Thomas Lunneen v. Vill. Of Berrien Springs, MI

NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0411n.06

Case Nos. 22-2044; 22-2046

FILED

UNITED STATES COURT OF APPEALS Sep 21, 2023

FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

)

THOMAS E. LUNNEEN, personal representative

)

of the estate of Jack C. Lunneen,

)

Plaintiff-Appellee, )

)

v. )

)

VILLAGE OF BERRIEN SPRINGS, MICHIGAN, ) ON APPEAL FROM THE

et al., ) UNITED STATES DISTRICT

Defendants, ) COURT FOR THE WESTERN

) DISTRICT OF MICHIGAN

JAMES WYSS, in his individual capacity and )

in his official capacity as an Officer for the Berrien )

Springs-Oronoko Township Police Department ) OPINION

(22-2044); ROGER JOHNSON, in his individual )

capacity and in his official capacity as a Sergeant )

for the Berrien County Sheriff’s Department )

(22-2046), )

)

Defendants-Appellants. )

Before: McKEAGUE, GRIFFIN, and MURPHY, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court in which GRIFFIN, J., joined.

MURPHY, J. (pp. 28–32), delivered a separate opinion concurring in part and dissenting in part.

McKEAGUE, Circuit Judge. Plaintiff Thomas Lunneen (“Plaintiff”) brought suit against

Officer James Wyss and Sergeant Roger Johnson (collectively, “the Officers”) following the fatal

arrest of his brother, Jack Lunneen (“Lunneen”). Plaintiff argues that the Officers used excessive

force while arresting Lunneen and that they were grossly negligent for failing to provide medical

Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

care to Lunneen. The district court found that qualified immunity shielded many of the Officers’

interactions with Lunneen, including their use of a taser and pepper spray when attempting to get

Lunneen on the ground. The district court denied summary judgment, however, on two aspects of

the arrest: the Officers’ use of force once they had Lunneen on the ground but before they

handcuffed him, and Wyss’s use of force after Lunneen was handcuffed. We lack jurisdiction to

consider the Officers’ evidentiary arguments at this stage. For those arguments properly before

us, we AFFIRM.

I. BACKGROUND

A. Factual Background

Officer James Wyss of the Village of Berrien Springs-Oronoko Township Police

Department and Sergeant Roger Johnson of the Berrien County Sheriff’s Department were both

on duty the night of October 22, 2018. The Departments share concurrent jurisdiction in the

overlapping portions of the Village of Berrien Springs-Oronoko Township and Berrien County

where the at-issue incident occurred. The incident was captured on both Officers’ body cameras.

At approximately 1:15 a.m., Wyss first interacted with Lunneen when Lunneen rode his

bicycle up to Wyss’s patrol car and started talking to him. Wyss recognized that Lunneen was

incoherent and agitated. At the time, Lunneen was fully dressed. Lunneen asked Wyss if he could

speak with Johnson, an acquaintance of Lunneen’s. After asking about Johnson, Lunneen rode off

on his bicycle. Wyss followed Lunneen for a short amount of time and then lost sight of him.

When Johnson subsequently drove by, Wyss flagged him down and described his interaction with

Lunneen.

While talking with Johnson, Wyss got dispatched to the home of a local resident who

reported a white, middle-aged, shirtless man running around outside of her home. The resident

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reported that the man had pushed her air-conditioner unit into her home, breaking her living room

window. Upon arrival at the scene, Wyss spoke with the resident who further described the

incident. Wyss told the resident that he thought the man who destroyed her property was the same

man who came up to his car earlier “spouting off a bunch of nonsense.” Wyss Body Camera

Footage, at 10:27–10:34. While still talking with the resident, Wyss observed Lunneen running

towards downtown. Wyss attempted to follow Lunneen on foot, but quickly lost sight of him. He

radioed Johnson to let him know that Lunneen was on the move.

Johnson spotted Lunneen while surveilling the area. Lunneen approached Johnson’s patrol

car and wanted to get inside. Johnson exited his patrol car and ordered Lunneen to the front.

Wyss then arrived on the scene. Wyss asked what was going on and Lunneen responded

that he was an addict and currently climaxing. Lunneen also started shouting things like “HELP!

YES! CALL THEM, MY PEOPLE HERE TOO!” and told the Officers that he “know[s] what[’s]

happening, and [you’re] going to kill me.” At this point, Lunneen was shirtless, sweating

profusely, and had blood on him. It was thirty degrees outside. Johnson requested a paramedic

from dispatch, citing possible excited delirium.

Johnson asked Wyss if he had probable cause to arrest Lunneen, and Wyss responded that

there was probable cause to arrest him for malicious destruction of property.

The Officers then attempted to arrest Lunneen. First, Lunneen put his arms slightly behind

his back and appeared compliant. But this compliance was short-lived; Lunneen quickly started

backing away from the Officers. The Officers repeatedly told him to get down on his knees and

stay out of the road. Lunneen responded by yelling things like “HELP,” “PLEASE DON’T,” and

“I’M NOT THE ONE” as he moved towards the road while swinging his arms. Expert Transcript

of Body Camera Footage, R. 57-15, PID # 569–70. After the Officers had been going back and

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forth with Lunneen for approximately one minute and thirty seconds—including three warnings

from Johnson that he was going to use his taser—Johnson tased Lunneen. Lunneen briefly keeled

over, and he proceeded to rip the taser probes out of his chest and run back into the street. The

Officers continued their pursuit and warnings. Wyss then hit Lunneen with pepper spray, first on

the side of his head and then directly in the face.

Attempting to get Lunneen on the ground so he could be handcuffed, Wyss successfully

used a leg sweep to get Lunneen’s feet out from under him. While Lunneen was on the ground,

he grabbed Wyss’s leg. Wyss told Lunneen to let go and then applied pressure to his mandibular

nerve to force him to let go.1 Wyss reports that this tactic was successful because Lunneen then

let go of his leg. The Officers’ body camera footage also reveals that one of the Officers (Johnson,

according to Plaintiff) had his hand on Lunneen’s neck during this time. Further, the footage

shows Johnson straddling Lunneen while Lunneen is on the ground.

After having Lunneen on the ground for approximately two minutes, the Officers were able

to handcuff him, at which point Johnson immediately stepped away. Wyss, however, remained

kneeling or standing beside Lunneen holding his handcuffs for almost two additional minutes.

During this time Johnson pointed out that Lunneen was struggling to breathe and elevated his

earlier request for a medic to a higher priority. The medic initially arrived where the Officers’

patrol cars were parked, which, by this time, was approximately 100 yards away. The Officers

attempted to flag down the medic and Johnson radioed dispatch to inform the medic of their new

location. Once the medic arrived (approximately three minutes after Lunneen was handcuffed)

1

Wyss described this move as requiring him to put his thumb underneath Lunneen’s jawline and apply

pressure upwards towards Lunneen’s face.

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the Officers assisted as requested in providing Lunneen medical care. However, they did not

provide any medical care on their own before the medic arrived.

