Opposition Brief — Shase Howse, Petitioner v. Thomas Hodous, et al.

No. 20-636

In the Supreme Court of the United States

__________________

SHASE HOWSE,

v.

Petitioner,

THOMAS HODOUS, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS AN EMPLOYEE OF THE CITY OF

CLEVELAND, OHIO; BRIAN MIDDAUGH, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY AS AN EMPLOYEE OF

THE CITY OF CLEVELAND, OHIO,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________________

BRIEF IN OPPOSITION

__________________

ELENA N. BOOP*

Chief Assistant Director of Law

TIMOTHY J. PUIN

Assistant Director of Law

CITY OF CLEVELAND

DEPARTMENT OF LAW

601 Lakeside Ave. E., Rm. 106

Cleveland, Ohio 44114

(216) 664-2800

eboop@clevelandohio.gov

tpuin@clevelandohio.gov

*Counsel of Record

Counsel for Respondents

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

The question presented is the following:

Did the Sixth Circuit’s decision affirming

summary judgment adequately apply governing

precedent concerning malicious prosecution and

qualified immunity for Fourth Amendment

excessive force claims, such that there is no

compelling reason for review on a writ of

certiorari?

Petitioner gives a misleading statement of the

questions presented.

Petitioner’s first question

presented is:

Whether the law is clearly established that an

officer cannot arrest a person whom the officer

has no reason to believe committed a crime,

tackle him to effect the arrest, and then strike

him in the neck when he poses no threat to

anyone’s safety.

This improperly converts Petitioner’s initial

encounter with the police on the front porch of his

home from a Terry stop into an arrest and ignores

Petitioner’s admitted active resistance. Petitioner asks

the Court to believe that the police arbitrarily decided

to arrest Petitioner for no reason, then tackled him and

struck him in the neck for good measure. This does not

accurately reflect the undisputed facts on the record.

Petitioner’s second question presented is:

ii

Whether a Fourth Amendment malicious

prosecution claim must be dismissed simply

because one of multiple underlying charges is

supported by probable cause.

Petitioner here seeks to create a circuit conflict

when none exist. The majority below conformed its

holding to the prevailing standard for evaluating

Fourth Amendment malicious prosecution claims, both

in the circuits and in this Court.

Thus, Respondents object to both of the alleged

questions presented by Petitioner.

iii

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS

PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

REASONS FOR DENYING THE PETITION. . . . . . 7

I.

THIS CASE DOES NOT CREATE A CONFLICT

AMONG THE CIRCUIT COURTS . . . . . . . . . . . . . . 7

II.

THE MAJORITY CORRECTLY APPLIED THE LAW

TO PETITIONER’S MALICIOUS PROSECUTION

CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III.

THE MAJORITY CORRECTLY APPLIED THE

LAW TO PETITIONER’S EXCESSIVE FORCE

CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. S U M M A R Y J U D G M E N T S T A N D A R D

