Jorden Brown v. Samuel Giles

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0044p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JORDEN BROWN,

│

Plaintiff-Appellant, │

│

v. > No. 23-3142

│

│

SAMUEL GILES, in his individual capacity; ERIC │

SPURLOCK, in his individual and official capacities; │

VILLAGE OF COAL GROVE, OHIO; BILL MURPHY, in his │

official capacity as Village of Coal Grove Chief of │

Police, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.

No. 1:21-cv-00540—Douglas Russell Cole, District Judge.

Decided and Filed: March 5, 2024

Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Gregory A. Napolitano, Paul M. Laufman, LAUFMAN & NAPOLITANO, LLC,

Cincinnati, Ohio, for Appellant. Cassaundra L. Sark, Randall L. Lambert, LAMBERT LAW

OFFICE, Ironton, Ohio, for Appellees.

THAPAR, J., announced the judgment of the court and delivered the lead opinion in

which GIBBONS, J., joined in the result. GIBBONS, J. (pg. 7), delivered a separate concurring

opinion. WHITE, J. (pp. 8–12), delivered a separate dissenting opinion.

No. 23-3142 Brown v. Giles, et al. Page 2

_________________

OPINION

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THAPAR, Circuit Judge. When Jorden Brown fled from police, Officer Samuel Giles

tased him. The district court dismissed Brown’s excessive force claims against Officer Giles, the

police chief, and the municipality. We affirm.

I.

Jorden Brown, struggling with addiction and homelessness, showed up outside his

mother’s workplace. He hoped she would give him money and a place to stay. Instead, she

asked police for assistance, knowing Brown had a warrant out for his arrest.

Officer Samuel Giles responded to the call. Brown gave Officer Giles a fake name and

denied knowledge of the warrant. While the two spoke, Officer Giles repeatedly told Brown to

stay put. Brown promised, “I ain’t going to run on you.” R. 1-1, at 19:02:40. But the moment

Officer Giles stepped away to take a phone call, Brown bolted.

Officer Giles pursued and, mid-stride, fired his taser. One probe hit Brown’s head, and

the other hit his back. Brown fell and hit his head on the ground. While handcuffing him,

Officer Giles held the taser against Brown in case he continued to resist.

Brown suffered injuries from the fall. So he sued Officer Giles, the police chief, and the

municipality under 42 U.S.C. § 1983. He alleges Officer Giles violated his Fourth Amendment

rights by using excessive force and that department policies or customs enabled the violation.

Brown attached bodycam footage of the event to his complaint.

The defendants moved to dismiss. In a thorough opinion, the district court determined

that Brown failed to allege a violation of clearly established law. Brown now appeals.

No. 23-3142 Brown v. Giles, et al. Page 3

II.

We start with Brown’s two excessive force claims against Officer Giles.

1.

First, Brown alleges that Officer Giles used excessive force by tasing him as he fled.

Officer Giles argues he’s entitled to qualified immunity. To overcome that immunity, Brown

must show it’s clearly established that tasing him in this particular context was excessive. See

Pearson v. Callahan, 555 U.S. 223, 232 (2009). And that means he must produce an on-point,

binding case. Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir. 2022). He can’t.

At the outset, Brown runs into trouble because we’ve held that it’s reasonable for officers

to tase fleeing suspects. See Perez v. Simpson, 83 F.4th 1029, 1031 (6th Cir. 2023); see also

Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509–10 (6th Cir. 2012). So the fact that

Officer Giles tased him isn’t enough to establish excessive force.

Moreover, several of the opinions Brown identifies aren’t binding. Cockrell v. City of

Cincinnati, 468 F. App’x 491, 499 (6th Cir. 2012) (Cole, J., concurring); Peabody v. Perry Twp.,

No. 10-CV-1078 (EAS), 2013 WL 1327026, at *8 (S.D. Ohio Mar. 29, 2013). Nonbinding

opinions are never enough to clearly establish a point of law. Bell, 37 F.4th at 367.1 So these

cases don’t help Brown’s argument.