Lunneen was pronounced dead at 2:30 a.m. at a local hospital. His autopsy report detailed

multiple blunt-force injuries to his head, trunk, and extremities; it also confirmed that there was

methamphetamine in Lunneen’s system. His cause of death was ruled excited delirium associated

with methamphetamine use. But the manner of death was deemed “indeterminate” based on the

“significant debate in the medical community regarding manner of death certification in excited

delirium deaths associated with law enforcement intervention.” Postmortem Examination Rep.,

R. 81-6, PID # 900. Plaintiff provided reports from three medical experts who dispute the cause-

of-death finding and believe that Lunneen died of asphyxiation.

B. Procedural Background

Plaintiff, as representative of Lunneen’s estate, filed suit in the Western District of

Michigan. He raised excessive force, unconstitutional conditions of detainment, and

unconstitutional denial of medical care claims under 42 U.S.C. § 1983—as well as a state-law

gross negligence claim—against Defendants Wyss and Johnson. He also brought Monell claims

against Berrien Springs, Oronoko Township, Chief Paul Toliver, Berrien County, and Sheriff Paul

Bailey. Plaintiff further alleged that Berrien County, Berrien Springs, and Oronoko Township

violated various state constitutional guarantees.

The defendants all moved for summary judgment. The district court granted in part and

denied in part the motions. The district court granted summary judgment to the municipal

defendants on the Monell claims and the state constitutional claims. Lunneen v. Vill. of Berrien

Springs, No. 1:20-CV-1007, 2022 WL 16569574, at *12–13, 15 (W.D. Mich. Nov. 1, 2022). The

district court also granted summary judgment to Wyss and Johnson on Plaintiff’s federal denial of

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medical care and unconstitutional conditions of detainment claims. The district court broke the

excessive force claim into five parts, considering each “officer’s entitlement to qualified immunity

each step along the way.” Id. at *4 (citation omitted).

The first step was Johnson’s use of his taser, and the second was Wyss’s use of pepper

spray. The district court found these actions reasonable. Next, the district court considered the

physical takedown of Lunneen, again finding the Officers’ actions reasonable. But the district

court found that a genuine dispute of material fact remained about whether the Officers used

unconstitutional force after they got Lunneen on the ground but before he was handcuffed, and

about whether Wyss used unconstitutional force after Lunneen was handcuffed. It also found that,

when viewing those disputed facts in Plaintiff’s favor, the “right to be free from substantial or

significant pressure that creates asphyxiating conditions while being restrained on the ground is

clearly established.” Id. at *9. The final step—leaving Lunneen handcuffed on the ground—did

not involve a clearly established right, and thus the district court granted qualified immunity.

As for Lunneen’s state law gross negligence claim against Wyss and Johnson, the district

court determined the claim relied on two theories: first, the Officers’ failure to refrain from using

deadly force; and second, their denial of medical care. Because the first theory relied on intentional

actions, and not negligence, the district court dismissed that portion. But the district court declined

to dismiss the gross negligence claim entirely and allowed it to proceed based on the denial of

medical care theory. Plaintiff did not appeal the district court’s decision. Johnson and Wyss appeal

each of the outstanding claims against them.

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II. ANALYSIS

We review the denial of qualified immunity and Michigan governmental immunity

de novo, viewing the facts in the light most favorable to the plaintiff. Bey v. Falk, 946 F.3d 304,

311–12 (6th Cir. 2019); Kindl v. City of Berkley, 798 F.3d 391, 403 (6th Cir. 2015).

A. Excessive Force

We have jurisdiction to review a district court’s denial of qualified immunity at summary

judgment. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); 28 U.S.C. § 1291. This jurisdiction is

limited, Estate of Hill ex rel. Hill v. Miracle, 853 F.3d 306, 311 (6th Cir. 2017), for it exists only

“to the extent that [the denial] turns on an issue of law,” Gillispie v. Miami Twp., 18 F.4th 909,

915 (6th Cir. 2021) (citing Mitchell, 472 U.S. at 530). Our jurisdiction clearly exists when the

defendant does not contest the plaintiff’s version of the facts, Berryman v. Rieger, 150 F.3d 561,

563 (6th Cir. 1998), and when “the legal issues are discrete from the factual disputes,” Adams

v. Blount Cnty., 946 F.3d 940, 951 (6th Cir. 2020) (citation omitted). Generally, however, a

defendant cannot appeal a denial of qualified immunity “insofar as that order determines whether

or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S.

304, 319–20 (1995).

There is an exception. “When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007). We thus have jurisdiction to reverse a district court’s

determination that a dispute of fact exists when “the plaintiff’s version of the facts, which the

district court accepted,” is “‘utterly discredited by the record.’” Clay v. Emmi, 797 F.3d 364, 368

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(6th Cir. 2015) (citation omitted); see also Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 496

(6th Cir. 2012) (stating that this happens only in “exceptional circumstances”).

Qualified immunity protects government officials from liability for civil damages “insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts

undertake a two-pronged inquiry to determine an officer’s entitlement to qualified immunity in the

excessive force context, examining both: “(1) whether the officer violated the plaintiff’s

constitutional rights under the Fourth Amendment; and (2) whether that constitutional right was

clearly established at the time of the incident.” Hill, 853 F.3d at 312 (citation omitted). The two

prongs can be addressed in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Qualified

immunity shields an officer’s actions if either inquiry is answered in the negative. Martin v. City

of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013).

The Fourth Amendment protects an individual’s right to be free from “excessive force

during an arrest.” LaPlante v. City of Battle Creek, 30 F.4th 572, 579 (6th Cir. 2022). To determine

if an officer’s use of force violates the Fourth Amendment, courts apply an objective

reasonableness standard, considering an officer’s actions “in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.” Graham v. Connor,

490 U.S. 386, 396–97 (1989). Objective reasonableness is “judged from the perspective of a

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

Fourth Amendment does not require police officers to take the best approach; they need only take

a reasonable approach. Roell v. Hamilton Cnty., 870 F.3d 471, 486 (6th Cir. 2017).

To determine whether an officer’s use of force is reasonable, courts must carefully balance

“the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the

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countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quotation marks and

citations omitted). Three Graham factors guide this balancing act: “(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.” Hill, 853

F.3d at 312 (internal quotation marks omitted) (quoting Graham, 490 U.S. at 396). This is a fact-

intensive inquiry, and “summary judgment is improper if the legal question of immunity turns on

which version of the facts is accepted, because then the reasonableness of the use of force is the

linchpin of the case.” Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir. 2007) (internal quotation

marks and citations omitted).

As stated above, the district court granted qualified immunity to the Officers for Johnson’s

use of his taser, Wyss’s use of his pepper spray, their joint physical takedown of Lunneen, and their

decision to leave Lunneen handcuffed on the ground without using any force. At issue is the

district court’s denial of qualified immunity for the Officers’ joint efforts to subdue Lunneen on

the ground and Wyss’s post-handcuff pressure.

