturbance call concerning a young man yelling for help, and subsequently heard a

report that a naked male had entered an apartment and then left the area. So when

Officer Tieber encountered a naked man making nonsensical statements and asking to

be taken to jail, he may have reasonably concluded that using some force was necessary

to apprehend a possible felony suspect. But the question is not whether any force was

justified. It is, instead, whether Tieber—and, later, Semanco and Zimmerman—could

reasonably use the degree of force employed against Martin.

In examining the second Graham factor—which focuses on the officers’ conduct

in light of any “immediate threat” Martin posed to their safety and that of others—we

“must take into account” that the officers “had reason to believe that [Martin] was either

on drugs or mentally unstable and they knew that he was unarmed.” Landis v. Baker,

297 F. App’x 453, 465 (6th Cir. 2008) (citing Deorle v. Rutherford, 272 F.3d 1272,

1282–83 (9th Cir. 2001)). Martin was completely naked when he approached Tieber.

If Tieber was not sure that Martin was unarmed as he drew near, this became apparent

when Martin turned away from Tieber and put his hands behind his back to allow Tieber

to handcuff him. From the first, Martin exhibited clear signs that he was distraught: he

was unclothed, acting erratically, making incoherent statements, yelling for help, and

asking to be taken to jail.

Tieber’s response to this situation—tackling Martin and falling on top of

him—was unreasonable. Dr. McCauley, the estate’s police-practices expert, testified

that instead of taking Martin down to the pavement when he did, Tieber should have

initiated “verbal intervention” to calm Martin and allow time for back-up officers to

arrive. Dr. McCauley concluded that a reasonable officer in this situation—faced with

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 9

an unarmed and distraught individual like Martin—would try to de-escalate the situation

and reduce the level of force needed to gain control.

Instead, Tieber and his colleagues used severe force that did not match the threat

Martin presented. After Tieber laid on Martin, belly to back, Semanco dropped his knee

into Martin’s side, fell on top of him, and delivered one or two “compliance body shots”

to Martin’s frame. Tieber then punched Martin twice in the face, and Semanco struck

his face, back, and ribs at least five times. Tieber wrapped his legs around Martin’s

upper thighs, hips, and pelvis, and gripped Martin’s chin or neck with his right arm.2

Zimmerman kneeled on Martin’s calves, helped cuff him, and used force to keep him

down. Even after Martin was handcuffed and subdued, Zimmerman and Tieber used

their arms to keep Martin in a face-down position, and did not roll Martin onto his side

until he made a “gurgling” noise. In sum, the officers’ response to the threat Martin

posed to them or others was unreasonable.

The third and final Graham factor requires the court to weigh the officers’

conduct against Martin’s attempts to evade or resist arrest. Martin’s resistance occurred

in two discrete stages. The first was when he broke away from Tieber after initially

surrendering and jogged about 20 feet before Tieber took him down to the ground.

Tieber maintains he used the minimum force necessary to deal with Martin during this

stage. But the mere fact that Martin tried to escape from Tieber’s control does not

justify the latter’s conduct as a matter of law. See Baker v. City of Hamilton, 471 F.3d

601, 607–08 (6th Cir. 2006) (finding that a suspect’s attempt to evade arrest by running

two blocks from an officer did not preclude his claim of excessive force or justify the

officer’s subsequent baton strikes). And as a matter of police practices, Dr. McCauley

opined that taking Martin down to the ground was unnecessary even after Martin

“jogged away.” Tieber’s take-down and the force that followed was not a reasonable

response to Martin’s attempted escape.

2

In addition to the opinions Drs. Seligman and Spitz offer to suggest that Tieber used his arm to

hold Martin’s neck, Dr. McCauley’s statement that accepted police practice is to avoid all forms of choke

holds unless deadly force is justified reinforces the conclusion that the officers used inappropriate force

given the threat Martin posed.

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 10

The second stage of Martin’s resistance occurred when he lay uncuffed on the

ground with first one, then two, and finally three officers on top of him. The officers

argue the district court failed to consider that Martin actively struggled while they tried

to restrain him. We disagree. After properly taking the evidence presented in the light

most favorable to the estate, the district court correctly held that the officers’ conduct

was unreasonable. This evidence fairly leads to an inference that Martin’s physical

movements were an attempt to gasp for air and escape the compressive weight of the

officers on top of him, not an effort to fight with the officers or get away.

