Kamel Chaney-Snell v. Andrew Young

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0086p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

KAMEL CHANEY-SNELL,

│

Plaintiff-Appellee, │

> Nos. 22-1990/1992

│

v. │

│

ANDREW YOUNG (22-1992); ANDREW TEICHOW │

(22-1990), │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:20-cv-13064—Nancy G. Edmunds, District Judge.

Argued: October 25, 2023

Decided and Filed: April 15, 2024

Before: WHITE, NALBANDIAN, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Todd J. Shoudy, FLETCHER FEALKO SHOUDY & FRANCIS, PC, Port Huron,

Michigan, for Appellant Young. Kevin J. Campbell, CUMMINGS, MCCLOREY, DAVIS &

ACHO, PLC, Livonia, Michigan, for Appellant Teichow. Shawn C. Cabot, CHRISTOPHER

TRAINOR & ASSOCIATES, White Lake, Michigan, for Appellee. ON BRIEF: Todd J.

Shoudy, FLETCHER FEALKO SHOUDY & FRANCIS, PC, Port Huron, Michigan, for

Appellant Young. Kevin J. Campbell, CUMMINGS, MCCLOREY, DAVIS & ACHO, PLC,

Livonia, Michigan, for Appellant Teichow. Shawn C. Cabot, CHRISTOPHER TRAINOR &

ASSOCIATES, White Lake, Michigan, for Appellee.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 2

_________________

OPINION

_________________

MURPHY, Circuit Judge. Deputy Andrew Young and Officer Andrew Teichow arrested

Kamel Chaney-Snell during a search of his girlfriend’s house. Chaney-Snell pleaded guilty to

attempting to resist their arrest. But he now claims that, after he peacefully surrendered, Young

punched him in the face and one of the officers kneed him in the back and dragged him across

the floor. Chaney-Snell sued Young and Teichow under 42 U.S.C. § 1983, alleging excessive-

force and failure-to-intervene claims. The district court denied qualified immunity to both

officers.

Their appeals raise three questions. Question One: Must we accept Chaney-Snell’s claim

that Young gratuitously punched him despite Chaney-Snell’s guilty plea for attempting to resist

arrest? Young answers “no” on the ground that Chaney-Snell’s claim conflicts with his

conviction. See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). At the least, Young argues,

judicial estoppel bars Chaney-Snell’s claim because it also conflicts with his admissions at his

plea hearing. But we lack jurisdiction over Young’s Heck claim, and his judicial-estoppel claim

fails on the merits.

Question Two: Does the Fourth Amendment allow officers to use unnecessary force on

arrestees if the force qualifies as “de minimis”? Young and Teichow concede that, under

Chaney-Snell’s allegations, one of them gratuitously kneed him in the back and dragged him on

the floor. They nevertheless argue that this force falls below the minimum level required for an

excessive-force claim. But our cases have long held that gratuitous force violates the Fourth

Amendment even if the force is minor and causes no serious injury. And these cases comport

with the common-law backdrop against which the Fourth and Fourteenth Amendments were

enacted.

Question Three: Has Chaney-Snell established a “failure to intervene” theory of liability?

Chaney-Snell seeks to hold the officer who did not employ the challenged force liable for failing

to prevent it. Even under his allegations, however, this officer did not have a realistic

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 3

opportunity to stop each of the quick and discrete actions. And while the district court decided to

treat all of the actions as a single continuous use of force, our caselaw does not clearly establish

that decision. Qualified immunity thus protects the officers from Chaney-Snell’s failure-to-

intervene claims.

All told, we affirm in part, reverse in part, and dismiss in part for lack of jurisdiction.

I

A

Chaney-Snell often stayed at his girlfriend’s home in Port Huron, Michigan. In 2018, he

began selling drugs from this home without his girlfriend’s permission. These drug deals drew

the attention of a drug task force operating in St. Clair County. A confidential informant

working with the task force bought drugs from Chaney-Snell at his girlfriend’s home in early

2019. That February, a task-force officer obtained a warrant to search her house.

The task force executed the warrant on the evening of February 6. Deputy Young and

Officer Teichow, two task-force members, participated in this search. The Port Huron Police

Department had assigned Teichow to the task force, and the St. Clair County Sheriff’s

Department had assigned Young.

At the time of the search, Chaney-Snell was at his girlfriend’s home alone because she

had gone to work. The parties tell drastically different stories of how Young and Teichow

arrested Chaney-Snell while securing this home.

We begin with the officers’ account. According to Young and Teichow, an officer

knocked on the front door and announced their presence. Nobody answered. So another officer

rammed open the door. Young entered first, followed by Teichow. They encountered a second

locked door because the homeowner had split the home into two units. Young kicked in the

door. Officers then flooded the house shouting “sheriff’s department, search warrant, get on the

ground.” Young Dep., R.30-7, PageID 726.

As Young and Teichow made it to the dining area, they spotted Chaney-Snell in the

living room. The officers screamed for him to “get on the ground,” but he fled to a bedroom.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 4

Teichow Dep., R.30-6, PageID 697; Young Dep., R.30-7, PageID 727. The officers pursued

him.

When they entered the bedroom, they saw Chaney-Snell concealing himself in a closet.

Chaney-Snell had his back to the officers, so they told him to show his hands. He did not

comply. Young ran toward the closet while holstering his firearm. He pushed Chaney-Snell into

the wall and onto the ground to handcuff him. When using this force, Young placed one hand on

Chaney-Snell’s back and the other on his face. Chaney-Snell hit the ground on the left side of

his face and stomach. Young fell on top of him. But Chaney-Snell continued to struggle.

Young struck Chaney-Snell with his knee a few times to get Chaney-Snell to place his arms

behind his back. The officers then handcuffed him. Young patted Chaney-Snell down, and the

officers walked him to a bed to sit on.

Chaney-Snell recalls things differently. He did not hear the officers announce their

presence because he was in a bedroom listening to “loud” music on his headphones. Chaney-

Snell Dep., R.30-4, PageID 568. But Chaney-Snell thought he heard a “bang” when Young

kicked open the second door. Id. The noise led Chaney-Snell to take off his headphones and

stand up.

At that time, two officers ran into the bedroom and shouted “show me your hands.” Id.,

PageID 572. Chaney-Snell immediately raised his hands. Yet he says that an officer punched

him in the left eye without warning. So Chaney-Snell covered his face and failed to comply with

additional requests to raise his hands. But he eventually put them up again. The same officer

then sucker punched him a second time in the same spot. Chaney-Snell fell to the ground. He

recalls putting up no resistance as the officers handcuffed him. Right after they restrained him,

Chaney-Snell could feel an officer kneeing him in the back using his full weight. An officer next

dragged him across the bedroom floor by his ankles. The officers picked Chaney-Snell up, strip-

searched him, and put him on the bed.

Once Chaney-Snell made it to the bed, the parties’ stories reconverge. The officers

acknowledged that Chaney-Snell had an injury on his left eye and a rug burn on his right

shoulder. Teichow added that Chaney-Snell said that “he was having a hard time breathing” and

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 5

asked for his asthma inhaler. Teichow Dep., R.30-6, PageID 702. Another officer gave Chaney-

Snell “three puffs” from this inhaler. Chaney-Snell Dep., R.30-4, PageID 576. Paramedics

checked on him, and an officer drove him to jail. A jail nurse sent Chaney-Snell to the hospital.

The hospital took several CT scans. Scans of Chaney-Snell’s back and head showed no

injuries, but an eye scan revealed what a doctor diagnosed as a “minimal nondisplaced blowout

fracture” to his left orbital bones. Records, R.35-7, PageID 1032. The doctor recommended that

Chaney-Snell take Tylenol for any pain and discharged him.

B

Chaney-Snell’s encounter with Young and Teichow produced both criminal and civil

proceedings. The State of Michigan criminally charged Chaney-Snell with possessing cocaine

and resisting the officers. Chaney-Snell entered a plea agreement. As part of the deal, he agreed

to plead guilty to the drug count and to attempting to resist the officers. At his plea hearing, he

conceded that Young and Teichow had given him “verbal commands to show them [his] hands”

and that he had “failed to comply” with their “lawful” orders. Plea Tr., R.30-8, PageID 764–65.

The state court accepted his plea. It sentenced him to six months’ imprisonment.

With his criminal proceedings behind him, Chaney-Snell pursued this civil case under 42

U.S.C. § 1983. He sued Deputy Young and his employer (St. Clair County), as well as Officer

Teichow and his employer (the City of Port Huron). Chaney-Snell could not identify which

officer did what. But he alleged that one officer used excessive force and that the other failed to

intervene to stop this force, both in violation of the Fourth Amendment. He also asserted claims

against St. Clair County and the City of Port Huron under Monell v. Department of Social

Services, 436 U.S. 658 (1978).

All defendants moved for summary judgment. Discovery identified Young as the only

officer who could have punched Chaney-Snell. But Young asked the district court to reject this

allegation. He argued that the “Heck doctrine” barred the claim because it contradicted Chaney-

Snell’s conviction. See Heck, 512 U.S. at 486–87. He also argued that judicial estoppel barred

the claim because it conflicted with Chaney-Snell’s admissions in open court. The district court

disagreed. See Chaney-Snell v. Young, 2022 WL 4667942, at *3–4 (E.D. Mich. Sept. 30, 2022).

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 6

The district court also rejected Young’s and Teichow’s requests for qualified immunity.

It held that Young would have violated clearly established law if he had punched a non-resisting

Chaney-Snell. Id. at *5. It next turned to Chaney-Snell’s claim that, after he was restrained, an

officer kneed him in the back and dragged him across the floor. Id. If true, the court held, this

conduct also violated clearly established law. Id. The court separately held that the officer who

did not use the force could face liability on a “failure to intervene theory.” Id. But it granted

summary judgment to the county and city on Chaney-Snell’s Monell claims. Id. at *6.