1. Subduing Lunneen

Once Lunneen was on the ground, a struggle ensued while both Officers attempted to

handcuff him. The district court found that disputes of fact precluded summary judgment and that

the right at issue was clearly established. Lunneen, 2022 WL 16569574, at *7–10.

a. Was there a constitutional violation?

The first Graham factor—the severity of the crime at issue—suggests that it was reasonable

to use some force in effecting Lunneen’s arrest. Viewing the evidence in the light most favorable

to Plaintiff, the Officers had probable cause to arrest Lunneen for misdemeanor malicious

destruction of property. The right to make an arrest “necessarily carries with it the right to use

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some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396; but see

Bozung v. Rawson, 439 F. App’x 513, 520 (6th Cir. 2011) (explaining that when a crime is not

violent or serious, it “weighs in favor of using less force in arresting someone for such conduct”

(citation omitted)). “But the question is not whether any force was justified. It is, instead, whether

[the Officers] could reasonably use the degree of force employed against” Lunneen. Martin, 712

F.3d at 958.

The next consideration is whether Lunneen posed a threat to the Officers or others.

Graham, 490 U.S. at 396. The Officers both admit that Lunneen appeared to be unarmed and

mentally unstable. In such a situation, an officer’s interest in using force is weakened. See Martin,

712 F.3d at 958; Landis v. Baker, 297 F. App’x 453, 465 (6th Cir. 2008) (“[W]hen police are

confronted by an unarmed, emotionally distraught individual who has committed no serious crime,

as opposed to an armed and dangerous criminal, the governmental interest in using force is

diminished, not strengthened, even when the suspect is irrational and inviting the use of force.”

(citation omitted)). For this consideration, courts look to the “immediate threat” a suspect poses.

Graham, 490 U.S. at 396. The Officers argue that Lunneen posed a threat to them because he

“charged at the officers, swung his arms at the officers, and was unable to be restrained even

through the use of a Taser and [pepper] spray.” Wyss Opening Br. at 26; see also Johnson Opening

Br. at 13.2 However, these actions occurred before Lunneen was on the ground. Nevertheless,

Lunneen appeared to be a danger to himself, thus justifying the use of some force to detain him.

See, e.g., Cook v. Bastin, 590 F. App’x 523, 530 (6th Cir. 2014).

2

Plaintiff disputes this description of the events. R. 98, PID # 1267 (“When viewed in the light most

favorable to Plaintiff, the evidence shows Jack was ‘flailing’ his arms about in an uncoordinated fashion,

attempting to swat at red beam from Johnson’s laser, pulling the taser probes from his chest, and swatting

away the mist from Wyss’s [pepper] spray, not ‘swatting at’ or ‘swinging for’ the officers.” (Internal citation

omitted)).

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The final Graham factor is whether the suspect was actively resisting arrest. Graham, 490

U.S. at 396. “Active resistance includes ‘physically struggling with, threatening, or disobeying

officers.’” Rudlaff v. Gillispie, 791 F.3d 638, 641–42 (6th Cir. 2015) (citation omitted). If a suspect

stops resisting arrest and is compliant when the challenged force occurs, this factor weighs against

the use of force. Id. at 641; see also Martin, 712 F.3d at 959 (“[T]o 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.”). Before Lunneen was on the ground,

the district court found that he was actively resisting arrest, Lunneen, 2022 WL 16569574, at *5,

but the situation was different after he was on the ground, id. at *8.

Once Lunneen was on the ground, the following conversation took place:

Wyss: Gimme your hand, gimme your hand

Lunneen: Why, don’t

Wyss: On your stomach, nope roll over

Lunneen: *groans*

Wyss: Roll over

Lunneen: Help

Johnson: Roll over now

Lunneen: *groans*

Wyss: Gimme your hand, c’mon roll over

Lunneen: Help

Help

Help *mumbles*

Wyss: Get your hands off

Lunneen: Ow

Wyss: Roll Over

Johnson: Roll over, do it now

Lunneen: *mumbles*

Help

Stop

Wyss: C’mon, roll over

Lunneen: I’m trying

Johnson: Roll over

Lunneen: Sorry guys

Help me please

For the sake of god

Wyss: C’mon roll over

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Lunneen: Help me

Don’t

Wyss: Nope don’t grab me

Don’t grab me

Lunneen: I won’t

*mumbles*

I fucked up, I’m sorry

Wyss: C’mon give us your hands

Lunneen: Hands off please

Wyss: Roll to your left alright

Lunneen: Let go

No, I don’t need it

Guys don’t

Wyss: C’mon

Give us your hands

Lunneen: Guys *groans*

*groans*

Wyss: C’mon

Lunneen: *groans*

*groans*

Let go of me

*groans*

Why

I’m sorry sir, I’m sorry

Wyss: Let go of me, let go of me

Lunneen: Sir

Wyss: Let go of me

[*Lunneen continues to mumble while the Officers place him in cuffs. *]

R. 57-15, PID # 572–74. The district court found this conversation—specifically when Lunneen

states that he is trying to roll over, he is sorry, he needs help, and he “fucked up”—makes Lunneen

appear verbally compliant after he was on the ground. Lunneen, 2022 WL 16569574, at *8. The

district court went on to recognize, however, that “Lunneen might have offered some resistance by

grabbing Wyss’s leg.” Id. (emphasis omitted). The district court concluded, seemingly based on

these two pieces of evidence, that a jury could “infer that Lunneen was no longer actively resisting

arrest.” Id.

With these factors in mind, our ultimate inquiry is whether the totality of the circumstances

justified the Officers’ actions here. See Roell, 870 F.3d at 483; Martin, 712 F.3d at 960.

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Wyss admits that he applied mandibular pressure while attempting to subdue Lunneen on

the ground. Wyss says he used this pressure to force Lunneen to let go of his leg.3 Id. Because

“the body camera footage does not capture Wyss’s application of mandibular pressure because of

the physical struggle and closeness of body parts to the camera . . . the degree of mandibular

pressure and length of time it was applied is not clear,” and thus the district court concluded that

whether Wyss applied substantial pressure to Lunneen’s head or neck was a question for the jury.

Lunneen, 2022 WL 16569574, at *7.

Plaintiff also alleges that Johnson applied pressure to Lunneen’s neck, and Johnson’s body

camera footage confirms that an officer’s hand was on Lunneen’s neck. Again, the district court

concluded that a genuine dispute remained about whether Johnson applied substantial or

significant pressure to Lunneen’s head or neck. Lunneen, 2022 WL 16569574, at *7.

Plaintiff’s expert, Dr. Freeman, a consultant in forensic medicine and forensic

epidemiology, concluded that, although the damage from the pressure on Lunneen’s neck was

“difficult to quantify (as the duration of the neck hold was brief), the degree of compression at

Mr. Lunneen’s neck is reasonably associated with the petechiae observed at autopsy, and as such

may have contributed the restraint-related asphyxial forces applied to Mr. Lunneen’s body.” R.