Two reasons support this view. First, the record evidence certainly points in this

direction. The complaint, for example, alleged that Martin struggled to breathe under

the officers’ weight and “ultimately turn[ed] his body so that he was facing away from

the ground.” Dr. Spitz, the estate’s medical expert, further corroborated this theory

when he described Martin’s “fear of impe[n]ding doom, as he was being pinned to the

floor by the weight of two officers and held by the neck, unable to breathe, at a time

when he was excited, stressed, and needed more air . . . to sustain his life.” Second, to

the extent the officers contend the force they used was reasonable merely because Martin

offered some resistance before he was handcuffed, our precedents foreclose this line of

argument. The Fourth Amendment’s protections do not evaporate the moment an

individual resists an officer’s command. See Lawler v. City of Taylor, 268 F. App’x 384,

387 (6th Cir. 2008) (holding a jury could find an elbow jab and knee strikes amounted

to excessive force against an arrestee who resisted being handcuffed while on the ground

with an officer on top of him); see also Baker, 471 F.3d at 607 (observing that the fact

that the arrestee was not handcuffed when he was struck did not preclude a finding of

unreasonableness). In short, the force the officers used was not reasonably calculated

to neutralize Martin’s resistance.

The final step in our reasonableness inquiry is to ask “whether the totality of the

circumstances justifie[s] a particular sort of . . . seizure.” Garner, 471 U.S. at 8–9.

Beyond the situational facts we have considered, our precedents require us to evaluate

the officers’ use of certain tactics “in light of testimony regarding the training that [the

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 11

officers] received in [them].” Griffith, 473 F.3d at 657. BHPD’s asphyxiation policy

was implemented four years before this incident to “protect against an in-custody death

and to recognize situations which would lead to positional asphyxia.” Each officer

involved in the struggle reviewed the policy before August 2007. The officers’

awareness of a policy that warns of the boundaries of appropriate force with respect to

the danger of positional asphyxia reinforces the conclusion that their conduct was

unreasonable.

The bottom line is that a jury could find that the officers’ conduct was

unreasonable. The officers used their weight to compress Martin, struck his head and

body multiple times, restrained his neck or chin, and placed him in a torso lock. These

tactics were not justified by Martin’s possible crime, the threat he posed to anyone’s

safety, or his resistance. The officers’ failure to adhere to a departmental policy that

explained the grave dangers of positional asphyxia verifies the unreasonableness of their

actions. The quantum of force the officers used was constitutionally excessive, violating

the Fourth Amendment right of an unarmed, minimally threatening, and mentally

unstable individual to be free from gratuitous violence during an arrest.

2. Clearly established law

Having determined that the officers violated Martin’s constitutional right, the

next step is to consider whether that right was clearly established when the arrest

occurred. See Griffith, 473 F.3d at 658–59 (citing Saucier, 533 U.S. at 202). “If the law

at that time was not clearly established, an official could not . . . fairly be said to ‘know’

that the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S.

at 818. The right’s contours must be “sufficiently clear” to show that “a reasonable

official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). We have to zoom in close enough to ensure the

right is appropriately defined: instead of stating it “at a high level of generality,” we “go

down the stairs of abstraction to a concrete, particularized description of the right.”

Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 508 (6th Cir. 2012) (internal

quotation marks omitted). But not too close:

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 12

[J]ust as a court can generalize too much, it can generalize too little. If

it defeats the qualified-immunity analysis to define the right too broadly

(as the right to be free of excessive force), it defeats the purpose of

§ 1983 to define the right too narrowly (as the right to be free of needless

assaults by left-handed police officers during Tuesday siestas).

Id. at 508–09.

The task, then, is not to match each application of force with a precisely

analogous case to demonstrate its prohibition. “The mere fact that a court has not held

the particular action in question unlawful is insufficient to create immunity.” Griffith,

473 F.3d at 659 (citing Anderson, 483 U.S. at 640). An action’s unlawfulness may be

plain “from direct holdings, from specific examples described as prohibited, or from the

general reasoning that a court employs.” Champion v. Outlook Nashville, Inc., 380 F.3d

893, 902 (6th Cir. 2004) (internal quotation marks omitted). So while the contours of

a right must be “sufficiently clear,” Anderson, 483 U.S. at 640, a “fundamentally

similar” or “materially similar” case is not required to show it is clearly established,

Hope v. Pelzer, 536 U.S. 730, 741 (2002).