II

Deputy Young and Officer Teichow appealed. Their appeals require us to consider the

three questions that we highlighted at the outset. We will address them in the same order.

A. Question One: Must we accept Chaney-Snell’s testimony that Young gratuitously

punched him despite Chaney-Snell’s conviction for attempting to resist arrest?

While disputing Chaney-Snell’s factual allegations, Deputy Young recognizes that we

generally must accept them at this stage. To his credit, Young also concedes that he would have

violated clearly established law under Chaney-Snell’s facts. Still, Young argues that Chaney-

Snell’s conviction for attempting to resist arrest allows us to reject his claim that Young punched

him in the face. To support this theory, Young relies on the “Heck doctrine” and judicial

estoppel. But our interlocutory jurisdiction does not extend to his Heck claim. And his estoppel

claim fails because Chaney-Snell has adequately reconciled his statements across the two cases.

1. The Heck Doctrine

The Heck doctrine addresses a common situation: Criminal defendants often get

convicted of a crime and then seek damages under § 1983 on the ground that public officials

violated the Constitution while investigating or prosecuting the crime. What happens if a

defendant’s damages suit under § 1983 would, if successful, “necessarily imply the invalidity of

his conviction”? Nance v. Ward, 597 U.S. 159, 167 (2022) (quoting Heck, 512 U.S. at 487). In

that event, Heck held, a criminal defendant must overturn the conviction on direct appeal or in

habeas before seeking civil damages under § 1983. 512 U.S. at 486–87. The Court also offered

an example of when this “Heck bar” would apply: A defendant found guilty of resisting “a lawful

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 7

arrest” could not claim in a § 1983 suit that an officer’s excessive force had rendered the arrest

unlawful unless a court vacated the resisting-arrest conviction. Id. at 486 n.6.

We have since turned Heck’s example into a holding. See Hayward v. Cleveland Clinic

Found., 759 F.3d 601, 608–13 (6th Cir. 2014). In Hayward, a defendant pleaded guilty to

violating an Ohio resisting-arrest law. Id. at 606. He then brought an excessive-force claim

under § 1983. Id. We held that Heck barred this claim because the Ohio law allowed defendants

to avoid guilt if officers used excessive force when effecting their arrests. Id. at 611–12. So a

claim that officers used excessive force during an arrest implied the invalidity of the resisting-

arrest conviction. Id.

In Schreiber v. Moe, 596 F.3d 323 (6th Cir. 2010), though, we refused to apply this logic

to the Michigan offense that Chaney-Snell pleaded guilty to. See id. at 334–35; Mich. Comp.

Laws § 750.81d(1). Why? The then-existing Michigan caselaw interpreted this law not to

require proof that an officer had made a lawful arrest. See Schreiber, 596 F.3d at 334–35 (citing

People v. Ventura, 686 N.W.2d 748, 752 (Mich. Ct. App. 2004)). The law thus did not allow

defendants to avoid liability if officers used excessive force during the arrest. So a finding that

an officer used such force in a § 1983 suit would not conflict with an earlier resisting-arrest

conviction. Id.

But Michigan caselaw has since changed. In 2012, the Michigan Supreme Court

overruled the state decision (Ventura) on which Schreiber relied for its conclusion. See People

v. Moreno, 814 N.W.2d 624, 625 (Mich. 2012). Moreno held that the resisting-arrest statute

required prosecutors to prove that the police had made a lawful arrest. See id. at 626–34. Given

Moreno, Young argues, the claim that he used excessive force to arrest Chaney-Snell implies the

invalidity of Chaney-Snell’s conviction. And while we have favorably cited Schreiber in two

unpublished opinions after Moreno, neither identified Moreno’s change in law or discussed how

it affects our Heck analysis. See Sevenski v. Artfitch, 2022 WL 2826818, at *5 n.4 (6th Cir. July

20, 2022); Ruemenapp v. Oscoda Township, 739 F. App’x 804, 809–10 (6th Cir. 2018).

Young raises an important question about the scope of Heck that warrants a reasoned

answer at the proper time. But we can provide that answer only in an appeal where we have

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 8

jurisdiction to consider the issue. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–

102 (1998). And we lack jurisdiction to address the argument now.

Start with the jurisdictional basics. With a few exceptions, Congress has granted circuit

courts jurisdiction to review only “final decisions of the district courts[.]” 28 U.S.C. § 1291.

The phrase “final decisions” generally covers only those orders that end the litigation. See Hall

v. Hall, 584 U.S. 59, 64 (2018). Young does not argue that the district court’s order denying

summary judgment meets this usual definition. To the contrary, the court set the case for trial.

Under the collateral-order doctrine, however, the Supreme Court treats some decisions

that do not end the litigation as sufficiently “final” for purposes of § 1291. See DeCrane v.

Eckart, 12 F.4th 586, 601 (6th Cir. 2021). To qualify as a “final” decision under this doctrine, an

order must resolve a concrete issue, that issue must be distinct from the merits of the plaintiff’s

claims, and the issue must be “effectively unreviewable” if an appellate court waits to hear the

issue until the case’s completion. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)

(quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)). An order denying qualified

immunity exemplifies the type of decision that meets this test. See Mitchell v. Forsyth, 472 U.S.

511, 524–30 (1985). An officer’s qualified-immunity defense is distinct from the merits of the

plaintiff’s claims. See id. at 527–28. And qualified immunity represents not just a defense

against a damages award but also an “immunity from suit[.]” Id. at 526. So officers would lose

their right to qualified immunity if they had to stand trial before they could appeal its denial. Id.

at 525–27.

The denial of Young’s Heck challenge, by comparison, does not satisfy this collateral-

order test. The Supreme Court did not adopt Heck’s “implicit exception” to § 1983’s cause of

action to grant any type of immunity from suit. Nance, 597 U.S. at 167 (citation omitted).

Rather, the Court adopted the Heck bar to resolve a choice-of-law problem. The bar ensures that

§ 1983’s broad cause of action does not swallow up the habeas laws by covering claims that

prisoners traditionally litigated in habeas. See id. And those sued under § 1983 can vindicate

this interest after a final judgment. See Sayed v. Virginia, 744 F. App’x 542, 547–48 (10th Cir.

2018). As many courts have recognized, the denial of a Heck claim is not “effectively

unreviewable” at a suit’s end. Mitchell, 472 U.S. at 527; see Harrigan v. Metro Dade Police

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 9

Dep’t Station No. 4, 636 F. App’x 470, 475–76 (11th Cir. 2015) (per curiam); Southall v. Arias,

256 F. App’x 674, 675–76 (5th Cir. 2007); Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir.

2000).

Even Young does not assert that he could have appealed the denial of his Heck claim by

itself. Rather, he says that we may exercise what we have dubbed “pendent appellate

jurisdiction” over this claim. See Stojcevski v. Macomb County, 827 F. App’x 515, 523 (6th Cir.

2020). That jurisdiction allows an appellate court to review an otherwise unappealable issue if it

has an adequate connection to an appealable one. See Chambers v. Ohio Dep’t of Hum. Servs.,

145 F.3d 793, 797 (6th Cir. 1998). In Swint, the Supreme Court suggested in dicta that this

interlocutory jurisdiction might cover an unappealable issue if it is “inextricably intertwined”

with an appealable issue or if a court needs to review the unappealable issue to give “meaningful

review” to the appealable one. 514 U.S. at 51.

Since Swint, we have adopted both standards. For one thing, we have jurisdiction over an

unappealable issue that is “inextricably intertwined” with an appealable issue. See Mattox v. City

of Forest Park, 183 F.3d 515, 523–24 (6th Cir. 1999). To be sufficiently “intertwined,” the

unappealable issue must be “coterminous with, or subsumed in,” the appealable issue. Williams

v. Maurer, 9 F.4th 416, 429 (6th Cir. 2021) (quoting Farm Lab. Org. Comm. v. Ohio State

Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002)). Put another way, our resolution of the

appealable issue must resolve the unappealable issue too. See id.; Mattox, 183 F.3d at 523–24;

Brennan v. Township of Northville, 78 F.3d 1152, 1157–58 (6th Cir. 1996). If the issues do not

rise or fall together, they are not adequately intertwined. See Stojcevski, 827 F. App’x at 524;

Hopper v. Plummer, 887 F.3d 744, 760–61 (6th Cir. 2018); Bays v. Montmorency County, 874

F.3d 264, 270 (6th Cir. 2017).

For another thing, we have jurisdiction over an unappealable issue that we must address

to allow for “meaningful review” of an appealable issue. Lowe v. Hamilton Cnty. Dep’t of Job &

Fam. Servs., 610 F.3d 321, 324 (6th Cir. 2010) (quoting Swint, 514 U.S. at 51). When reviewing

an appealable injunction order, for example, we considered an earlier unappealable decision that

the order incorporated as part of its rationale for granting the injunction. Chambers, 145 F.3d at

797. In another case, by contrast, we refused to consider an unappealable abstention issue when

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 10

that issue would not affect the merits of the appealable qualified-immunity order that we were

reviewing. Summers v. Leis, 368 F.3d 881, 889–90 (6th Cir. 2004).

Does an unappealable Heck claim meet either test for pendent appellate jurisdiction when

an officer raises the claim in an appeal of the denial of qualified immunity? We have said both

“yes” and “no” to this question. A pair of unpublished cases have found Heck claims

“inextricably intertwined” with qualified-immunity appeals. See Lucier v. City of Ecorse, 601

F. App’x 372, 376 (6th Cir. 2015); McAdam v. Warmuskerken, 517 F. App’x 437, 438 (6th Cir.

2013) (per curiam). But these cases did not offer any “detail” to support their conclusion.