57-7, PID # 447. Further, Lunneen’s autopsy revealed injuries to his face, nose, and mouth. The

Officers provided the district court no explanation for these injuries.4

3

At his deposition, Wyss explained that he was concerned about Lunneen grabbing his leg in part because

he had a gun strapped there. Plaintiff disputes Wyss’s story, pointing out that Wyss did not include this

ostensibly crucial fact in his post-incident report. The district court seemingly declined to accept Wyss’s

version of events. Lunneen, 2022 WL 16569574, at *7. Wyss does not challenge this finding on appeal.

Wyss Opening Br. at 22 (“[W]hether or not Officer Wyss was carrying a firearm concealed in his boot is

irrelevant as to whether a reasonable officer could conclude that Lunneen’s active resistance was

continuing.”).

4

When questioned about this oversight at oral argument, Wyss’s counsel proffered that the injuries could

have been caused by the medic’s actions just before Lunneen’s death. Johnson’s counsel offered similar

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The video footage from Wyss’s body camera also shows Johnson straddling Lunneen.

Plaintiff argued that while in this position Johnson used his body weight to apply pressure to

Lunneen’s back or torso. The district court found the footage inconclusive as to what amount of

pressure, if any, Johnson applied. Lunneen, 2022 WL 16569574, at *8. Dr. Freeman also found

that pressure to Lunneen’s back or torso likely contributed to his death, and explained the impact

of such actions:

Obese individuals with a protruding belly like Mr. Lunneen are at heightened risk

of positional asphyxia when in a prone position, due to pressure against the

diaphragm by the belly, thus restricting gas exchange in the lungs. The restraint

conditions that Mr. Lunneen was subject to during his arrest have been

demonstrated to result in impaired breathing capacity and lung function.

Dr. Freeman Rep., R. 57-7, PID # 445. Lunneen’s autopsy also revealed “large areas of

hemorrhage in the soft tissues and deep muscles of [his] mid and lower back,” which one of

Plaintiff’s experts explains was the result of significant levels of back pressure. Baden Report,

R. 57-3, PID # 389.

Viewing this evidence in the light most favorable to Plaintiff, a jury could find that the

Officers’ conduct was unreasonable. Cf. Martin, 712 F.3d at 960 (“These tactics were not justified

by Martin’s possible crime, the threat he posed to anyone’s safety, or his resistance.”). This

conclusion is reinforced “in light of testimony regarding the training that [the officers] received.”

Id. (quoting Griffith, 473 F.3d at 657) (alteration in original). Both Officers received training or

reviewed policies that related to the use of force against a suspect who is mentally ill or under the

influence of drugs. Wyss’s training included information about the need to avoid pressure on those

justifications, before conceding that “some of the bruising was absolutely caused by the interactions with

the Officers.” Neither Officer addressed alternative sources for Lunneen’s injuries in their appellate briefs

(or below, for that matter), thus waiving the arguments. United States ex rel. Marlar v. BWXT Y-12, L.L.C.,

525 F.3d 439, 450 n.6 (6th Cir. 2008).

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individuals’ backs, and Johnson’s training included the need to avoid placing people on their

stomach with their hands behind their backs. Awareness of these policies can serve as evidence

that the Officers’ application of pressure to Lunneen’s neck and back was unreasonable. Id. (“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 Officers take issue with numerous aspects of the district court’s analysis. They argue

that Lunneen was actively resisting during this period, as the “video clearly shows that Lunneen,

whatever he was saying out loud, was not being compliant with the officers on the ground, was

not rolling over when repeatedly instructed, was not giving them his hands, and was continuing to

grapple with the officers from the ground.” Johnson Opening Br. at 22; see also Wyss Opening

Br. at 22 (“Lunneen resisted arrest and continued to do so. This fact is undisputed and confirmed

by the body worn camera footage which is consistent with the deposition testimony of Officer

Wyss and Sergeant Johnson.”). The video does not clearly show this: during this crucial time

period, the footage is either completely dark or does not provide a full picture of Lunneen’s actions,

instead focusing, for example, on only Lunneen’s face. Johnson also argues that Lunneen was not

verbally compliant. However, the district court’s view of the facts is not “blatantly contradicted

by the record,” and thus we do not have jurisdiction to review the Officers’ factual challenges. See

Scott, 550 U.S. at 380.

Similarly, the Officers dispute how much force was applied to Lunneen’s neck and back.

But “[h]ow much force was applied and for how long are disputed factual issues a jury must

decide.” Martin, 712 F.3d at 955 n.1; see also Hopper v. Plummer, 887 F.3d 744, 752 (6th Cir.

2018). The video footage does not clearly show that the pressure applied was insubstantial or

insignificant.

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Next, the Officers point out that Plaintiff’s police practice expert, Jeffrey J. Noble,

concluded that the Officers’ use of force in attempting to subdue Lunneen was reasonable. Noble

Expert Report, R. 57-1, PID # 361 (“The use of a take down and the control holds used to placed

handcuffs on Mr. Lunneen were objectively reasonable and consistent with generally accepted

police practices.”). But Noble’s testimony is not based on a view of the facts in the light most

favorable to Plaintiff. Instead, it relies on the conclusion that Lunneen was actively resisting arrest.

Further, this argument is one about the sufficiency of the evidence on which the district court

relied, and it is thus not reviewable at this stage. See DiLuzio v. Vill. of Yorkville, 796 F.3d 604,

611–12 (6th Cir. 2015) (“For each of their challenges, we will discard the fact-based or ‘evidence

sufficiency’ portion of the appeal—that is, any challenge to the district court’s view of the facts or

its associated inferences or, more frequently, any challenge to [the plaintiff’s] version of the record-

supported evidence—and resolve the legal challenge based on those given facts and inferences.”).

Johnson’s related argument that Plaintiff cannot prove excessive force without expert testimony

lacks merit; we do not require expert testimony to prove excessive force. Cf. Cyrus v. Town of

Mukwonago, 624 F.3d 856, 864 (7th Cir. 2010) (rejecting the argument that expert testimony is

required for an excessive force claim).

Johnson further argues that the district court’s reliance “on the testimony of Dr. Freeman

to find a question of material fact as to whether Officer Wyss or Sgt. Johnson applied asphyxiating

pressure to Lunneen’s back while he was on the ground” was improper, because Dr. Freeman

offers only inferences and speculation. Johnson Reply Br. at 11–12 (citing Turner v. Scott, 119

F.3d 425, 429 (6th Cir. 1997)).5 But each of Plaintiff’s three medical experts opined that

5

At the district court, the Officers argued that Dr. Freeman’s testimony should be excluded. The district

court denied that motion, a finding that Johnson does not appeal.

