holding that officer’s push of suspect’s mother on stairwell, which caused her to momentarily lose her balance and stumble down one step of stairs, was not unreasonable, when she placed herself “in the middle of a chaotic, tense, and rapidly evolving situation”
How later courts described this case
- holding that officer’s push of suspect’s mother on stairwell, which caused her to momentarily lose her balance and stumble down one step of stairs, was not unreasonable, when she placed herself “in the middle of a chaotic, tense, and rapidly evolving situation”
- holding that the presence of a K9 unit during an arrest was reasonable because of the possibility of flight
- pushing 59- year-old woman reasonable when officer was focused on apprehending a potentially fleeing fugitive, and the plaintiff’s “presence in the midst of this situation interfered with [the police officer’s] efforts to perform his duties”
- finding no excessive force when an officer pushed the arrestee’s mother toward a K-9 dog which then bit her
Written by the judges who cited it.
The opinion
*497 KAREN NELSON MOORE, Circuit Judge,
concurring in part and dissenting in part.
Although I concur in the majority’s opinion affirming summary judgment in favor of Officer Percy Jenkins (“Officer Jenkins”), I respectfully dissent from the majority’s holding that qualified immunity shields Officer Scott Noble (“Officer Noble”) from liability because I believe that Officer Noble’s use of force against Elois Dunigan (“Dunigan”) was an objectively unreasonable violation of Dunigan’s clearly established Fourth Amendment rights.
Determining whether the actions of a police officer rise to the level of unconstitutionally excessive force is often a difficult task, for police officers frequently must make on-the-spot decisions in the face of chaotic, rapidly-evolving, and potentially dangerous situations. Indeed, we repeatedly draw upon, as if by rote, the Supreme Court’s guiding maxims that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment,” and that we should not judge police officers’ conduct “with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). However, acknowledging the fact that police officers operate in a fast-paced, uncertain environment should not lead to our reflexive rubber-stamping of “every push or shove” by a police officer. Rather, in each case we must determine whether, given similar circumstances, a reasonable and prudent police officer would have acted in like fashion, taking into consideration such factors as the severity of the crime involved and the immediate threat to safety posed by the seized person. After reviewing the events that transpired at the Dunigan residence on the morning of March 8, 2001 in the light most favorable to Dunigan, I believe that Officer Noble acted unreasonably and with excessive force in pushing Dunigan, a fifty-nine-year-old woman, down a narrow stairway towards another police officer and his police dog.
First, Officer Noble and the other members of the Kalamazoo Police Department reported to the Dunigan residence not in response to a violent crime, but rather simply to take Dunigan’s son, Quincy Du-nigan (“Quincy”), into custody for failing to report to his parole officer, Leslie Willson (‘Willson”). Although Willson enlisted the aid of several police officers to help effectuate Quincy’s arrest because Quincy had a history of attempting to flee police custody, the record does not seem to indicate that Quincy had a history of violent behavior. Indeed, Dunigan indicated that Will-son and Officer Noble had come to her home several times looking for Quincy and that they had walked through her home without incident just a few weeks earlier. Joint Appendix (“J.A.”) at 158 (Elois Duni-gan Dep.).
Second, contrary to the majority’s suggestion, Dunigan did not pose a serious threat to the safety of others present by being emotionally agitated, yelling, and screaming. According to Dunigan, she was not upset and did not yell at the officers. J.A. at 158-59 (Elois Dunigan Dep.). However, even if Dunigan was emotionally upset by the entry of police officers and a police dog into her home, a reasonable and prudent police officer would not attempt to diffuse such a situation by pushing the upset bystander from behind and down a stairway in the direction of other officers and a police dog.
The majority also contends that Dunigan posed a threat to the police officers by remaining on the kitchen steps and not moving out of the officers’ path. However, the record does not seem to indicate that *498 the officers asked Dunigan to step outdoors or to move to another part of the house while they executed the search. Furthermore, because Dunigan claims to have been standing between Officers Noble and Jenkins on the stairway, Dunigan could go nowhere without moving in the direction of at least one of the officers, which itself could have been interpreted by the officers as a threatening or hostile act. Ultimately, if there was a need to remove Dunigan from the main area of activity, pushing her downstairs further into the fray in the direction of Officer Jenkins, police dog Kojak, and the primary ingress point for other officers was not a reasonable means of accomplishing such an objective. J.A. at 225 (Scott Noble Dep.) (“Q. Other than it would constitute an excessive use of force, what are all of the other reasons for which you would not want to do that sort of thing? A. I would not want to push her down in the way of what is going on because she’s going to interfere more with what is going on down there. I want to keep her out of the area. Q. So pushing her down under that hypothetical scenario, Number 1, would pose a risk of— A. Risk to Percy. Q. It would pose a risk of serious injury to her from the dog, correct? A. Correct. Q. It would pose a risk to Percy Jenkins? A. Correct. Q. What else? A. Anybody else that is down there”).