Dennis v. City of Philadelphia, 19 F.4th 279, 286 n.22 (3d Cir. 2021). And another pair of

unpublished cases have held that we lack jurisdiction over Heck claims in this setting. See

Flanigan v. Panin, 724 F. App’x 375, 377 (6th Cir. 2018); Norton v. Stille, 526 F. App’x 509,

515 (6th Cir. 2013).

Siding with the second pair of cases, we now hold that we lack pendent appellate

jurisdiction over Heck claims in qualified-immunity appeals. To begin with, those claims do not

satisfy our “inextricably intertwined” test. To meet that test, our resolution of the qualified-

immunity issue must “necessarily resolve[]” the Heck issue. Hopper, 887 F.3d at 760–61

(quoting Mattox, 183 F.3d at 524). But the conclusion that Young could not rely on qualified

immunity if he had gratuitously punched Chaney-Snell says nothing about the merits of Young’s

Heck claim. The qualified-immunity issue asks a question about the Fourth Amendment: Did

our cases clearly establish that Young’s (allegedly) gratuitous force violated that amendment?

See Gambrel v. Knox County, 25 F.4th 391, 400, 403 (6th Cir. 2022). The Heck issue asks a

question about Michigan law: Does Chanel-Snell’s claim that Young punched him “imply the

invalidity of his conviction” under the resisting-arrest statute? 512 U.S. at 487. These two

inquiries are not “intertwined” at all—let alone inextricably so. See Norton, 526 F. App’x at

515.

For the same reasons, we can give “meaningful review” to the district court’s denial of

qualified immunity without addressing its Heck ruling. Swint, 514 U.S. at 51. Unlike an

appealable decision that relies on an earlier unappealable order, see Chambers, 145 F.3d at 797,

the district court’s qualified-immunity denial did not adopt any part of its Heck reasoning.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 11

That fact should not come as a surprise because the Heck inquiry and the qualified-immunity

inquiry follow “separate and distinct legal standards.” Summers, 368 F.3d at 889–90.

The great weight of authority confirms our conclusion. Many courts hold that they lack

jurisdiction over Heck claims in qualified-immunity appeals. See Montoya v. City and County of

Denver, 2022 WL 1837828, at *9–10 (10th Cir. June 3, 2022); Dennis, 19 F.4th at 285–87;

Harrigan, 636 F. App’x at 476; Limone v. Condon, 372 F.3d 39, 50–52 (1st Cir. 2004);

Cunningham, 229 F.3d at 1285. And while the Fifth Circuit sees things differently, it has

opinions on both sides of the issue. See Poole v. City of Shreveport, 13 F.4th 420, 426 (5th Cir.

2021).

In response, Young says that we cannot “meaningful[ly] review” his qualified-immunity

request without addressing his Heck argument. Swint, 514 U.S. at 51. If we agree with that

argument, Young reasons, we must accept his version of the facts to decide the qualified-

immunity issue. This logic misunderstands Heck. Heck does not exist to identify the facts that

are in “genuine dispute” at the summary-judgment stage. Fed. R. Civ. P. 56(a). It exists to

determine whether (and when) a § 1983 plaintiff has “a complete and present cause of action[.]”

McDonough v. Smith, 139 S. Ct. 2149, 2158 (2019) (citation omitted). If the plaintiff’s version

of the facts implies the invalidity of the prior conviction, Heck means that the § 1983 claim is not

“cognizable” until the defendant overturns the conviction. 512 U.S. at 483. So a court should

dismiss the § 1983 claim—not continue to litigate it under the officer’s version of the facts. See

id. at 487.

Indeed, a Heck ruling for Young would conflict with the qualified-immunity ruling he

seeks. When Heck bars a § 1983 claim against an officer, the court should dismiss the claim

without prejudice so that the § 1983 plaintiff may refile the suit if a court later invalidates the

prior conviction. See Johnson v. Rogers, 944 F.3d 966, 968 (7th Cir. 2019); Wheeler v. Dayton

Police Dep’t, 807 F.3d 764, 767 (6th Cir. 2015); Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir.

1999). When qualified immunity bars a § 1983 claim, the court should dismiss the claim with

prejudice to any later refiling. See Johnson, 944 F.3d at 968. Young’s efforts to smuggle the

Heck inquiry into the qualified-immunity analysis muddies this difference. Should the district

court dismiss the claim without prejudice because it relied on Heck to determine the facts? Or

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 12

should the court dismiss the claim with prejudice because it granted qualified immunity? By

keeping these “distinct” doctrines distinct, a court keeps the nature of its judgment clear. See

Dennis, 19 F.4th at 286.

We end with a point that Deputy Young did not raise. The best counterargument to our

holding might arise from an analogy to the implied cause of action that plaintiffs can pursue

against federal officers under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The Supreme Court has held that when an appellate court

considers a federal officer’s qualified-immunity appeal, it has jurisdiction to decide whether a

plaintiff can even assert a Bivens “cause of action” to vindicate the constitutional right at issue.

Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007); Elhady v. Unidentified CBP Agents, 18 F.4th

880, 884 (6th Cir. 2021). One could argue that a court should treat the Heck question like this

Bivens question because Heck also concerns whether the plaintiff has a “cognizable” claim.

512 U.S. at 483. That said, Heck creates only a precondition to a § 1983 suit (invalidation of the

prior conviction)—not an absolute bar to the suit. So one could alternatively argue that the Heck

bar looks like other preconditions (such as exhaustion) that we have held do not fall within our

pendent appellate jurisdiction. See Lowe, 610 F.3d at 323–24; 15A Charles Alan Wright et al.,

Federal Practice and Procedure § 3914.10.7, at 817–19 (3d ed. 2022). In fact, the uncertainty

over whether a plaintiff must prove the inapplicability of Heck or whether the defendant must

raise the Heck bar as a defense has created a circuit split in other contexts. See Garrett v.

Murphy, 17 F.4th 419, 427 (3d Cir. 2021). Be that as it may, we need not conclusively identify

the nature of the Heck bar to resolve this appeal. Whatever Heck’s nature, we hold only that we

lack pendent appellate jurisdiction over Young’s Heck claim under our traditional standards for

deciding whether that jurisdiction exists.

2. Judicial Estoppel

Deputy Young next relies on judicial estoppel to bar Chaney-Snell’s claim that Young

punched him after he surrendered. Judicial estoppel bars litigants from “playing fast and loose

with the courts” by asserting one position in one case and the opposite position in a later case.

New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (citation omitted); Mirando v. U.S. Dep’t of

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 13

Treasury, 766 F.3d 540, 545 (6th Cir. 2014). This doctrine applies, Young asserts, because

Chaney-Snell’s admissions in his criminal case conflict with his statements in this civil suit.

Does Young’s judicial-estoppel argument have the same jurisdictional flaw as his Heck

claim? No, this argument contains a critical difference. Unlike his Heck claim, Young’s

estoppel argument could alter the “historic facts” that we would consider when deciding his

qualified-immunity request. Thore v. Howe, 466 F.3d 173, 178–87 (1st Cir. 2006). If Chaney-

Snell admitted in the criminal case that Young did not punch him, judicial estoppel might bar

Chaney-Snell from claiming the contrary in this suit. See Lowery v. Stovall, 92 F.3d 219, 222–

25 (4th Cir. 1996). If so, we would ask whether Young should receive qualified immunity under

his version of the events, see id. at 221, 226, the only “genuine” version given our estoppel

holding, Fed. R. Civ. P. 56(a). Because Young’s qualified-immunity claim “cannot be resolved

without addressing” his estoppel argument, Chambers, 145 F.3d at 797, we may consider that

argument to “meaningful[ly] review” the immunity claim, Swint, 514 U.S. at 51; see also

Ashcroft v. Iqbal, 556 U.S. 662, 673–75 (2009).

An analogy to issue preclusion confirms this point. Under that doctrine, we often hold

that a § 1983 plaintiff who pleaded guilty in a state criminal case cannot relitigate an issue (for

example, whether probable cause existed) that the state court decided. See Spencer v. County of

Huron, 717 F. App’x 555, 557–59 (6th Cir. 2017); Bach v. Drerup, 545 F. App’x 474, 477 (6th

Cir. 2013); see also Godboldo v. County of Wayne, 686 F. App’x 335, 340–43 (6th Cir. 2017).

Notably, when a district court rejects an officer’s issue-preclusion argument in a later § 1983

suit, the officer may raise the argument in a qualified-immunity appeal. See Peterson v. Heymes,

931 F.3d 546, 553 (6th Cir. 2019); Godboldo, 686 F. App’x at 338, 340; Roberson v. Torres, 770

F.3d 398, 401–03 (6th Cir. 2014); Evans v. Bd. of Educ. Sw. City Sch. Dist., 425 F. App’x 432,

437 (6th Cir. 2011). But cf. Siggers v. Alex, 2023 WL 5986603, at *3 & n.5 (6th Cir. Sept. 12,

2023). The same logic covers Young’s judicial-estoppel argument.

Nevertheless, Young’s judicial-estoppel claim fails on the merits. Our cases ask three

questions when deciding whether a court should judicially estop a party. See Mirando, 766 F.3d

at 545. First, has the party taken a position in the current case that is “clearly inconsistent” with

a position the party took in an earlier case? Id. (quoting New Hampshire, 532 U.S. at 750).