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

Lunneen’s death was caused by asphyxiation as a result of the Officers’ actions. See Dr. Freeman

Rep., R. 57-7, PID # 455 (“Based on the preceding analysis, it is my opinion that Mr. Lunneen’s

death was the result of the use of excessive force by the Berrien County Police Department

personnel, resulting in death by asphyxia-triggered cardiopulmonary arrest.”); Dr. Wohlgelernter

Rep., R. 57-11, PID # 513 (“It is my opinion, with a reasonable degree of medical certainty, that

Jack Lunneen’s death was due to restraint/compressive asphyxia with mechanical obstruction of

respiration, secondary to compressive force applied to his torso by the police officers with resultant

respiratory compromise and subsequent development of hypoxia/hypoxemia causing asystole and

PEA cardiac arrest.”); Dr. Baden Rep., R. 57-3, PID # 391–92. (“It is my opinion, to a reasonable

degree of medical certainty, . . . that the cause of Mr. Luneen’s death was not excited delirium;

that he died because of the way in which he was restrained by the police which prevented him

from breathing.”). As such, Johnson’s argument lacks merit.

b. Was the right clearly established?

The next inquiry is whether at the time Lunneen was arrested the contours of the right

allegedly violated were “‘sufficiently clear’ [such that] that every ‘reasonable official would

understand that what he is doing’ is unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (citation omitted). Excessive force cases are highly fact dependent, “and thus police

officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific

facts at issue.” Wiley v. City of Columbus, 36 F.4th 661, 669 (6th Cir. 2022) (quoting Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018)). We thus ask whether it was clearly established in October

2018 that it was excessive force for an officer to apply substantial pressure that creates

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asphyxiating conditions to the back and neck of suspect who was clearly distressed, unarmed, and

not actively resisting as they attempted to handcuff him.6

The use of severe force, including applying pressure to the back of a prone suspect or

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

subdued violates the Constitution.” Martin, 712 F.3d at 961–62; see also Griffith, 473 F.3d at 660

(“[I]f the jury concludes that [the officer] used the neck restraint without an objectively reasonable

belief that [the decedent] posed a threat of serious bodily injury, then it is obvious to us that ‘no

reasonable officer could believe that such [use of force] would not violate another’s constitutional

rights.’” (quoting Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir. 1989)). We need not match

each application of force with a precisely analogous case, as this prohibition is clear “from direct

holdings” and “the general reasoning” that these prior cases have employed. Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004) (citation omitted).

The Officers’ arguments that the law was not clearly established—arguments our dissenting

colleague generally adopts as to Wyss, see Dissenting Op. at 30–31—suffer from the same fatal

flaw: they require the court to disregard its directive to view the facts in the light most favorable

to the plaintiff. Cf. Bolick v. City of E. Grand Rapids, 580 F. App’x 314, 322 (6th Cir. 2014) (“A

view of the record in [the plaintiff’s] favor (which shows that he was barely able to move and did

not resist) controls our analysis, not one that considers whether every reasonable officer would

have acted differently under a situation drawn more in their favor.”). For example, Johnson argues

6

Plaintiff argues that Johnson waived any argument that this right was not clearly established. Although

he did not explicitly state that he was challenging the district court’s clearly established analysis, Johnson

devoted much of his brief to contesting the applicability of Champion and Martin, two cases the district

court relied on when finding the right clearly established. Lunneen, 2022 WL 16569574, at *9–10. We

view this as an argument that the law was not clearly established. See also Johnson Reply Br. at 4

(“Therefore, this Court has jurisdiction to consider the actions of Sgt. Johnson and if they constitute a

violation of clearly established law as it existed at the time of the incident.”).

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that Champion requires more than incidental application of pressure to a suspect’s back and the

dissent posits that Wyss used much less force than the officers in Martin, Dissenting Op. at 30.

Similarly, Wyss argues that Griffith can be distinguished because Wyss’s use of the mandibular

technique was provoked and it was shorter in duration than the neck restraint in Griffith. Maybe

so. But determining that Johnson’s application of pressure to Lunneen’s back was only

“incidental,” that Wyss’s technique involved limited force, or that Wyss was provoked requires us

to view the facts in the light most favorable to the Officers, not Plaintiff. And, in any event, the

clearly established inquiry does not require a “materially similar” case. Martin, 712 F.3d at 961

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)); see also Champion, 380 F.3d at 902.

Accordingly, even if the force or situation here is not precisely analogous to that in Champion,

Martin, or Griffith, the Officers were still on notice that their conduct was unlawful. Contra

Dissenting Op. at 30.

The Officers’ best case is Wiley v. City of Columbus, but it too is distinguishable. There,

the decedent continued to struggle after being handcuffed, and was held down by three officers.

36 F.4th at 666. One officer crossed the decedent’s legs, bent them at the knee and placed them

against his buttocks, then leaned against his legs. Id. Another officer had his knee on the

decedent’s back. Id. A third officer had his knees against the decedent’s shoulder to inhibit his

movements. Id. The decedent was kept in this position for approximately ninety seconds, and he

subsequently died. Id. The cause of death was disputed; the plaintiff’s expert opined that the death

was from “cardiac arrest caused by ‘forcible restraint that precluded adequate breathing.’” Id. at

666–67. Passing on the question of whether the officers’ actions rose to a constitutional violation,

the Wiley court concluded that the law did not clearly establish that these actions were

unconstitutional. Id. at 669. To reach this conclusion, the court relied on one officer’s

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

uncontroverted testimony that he did not apply pressure to the decedent’s chest or breathing cavity.

Id. at 669. Here, there is no such uncontradicted evidence; the video footage arguably shows that

the Officers applied force to Lunneen’s neck and back. The Wiley court further found the law was

not clearly established because the decedent there was “consistently resist[ing]” when the force

was used. Id. Viewing the evidence in the light most favorable to Plaintiff, that is not the case

here. Finally, the Wiley court noted that, although the decedent had bruising on his back that the

plaintiff said was a result of pressure from an officer’s knee, this was only speculation. Id. at 668.

There, there were numerous potential sources of the bruising, only one of which was an officers’

knee. Id. Here, there is also bruising that Plaintiff says occurred because of the Officers’ excessive

use of force. But, unlike Wiley, the Officers provided the district court no alternative source for

the injuries and bruising. Wiley does not change the clearly established inquiry here.

One more point is worth addressing on this topic. Beyond agreeing with Wyss that the law

here is not clearly established, the dissent reads the law to permit Wyss’s use of the mandibular

technique. Dissenting Op. at 29. As support, our colleague cites Shreve v. Jessamine County

Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006). We agree that Shreve held that the defendants

there were justified in using pressure point submissions to handcuff a passively resisting suspect.

Shreve, 453 F.3d at 687. We disagree, however, that no reasonable jury could find that the actions

here fall outside Shreve’s scope. Viewed in the light most favorable to Plaintiff, the evidence

demonstrates that Wyss’s mandibular technique amounted to substantial pressure that created

asphyxiating conditions. As a result, the force of Wyss’s mandibular technique may far surpass

that of the pressure point submissions used in Shreve and constitute incommensurate force. To be

sure, as the dissent suggests, we do not suspect a reasonable jury would liken Wyss’s actions to

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

open fire. But to say the actions could not have amounted to “deadly force” overlooks Plaintiff’s

expert reports. See, e.g., Dr. Wohlgelernter Rep., R. 57-11.

At bottom, the Officers are not entitled to qualified immunity for their actions subduing

Lunneen.

