# Rafael Correa v. James Simone, Jr.

> Court of Appeals for the Sixth Circuit · June 12, 2013 · 528 F. App'x 531

URL: https://www.frixlaw.com/law-library/cases/9514259

## Case

- **Full name:** Rafael CORREA, Plaintiff-Appellee, v. James J. SIMONE, Jr., Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 12, 2013
- **Citations:** 528 F. App'x 531
- **Precedential status:** Unpublished
- **Opinion:** Dissent by Rogers
- **Judges:** Martin, Rogers, Tarnow
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9514259

## How later opinions describe it (automated extraction)

- holding that crime was severe enough to weigh in favor of police use of taser where the police broadcast described an “assault by a man with a firearm.”
- finding no immediate threat of harm, and ultimately finding excessive force, where arrestee — who was armed — had put his hands in the air, ceased resisting, and made no evasive movements
- finding no immediate threat of harm, and ultimately finding excessive force, where arrestee—who was armed—had put his hands in the air, ceased resisting, and made no evasive movements
- stating that “spitting on someone does not generally constitute assault in Ohio,” absent some additional evidence

## Opinion text

ROGERS, Circuit Judge,
dissenting.
When Officer Simone apprehended Cor-rea, he did not have fair warning that it was unconstitutional to tase a suspect who he believed possessed a gun, even if the suspect was not actively resisting arrest. The plaintiff points to no case in which a court disapproved of the use of a taser when a suspect was believed to possess a firearm, and qualified immunity therefore required summary judgment for Simone on the federal excessive force claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9514259. Public record. Not legal advice.