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 14

Second, did the earlier position prevail in the prior case and so create a perception that the prior

court or the current court has been misled? See id. And third, would this flip-flopping give the

party an “unfair advantage” or impose an “unfair detriment” on the other side? Id. (quoting New

Hampshire, 532 U.S. at 751). Although courts have discretion when deciding whether to invoke

judicial estoppel, New Hampshire, 532 U.S. at 750, our recent cases typically require a court to

answer all three questions in the affirmative before estopping a party from taking the position in

the second case. Compare Shufeldt v. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,

855 F. App’x 239, 243–47 (6th Cir. 2021), and In re Berge, 953 F.3d 907, 922 (6th Cir. 2020),

with Han v. Hankook Tire Co., 799 F. App’x 347, 349–50 (6th Cir. 2020), and Mirando,

766 F.3d at 546–48.

Courts sometimes must apply these estoppel standards to the specific question whether a

§ 1983 plaintiff may assert a factual allegation that contradicts the plaintiff’s statements made

when pleading guilty in an earlier criminal case. See Grise v. Allen, 714 F. App’x 489, 495–96

(6th Cir. 2017); Wells v. Coker, 707 F.3d 756, 760–62 (7th Cir. 2013); Wolfe v. Footen, 418

F. App’x 256, 259–60 (4th Cir. 2011); Sulfridge v. Huff, 313 F. App’x 820, 825 (6th Cir. 2009);

Bradford v. Wiggins, 516 F.3d 1189, 1194–95 (10th Cir. 2008) (per curiam); Thore, 466 F.3d at

182–87; Johnson v. Lindon City Corp., 405 F.3d 1065, 1068, 1068–70 (10th Cir. 2005); Lowery,

92 F.3d at 224–25. To identify the facts that the plaintiff admitted in the criminal case, these

courts have examined such records as the transcript of the “plea hearing,” Lowery, 92 F.3d at

224, or “the language of the plea agreement,” United States v. Hammon, 277 F. App’x 560, 566

(6th Cir. 2008).

In this case, our analysis can begin (and end) with the first factor, which requires a party

to have taken “clearly inconsistent” positions. New Hampshire, 532 U.S. at 750 (citation

omitted). For shifting claims to satisfy this factor, a party must have made two impossible-to-

reconcile statements. Judicial estoppel does not apply if the party can explain why its current

position comports with a (perhaps ambiguous) prior position. See Butler v. United Healthcare of

Tenn., Inc., 764 F.3d 563, 570 (6th Cir. 2014); Lorillard Tobacco Co. v. Chester, Willcox &

Saxbe, LLP, 546 F.3d 752, 758 (6th Cir. 2008); Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376,

382 (6th Cir. 1998).

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 15

Young cannot satisfy this test because Chaney-Snell’s testimony in this § 1983 case does

not plainly contradict the perfunctory admissions he made when pleading guilty. See New

Hampshire, 532 U.S. at 750. Start with his criminal case. During his plea colloquy, Chaney-

Snell pleaded guilty to “attempted resisting and obstructing a police officer[.]” Plea Tr., R.30-8,

PageID 760, 763. He then admitted “what [he] did that [made him] guilty” of this crime. Id.,

PageID 764. Chaney-Snell conceded that “at some point” after Young and Teichow entered his

girlfriend’s house, he was “given some verbal commands to show them [his] hands[.]” Id.,

PageID 765. And he conceded that he “failed to comply with . . . the lawful command of” one of

the officers. Id.

Now turn to this § 1983 case. During his deposition, Chaney-Snell admitted that he

heard the officers shout “show me your hands” when they confronted him. Chaney-Snell Dep.,

R.30-4, PageID 571–72. He next claimed that he raised his hands but that Young punched him.

Id., PageID 573. This force led Chaney-Snell to put his hands down, so the officers demanded

that he “put [his] hands up” again. Id. He conceded that he disobeyed this second command and

that the officers had to give the same order more than once. Id. When he admitted at his plea

hearing that he did not follow the officers’ commands, Chaney-Snell suggested at his deposition

that he was referring to this point in the encounter. Id., PageID 571–73, 605–06.

While tension might exist between Chaney-Snell’s statements across the two cases, he

has reconciled them enough to avoid a “clearly inconsistent” finding. See Lorillard Tobacco,

546 F.3d at 758. At his plea hearing, he admitted both that the officers at “some” unidentified

“point” told him to show his hands and that he “failed to comply with . . . the lawful command

of” one of the officers. Plea Tr., R.30-8, PageID 765. At his deposition, he clarified that this

point occurred after Young had punched him and when the officers were shouting for him to

raise his hands a “second time.” Chaney-Snell Dep., R.30-4, PageID 605. “Regardless of the

merits of” Chaney-Snell’s allegations in this civil case, they reconcile his statements across the

two cases. Lorillard Tobacco, 546 F.3d at 758. And while Chaney-Snell might “find it difficult

to convince a jury” that he would plead guilty to resisting arrest in light of Young’s alleged

actions, we do not assess his credibility at this stage. Gambrel, 25 F.4th at 404; see Schreiber,

596 F.3d at 333.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 16

Young responds with narrow and broad arguments. Narrowly, he identifies a technical

difference between Chaney-Snell’s statements. At his plea hearing, Chaney-Snell admitted that

the officers shouted for him “to show” his hands. Plea Tr., R.30-8, PageID 765 (emphasis

added). At his deposition, Chaney-Snell said he failed to comply with the command “to put . . .

up” his hands. Chaney-Snell Dep., R.30-4, PageID 573 (emphasis added). Yet this “subtle”

distinction does not reveal the clear contradiction that could warrant judicial estoppel, especially

considering the summary nature of the plea hearing. Lorillard Tobacco, 546 F.3d at 758.

Indeed, Chaney-Snell viewed the two commands as “the same thing.” Chaney-Snell Dep., R.30-

4, PageID 605.

More broadly, Young reasserts his Heck claim using the judicial-estoppel label. Even if

Chaney-Snell’s summary of events at his deposition comports with his admissions at his plea

hearing, Young argues, the summary at least conflicts with the criminal judgment. As noted, the

resisting-arrest statute gives residents the “right to resist unlawful police conduct[.]” Moreno,

814 N.W.2d at 629. If Chaney-Snell refused to raise his hands because Young had just punched

him, Young argues that Chaney-Snell resisted Young’s unlawful conduct. So his deposition

testimony would “imply the invalidity of his conviction[.]” Heck, 512 U.S. at 487. But we

refuse to enforce the Heck bar in this roundabout way. Unlike Heck, judicial estoppel applies

beyond § 1983 suits. So if judicial estoppel bars Chaney-Snell from raising any claim

inconsistent with his criminal case, would it also bar him from challenging his conviction in

habeas? Even though state prisoners regularly bring habeas claims, Young cites no authority that

has applied estoppel in this way. See Thore, 466 F.3d at 183; see also Wells, 707 F.3d at 761.

Next, unlike a Heck holding, an estoppel holding typically produces a dismissal with (not

without) prejudice. See Han, 799 F. App’x at 350. If Young correctly claims that Heck applies,

then, a decision to enforce the Heck bar through judicial estoppel would deprive Chaney-Snell of

any ability to refile the suit if he overturned his conviction. See Wheeler, 807 F.3d at 767. In

short, Young can raise his Heck claim in our court at the appropriate time. We will not consider

the Heck bar through judicial estoppel.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 17

B. Question Two: Does the Fourth Amendment permit officers to use unnecessary

force on arrestees if the force qualifies as “de minimis”?

Unable to rebut Chaney-Snell’s allegations about the punches, Deputy Young turns to

Chaney-Snell’s allegations that an officer kneed him in the back and dragged him across the

floor. Young does not assert that Heck bars these uses of force, presumably because they

allegedly occurred after the officers arrested him. See Hayward, 759 F.3d at 611–12. Rather,

Young and Officer Teichow both argue that the district court wrongly denied them qualified

immunity even accepting Chaney-Snell’s allegations. The Supreme Court’s caselaw leaves no

doubt that we have jurisdiction over this qualified-immunity issue. See Plumhoff v. Rickard, 572

U.S. 765, 771–73 (2014). Even so, neither the Fourth Amendment nor our caselaw support their

position.

1

To defeat the officers’ qualified-immunity defense, Chaney-Snell “must prove two

things.” Gambrel, 25 F.4th at 399. He first must show that the officers violated the Fourth

Amendment. Id. He then must show that our law clearly established this violation at the time of

his arrest. Id.

Before considering this two-part test, we clarify factual and legal points about the

officers’ qualified-immunity request. Factually, some uncertainty exists over the allegedly

responsible officer because Chaney-Snell could not identify who kneed or dragged him. The

record clears up a part of this uncertainty: Only Deputy Young could have kneed Chaney-Snell.

Young admitted that, when he used knee strikes attempting to handcuff Chaney-Snell, his knee

“made contact” with Chaney-Snell’s “left side or part of his back[.]” Young Dep., R.30-7,

PageID 732. Meanwhile, Officer Teichow “did not kneel on” Chaney-Snell at all. Teichow

Dep., R.30-6, PageID 700. No jury could identify Teichow as the “kneeing” officer on this

record. Yet the record does leave unclear which officer would have dragged Chaney-Snell (if the

jury believed him). So Young and Teichow both assert the same qualified-immunity theory.