2. Post-Handcuff Pressure

After the Officers handcuffed Lunneen, Wyss remained kneeling or standing next to

Lunneen for approximately two minutes, keeping at least one hand in contact with Lunneen’s

handcuffs, back, or both. Lunneen, 2022 WL 16569574, at *9. Johnson stood up immediately

after Lunneen was handcuffed; this allegation thus relates solely to Wyss. The district court found

that disputes of fact precluded summary judgment and that, viewing that disputed evidence in

Plaintiff’s favor, the right at issue was clearly established. Lunneen, 2022 WL 16569574, at *9–

10.

a. Was there a constitutional violation?

No one alleges that Lunneen resisted after the Officers handcuffed him. The balance thus

shifts, and the justification for the use of force is reduced. Cf. Martin, 712 F.3d at 959; see also

Cyrus, 624 F.3d at 863 (“[A]s the threat changes, so too should the degree of force.” (citation

omitted)).

The district court concluded that a genuine dispute of material fact exists as to whether

“Wyss applied substantial or significant pressure while holding Lunneen’s handcuffs,” “Lunneen

remained prone, partially prone, or not prone at all,” and whether the “application of pressure

created asphyxiating conditions.” Lunneen, 2022 WL 16569574, at *9. These factual disputes

preclude summary judgment. See Champion, 380 F.3d at 900 (“[W]here the legal question of

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must

determine liability.” (internal quotation marks and citation omitted)).

Wyss argues that the district court erred because “[t]here is nothing unreasonable and

unconstitutional about merely holding onto the handcuffs following the erratic behavior and

extensive resistance displayed by Lunneen before he was detained.” Wyss Opening Br. at 33

(emphasis added). But Wyss’s argument is based on his own version of the facts—that he was

“merely holding onto the handcuffs.” The video footage does not indisputably demonstrate this;

Wyss’s hand often appears to be in contact with Lunneen’s back during this time and the amount

of pressure he applies is not clear. And, as discussed above, Plaintiff’s expert opined that

Lunneen’s autopsy revealed “large areas of hemorrhage in the soft tissues and deep muscles of the

mid and lower back bilaterally, evidence of severe prone back pressure.” R. 57-3, PID # 389; see

also R. 57-11 (report by Dr. Wohlgelernter, who concluded that Lunneen died from

“restraint/compressive asphyxia with mechanical obstruction of respiration, secondary to

compressive force applied to his torso by the police officers with resultant respiratory compromise

and subsequent development of hypoxia/hypoxemia causing asystole and PEA cardiac arrest”).

The ambiguous video footage and expert evidence are sufficient to allow a reasonable jury

to conclude that Wyss applied substantial or significant pressure, thereby creating asphyxiating

conditions while Lunneen was handcuffed and prone. A jury could thus find that Wyss acted

unreasonably.

b. Was the law clearly established?

Clearly established law prohibits “putting substantial or significant pressure on a suspect’s

back while that suspect is in a face-down prone position after being subdued and/or incapacitated.”

Champion, 380 F.3d at 903; see also Martin, 712 F.3d at 961 (“The prohibition against placing

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

weight on [the plaintiff’s] body after he was handcuffed was clearly established.”); Kulpa ex rel.

Kulpa v. Cantea, 708 F. App’x 846, 853 (6th Cir. 2017) (“Champion[] . . . clearly articulated that

driving heavy pressure into a prone, handcuffed, incapacitated detainee’s back was constitutionally

impermissible . . . .”). The degree of force required has not been defined beyond being “substantial

or significant.” Champion, 380 F.3d at 903. It is similarly clearly established that the law prohibits

creating “asphyxiating conditions by ‘forcibly restraining an individual in a prone position for a

prolonged period of time’ when that individual posed no material threat.” Hopper, 887 F.3d at

756.

Wyss and our dissenting colleague offer several counterarguments. None change the

result. First, Wyss argues, and the dissent agrees, Dissenting Op. at 32, that the law is not clearly

established because Wyss was never entirely on top of Lunneen. But we do not need a case with

precisely analogous facts for the law to be clearly established. Champion, 380 F.3d at 902. Wyss

also repeatedly reiterates that he never applied any pressure to Lunneen’s back—another argument

that the dissent adopts. However, as the district court correctly concluded, how much pressure

Wyss applied is a question for the jury; this is not “‘blatantly and demonstrably false’ based on

irrefutable evidence such as clear video footage,” Kindl, 798 F.3d at 399 (quoting Moldowan

v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009)), and thus we lack jurisdiction to consider

this factual argument. The dissent similarly wades into a factual question. See Dissenting Op. at

31. In doing so, it attempts to avoid the jurisdictional issue by claiming that the Officers’ body

camera footage unambiguously shows that Lunneen was not laying on his stomach. Id. But we

are not so convinced. Accordingly, Wyss is not entitled to qualified immunity for his use of post-

handcuff pressure.

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

B. State-Law Gross Negligence

The “Gross Negligence” portion of Plaintiff’s complaint states:

191. Plaintiff incorporates and adopts by reference all the facts and allegations

above as though fully set forth herein.

192. Defendants Wyss and Johnson owed Decedent, Jack Lunneen, the duty to

refrain from using deadly force until they had exhausted all other reasonable means

of effecting his detainment and/or arrest.

193. Defendants Wyss and Johnson, want only and recklessly breached that duty

by using excessive and/or deadly force on Jack Lunneen without the slightest

attempt to use alternative means to apprehend him, where they knew those means

were available, and intentionally failed to use them.

194. As a proximate result of that gross negligence, plaintiff suffered death, pain

and suffering, loss of earnings and earning capacity, loss of enjoyment of life,

disfigurement, emotional overlay and medical care, all past, present and future.

195. As a direct and proximate result of the acts and omissions of Defendants

Johnson and Wyss, Decedent was injured and suffered the damages as more

particularly set forth below in the section of this Complaint entitled “Damages.”

R. 1, PID #27-28. Yet, despite the fact that this does not channel a denial-of-medical-care theory,

Plaintiff responded to the Officers’ motions for summary judgment by stating that Johnson and

Wyss’s actions in denying Lunneen medical care also support the gross negligence claim.

Recognizing that “Plaintiff did not rely on this theory of gross negligence in his complaint,”

Lunneen, 2022 WL 16569574, at *14, the district court nevertheless permitted the claim to

proceed, concluding that “the factual ‘parameters’ of Plaintiff’s § 1983 claim and attendant state

law claims remain the same at the summary judgment stage as they were when Plaintiff filed his

complaint,” and thus the Officers “had the opportunity to factually develop the claim of denial of

medical care during discovery.” Id.

The Officers argue that the district court erred by permitting the gross negligence in the

denial of medical care theory to proceed, as it was a new theory raised only in response to summary

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

judgment. Johnson also argues that summary judgment is proper based on the merits of the gross

negligence claim. Lunneen responds that the Officers waived their arguments by failing to present

them to the district court.