1

While the Supreme Court has indicated that some acts are obviously unconstitutional even without

precedent—such as torturing someone for a minor traffic violation—not even the dissent argues that’s true here.

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021). Instead, the dissent points out that a “robust consensus” of

persuasive authority may clearly establish law. Dissenting Opinion at 8. Although the Supreme Court has

suggested that category might exist in theory, the Court has never found it to exist in fact. See, e.g., City & Cnty. of

San Francisco v. Sheehan, 575 U.S. 600, 617 (2015) (“[N]o such consensus exists here.”); Plumhoff v. Rickard, 572

U.S. 765, 780 (2014); Taylor v. Barkes, 575 U.S. 822, 826 (2015). In fact, the Court hasn’t even held that binding

circuit precedent could clearly establish a right. See, e.g., Reichle v. Howards, 566 U.S. 658, 665-66 (2012)

("Assuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly

established law . . . .”); Barkes, 575 U.S. at 826; Sheehan, 575 U.S. at 614. Police officers protect the public in

uncertain, dangerous, and rapidly evolving situations—not in the cold crucible of the courtroom. Asking Officer

Giles to divine “clearly established” law from the smattering of cases the dissent cites would demand more than the

Supreme Court requires.

No. 23-3142 Brown v. Giles, et al. Page 4

Brown cites one published, in-circuit case, but that opinion concerns lethal force. See

Sample v. Bailey, 409 F.3d 689, 693, 696–97 (6th Cir. 2005) (gun). Tasers typically aren’t

lethal. See Gambrel v. Knox Cnty., 25 F.4th 391, 401 (6th Cir. 2022). And in the context of

clearly establishing a constitutional right, this difference matters. That’s for good reason: there

are circumstances in which nonlethal force would be reasonable but lethal force excessive.

So Brown can’t “clearly establish” that using tasers is excessive by noting that it would have

been unreasonable for Officer Giles to shoot at him with a gun. White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam).

Trying to sidestep this problem, Brown argues that Officer Giles’s taser use was

particularly dangerous. Brown emphasizes that Officer Giles didn’t just tase him in the back.

One probe hit his head, and heads are uniquely sensitive to injury.2 We doubt that this difference

matters in the context of a mid-chase decision to tase a fleeing suspect. It’s difficult to imagine

how a sprinting officer could aim his taser precisely enough to (1) hit a suspect with both taser

probes while (2) ensuring that neither probe hits the suspect’s head. It’s even harder to imagine

that the Fourth Amendment requires such a feat. That’s precisely why we defer to the “split-

second” decisions of officers in fast-paced, complex situations. Mullins v. Cyranek, 805 F.3d

760, 765–66 (6th Cir. 2015) (quoting Graham, 490 U.S. at 397).

But even if the head-body distinction mattered, Brown still can’t prevail because he

doesn’t have a binding opinion saying that the distinction matters. Brown points to only one

unpublished, out-of-circuit opinion that discusses the danger of head tasings. Wilson v. City of

Lafayette, 510 F. App’x 775, 778–80 (10th Cir. 2013). As already explained, that’s not enough

to meet his burden. Marsh v. Arn, 937 F.2d 1056, 1069 (6th Cir. 1991), abrogated on other

grounds by Farmer v. Brennan, 511 U.S. 825 (1994). Officers in our circuit aren’t expected to

stay abreast of the varying and ever-changing law of other circuits—especially not unpublished

opinions that have no precedential value.

2

Brown also tries to bolster his case by alleging Officer Giles intentionally aimed at his head. But Officer

Giles’s subjective intent is irrelevant to excessive force analysis, where we ask what force a reasonable officer

would use. Graham v. Connor, 490 U.S. 386, 399 (1989).

No. 23-3142 Brown v. Giles, et al. Page 5

2.