That brings us to the legal point. The officers raise a unique qualified-immunity defense

to sidestep our caselaw. We have repeatedly held that the police violate the Fourth Amendment

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 18

if they use “gratuitous” force on an arrestee who has surrendered and poses no threat. Gambrel,

25 F.4th at 402 (quoting Shreve v. Jessamine Cnty. Fiscal Ct., 453 F.3d 681, 688 (6th Cir.

2006)); see Reed v. Campbell County, 80 F.4th 734, 750 (6th Cir. 2023); Williams, 9 F.4th at

438–39; Miller v. Sanilac County, 606 F.3d 240, 252–54 (6th Cir. 2010); Morrison v. Bd. of Trs.

of Green Twp., 583 F.3d 394, 404–05, 407 (6th Cir. 2009); Pigram ex rel. Pigram v. Chaudoin,

199 F. App’x 509, 513 (6th Cir. 2006); Baker v. City of Hamilton, 471 F.3d 601, 607–08 (6th

Cir. 2006); Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002); Holmes v. City of Massillon, 78

F.3d 1041, 1048 (6th Cir. 1996); Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994); McDowell

v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988). Because we must accept Chaney-Snell’s

allegations that he had peaceably surrendered before he was kneed and dragged, the officers do

not challenge his claim that they used “gratuitous” force. Morrison, 583 F.3d at 407 (citation

omitted).

Rather, they argue that they did not violate the Fourth Amendment for a different reason:

because “‘the Constitution is not concerned’” with the “de minimis level of force” that Chaney-

Snell alleges. Young Appellant’s Br. 30 (quoting Hanson v. Madison Cnty. Det. Ctr., 736

F. App’x 521, 530 (6th Cir. 2018)). Under the officers’ proposed rule, the Fourth Amendment

exempts gratuitous force that falls below a minimum threshold. They further claim that Chaney-

Snell’s alleged force (kneeing and dragging an arrestee) does not reach the required level.

This claim lacks merit. For starters, the officers propose a broad-brush rule that de

minimis force falls outside the entire Constitution. But this case involves a specific

constitutional provision: the Fourth Amendment. That amendment does not expressly

distinguish de minimis force from major force. It instead gives “the people” a “right” “to be

secure in their persons . . . against unreasonable . . . seizures[.]” U.S. Const. amend. IV. All

agree that the officers “seized” Chaney-Snell when they successfully arrested him. See Torres v.

Madrid, 592 U.S. 306, 311–18 (2021).

As a result, the officers’ proposed de minimis rule turns on the word “unreasonable.”

When interpreting this adjective, the Supreme Court has sometimes looked to the common-law

rules governing police conduct. See Lange v. California, 141 S. Ct. 2011, 2022 (2021). But

when the Court has found no “precise guidance” in history, it has turned to a balancing of the

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 19

interests at stake. Riley v. California, 573 U.S. 373, 385–86 (2014). Either way, the officers’

rule falls short.

Balancing. The Supreme Court typically follows its balancing approach when analyzing

excessive-force claims, so we begin there. See Graham v. Connor, 490 U.S. 386, 396 (1989);

Tennessee v. Garner, 471 U.S. 1, 7–8 (1985). This approach requires courts to weigh an

officer’s reasons for the force against an arrestee’s interest in avoiding it. See Phelps, 286 F.3d

at 301. Courts must undertake this balancing “from the perspective ‘of a reasonable officer’”

who knows that dangerous encounters often require “split-second” decisions. Plumhoff, 572

U.S. at 775 (quoting Graham, 490 U.S. at 396–97). And courts must engage in an objective

review of all the circumstances, not a subjective review of an officer’s motives. See Graham,

490 U.S. at 397.

This balance of interests favors Chaney-Snell under his factual allegations. First consider

the public interests of Young and Teichow. The officers undoubtedly had important safety

concerns that justified detaining Chaney-Snell during the search of his girlfriend’s home. See

Muehler v. Mena, 544 U.S. 93, 98 (2005). And their right to detain Chaney-Snell gave them the

subsidiary right to use the “physical coercion or threat thereof” required to “effect” his detention.

Graham, 490 U.S. at 396. Yet, under the version of events that we must accept, the officers had

already detained Chaney-Snell when Young kneed him in the back and an officer dragged him

across the floor. The officers thus have not identified any “legitimate government interest” for

these additional uses of force. Morrison, 583 F.3d at 404.

Now consider Chaney-Snell’s private interests. Admittedly, he alleges that this modest

force caused minor injuries: an asthma attack from the kneeing and a rug burn from the dragging.

But we have “never imposed a de minimis injury” exception to our longstanding rule that the use

of gratuitous force on an incapacitated arrestee renders a seizure unreasonable. Reed, 80 F.4th at

750. To the contrary, we have consistently rejected claims that officers could escape liability for

similar levels of force on the ground that it caused minor injuries. See Miller, 606 F.3d at 253–

54; Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir. 1999). Two examples prove this

point. We have held that an officer used excessive force when he repeatedly pushed a detained

woman’s face into the ground to prevent her from talking, even though this force caused just a

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 20

“minor scratch[.]” Morrison, 583 F.3d at 406–07. And we have held that an officer used

excessive force when he slapped a detained high-school student for talking back to the officer,

without considering whether the slap caused any injury. Pigram, 199 F. App’x at 511, 513–14.

This case should be no different. Even if we could describe the force that Chaney-Snell

alleges as a “marginal intrusion,” Mena, 544 U.S. at 99, it was an intrusion all the same. And

Teichow and Young point to no interest on the other side to counterbalance this intrusion. Under

Chaney-Snell’s alleged facts, then, the balance has a clear winner.

History. For good measure, nothing in the historical record cuts against this conclusion.

The Supreme Court often ties the word “unreasonable” in the Fourth Amendment to the

common-law rules in place at the time of its enactment. See Lange, 141 S. Ct. at 2022–23.

Indeed, the Court has suggested that the amendment “must provide at a minimum the degree of

protection it afforded when it was adopted.” Id. at 2022 (quoting United States v. Jones, 565

U.S. 400, 411 (2012)). After all, the founding generation may have read the word to mean

contrary to the “reason of the common law.” Laura K. Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181, 1269–75 (2016). So, for example, the Fourth Amendment

generally requires officers to knock and announce their presence before searching a home

because many common-law sources imposed that requirement. See Wilson v. Arkansas, 514 U.S.

927, 931–36 (1995). And if officers have probable cause that a suspect committed a felony, they

may arrest the suspect without a warrant because of the “ancient common-law rule” permitting

those arrests. United States v. Watson, 423 U.S. 411, 418 (1976).

Here, however, Young and Teichow do not identify any historical authorities that would

treat Chaney-Snell’s alleged force as insufficient. As far as we can tell, those authorities instead

confirm our rule that officers may employ only the force reasonably necessary to effect an arrest.

Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37 Seattle U. L. Rev. 939, 966 &

n.174 (2014). At common law, parties “historically enforced their rights” using tort actions.

Utah v. Strieff, 579 U.S. 232, 237 (2016). So plaintiffs would pursue battery claims against

arresting officers who harmed them. See Williams v. Jones, 95 Eng. Rep. 193, 194 (K.B. 1736);

Truscott v. Carpenter, 91 Eng. Rep. 1050, 1051 (K.B. 1697). And the common law treated even

“[t]he least touching of another’s person willfully, or in anger,” as an actionable “battery[.]”

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 21

3 William Blackstone, Commentaries on the Laws of England 120 (1768); see Torres, 592 U.S.

at 314.

In response to these tort claims, officers sometimes sought to excuse a battery on the

ground that they were making a “lawful” arrest. Williams, 95 Eng. Rep. at 194. This defense

fell short: “a battery cannot be justified by shewing an arrest barely[.]” Id.; 1 Matthew Bacon, A

New Abridgment of the Law *244–45 n.(c) (1st Am. ed. 1811). Officers instead had to justify the

battery on one of two other grounds. They might assert the defense of “molliter manus imposuit”

(“[h]e gently laid hands on”), meaning that they used only the force required for the arrest. Rowe

v. Tutte, 125 Eng. Rep. 1031, 1031–33 (C.P. 1737); Black’s Law Dictionary 1158 (10th ed.

2014); cf. Blackstone, supra, at 121. For greater force, they had to allege that the arrestee “made

resistance and was going to rescue himself[.]” Williams, 95 Eng. Rep. at 194. Or, as another

case put it, an officer “cannot beat [an arrestee], unless he resists” the arrest. Truscott, 91 Eng.

Rep. at 1051.

This framework continued through the adoption of the Fourteenth Amendment and its

incorporation of the Fourth Amendment against the States. See Wurman, supra, at 966–72

(citing cases). One can find many decisions suggesting that a person with the “authority to

arrest” had to carry out the arrest “peaceably, and with as little violence as the case will admit

of.” State v. Mahon, 3 Del. 568, 569 (1842). Officers thus needed to show “resistance” on an

arrestee’s part to “justify” “acts” like “dragging” or “striking” the arrestee. Kreger v. Osborn, 7

Blackf. 74, 74–75 (Ind. 1843); see Schwenke v. Union Depot & R.R. Co., 21 P. 43, 44 (Colo.

1889); Golden v. State, 1 S.C. 292, 302 (1870); Murdock v. Ripley, 35 Me. 472, 474 (1853);

Boles v. Pinkerton, 7 Dana 453, 453–54 (Ky. 1838); cf. Gates v. Lounsbury, 20 Johns. 427, 429

(N.Y. Sup. Ct. 1823). As a treatise suggested in the decades after the Fourteenth Amendment’s

adoption, the law “will tolerate in its ministers no unnecessary violence.” William L. Murfree,

Sr., A Treatise on the Law of Sheriffs and Other Ministerial Officers § 148, at 73 (1884). So

arresting officers could use only that “physical force” that was “the very minimum by which the

desired object can be attained.” Id. at 74; see 2 Joel Prentiss Bishop, Commentaries on the

Criminal Law § 58, at 35 (4th ed. 1868).