1. Are the Officers’ arguments waived?

Plaintiff argues that the Officers waived the arguments they now raise. An argument not

raised before the district court is generally waived on appeal. See Scottsdale Ins. Co. v. Flowers,

513 F.3d 546, 552 (6th Cir. 2008) (collecting cases). Two policies justify this rule: one, it makes

our review easier, as the district court is the first to consider the issue; and two, it “ensures fairness

to litigants by preventing surprise issues from appearing on appeal.” Id. In situations where there

is waiver, whether the court decides to nonetheless consider the issue is a matter of discretion, “to

be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121 (1976).

Both Officers argue that the district court erred by permitting the gross negligence in the

denial of medical care theory to proceed, as it was a new theory raised only in response to summary

judgment. As the district court decided this issue below, the purpose of the waiver doctrine (to

ease our review and prevent surprise issues) is not served in this case and does not preclude review.

Scottsdale, 513 F.3d at 552; see also Singleton, 428 U.S. at 120 (“It is the general rule, of course,

that a federal appellate court does not consider an issue not passed upon below.” (emphasis

added)); Duncan Place Owners Ass’n v. Danze, Inc., 927 F.3d 970, 974 (7th Cir. 2019) (“If the

district court raises an issue sua sponte and the appellate brief is the first opportunity to discuss it,

the waiver rule does not preclude review.”).

Johnson also argues that summary judgment is proper based on the merits of the gross

negligence claim. Johnson did not raise any merits concerns below, nor did the district court make

any merits determinations. Thus, for our appellate purposes, Johnson waived his merits arguments.

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

2. Did the district court improperly allow a new argument to be raised in

response to a motion for summary judgment?

It is improper for a plaintiff to raise a new legal claim or theory for the first time in response

to a summary judgment motion. Tucker v. Union of Needletrades, Indus. & Textile Emps., 407

F.3d 784, 788 (6th Cir. 2005). To allow a plaintiff to do so “would subject defendants to unfair

surprise.” Id.; see also Colonial Refrigerated Transp., Inc. v. Worsham, 705 F.2d 821, 825 (6th

Cir. 1983) (“[W]hen a party has a valid claim, he should recover on it regardless of his counsel’s

failure to perceive the true basis of the claim at the pleading stage, provided that such a shift in the

thrust of the case does not work to the prejudice of the opposing party.” (cleaned up) (quoting

Ogala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979)). The proper course of

action is for a plaintiff to amend their complaint and set forth the new claim. Tucker, 407 F.3d at

788. Although the Federal Rules of Civil Procedure provide for liberal notice pleading at the outset

of litigation, those liberal pleading standards are inapplicable at summary judgment, because by

that time “the gravamen of the dispute [has been] brought frankly into the open for inspection

by the court.” Id. (alteration in original) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506,

512–13 (2002)).

Notwithstanding the above, a complaint need not expressly plead legal theories; it need

only “plead factual allegations that impliedly establish[] at least one viable theory.” Dibrell v. City

of Knoxville, 984 F.3d 1156, 1160 (6th Cir. 2021). It is only after the moving party seeks summary

judgment that a responding party must “‘come forward with every legal theory’ on which he

relied.” Id. (quoting Nat’l Credit Union Admin. v. Mich. Nat’l Bank of Detroit, 771 F.2d 154, 161

(6th Cir. 1985)).

The factual allegations set forth in the complaint support the “new” basis for the gross

negligence claim. Thus, the Officers were not subject to unfair surprise, and the district court did

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

not err by allowing the claim to proceed. See, e.g., Worsham, 705 F.2d at 825 (finding no unfair

surprise when “the complaint alleged facts that would support a claim on a theory of implied

indemnity or indemnity by operation of law”); Bard v. Brown Cnty., Ohio, 970 F.3d 738, 750 (6th

Cir. 2020) (“[T]he parameters of [the plaintiff’s] § 1983 claim . . . were the same at summary

judgment as they were when she filed her Amended Complaint” and thus, a new theory did not

“subject defendants to unfair surprise.” (citation omitted); Grinnell v. City of Taylor, No. 21-2748,

2022 WL 1562291, at *5 (6th Cir. May 18, 2022) (finding no expansion of the complaint when

the plaintiff “did not use the phrase ‘failure to intervene,’” because “he alleged conduct that, for

all intents and purposes, put Defendants on notice that he intended to bring a failure to intervene

claim”). Of course, “[d]istrict courts may in their discretion permit renewed or successive motions

for summary judgment.” Lexicon, Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662, 670 n.6 (6th Cir.

2006) (alteration in original; citation omitted).

III. CONCLUSION

For these reasons, we DISMISS the fact-based portions of the appeal, and AFFIRM the

portions of the appeal that are properly before us.

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MURPHY, Circuit Judge, concurring in part and dissenting in part. Jack Lunneen’s bizarre

middle-of-the-night behavior gave Sergeant Roger Johnson and Officer James Wyss a fair basis to

detain him. See Lunneen v. Village of Berrien Springs, 2022 WL 16569574, at *4 (W.D. Mich.

Nov. 1, 2022). Still, I concur in much of Judge McKeague’s thoughtful decision requiring a jury

to decide whether the officers acted lawfully before Lunneen’s tragic death. In particular, a jury

must decide whether Sergeant Johnson used excessive force in violation of the Fourth Amendment.

Johnson mainly argues that he did not put any body weight on Lunneen’s back when handcuffing

him. While I might have sided with Johnson were I a juror, a dispute of fact exists on that question.

And Johnson does not dispute that he would have violated clearly established law if he had

gratuitously knelt on Lunneen with suffocating force. See Martin v. City of Broadview, 712 F.3d

951, 961 (6th Cir. 2013); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004).

I also agree with the majority’s resolution of the state-law gross-negligence claims against

Johnson and Wyss. At the summary-judgment stage, a plaintiff cannot raise new factual theories

if the complaint did not previously allege them. See Davis v. Echo Valley Condo. Ass’n, 945 F.3d

483, 496 (6th Cir. 2019). But the plaintiff can raise new legal theories if those theories rest on the

complaint’s previously alleged facts. See Dibrell v. City of Knoxville, 984 F.3d 1156, 1160 (6th

Cir. 2021). The state-law claims on appeal here fall within the latter rule, not the former one.

I part ways only with the majority’s resolution of the Fourth Amendment claims against

Officer Wyss. According to the district court, a reasonable jury could find that two of Wyss’s

actions violated the Fourth Amendment. Lunneen, 2022 WL 16569574, at *7–9. Even accepting

that court’s view of the record, however, our precedent would not have alerted Wyss of these

purported Fourth Amendment violations. I thus would grant him qualified immunity. See

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam).

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Start with Wyss’s first action. While Wyss tried to handcuff Lunneen, Lunneen got a

“pretty good” grip of Wyss’s leg. Wyss Dep., R.81-2, PageID 784. To get Lunneen off him, Wyss

testified, he placed his thumb underneath Lunneen’s jaw and pushed on Lunneen’s mandibular

nerve. The district court held that a factual dispute existed over the amount of “mandibular

pressure” that Wyss used and the “length of time” that he used this force. Lunneen, 2022 WL

16569574, at *7. That is, the record leaves unclear how much force Wyss used on the margins.