CORRECTLY APPLIED . . . . . . . . . . . . . . . . . 15

B. Q U A L I F I E D I M M U N I T Y S T A N D A R D

CORRECTLY APPLIED . . . . . . . . . . . . . . . . . 18

1. The majority reviewed the officers’

conduct at the level of specificity

required by this Court. . . . . . . . . . . . . 19

iv

2. Petitioner’s manipulation of the record

cannot change the fact that there was

no obvious constitutional violation

justifying review at an impermissible

level of generality . . . . . . . . . . . . . . . . 21

3. The alleged unconstitutionality of the

officers’ actions was not clearly

established under Sixth Circuit

precedent . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

v

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton,

483 U.S. 635 (1987). . . . . . . . . . . . . . . . . . . . . . . 23

Ashcroft v. al-Kidd,

563 U.S. 731 (2014). . . . . . . . . . . . . . . . . . . . 13, 20

Barnes v. Ahlman,

140 S. Ct. 2620 (Mem), 2622,

207 L.Ed.2d 1150 (Aug. 5, 2020) . . . . . . . . . . . . . 1

Bates v. Hadden,

576 F. App’x 636 (8th Cir. 2014) . . . . . . . . . 11, 12

Blankenhorn v. City of Orange,

485 F.3d 463 (9th Cir. 2007). . . . . . . . . . . . . . . . 27

Brooks v. City of Winston-Salem, NC,

85 F.3d 178 (4th Cir. 1996). . . . . . . . . . . . . . . . . 10

Caie v. West Bloomfiel Twp.,

485 F. Appx 92 (6th Cir. 2012) . . . . . . . . . . . . . . 26

Campeggio v. Upper Pottsgrove Twp.,

No. 14-1286, 2014 WL 4435396

(E.D. Pa. Sept. 8, 2014). . . . . . . . . . . . . . . . . . . . . 9

City and Cty. of San Francisco v. Sheehan,

575 U.S. 600, 135 S. Ct. 1765 (2015) . . . . . . 19, 27

City of Escondido, Calif. v. Emmons,

139 S. Ct. 500 (2019). . . . . . . . . . . . . . . . 19, 20, 27

Cty. of Los Angeles, Calif. v. Mendez,

137 S. Ct. 1539 (2017). . . . . . . . . . . . . . . . . . . . . 24

vi

District of Columbia v. Wesby,

138 S. Ct. 577 (2018). . . . . . . . . . . . . 15, 16, 17, 20

Gerstein v. Pugh,

420 U.S. 103 (1975). . . . . . . . . . . . . . . . . . . . . . . 14

Harrington v. City of Council Bluffs, Iowa,

678 F.3d 676 (8th Cir. 2012). . . . . . . . . . . . . . . . 12

Hernandez v. Mesa,

137 S. Ct. 2003 (2017). . . . . . . . . . . . . . . . . . . . . 17

Hernandez-Cuevas v. Taylor,

723 F.3d 91 (1st Cir. 2013) . . . . . . . . . . . . . . . . . 10

Holmes v. Village of Hoffman Estate,

511 F.3d 673 (7th Cir. 2007). . . . . . . . . . . . . . . . . 8

Hunter v. Bryant,

502 U.S. 224 (1991). . . . . . . . . . . . . . . . . . . . . . . 20

Iacobucci v. Town of Bonneau,

No. 2:18-0152-DCN-BM, 2019 WL 5874210

(D. SC May 29, 2019) . . . . . . . . . . . . . . . . . . . . . 11

Illinois v. Gates,

462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . 25

Jackson v. Washtenaw Cty.,

678 F. App’x 302 (6th Cir. 2017) . . . . . . . . . . . . 26

Johnson v. Knorr,

477 F.3d 75 (3d Cir. 2007) . . . . . . . . . . . . . . . . 8, 9

Kisela v. Hughes,

138 S. Ct. 1148 (2018). . . . . . . . . . . . . . . 19, 20, 27

vii

Kossler v. Crisanti,

564 F.3d 181 (3d Cir. 2009) . . . . . . . . . . . . . . . 8, 9

Laphan v. Haines,

No. 14-4063, 2016 WL 627246

(E.D. Pa. Feb. 17, 2016) . . . . . . . . . . . . . . . . . . . . 9

Manuel v. City of Joliet, Ill.,

137 S. Ct. 911 (2017). . . . . . . . . . . . . . 8, 12, 13, 14

Marvin v. City of Taylor,

509 F.3d 234 (6th Cir. 2008). . . . . . . . . . . . . . . . 27

Maryland v. Pringle,

540 U.S. 366 (2003). . . . . . . . . . . . . . . . . . . . . . . 15

Morris v. Noe,

672 F.3d 1185 (10th Cir. 2012). . . . . . . . . . . . . . 27

Mullenix v. Luna,

577 U.S. 7 (2015). . . . . . . . . . . . . . . . . . . . . . . . . 20

Ornelas v. U.S.,

517 U.S. 690 (1996). . . . . . . . . . . . . . . . . . . . . . . 25

Pearson v. Callahan,

555 U.S. 223 (2009). . . . . . . . . . . . . . . . . . . . . . . 18

Peterson v. Corbett,

No. 3:08-CV-2292, 2012 WL 12864183

(M.D. Pa. Dec. 13, 2012) . . . . . . . . . . . . . . . . . . . . 9

Posr v. Doherty,

944 F.2d 91 (2d Cir. 1991) . . . . . . . . . . . . . . . 8, 10

Raiche v. Pietroski,

623 F.3d 30 (1st Cir. 2010) . . . . . . . . . . . . . . . . . 27

viii

Rodriguez v. City of Cleveland,

439 F. App’x 433 (6th Cir. 2011),

cert den. 566 U.S. 987 (2012) . . . . . . . . . . . . . . . 18

Rudlaff v. Gillispie,

791 F.3d 638 (6th Cir. 2015). . . . . . . . . . . . . . . . 26

Safar v. Tingle,

859 F.3d 241 (4th Cir. 2017). . . . . . . . . . . . . . . . 11

Schulkers v. Kammer,

955 F.3d 520 (6th Cir. 2020). . . . . . . . . . . . . . . . 18

Stanfield v. City of Lima,

727 F. App’x 841 (6th Cir. 2018) . . . . . . . . . 25, 26

Sykes v. Anderson,

625 F.3d 294 (6th Cir. 2010). . . . . . . . . . 10, 13, 14

Terry v. Ohio,

392 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . 1, 1822