The sources of clearly established law to be considered are limited. We “look

first to decisions of the Supreme Court, then to decisions of this court and other courts

within our circuit, and finally to decisions of other circuits.” Champion, 380 F.3d at 902

(internal quotation marks omitted). While these sources are the primary reference

points, others may also light the path to reveal the existence of a clearly established

constitutional right. Id. (observing that Hope, 536 U.S. at 744–45, looked to state

regulations and communications between public agencies as evidence that the corporal

punishment at issue in the case was clearly proscribed).

The prohibition against placing weight on Martin’s body after he was handcuffed

was clearly established in the Sixth Circuit as of August 2007. In Champion, we held

that applying pressure to the back of a prone suspect who no longer resists arrest and

poses no flight risk is an objectively unreasonable use of force. Id. at 901. Zimmerman

and Tieber crossed the line Champion drew when they placed their arms on Martin’s

back to restrain him after he was handcuffed and prone.

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 13

The more difficult issue is whether the officers were on notice that the force they

used against an unarmed and mentally unstable individual before he was subdued

violated the Constitution. The officers argue that Champion is inapposite here because

it only forbids creating asphyxiating conditions by putting substantial pressure on a

handcuffed suspect’s back. But this is too cramped a view of our precedents. The better

view is that Champion proscribes the use of “substantial or significant pressure” that

creates asphyxiating conditions in order to restrain a subject who does not pose a

material danger to the officers or others. That Champion himself was handcuffed when

this occurred is incidental to the rule.

An examination of the principal circuit court case on which Champion relies

makes this clear. In Simpson v. Hines, ten officers entered the jail cell of a “volatile,

drug-affected” detainee who refused to surrender his personal effects or be searched.

903 F.2d 400, 401 (5th Cir. 1990). An officer restrained Simpson’s neck while others

grabbed his arms and legs and brought him down to the ground. Id. at 402. An officer

nicknamed “Beef” (due to his large size) sat on Simpson’s chest as the others tried to

handcuff him. Unable to do so, they rolled Simpson on to his stomach and double-

cuffed his hands and legs. Id. The medical examiner’s report stated that Simpson died

due to asphyxiation minutes after the struggle. Id. Finding the officers should have

known the force they used was “grossly disproportionate to the need,” the Fifth Circuit

denied them qualified immunity. Id. at 403. Champion’s reliance on Simpson shows

that creating asphyxiating conditions by applying “substantial or significant pressure”

to restrain a suspect who presents a minimal safety risk amounts to excessive force.

More recent Sixth Circuit case law bolsters this view. In Griffith, we considered

whether restraining the neck of an unarmed and emotionally disturbed man during the

course of an arrest in his home violated a clearly established constitutional right. The

police offered disputed testimony that the man, Partee, resisted arrest and struggled with

the officers as they attempted to handcuff him. They also claimed Partee tried to

unholster an officer’s gun during the struggle. This led an officer to restrain Partee’s

neck to gain control over him before handcuffing Partee and putting him face down on

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 14

the ground. Partee died from asphyxiation. Taking the facts in the light most favorable

to Partee, we observed that he “posed no threat to the officers or anyone else.” Griffith,

473 F.3d at 659. In these circumstances, the use of the neck restraint violated Partee’s

clearly established right to be free from gratuitous violence during arrest. Id. at 659–60.

Here, as in Griffith, Martin did not present a serious safety risk that justified the

officers’ use of force. The officers object that Martin actively fought with them to avoid

being handcuffed. But we are bound to view the evidence in the light most favorable to

the estate. The record here supports the inference that Martin struggled to cast the

officers’ weight from his back so he could breathe. Even assuming that Martin struggled

to avoid being handcuffed does little to help the officers show that the prohibition on

their conduct was not clearly established. Martin posed less of a threat to the officers

here than Partee did when he allegedly attempted to unholster an officer’s gun during the

struggle in that case. Moreover, the events here occurred outdoors when Martin was

completely naked. Unlike the officers in Griffith, who wrestled with Partee in his own

home, the officers here could not reasonably fear that Martin would produce a weapon

to use against them. Griffith put the officers on notice that using severe force, including

a neck restraint, against an unarmed and minimally threatening individual before he was

subdued violates the Constitution.