Did he put pressure only on Lunneen’s jaw with his thumb or did he also put pressure on Lunneen’s

neck with his hand? And did Wyss employ this pressure for just a second or for, say, ten seconds?

Yet these factual disputes do not show that Wyss violated clearly established law because

of an important undisputed fact: Wyss used his mandibular-pressure technique only after Lunneen

grabbed his leg. See id. at *8. What was Wyss supposed to do at that point? Stand there until

Lunneen decided to let go on his own? None of our cases would support that rule. To the contrary,

an officer may use “pressure point submissions” even to handcuff a passively resisting suspect.

Shreve v. Jessamine Cnty. Fiscal Ct., 453 F.3d 681, 687 (6th Cir. 2006).

Admittedly, Wyss needed to use a level of force reasonably commensurate with Lunneen’s

actions. As an extreme example, Lunneen’s grabbing of Wyss’s leg would not have allowed Wyss

to open fire on him. But a reasonable jury could not find that Wyss used anything like this deadly

force. And “[t]he mere existence of some alleged factual dispute” about the precise amount of

force cannot defeat summary judgment for Wyss. Scott v. Harris, 550 U.S. 372, 380 (2007)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).

At most, the district court held that a jury could find that Wyss used an amount of force

that “contributed to the alleged asphyxiation.” Lunneen, 2022 WL 16569574, at *8. Accepting

this ambiguous level of force, what case would clearly establish that Wyss’s efforts to remove

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

Lunneen from his leg qualified as “excessive” in violation of the Fourth Amendment? Lunneen’s

brother (the Plaintiff here) relies on three of our cases. See Martin, 712 F.3d at 958–63; Griffith

v. Coburn, 473 F.3d 650, 657–60 (6th Cir. 2007); Champion, 380 F.3d at 901–05. But none of

these cases would have “put” Wyss “on notice that his specific conduct was unlawful.” Rivas-

Villegas, 142 S. Ct. at 8; see Wiley v. City of Columbus, 36 F.4th 661, 669–70 (6th Cir. 2022).

Champion does Lunneen’s brother no good for an obvious reason. The officers in that case

engaged in the challenged force “after” they had subdued and handcuffed the decedent. Martin,

712 F.3d at 961; see Champion, 380 F.3d at 903. Here, it is undisputed that Wyss used his force

because Lunneen had a “pretty good” grip of his leg. Wyss Dep., R.81-2, PageID 784.

Martin is at least closer to this case because the plaintiff there challenged the officers’

efforts to detain the decedent—not their actions after they had done so. But the officers in Martin

used much more force. They jumped on top of the decedent and repeatedly struck him. 712 F.3d

at 955. One officer inflicted “compliance body shots” with his knee and hit the decedent in the

“face, back, and ribs at least five times.” Id. Another hit the decedent in the face with “hammer

punches,” straddled the decedent, and choked him. Id. A dispute of fact also existed over whether

the decedent actively resisted or merely struggled to breathe during this time. Id. at 962. Here, by

contrast, Wyss did not strike or jump on Lunneen. His mandibular-pressure technique was far less

forceful. And he engaged in this technique only because Lunneen had “offered some resistance

by grabbing [his] leg.” Lunneen, 2022 WL 16569574, at *8.

This conclusion leaves Griffith. There, the decedent passively resisted the officers’ attempt

to handcuff him. 473 F.3d at 653. One of the officers then suddenly “jumped” on him, put him in

a chokehold, and struggled with him for several minutes. Id. No reasonable jury could equate

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

Wyss’s force to a minutes-long chokehold. And again, no facts would allow a reasonable jury to

conclude that Wyss used this force “without provocation” from Lunneen. Id. at 657.

In short, I agree that some factual disputes exist—as they almost always do in these types

of cases. But these factual disputes do not always require a jury trial. And here, the disputes are

not “material” to the legal question whether Wyss’s force violated clearly established law. Scott,

550 U.S. at 380 (quoting Anderson, 477 U.S. at 248). Even resolving the disputes in favor of

Lunneen’s brother, I would grant Wyss qualified immunity for his first use of force.

Turn to Wyss’s second challenged action. The officers eventually handcuffed Lunneen’s

hands behind his back. At this point, their body-camera videos show a non-moving Lunneen lying

on the ground. The district court suggested that the “jury must decide” whether he was lying face-

down on his stomach or on his side. Lunneen, 2022 WL 16569574, at *9. In my view, the video

leaves no doubt that he was not lying on his stomach and instead was (at least) partially on his left

side with his face and stomach turned to his right. See Scott, 550 U.S. at 380–81. While Johnson

waived down a medic for the next two minutes, Wyss stood or knelt next to Lunneen and held the

chain between the handcuffs with one hand. See Lunneen, 2022 WL 16569574, at *2, *9.

The district court decided that a factual dispute existed over whether Wyss “applied

substantial or significant pressure while holding Lunneen’s handcuffs” and over whether holding

the handcuffs “created asphyxiating conditions” for Lunneen. Id. at *9. It is not clear to me what

type of pressure the district court had in mind. Did the court mean to suggest that Wyss was

pushing his hand holding the handcuffs into Lunneen’s (partially turned) back? Or did it mean to

suggest that Wyss had been pulling up on the handcuffs while standing over him? In all events,

the district court held that this handcuff-holding pressure could have violated the following legal

rule from our cases: “‘creating asphyxiating conditions by putting substantial or significant

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Nos. 22-2044/2046, Lunneen v. Vill. of Berrien Springs, MI, et al.

pressure, such as body weight, on the back of an incapacitated and bound suspect constitutes

objectively unreasonable force.’” Kulpa ex rel. Kulpa v. Cantea, 708 F. App’x 846, 851 (6th Cir.

2017) (quoting Champion, 380 F.3d at 903); see Lunneen, 2022 WL 16569574, at *9.

Yet none of the cases would have put Wyss “on notice” that his handcuff-holding pressure

violated the Fourth Amendment. Rivas-Villegas, 142 S. Ct. at 8. In Martin, two officers

“continued to hold” a subdued decedent “in a face-down position,” one with an arm and the other

with a hand. 712 F.3d at 955 & n.1. Here, no reasonable jury could find that Wyss “placed [his]

arms on [Lunneen’s] back to restrain him” while Lunneen remained face-down. Id. Likewise, the

officers in Champion created asphyxiating conditions by “placing their weight upon [the

decedent’s] body by lying across his back and simultaneously pepper spraying him.” 380 F.3d at

903. And in Kulpa, one officer put his knee in the decedent’s back while three others held down

his legs with their feet. 708 F. App’x at 849, 852. Wyss was not lying on top of Lunneen, putting

any body weight on him, or holding him face down. Instead, any pressure that Wyss used arose

merely from holding the handcuffs. We would have to significantly enlarge the scope of the legal

rule from these earlier cases to extend it to Wyss’s conduct in this case.

For these reasons, I respectfully concur in part and dissent in part.

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