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 22

Accepting Chaney-Snell’s allegations, Young and Teichow could not justify their force

as a historical matter. Nobody would describe their actions in kneeing and dragging Chaney-

Snell as “gently lay[ing] their hands” on him. Rowe, 125 Eng. Rep. at 1032. Chaney-Snell also

allegedly offered no “resistance” to justify this force. Williams, 95 Eng. Rep. at 194. And since

the force exceeded the “touching” required for battery, Blackstone, supra, at 120, Chaney-Snell

could have sued the officers in tort. In sum, no matter how we approach this question, Young

and Teichow have not shown that the force alleged in this case fell into a de minimis exception

to our traditional rule that the Fourth Amendment bars the use of gratuitous force on neutralized

arrestees.

2

The officers’ contrary arguments do not change things. They first point out that “‘[n]ot

every push or shove, even if it may later seem unnecessary in the peace of the judge’s chambers,’

violates the Fourth Amendment.” Graham, 490 U.S. at 396 (citation omitted). According to

Young and Teichow, this sentence from Graham excludes minor force like a “push” or “shove”

from the Fourth Amendment’s reach. Not so. The Court was merely clarifying that judges

should give officers leeway over whether force was necessary; it was not holding that judges

should give officers a free pass to wield unnecessary force that falls below some threshold.

Confirming this point, the Supreme Court has required the police to identify law-

enforcement reasons even for more modest force than that alleged here. Take Mena. It held that

the police properly left an occupant of a home in handcuffs for hours while they searched the

home. See Mena, 544 U.S. at 99–100. The Court did not suggest that the hours-long

handcuffing was “de minimis”; it held that the police had reasonable safety reasons to keep the

occupant secured. See id. Or take Los Angeles County v. Rettele, 550 U.S. 609 (2007) (per

curiam). There, the Court held that officers used reasonable force when they ordered a naked

couple out of bed and required them to stand without clothes for two minutes while securing

their home. Id. at 611, 614–16. Here again, the Court did not find this force “de minimis”; it

found that the officers kept the couple in this embarrassing state for no “longer than necessary to

protect their safety.” Id. at 615.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 23

Unable to rely on the Supreme Court’s Fourth Amendment jurisprudence, the officers

switch to its caselaw on other provisions. See Wilkins v. Gaddy, 559 U.S. 34, 37–38 (2010); Bell

v. Wolfish, 441 U.S. 520, 539 n.21 (1979). In Wilkins, the Court held that the Eighth

Amendment’s ban on cruel and unusual punishments did not reach “de minimis uses of physical

force[.]” 559 U.S. at 38 (quoting Hudson v. McMillian, 503 U.S. 1, 10 (1992)). And when

considering the limits that jailers may impose on pretrial detainees under the Fourteenth

Amendment’s Due Process Clause, the Court in Bell noted that “[t]here is, of course, a de

minimis level of imposition with which the Constitution is not concerned.” 441 U.S. at 539 n.21

(quoting Ingraham v. Wright, 430 U.S. 651, 674 (1977)).

But these cases addressed different provisions with different texts. Because the Eighth

Amendment bars only “‘cruel and unusual’ deprivations,” it does not reach “uncomfortable or

‘even harsh’” sanctions. Johnson v. Sootsman, 79 F.4th 608, 615 (6th Cir. 2023) (citation

omitted). Thus, Wilkins’s view that the phrase “cruel and unusual” in the Eighth Amendment

excludes minor force says little about whether an “unreasonable seizure” under the Fourth

Amendment also excludes that force. Similarly, the Due Process Clause bars States from

“depriv[ing]” people of their “liberty” “without due process of law[.]” U.S. Const. amend. XIV,

§ 1. And Bell’s view that a “de minimis level of imposition” may not intrude on the liberty

protected by due process says little about whether minor force can render a “seizure”

“unreasonable” under the Fourth Amendment. Bell, 441 U.S. at 539 n.21 (quoting Ingraham,

430 U.S. at 674).

Having run out of Supreme Court precedent, Young and Teichow next cite our own.

They rely on two cases addressing excessive-force claims brought by pretrial detainees in jail.

See Hanson, 736 F. App’x at 526–28 & nn.3–4; Leary v. Livingston County, 528 F.3d 438, 443

(6th Cir. 2008). Leary held that the Due Process Clause’s liberty protections did not reach the

minor force that a pretrial detainee alleged in that case: a “karate chop” that caused no harm.

528 F.3d at 443–45. But again, this due-process holding says little about the rules that should

govern claims brought by “free citizen[s]” under the Fourth Amendment. Id. (quoting Graham,

490 U.S. at 394).

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 24

Hanson at least concerned the Fourth Amendment. 736 F. App’x at 527–28. We noted

that the shove of a pretrial detainee against a jail wall did not violate the Fourth Amendment

because of its minor nature. Id. at 529–31. But Hanson equated the Fourth Amendment’s

reasonableness standards in the pretrial-detainee context with the Supreme Court’s due-process

standards in that context. See id. at 528–29, 528 n.3 (citing Kingsley v. Hendrickson, 576 U.S.

389 (2015)). In Kingsley, the Court clarified that these standards must account for a jail’s unique

security needs. 576 U.S. at 399–400. Those unique needs may justify Hanson’s suggestion that

a pretrial detainee must show more than de minimis force to violate the Fourth Amendment. 736

F. App’x at 530–31. If, however, we expand Hanson beyond a jail’s walls, we would place it on

a collision course with our many cases holding that even “minor uses of force” (such as a slap)

violate the Fourth Amendment when they are “totally gratuitous.” Gaddis ex rel. Gaddis v.

Redford Township, 364 F.3d 763, 772 (6th Cir. 2004) (citation omitted); see Pigram, 199

F. App’x at 511, 513. And this case concerns force against a “free citizen” in a home, not a

pretrial detainee at a jail. Graham, 490 U.S. at 394.

Because our precedent does not help them, Young and Teichow turn to out-of-circuit

caselaw. We find this precedent “muddled.” Fisher v. City of Las Cruces, 584 F.3d 888, 898 n.5

(10th Cir. 2009). Some courts have suggested that plaintiffs must show more than a de minimis

injury to establish a Fourth Amendment violation. See Westfall v. Luna, 903 F.3d 534, 549–50

(5th Cir. 2018) (per curiam). Others have suggested that plaintiffs must show more than

de minimis force to establish such a violation. See Chambers v. Pennycook, 641 F.3d 898, 906

(8th Cir. 2011); Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). In the end, these differing

standards are beside the point. “[S]ince 1991,” our precedent has turned on the gratuitous nature

of the force—not the de minimis nature of the force or of any resulting injury. Solovy v.

Morabito, 375 F. App’x 521, 528 (6th Cir. 2010); Phelps, 286 F.3d at 301–02. No matter what

other circuits say, we must follow that precedent here.

This conclusion rebuts the officers’ final argument: that our cases did not give Chaney-

Snell a “clearly established” right against the purportedly de minimis force that he alleged.

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per curiam) (citation omitted). Undoubtedly,

the Supreme Court has adopted a demanding test for Chaney-Snell to prove the violation of a

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 25

clearly established right at the second step of the qualified-immunity analysis. He must show

that “every reasonable” officer would have realized that Young and Teichow’s conduct violated

the Fourth Amendment under our then-existing precedent. Id. (citation omitted). In the fact-

dependent excessive-force context, moreover, this test generally requires a plaintiff to identify a

highly specific right or a case with analogous facts. See id. at 6; District of Columbia v. Wesby,

583 U.S. 48, 63–64 (2018).

Still, Chaney-Snell has met this demanding test. To begin with, our cases have “clearly

established that an officer may not use additional gratuitous force once a suspect has been

neutralized.” Morrison, 583 F.3d at 408 (citation omitted); Shreve, 453 F.3d at 688. We have

stated this legal rule at a specific-enough level of generality for purposes of this case because

“the unlawfulness” of the gratuitous force that Chaney-Snell alleges “follow[s] immediately

from [our] conclusion that [the rule is] firmly established.” Wesby, 583 U.S. at 64 (citation

omitted). In addition, our cases addressing similar levels of force put Young and Teichow “on

notice” that the alleged conduct violated the Fourth Amendment. Rivas-Villegas, 595 U.S. at 6.

As one example, Morrison—the case in which an officer pushed an arrestee’s “face into the

ground” and caused a “minor scratch”—unambiguously shows that minor force causing a minor

injury can violate the Fourth Amendment. 583 F.3d at 406, 408; see Miller, 606 F.3d at 252–54.

We end with two disclaimers. As for the first disclaimer, courts have suggested that

§ 1983 does not provide a cause of action for “trifling” injuries—whether a plaintiff alleges a

violation of the First Amendment, the Fourth Amendment, or any other right—because the

statute incorporates the common-law maxim de minimis non curat lex (the law does not concern

itself with trifles). Williams v. Boles, 841 F.2d 181, 182–83 (7th Cir. 1988); see Bart v. Telford,

677 F.2d 622, 625 (7th Cir. 1982). We need not consider this statutory question, though,

because the officers raise only a constitutional argument about the Fourth Amendment. As for

the second disclaimer, courts have suggested that the minor nature of the force or injury supports

an officer’s claim that the officer used reasonably necessary force to subdue an arrestee.

See Williams v. Sirmons, 307 F. App’x 354, 360–61 (11th Cir. 2009) (per curiam); cf. Sootsman,

79 F.4th at 618–19; Gaddis, 364 F.3d at 772. We also need not consider this constitutional

question because Young and Teichow do not attempt to justify the alleged kneeing and dragging

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 26

as reasonably necessary. Rather, they argue that even unnecessary force falls outside the Fourth

Amendment when it is de minimis. That rule conflicts with our law.