The majority also justifies Officer Noble’s actions by explaining that he faced a situation fraught with uncertainties in that the officers were attempting to arrest someone who had a history of evading capture, there was an unknown person in the basement who refused to show his hands, and there might have been other persons in the home who could attack the officers. To determine whether a police officer has acted reasonably, we must evaluate the amount and type of force used in light of the particular uncertainties facing the officer. In this case, Officer Noble acted unreasonably notwithstanding the general air of uncertainty at the Dunigan residence because the force he used (pushing Dunigan down the stairs toward Officer Jenkins and police dog Kojak) bears no reasonable relation to the specific uncertainties the majority says Officer Noble faced (Quincy’s history of fleeing, the presence of an unidentified person in the basement, and the possibility of other persons being in the house).
Finally, the majority contends that Officer Noble had no reason to expect that Dunigan’s stumbling down the stairway would cause Kojak to bite her because Officer Noble had previously witnessed one of Dunigan’s sons run past Kojak without being attacked. However, Officer Jenkins testified that police dogs are trained to protect their police handlers and agreed that it “wouldn’t be a reasonable use of force to push somebody towards a police dog handler and a police dog ... [bjecause the dog could bite them.” J.A. at 256 (Percy Jenkins Dep.). Furthermore, even if it were reasonable for Office Noble to assume that Kojak would not bite Dunigan if she were pushed in his direction, the fact that a fifty-nine-year-old woman could be injured if pushed down a stairway should not have come as a surprise to Officer Noble. That Dunigan’s injuries took the form of a dog bite rather than a broken hip or sprained ankle does not make Officer Noble’s actions any more reasonable.
Because pushing a fifty-nine-year-old female bystander from behind and without provocation down a stairway in the direction of other police officers and a police dog amounts to unconstitutionally excessive force, I believe that Officer Noble violated Dunigan’s Fourth Amendment rights. Moreover, I do not believe that Officer Noble should be immune from liability, as his conduct was objectively un *499 reasonable in light of clearly established law at the time of the incident. The doctrine of qualified immunity is driven by the notion that, although a government official may have violated a citizen’s rights, “ ‘[i]f 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.’ ” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)) (second alteration in Champion). Here, however, Office Noble admitted during his deposition that, if Dunigan’s allegations were true, his actions would constitute excessive force:
Q.... Let’s assume there is an eyewitness who says that you pushed Miss Dunigan, that she was not posing any sort of physical threat, nor was she antagonizing the dog, and that you pushed her from behind on the shoulder into the direction of the dog which was barking and which was located in close proximity, are you telling me that that is something that you didn’t do?
A. That is correct.
Q. Are you telling me is something that you wouldn’t do?
A. I would not do that.
Q. And one of the reasons you would not do that is because in your opinion that would be an excessive use of force under those circumstances, would it not, Officer?
A. Correct.
Q. Okay. And that’s your opinion based on your 14 years experience on the Kalamazoo force, as well as your education and training—
A. That’s correct.
Q. —m-service academy, et cetera, correct?
A. Correct.
J.A. at 224-25 (Scott Noble Dep.). Moreover, at the time of the events in question, the right of bystanders not to be attacked, particularly from behind and without provocation, was clearly established in this court and others. See Dugan v. Brooks, 818 F.2d 513, 516-17 (6th Cir.1987) (vacating district court’s order dismissing suit for failure to state a claim, concluding that complaint which “not only alleges that [the officer] arrested [the plaintiff] without probable cause but also alleges that, in doing so, with malice and without warning or justification, struck [the plaintiff] on the head from behind, knocking him to the floor and seriously injuring him ... clearly alleges a deprivation of the rights secured by the fourth amendment as made applicable to the states by the fourteenth amendment”); Teames v. Henry, No. Civ. 3:03-CV-1236-H, 2004 WL 357961 , *3-4 (N.D.Tex.2004) (denying police officer’s motion for summary judgment on the basis of qualified immunity in suit alleging that the officer violated the Fourth Amendment rights of a seventy-nine-year-old woman by pushing her off a porch, and citing cases from 1998 and earlier in support of its finding that “a bystander’s right to be free from an officer’s use of excessive force ... was clearly established in ... 2002 when [the officer] allegedly used excessive force”); see also Kain v. Nesbitt, 156 F.3d 669, 670, 673 (6th Cir.1998) (reversing grant of summary judgment for police officer on the basis of qualified immunity because jury should resolve fact question of whether officer was reasonable in grabbing mother and pushing her against the wall during search for her son).
In sum, because I believe that Office Noble’s conduct violated Dunigan’s Fourth Amendment right not to be seized with excessive force and was objectively unreasonable in light of clearly established law, I respectfully dissent from the majority *500 affirmance of summary judgment in favor of Officer Noble.