What about Officer Giles’s second alleged use of excessive force? Brown alleges that

Officer Giles continued to tase him after he had been incapacitated. If true, this would be

excessive force. Brown v. Chapman, 814 F.3d 447, 461 (6th Cir. 2016). And normally, Brown

would need only to allege those facts to survive a motion to dismiss. Kottmyer v. Maas, 436

F.3d 684, 688 (6th Cir. 2006). But Brown didn’t just describe the incident. He also provided the

court with video footage of the incident and mentioned that footage throughout his complaint. In

this context, we don’t need to accept as true any allegation “blatantly contradicted” by the video.

Scott v. Harris, 550 U.S. 372, 380 (2007). This dooms Brown’s claim.

The video shows that Officer Giles tased Brown only once. As Brown notes, Officer

Giles held the taser against him after he was incapacitated. But as the video makes clear, Officer

Giles didn’t use it. Active tasers—including the model Officer Giles used—make noises in both

probe and drive-stun mode. R. 1, Pg. ID 7 (Axon X26 taser); see, e.g., Wade v. Fresno Police

Dept., No. 09-CV-0599 (AWI), 2012 WL 253252, at *7 & n.15 (E.D. Cal. Jan. 25, 2012) (noting

noise from an X26 taser before a “contact” tase). Indeed, we hear the taser sound in the video—

but only once, and not when Officer Giles holds the taser against Brown. The lack of noise

“utterly discredit[s]” Brown’s claim. Scott, 550 U.S. at 380.

The dissent points out that the lack of sound from an audio recording may not be

“reliabl[e].” Dissenting Opinion at 12 (quoting Coble v. City of White House, 634 F.3d 865, 869

(6th Cir. 2011)). But we don’t just rely on the lack of sound. The presence of the taser sound

when Officer Giles initially tases Brown, contrasted with the conspicuous silence mere seconds

later, belies his claims. And Brown never even tries to explain why the taser would fire silently a

few seconds after firing audibly.

Qualified immunity gives police officers immunity from suit “at the earliest possible

stage.” Bell, 37 F.4th at 364. Officer Giles appropriately raised qualified immunity at the

motion to dismiss stage. Thus, he is entitled to qualified immunity now.

No. 23-3142 Brown v. Giles, et al. Page 6

III.

Brown also appeals his claims against the police chief and municipality. But both parties

agree that in this context Brown’s municipal liability claims survive only if he successfully

raised an underlying constitutional claim. Appellant Br. at 26; Appellee Br. at 23; see also

Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994–95 (6th Cir. 2017). Since Brown’s

claims against Officer Giles fail, he can’t prevail on these claims either.

* * *

We affirm.

No. 23-3142 Brown v. Giles, et al. Page 7

_________________

CONCURRENCE

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JULIA SMITH GIBBONS, Circuit Judge, concurring in the result. Officer Giles is

entitled to qualified immunity under the circumstances presented; I therefore concur in our

affirmance of the district court. I write separately to clarify my understanding of the measure of

precedent required to demonstrate a “clearly established” constitutional or statutory right in an

action brought under 42 U.S.C. § 1983.

To prevail in the face of an officer’s qualified immunity defense, a § 1983 plaintiff need

not show that “the very action in question has previously been held unlawful” in a reported, in-

Circuit (or Supreme Court) case. Ziglar v. Abbasi, 582 U.S. 120, 151 (2017). Instead, he must

demonstrate that the constitutional or statutory right of which he was deprived boasts “a

sufficiently clear foundation in then-existing precedent” so as to constitute “settled law.” D.C. v.

Wesby, 583 U.S. 48, 63 (2018). He may demonstrate as much by identifying “controlling

authority in [his] jurisdiction at the time of the incident which clearly established the rule on

which [he] seek[s] to rely.” Wilson v. Layne, 526 U.S. 603, 617 (1999). But he may also do so

by identifying a “robust consensus . . . of persuasive authority” that “every reasonable official

would interpret” as establishing the claimed legal right. Wesby, 583 U.S. at 63.

What does this mean for Plaintiff Jorden Brown? Two things. For one, he need not

identify a “binding case,” Lead Op. 2, that speaks directly to the facts underlying his suit.