C. Question Three: Has Chaney-Snell established a “failure to intervene” theory of

liability?

Officer Teichow lastly argues that qualified immunity protects him from the claim that he

failed to stop Deputy Young from punching Chaney-Snell in the face and kneeing him in the

back. And because the record leaves unclear which officer dragged Chaney-Snell, Young and

Teichow both seek qualified immunity for the claim that they failed to stop this final use of

force. This argument fares better than their others. A reasonable officer could have believed that

these fleeting uses of force did not last long enough to trigger any duty to intervene. So Chaney-

Snell’s claims fail at step two of the qualified-immunity analysis.

1

Section 1983 generally prohibits a plaintiff from holding one officer liable for another’s

actions. See Pineda v. Hamilton County, 977 F.3d 483, 490 (6th Cir. 2020). A plaintiff instead

may seek damages from an officer only for that officer’s “own individual” conduct. Iqbal, 556

U.S. at 676. And an officer’s “mere presence” at the scene of excessive force generally does not

suffice to hold the officer liable for the force. Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir.

2013). This reading of § 1983 ostensibly poses a problem for Chaney-Snell because he seeks

damages not just from the officer who employed the alleged force but also from the officer who

witnessed it.

Since Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982) (per curiam), however, we have

held that an officer who fails to intervene to prevent another officer’s excessive force can face

liability for that force under § 1983. Id. at 425–26; see Goodwin v. City of Painesville, 781 F.3d

314, 328–29 (6th Cir. 2015); Durham v. Nu’Man, 97 F.3d 862, 866–68 (6th Cir. 1996). That

said, our cases leave the source of this failure-to-intervene theory unclear. Two possible sources

exist. On the one hand, a constitutional amendment might enshrine this duty to intervene in our

fundamental charter. But which amendment? The Fourth Amendment protects only against

“unreasonable” “seizures”; its text does not obviously cover the failure to stop such seizures.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 27

U.S. Const. amend. IV. Bruner hinted at the Equal Protection Clause as a possible source

because it supported this failure-to-intervene theory with a quote from Smith v. Ross, 482 F.2d 33

(6th Cir. 1973) (per curiam). See Bruner, 684 F.2d at 426. In a different context, Smith

suggested that officers might violate “equal protection” if they do not “enforce the laws equally

and fairly[.]” 482 F.2d at 36. As another constitutional possibility, we have held that the Due

Process Clause can require officials to protect private parties from so-called “state-created

dangers.” See Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 931–32 (6th Cir.

2020).

On the other hand, perhaps § 1983’s text incorporates this duty to intervene into the

statute itself rather than the Constitution. See Manuel v. City of Joliet, 580 U.S. 357, 370 (2017).

When deciding on the “elements” of a cause of action for a constitutional violation under § 1983,

courts have read the statute with “the common law of torts” in mind. Id.; see Dibrell v. City of

Knoxville, 984 F.3d 1156, 1160 (6th Cir. 2021). Courts thus have looked to the common law to

decide which actors may be held liable for a constitutional violation. See Pineda, 977 F.3d at

490. Conspiracy allegations, for example, allow a plaintiff to hold one conspirator responsible

for another’s actions under § 1983 because a coconspirator could face that liability at common

law. See Rudd v. City of Norton Shores, 977 F.3d 503, 512–13 (6th Cir. 2020). Bruner

alternatively hinted at this statutory theory for failure-to-intervene claims by citing a Seventh

Circuit case as further support. See 684 F.2d at 425–26 (citing Byrd v. Brishke, 466 F.2d 6 (7th

Cir. 1972)). Byrd relied on tort analogies to incorporate failure-to-intervene claims into § 1983.

See 466 F.2d at 10–11.

Perhaps one day we will have to identify the source of this failure-to-intervene claim

when deciding its proper scope. Cf. White v. Goforth, 2023 WL 3546527, at *3 (6th Cir. May

18, 2023). But today is not the day. Whatever the claim’s source, we have long followed a two-

part test to hold officers liable for failing to stop excessive force. Turner v. Scott, 119 F.3d 425,

429 (6th Cir. 1997). An officer must have “observed” the force “or had reason to know” a

colleague would use it. Id. And the officer must have “had both the opportunity and the means”

to stop it. Id.

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 28

The parties debate only the second part of our test here. To establish that part, a plaintiff

generally must show that the primary wrongdoer used the force for a “long enough” time that the

observing officer had a realistic chance to end it. Pelton v. Perdue, 731 F. App’x 418, 426 (6th

Cir. 2018). How long is “long enough”? Our caselaw offers guidance at the extremes.

At one extreme, an officer without forewarning generally will not have the ability to stop

a colleague’s force if the force continues for “ten seconds or less[.]” Pineda, 977 F.3d at 493

(quoting Alexander v. Carter ex rel. Byrd, 733 F. App’x 256, 265 (6th Cir. 2018)). So officers

could not face liability for a colleague’s quick blow to the head or shove into a wall. See id. at

487, 493; Turner, 119 F.3d at 427, 429–30; Bonner-Turner v. City of Ecorse, 627 F. App’x 400,

403–04, 412 (6th Cir. 2015); Amerson v. Waterford Township, 562 F. App’x 484, 487, 489–90

(6th Cir. 2014). Officers also could not face liability for a colleague’s “takedown” that lasted no

“more than ten seconds[.]” Burgess, 735 F.3d at 475–76; see LaPlante v. City of Battle Creek,

30 F.4th 572, 582 (6th Cir. 2022); Pelton, 731 F. App’x at 426. They could not face liability for

a colleague’s decision to tase or shoot a suspect when this force ended in seconds. See

Pennington v. Terry, 644 F. App’x 533, 548 (6th Cir. 2016); Kowolonek v. Moore, 463 F. App’x

531, 539 (6th Cir. 2012); Murray-Ruhl v. Passinault, 246 F. App’x 338, 347–48 (6th Cir. 2007).

And they could not face liability for a colleague’s decision to drive a police car into a suspect in

“six to seven seconds.” Ontha v. Rutherford County, 222 F. App’x 498, 506–07 (6th Cir. 2007).

At the other extreme, an officer generally can stop ongoing force that lasts for a minute or

more. So officers could face liability when they watched colleagues continuously beat a suspect

for anywhere from 90 seconds to 10 minutes. Grinnell v. City of Taylor, 2022 WL 1562291, at

*6–7 (6th Cir. May 18, 2022); Durham, 97 F.3d at 868; see Parnell v City of Detroit, 786

F. App’x 43, 45–46, 51–52 (6th Cir. 2019); McHenry v. Chadwick, 896 F.2d 184, 186, 188 (6th

Cir. 1990). They could face liability when they saw a colleague kneel on a suspect’s back for

over a minute. See Kulpa ex rel. Kulpa v. Cantea, 708 F. App’x 846, 849, 854 (6th Cir. 2017);

Laury v. Rodriguez, 659 F. App’x 837, 847–48 (6th Cir. 2016). And they could face liability

when they witnessed a colleague choking a suspect or pinning him against a car for many

minutes. See Brigg v. Miles, 2017 WL 2174252, at *3–4 (6th Cir. Mar. 6, 2017) (order); Ortiz ex

rel. Ortiz v. Kazimer, 811 F.3d 848, 851, 853 (6th Cir. 2016).

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 29

Our decision in Goodwin sits between these poles. There, officers entered a home to

arrest a suspect. 781 F.3d at 319. One of them fired a taser at him. Id. Falling to the ground,

the suspect began to convulse as the taser’s “current ran through him.” Id. The officer

nevertheless kept the taser activated for 21 seconds. Id. During this time, other officers merely

tried to handcuff the convulsing suspect without asking their colleague to stop. Id. And after the

colleague finally ended the first tasing, he tased the suspect for another five seconds. Id. We

held that the observing officers could have done something to end the “prolonged” 21-second

tasing. Id. at 328–29.

Aside from the length of the force, we have considered a few other datapoints to decide

whether an officer could have prevented it. For example, did the force continue unabated or

occur at “discrete” moments? Well v. City of Dearborn Heights, 538 F. App’x 631, 634–35, 640

(6th Cir. 2013). Plaintiffs will have a more difficult time showing that an officer could have put

an end to short and distinct episodes as compared to “ongoing conduct.” Compare Barton v. City

of Lincoln Park, 726 F. App’x 361, 366–67 (6th Cir. 2018), with Goodwin, 781 F.3d at 328–29.

Next, what were the observing officers doing during the encounter? Plaintiffs will also have a

more difficult time showing that officers could have ended force if they were distracted by other

duties rather than merely looking on. Compare Wright v. City of Euclid, 962 F.3d 852, 872 (6th

Cir. 2020), and Smith v. City of Troy, 874 F.3d 938, 945–46 (6th Cir. 2017) (per curiam), with

Kulpa, 708 F. App’x at 849, 854. Lastly, did prior statements reveal the risk of force or did it

come without warning? Plaintiffs will have an easier time holding officers liable for a short use

of force if the officer who engaged in it signaled an intent to do so ahead of time. Compare Kent

v. Oakland County, 810 F.3d 384, 388–89, 397 (6th Cir. 2016), with Amerson, 562 F. App’x at

489–90.