U.S. v. Arvizu,

534 U.S. 266 (2002). . . . . . . . . . . . . . . . . . . . . . . 16

U.S. v. Butler,

223 F.3d 368 (6th Cir. 2000). . . . . . . . . . . . . . . . 23

U.S. v. Cortez,

449 U.S. 411 (1981). . . . . . . . . . . . . . . . . 15, 16, 25

U.S. v. Foster,

376 F.3d 577 (6th Cir. 2004). . . . . . . . . . . . . . . . 22

U.S. v. Lopez-Arias,

344 F.3d 623 (6th Cir. 2003). . . . . . . . . . . . . . . . 23

ix

Van De Weghe v. Chambers,

569 F. App’x 617 (10th Cir. 2014) . . . . . . . . . . . 11

Wallace v. Kato,

549 U.S. 384 (2007). . . . . . . . . . . . . . . . . . . . 12, 14

White v. Pauly,

137 S. Ct. 548 (2017). . . . . . . . . . . . . . . . . . . 19, 27

Wilson v. Layne,

526 U.S. 603 (1999). . . . . . . . . . . . . . . . . . . . . . . 28

Wright v. City of Philadelphia,

409 F.3d 595 (3d Cir. 2005) . . . . . . . . . . . . . . . . . 9

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012). . . . . . . . . . . . . . . . . . . . . . . 22

CONSTITUTION AND STATUTES

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . passim

Ohio Rev. Code § 2903.13(A) . . . . . . . . . . . . . . . . . . . 6

Ohio Rev. Code § 2921.31(A) . . . . . . . . . . . . . . . . . . . 6

RULE

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

INTRODUCTION

Nothing in this case warrants this Court’s review.

Supreme Court Rule 10 provides that a petition “will be

granted only for compelling reasons.” Seeking to offer

a compelling narrative, Petitioner rewrites the record

of his initial encounter with the police on the front

porch of his home to convert it from a Terry stop into

an arrest, and he mischaracterizes the majority’s

mainstream qualified immunity analysis as being a

defiant holding that is contrary to governing authority.

The majority’s decision was an unremarkable

affirmance of summary judgment against a claimant

who incorrectly alleges that his constitutional rights

were violated when he was arrested following his

belligerent refusal to cooperate during an investigatory

stop. No conflict among the circuits is presented here,

nor is there any departure from the accepted and usual

course of judicial proceedings or a decision that

conflicts with relevant decisions of this Court. Sup. Ct.

R. 10.

Consistent with Rule 10, the petition should be

denied because the asserted error essentially “consists

of erroneous factual findings or the misapplication of a

properly stated rule of law.” Even in a close case where

a party feels was wrongly decided, “error correction …

is outside the mainstream of the Court’s functions

and … not among the ‘compelling reasons’ … that

govern the grant of certiorari.” Barnes v. Ahlman, 140

S. Ct. 2620 (Mem), 2622, 207 L.Ed.2d 1150 (Aug. 5,

2020) (citation omitted) (Sotomayor, J., dissenting).

2

The majority’s decision affirming summary

judgment correctly applied governing precedent

concerning qualified immunity for Fourth Amendment

excessive force claims and properly analyzed the

malicious prosecution claims. There is no compelling

reason for review on a writ of certiorari.

STATEMENT OF THE CASE

This case arises from an investigatory stop of a

verbally combative and actively resisting suspect who

interfered with the police officers’ attempt to

investigate a suspected break-in into a home they

mistakenly believed to be vacant. Plaintiff/ Petitioner

Shase Howse contends that Defendants/ Respondents

Thomas Hodous and Brian Middaugh violated his

constitutional rights in doing so.

On the evening of July 28, 2016, Hodous and

Middaugh were on patrol in an unmarked car in the

neighborhood of East 102 Street and St. Clair Avenue

in Cleveland, Ohio, as members of the Gang Impact

Unit of the Cleveland Division of Police. Police were

concerned about a recent increase in felonious assaults

and shootings in the neighborhood, as well as possible

gang-related violence in connection with a nearby

outdoor “vigil” memorial at the location of an earlier

homicide. Hodous Dep., R.25-2, pp. 262-65, 271;

Middaugh Dep., R.25-1, pp. 143-144.

As the officers were driving by a duplex house at

747 E. 102 Street, a man could be seen lingering on the

front porch. Hodous Dep., R.25-2, pp. 282, 291;

Middaugh Dep., R.25-1, pp. 153, 155. The officers were

suspicious because the house looked vacant and

3

because the man looked nervous when he saw them

pass. Hodous Dep., R.25-2, pp. 288-89. The side-byside front doors of the duplex appeared to be boarded

up with bars over them; and there were garbage cans

in the driveway with boards up against them.

Middaugh Dep., R.25-1, pp. 148-49, 151-52. Middaugh

was aware of a problem with criminal trespassing and

illegal activity in abandoned houses in the city.