Abbasi, 582 U.S. at 151. But for another, if he cannot identify such a case, the “robust

consensus” of persuasive authority that he identifies in the alternative must nevertheless “place[]

the statutory or constitutional question beyond debate.” Rivas-Villegas v. Cortesluna, 595 U.S.

1, 5 (2021). Because Brown fails to make either showing, Officer Giles is entitled to qualified

immunity, and the district court did not err in dismissing Brown’s suit.

No. 23-3142 Brown v. Giles, et al. Page 8

_________________

DISSENT

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HELENE N. WHITE, Circuit Judge, dissenting. This court has said time and again that

qualified immunity and Federal Rule of Civil Procedure 12(b)(6) are “often a bad fit.” Siefert v.

Hamilton County, 951 F.3d 753, 762 (6th Cir. 2020). For good reason: Qualified immunity

demands a “fact-intensive” inquiry, id., yet “the precise factual basis for the plaintiff’s claim or

claims” is hard to come by at the pleadings stage, Pearson v. Callahan, 555 U.S. 223, 238

(2009). Further compounding the problem, the “burden is not high at the 12(b)(6) stage.”

MacIntosh v. Clous, 69 F.4th 309, 315 (6th Cir. 2023). Allegations are deemed true, read “in the

light most favorable to the plaintiff,” and need only amount to a “plausible” claim “that an

official’s acts violated a clearly established constitutional right.” Id. (quoting Courtright v. City

of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)). Despite the headwinds of the procedural

posture, my colleagues uphold the district court’s dismissal of Brown’s claims out the gate,

concluding based on qualified immunity that neither of Officer Giles’s alleged uses of a taser on

Brown plausibly state a claim for excessive force. I disagree.

I.

The lead opinion says that the claim based on Giles’s first alleged use of force—tasing

Brown in the head while he was running—cannot succeed because there is no “binding opinion”

that has deemed that specific conduct unconstitutional. Lead Op. 4. But “binding” precedent

holding the specific conduct unconstitutional is not the standard for qualified immunity. What

matters is whether the challenged action’s unlawfulness is “apparent” given “pre-existing law.”

Rhodes v. Michigan, 10 F.4th 665, 679 (6th Cir. 2021) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). That clarity can come from either “controlling authority or a robust consensus

of cases of persuasive authority,” Akima v. Peca, 85 F.4th 416, 423 (6th Cir. 2023) (emphasis

added) (quoting District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)) (cleaned up), as Judge

Gibbons’s concurrence also notes, see Concurring Op. 7. “[I]n an obvious case,” even general

standards “without a body of relevant case law” suffice. Brosseau v. Haugen, 543 U.S. 194, 199

(2004). Simply put, “it is not necessary to find a ‘case directly on point’ in order to show that the

No. 23-3142 Brown v. Giles, et al. Page 9

law governing a plaintiff’s claim is clearly established. Some measure of abstraction and

common sense is required with respect to police methods and weapons . . . .” Terebesi v.

Torreso, 764 F.3d 217, 237 n.20 (2d Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). Indeed, a contrary conclusion would give officers “a free pass to use” weapons “in any

manner” they see fit “until a case from the Supreme Court or from this circuit involving that

particular weapon is decided.” Phillips v. Comm. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012).

Qualified immunity demands no such thing.

Regardless, the relevant law is clearly established here. A use of force is considered

deadly when it poses “a substantial risk of causing death or serious bodily harm.” Robinette v.

Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (quoting Model Penal Code § 3.11(2) (Am. L. Inst.,

Proposed Official Draft 1962)). Even a normally nonlethal weapon “qualif[ies] as ‘deadly

force’” under certain circumstances, “especially if an officer hits a suspect in the head.”