2

Chaney-Snell alleges three failure-to-intervene claims: (a) that Teichow should have

stopped Young from punching him; (b) that Teichow should have stopped Young from kneeing

him; and (c) that one officer should have stopped the other from dragging him. Qualified

immunity protects the officers from all three claims because a reasonable officer could believe

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 30

that each incident ended too quickly to trigger “a duty to intercede.” Barton, 726 F. App’x at

367.

a. Punches. To start, Teichow lacked an opportunity to stop Young from hitting Chaney-

Snell twice in the face. Our cases leave no doubt about this result for the first punch. Young

threw that punch “quickly and without any forewarning.” Amerson, 562 F. App’x at 490. On

Chaney-Snell’s own account, Young did not say anything that gave Chaney-Snell any “idea” that

Young would punch him. Chaney-Snell Dep., R.30-4, PageID 613. In fact, Chaney-Snell

“probably would have ducked if [he had] seen it coming.” Id., PageID 573. But the punch came

too “fast[.]” Id. It thus resembles the unexpected blows or tackles that we have held cannot

support a failure-to-intervene claim. See LaPlante, 30 F.4th at 582; Turner, 119 F.3d at 429–30.

We reach the same result for the second punch. To be sure, Chaney-Snell testified that

this punch came more than an “instant” after the first (although he could not “put a definite time”

on the interlude). Chaney-Snell Dep., R.30-4, PageID 613. This factual allegation distinguishes

our cases holding that an officer could not have stopped two blows in rapid succession. See

Amerson, 562 F. App’x at 489–90. But the allegation also shows that Young did not employ

“ongoing” force. Barton, 726 F. App’x at 367 (citation omitted). And unlike in Goodwin,

Chaney-Snell conceded that Young himself had immediately “stopped” the force after the first

punch. Chaney-Snell Dep., R.30-4, PageID 608. So the second punch came just as much out of

the blue as the first one. Young said nothing to suggest that he might punch Chaney-Snell a

second time. Cf. Kent, 810 F.3d at 388–89. He merely asked Chaney-Snell two more times to

put up his hands. Chaney-Snell Dep., R.30-4, PageID 608, 613. Chaney-Snell thus conceded

that he did not “think” Young would “punch [him] for a second time” if he reraised his hands

and that he had “no idea” this strike would occur. Id., PageID 609, 613. If even Chaney-Snell

could not predict that Young would use this additional force, how could Teichow both “perceive

what” was about to happen and “intercede to stop it”? Barton, 726 F. App’x at 366. Chaney-

Snell does not say.

As another way of looking at this question, one might ask: What was Teichow supposed

to do under the circumstances? Even though Young neither used nor threatened force in between

the punches, Chaney-Snell alleges that Teichow had a duty to physically grab Young

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 31

immediately after the first punch. Nothing in our existing caselaw would compel such a rule.

Recall that the officers were in the dangerous process of rapidly securing a home involved in

drug trafficking. The risk of “sudden violence” inherently existed. Michigan v. Summers,

452 U.S. 692, 702 (1981). If an officer continuously pummeled a detained occupant while

securing a home, our cases would surely require another officer’s intervention to stop this force.

Cf. Grinnell, 2022 WL 1562291, at *1–2, *6–7. But Teichow could reasonably conclude that he

did not have a duty to start fighting with Young for an apparently errant (and completed) use of

force while they were both attempting to quickly secure a home and detain its occupants.

Cf. Wright, 962 F.3d at 872.

b. Kneeing. The record likewise shows that a reasonable officer could have concluded

that Young did not leave his knee in Chaney-Snell’s back long enough to require Teichow to

intervene. When Chaney-Snell fell to the ground following the second punch, Chaney-Snell

alleges, he “put [his] hands behind [his] back” and the officers handcuffed him. Chaney-Snell

Dep., R.30-4, PageID 575, 609. Immediately after the handcuffing, an officer (Young) allegedly

“had his knee” in Chaney-Snell’s back putting pressure on Chaney-Snell with his “body

weight[.]” Id., PageID 575. Chaney-Snell told this officer that he could not “breathe” and was

“about to run out of breath” due to his asthma. Id., PageID 577–78. The officer got up at some

point. Id., PageID 575.

For present purposes, the key question concerns the length of this “kneeing.” No

reasonable jury could find that it continued for anything more than the “ten seconds” that we

have found insufficient to allow another officer to intervene. Alexander, 733 F. App’x at 265.

As an initial matter, Chaney-Snell admitted that he could not “recall” “how long” Young had a

knee in his back. Chaney-Snell Dep., R.30-4, PageID 612. But Young estimated that only

“20” to “30 seconds” passed from when the officers breached the front door to when they had

Chaney-Snell secured on the bed. Young Dep., R.30-7, PageID 736. The kneeing lasted for a

small “fraction” of this time. Kowolonek, 463 F. App’x at 539. Teichow also denied even

seeing Young pushing his knee into Chaney-Snell’s back. He did admit to observing Young

deliver knee strikes, but he stated that those strikes “happened very quickly.” Teichow Dep.,

R.30-6, PageID 700. Even Chaney-Snell confessed that “stuff happened so quick,” which was

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 32

one reason why he did not have a good sense of the timing. Chaney-Snell Dep., R.30-4, PageID

613. Given the officers’ testimony that the kneeing would have occurred quickly, Chaney-Snell

cannot create a genuine issue of material fact merely through his inability to recall how long it

lasted. Cf. Boykin v. Fam. Dollar Stores of Mich., LLC, 3 F.4th 832, 839 (6th Cir. 2021).

Even so, Chaney-Snell responds that the kneeing resembles the force in Goodwin and

Kent. Yet the officers in Goodwin continued to use a taser on a “convulsing” arrestee for 21

seconds. 781 F.3d at 319. The record would not permit a jury to find that Young had his knee in

Chaney-Snell’s back for a similar period. Rather, “the entire incident” lasted as long as the

tasing in Goodwin. Kowolonek, 463 F. App’x at 539. And while the use of a taser in Kent

occurred over a much shorter period (five seconds), the officer who used the taser had threatened

beforehand that he planned to do so. Kent, 810 F.3d at 388–89, 397. Teichow received no such

“forewarning” that Young planned to knee Chaney-Snell. Amerson, 562 F. App’x at 490.

So Chaney-Snell falls back on two unpublished “kneeing” cases. See Kulpa, 708

F. App’x at 849, 854; Laury, 659 F. App’x at 847–48. His reliance on these cases suffers from

two problems. The officer who placed his knee on the detainee’s back in the cases did so for a

minute or more. See Kulpa, 708 F. App’x at 849; Laury, 659 F. App’x at 848. In Kulpa, the

kneeing even killed the detainee. See 708 F. App’x at 849–50. Nothing of the sort happened

here. Besides, Chaney-Snell could not overcome the second step of the qualified-immunity test

by using these cases. Unpublished decisions cannot create clearly established rights. See White,

2023 WL 3546527, at *6 (citing Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir. 2022)).

c. Dragging. The same timing issue dooms Chaney-Snell’s final claim. After Young got

off Chaney-Snell’s back, Chaney-Snell alleges, “somebody grabbed” him by the “ankles” and

“dragged” him on his “right shoulder.” Chaney-Snell Dep., R.30-4, PageID 575. Chaney-Snell

estimated that the wrongdoer dragged him from the foot of the bed to the doorway of the small

bedroom—far “enough for [his] arm to scrape” against the carpet. Id., PageID 611. While

Chaney-Snell could not put “an amount of seconds” on this dragging, he conceded it was

“quick[.]” Id., PageID 613. Given the bedroom’s small size and Chaney-Snell’s concession, no

reasonable jury could find that the blameworthy officer dragged him for more than a few feet

over a few seconds. In these circumstances, a reasonable officer could have concluded for a final

Nos. 22-1990/1992 Chaney-Snell v. Young, et al. Page 33

time that the officer lacked enough time to intercede to stop the force. See Alexander, 733

F. App’x at 265.

If each use of force happened so fast, how could the district court deny qualified

immunity on these failure-to-intervene claims? Its decision rested on a legal error about

qualified immunity’s second step. The court treated all the challenged actions (the two punches,

the kneeing, and the dragging) as one “ongoing” use of force rather than as “discrete” episodes.

Wells, 538 F. App’x at 640. The court thus relied on the length of the entire encounter to

conclude that the observing officer (primarily Teichow) had a “long enough” time to prevent

seemingly all the applications of force. Pelton, 731 F. App’x at 426; see Chaney-Snell, 2022 WL

4667942, at *5. Yet the only case on which it relied to combine the separate actions in this

way—Goodwin—considered the continuous use of a taser for 21 seconds. Chaney-Snell, 2022

WL 4667942, at *5; see Goodwin, 781 F.3d at 329. This case, by contrast, involves different

types of “fleeting” acts. Wells, 538 F. App’x at 640. When should a court treat distinct acts at

different times as a single episode of continuous force? Perhaps the answer should depend on

whether Young’s earlier actions (say, the two punches) sufficed to alert a reasonable officer that

Young might engage in other types of force (say, the dragging) when completing the arrest. In

the end, though, we need not answer this question. Because Goodwin’s facts do not resemble

this case’s facts, Chaney-Snell has identified no “clearly established Fourth Amendment” law

that compelled the district court’s conclusion. White, 2023 WL 3546527, at *6. So the officers

are entitled to qualified immunity. See id.; Barton, 726 F. App’x at 367.

* * *

To summarize, we affirm the district court’s denial of summary judgment in part and

dismiss Young’s appeal in part with respect to Chaney-Snell’s excessive-force claim tied to the

alleged punches. Next, we affirm the denial of summary judgment to Young on Chaney-Snell’s

claims that Young kneed him in the back and dragged him on the floor. We also affirm the

denial of summary judgment to Teichow on the dragging claim but reverse that denial on the

kneeing claim. Lastly, we reverse the denial of summary judgment to both officers on the

failure-to-intervene claims. We thus affirm in part, reverse in part, and dismiss in part for lack of

jurisdiction.