Further, the officers violated clearly established law that required them to take

into account “the diminished capacity of an unarmed detainee . . . when assessing the

amount of force exerted.” Champion, 380 F.3d at 904. Martin exhibited conspicuous

signs that he was mentally unstable. He was also unarmed. Confronted with such an

individual, Champion required the officers to de-escalate the situation and adjust the

application of force downward. Contrary to this command, the officers ignored Martin’s

diminished mental state and used excessive force to control him.

Finally, BHPD’s Positional Asphyxia Policy regulated the conduct of the officers

when they encountered Martin, instructing them to recognize the risks of restraining an

individual exhibiting bizarre and agitated behavior. “Just as the Supreme Court

determined that [state regulations] and the communications between [a state and a

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 15

federal agency] put the state on notice about what constituted cruel and unusual

punishment, so too here the training these officers received alerted them to the potential

danger of this particular type of excessive force.” Id. (citing Hope, 536 U.S. at 744–45).

Though they knew the hazards of the tactics they deployed against a high-risk individual,

the officers failed to heed the policy’s warnings. This is further evidence that the

officers were on notice that their conduct exceeded the bounds of permissible force.

To summarize: Our precedents and BHPD’s own policies clearly established in

August 2007 that the force the officers used to restrain Martin was excessive. A

reasonable officer should have known that subduing an unarmed, minimally dangerous,

and mentally unstable individual with compressive body weight, head and body strikes,

neck or chin restraints, and torso locks would violate that person’s clearly established

right to be free from excessive force. The Constitution does not countenance this level

of force. The officers are not entitled to qualified immunity.

B. Monell liability

The City also appeals the district court’s denial of summary judgment on the

estate’s Monell claim. The City maintains it cannot be liable under Monell absent an

underlying constitutional violation. Because we have found that the officers violated

Martin’s clearly established right under the Fourth Amendment, the City’s argument is

unavailing.

Moreover, in the face of a constitutional violation, we lack subject-matter

jurisdiction to entertain an appeal of the municipal-liability claim because the only path

to review the City’s claim is foreclosed here. “Although not appealable as a final

decision under 28 U.S.C. § 1291, an appellate court can exercise pendent appellate

jurisdiction on a § 1983 claim alleging municipal liability where the municipality’s

motion for summary judgment is inextricably intertwined with the qualified immunity

analysis properly before the Court.” Lane v. City of LaFollette, 490 F.3d 410, 423 (6th

Cir. 2007) (internal quotation marks omitted). A pendent appellate claim is “inextricably

intertwined” with a properly reviewable claim on collateral appeal “only if . . . appellate

resolution of the collateral appeal necessarily resolves the pendent claim as well.”

No. 11-4039 Martin v. City of Broadview Heights, et al. Page 16

Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir. 1999) (internal quotation

marks omitted).

The officers’ challenge to the denial of qualified immunity is not “inextricably

intertwined” with the district court’s summary-judgment ruling on the City’s Monell

liability. The officers’ liability turns on whether the force they used to restrain Martin

violated his clearly established constitutional rights. But the City’s liability hinges on

its failure to train and supervise the officers. Because resolution of the officers’

interlocutory appeal does not necessarily determine the City’s training and supervision

obligations, we do not have jurisdiction to consider the City’s municipal-liability appeal

at this time.

C. State-law immunity

Finally, the officers argue that they are entitled to statutory state-law immunity

and that the district court erred in denying summary judgment on this ground. Ohio law

does not immunize the acts or omissions of officers done with “malicious purpose, in

bad faith, or in a wanton or reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(b). The

district court concluded that a jury could find that the officers were liable on this basis.

The officers rely solely on Chappell v. City of Cleveland, 585 F.3d 901 (6th Cir.

2009), to support their claim. But Chappell only says that officers may be entitled to

state-law immunity if qualified immunity shields them from liability on federal claims.

Id. at 915 n.3. Qualified immunity does not protect the officers here. As resolution of

the state-law immunity issue is heavily dependent on the same disputed material facts

as the excessive-force determination under § 1983, the district court properly denied

summary judgment to the officers on the estate’s state-law claims.

III. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.