Gambrel v. Knox County, 25 F.4th 391, 401 (6th Cir. 2022) (quoting Robinette, 854 F.2d at 912)

(collecting cases). We have previously noted that tasing in risky situations may cause significant

harm. See, e.g., Baker v. Union Twp., 587 F. App’x 229, 234 (6th Cir. 2014) (“It is widely

known among law enforcement . . . that tasers should not be employed against suspects on

elevated surfaces because of the risk of serious injury from a resulting fall.”). And numerous

other courts have held that tasing can cause serious injury or death, particularly when a person’s

head is involved.1 Moreover, it is well established that “deadly force is objectively reasonable

only when there is probable cause to believe that the suspect poses an immediate threat to the

officer or to others.” Raimey v. City of Niles, 77 F.4th 441, 448 (6th Cir. 2023). That threat must

be “of serious physical harm.” Palma v. Jacobs, 27 F.4th 419, 432 (6th Cir. 2022). The analysis

turns on the totality of the circumstances, but “[t]he threat factor is a minimum requirement for

1

See Buehler v. Dear, 27 F.4th 969, 987 (5th Cir. 2022) (“[T]he use of ‘a taser can cause death or serious

injury.’” (quoting Pena v. City of Rio Grande City, 816 F. App’x 966, 972 n.8 (5th Cir. 2020))); Wilson v. City of

Lafayette, 510 F. App’x 775, 778 (10th Cir. 2013) (“[T]he use of a taser, especially if one probe hits the head,

amounts to a significant physical intrusion requiring a correspondingly significant justification.”); Bryan v.

MacPherson, 630 F.3d 805, 825 & n.7 (9th Cir. 2010) (noting that, “like any generally non-lethal force, the taser is

capable of being employed in a manner to cause the victim’s death” despite generally “fall[ing] into the category of

non-lethal force”); cf. Mercado v. City of Orlando, 407 F.3d 1152, 1160 (11th Cir. 2005) (concluding that a Sage

Launcher, although generally a “‘less lethal’ munition,” was “deadly force” when used to “[s]hoot[] a suspect in the

head”).

No. 23-3142 Brown v. Giles, et al. Page 10

the use of deadly force,” and this court “ha[s] authorized the use of deadly force only in rare

instances.” Id. (cleaned up).

Here, Brown’s claim based on the tasing of his head should survive the pleadings stage.

Tasing involves a significant electrical charge capable of causing “excruciating pain.” Brown v.

Chapman, 814 F.3d 447, 459 (6th Cir. 2016). The head is among the most “sensitive and vitally

important part[s] of [the human] body.” Baker v. City of Hamilton, 471 F.3d 601, 609 (6th Cir.

2006). Unsurprisingly, putting the two together poses “a substantial risk of causing death or

serious bodily harm,” Robinette, 854 F.2d at 912 (quoting Model Penal Code § 3.11(2)). This

case bears out that point: In the bodycam video, Brown is seen bleeding profusely from his head

and suffering multiple seizures before emergency medical staff arrives. And he alleges that his

injuries led to a multiday coma.

Finally, Brown did not pose an immediate threat of serious harm to anyone. His arrest

warrant was from a local mayor’s court for failure to pay a fine. He had no weapons and did not

physically threaten Giles or members of the public. All Brown did was run.

The lead opinion responds that the Supreme Court has not invoked “a ‘robust consensus’

of persuasive authority” to conclude that the law was clearly established, and the lead opinion

will not do so here because police officers have challenging jobs. Lead Op. 3 n.1 (citation

omitted). First, “in applying the rule of qualified immunity,” the Court itself has “referred to

decisions of the Courts of Appeals”—not binding on the Court—“when enquiring whether a

right was ‘clearly established.’” United States v. Lanier, 520 U.S. 259, 269 (1997) (collecting

cases). Second, even if the Court had not invoked a robust consensus of persuasive authority, the

Court has nonetheless confirmed repeatedly that a consensus can be enough. See, e.g., Wesby,

583 U.S. at 63; Plumhoff v. Rickard, 572 U.S. 765, 780 (2014); Wilson v. Layne, 526 U.S. 603,

617 (1999). And our court has used nonbinding decisions to conclude that the law was clearly

established. See, e.g., Moldowan v. City of Warren, 578 F.3d 351, 382 (6th Cir. 2009); Young v.

Kent Cnty. Sheriff’s Dep’t, No. 21-1222, 2022 WL 94990, at *5 (6th Cir. Jan. 10, 2022). Third,

binding precedent concerning deadly force and the lethality of applying normally nonlethal

weapons to the head operated to define at a reasonably particularized level of generality the

unlawfulness of Giles conduct. And fourth, “common sense,” Terebesi, 764 F.3d at 237 n.20,

No. 23-3142 Brown v. Giles, et al. Page 11

alone suggests an officer should know better than to tase a running person posing no threat to

others in the head.

Further, the lead opinion appears to excuse Giles’s conduct because it was “a mid-chase

decision.” Lead Op. 4. “It’s difficult to imagine,” it reasons, “how a sprinting officer could aim

his taser precisely enough to (1) hit a suspect with both taser probes while (2) ensuring that

neither probe hits the suspect’s head.” Id. But it does not explain on what basis it concludes that

achieving “such a feat,” id., was impossible or difficult under the circumstances of this case, and

assuming as much is inappropriate on a motion to dismiss. The video does not clearly depict the

critical moment of the tasing and does not even show the relative positioning of Brown and Giles

clearly. The video does, however, record Giles saying when speaking with other emergency

staff afterwards that he tased Brown when he was close and did so because “it was too hot to

run.” MP4: Giles Body Cam 2 of 2, at 2:39–42, 5:02–04 (Coal Grove Police Dep’t 2019). And

Brown alleges that Giles intentionally aimed at his head. The lead opinion thus fails to view the

allegations in the light most favorable to Brown, see MacIntosh, 69 F.4th at 315.

II.

The lead opinion also concludes that Giles’s second alleged use of the taser—after Brown

hit the pavement and was incapacitated—never happened because the bodycam video “blatantly

contradict[s]” Brown’s allegations that it occurred, Lead Op. 5 (quoting Scott v. Harris, 550 U.S.

372, 380 (2017)). I disagree. This negative deduction hinges on the absence of a sound and cites

a single unpublished district-court decision for the proposition that a taser necessarily makes a

sound whenever used. But that decision said only that officers’ declarations at summary

judgment indicated that the taser used there made a noise when “activated” but before it was

“applied.” Wade v. Fresno Police Dep’t, No. 09–CV–0599, 2012 WL 253252, at *7 n.15 (E.D.

Cal. Jan. 25, 2012). That decision does not show that a taser necessarily makes a noise when

applied directly to a person in drive-stun mode. Nor can we assume as much for the taser used

here based on the sound it made during the first tasing. Such an assumption is especially

unwarranted when tasers include multiple modes. Here, the first tasing occurred in probe mode

(two probes shot as a projectile), while the second tasing is alleged to have occurred in drive-stun

mode (direct contact between the taser and Brown’s body).

No. 23-3142 Brown v. Giles, et al. Page 12

More fundamentally, however, “[t]he lack of sound on an audio recording cannot be

reliably used to discount” testimony at the summary judgment stage, Coble v. City of White

House, 634 F.3d 865, 869 (6th Cir. 2011), let alone allegations in a complaint. “Many factors

could affect what sounds are recorded, including the volume of the sound, the nature of the

activity at issue, the location of the microphone, whether the microphone was on or off, and

whether the microphone was covered.” Id. Thus, it is inappropriate to assume the absence of a

second tasing from the absence of a sound despite “[t]he presence of the taser sound” during the

first tasing, Lead Op. 5. Again, the two alleged tasings occurred in different modes, and the

“[m]any factors” affecting “what sounds are recorded” could apply at some but not other points

of an audio recording, Coble, 634 F.3d at 869. In short, it cannot be said based on the video that

it is blatant—“completely obvious,” Blatant, Merriam-Webster, https://perma.cc/RHS8-R56V—

that Giles did not use his taser a second time. Further factual development should be permitted

on Brown’s claim based on this allegation, too.

* * *

For the reasons stated, I dissent.