Middaugh Dep., R.25-1, pp. 135-36. It was getting dark

out, and the area was not well-lit. Hodous Dep., R.252, p. 283; Middaugh Dep., R.25-1, p. 148. The officers

initially kept driving slowly past the house but decided

to investigate further as the suspect continued to linger

on the porch. Hodous Dep., R.25-2, pp. 294, 289-90;

Middaugh Dep., R.25-1, pp. 155, 160.

In fact, the house was not vacant; Howse lived

there with his mother. Howse Dep., R.25-3, pp. 386-87.

Howse was standing on the porch after returning from

a walk to a convenience store. Howse presumably was

on edge after already having been stopped and frisked

by another police officer that evening on his way to the

store. Howse Dep., R.25-3, pp. 401-02. Hodous and

Middaugh were not aware of this previous encounter

with the police. Hodous Dep., R.25-2, p. 276; Middaugh

Dep., R.25-1, p. 166. Based on their experience and

training, and the facts available to them at the time,

they suspected Howse of attempting to break into the

vacant home. Hodous Dep., R.25-2, pp. 311, 314, 336.

They also feared he might be armed. Middaugh Dep.,

R.25-1, p. 160.

Middaugh, who was in the front passenger seat,

asked Howse if he lived there. Howse said yes.

4

Hodous Dep. R.25-2, pp. 292-95, 299. Middaugh then

exited the vehicle and asked Howse, “Are you trying to

break in?” Hodous Dep., R.25-2, p. 303. Howse became

agitated and said something like, “Fuck you. Leave me

the fuck alone.” Hodous Dep., R.25-2, pp. 300-03, 312;

Middaugh Dep., R.25-1, p. 176. Middaugh walked up

to the porch to investigate if Howse lived there.

Hodous Dep., R.25-2, p. 307. Middaugh believed

Howse was squaring up to fight and was growling at

him, so he asked Howse to put up his hands. Howse

refused. Hodous Dep., R.25-2, p. 310; Middaugh Dep.,

R.25-1, p. 177.

According to Howse’s version of the encounter,

Middaugh questioned Howse from the front seat of the

police car after having backed up. Howse testified that

Middaugh said, “Are you sure this is your home?” and

Howse responded, “Yes, this is my home. What the

fuck?” Howse heard Middaugh make some comment to

the effect of Howse having a smart mouth. Howse

testified that Middaugh then exited the car and

continued asking him if he lived there. Middaugh

ordered him to put his hands behind his back and said

that Howse was going to jail, to which Howse repeated

that he lived there and was not doing anything wrong.

Howse Dep., R.25-3, p. 411; Howse Aff., R.33-1, p. 810.

Howse testified that, “at this point I am screaming

at the top of my lungs, ‘I live here, I live here.’” Howse

Dep., R.25-3, pp. 411-12. He also testified that he

refused to put his hands behind his back. Howse Dep.,

R.25-3, p. 413 (“Q. …you admit that he told you to put

your hands behind your back and you refused?

A. …yes, I did”). Howse testified that, after he resisted

5

the officer’s commands, Hodous helped Middaugh grab

him and put him to the floor of the porch. Howse Dep.,

R.25-3, pp. 411-12. Howse testified that when he was

on the floor, he resisted the officers’ efforts to handcuff

him by stiffening his body. Howse Dep., R.25-3, p. 415

(“I was not letting him handcuff me”).

Howse denied assaulting the officers, as they

testified occurred. Hodous Dep., R.25-2, pp. 319-20.

Howse alleged that his head was slammed down onto

the floor of the porch and that Middaugh hit him twice

on the neck with his forearm while he was on the floor.

Howse Dep., R.25-3, p. 412. After Howse’s mother had

arrived, he calmed down and was placed under arrest.

Howse Dep., R.25-3, pp. 417, 423. Howse refused

medical treatment at the scene and did not seek out

medical attention afterwards. Howse Dep., R.25-3, pp.

421-22. Howse testified that he was in jail for “two

nights and three days,” in that he recalls being jailed

on a Thursday night and released on the following

Sunday. Howse Dep., R.25-3, p. 427.

Hodous and Middaugh completed use of force

reports. Use of Force Reports, R.37-2, R.37-4, pp. 866880. The reports state that both officers were wearing

Cleveland Police-issued tactical gear and protective

vests, which would have identified them as law

enforcement officers. Use of Force Reports, R.37-2,

R.37-4, pp. 866, 870.

On July 28, 2016, Middaugh signed a Complaint

against Howse for assault on a police officer.

Complaint, R.29-5, p. 736. On September 7, 2016,

Howse was indicted by a Cuyahoga County Grand Jury

on two felony counts of assault on a police officer in

6

violation of Ohio Revised Code § 2903.13(A) and one

count of obstructing official business in violation of

Ohio Revised Code § 2921.31(A). Indictment, R.25-4,

pp. 448-49. On October 4, 2016, all charges against

Howse were dismissed by the Prosecutor at the

recommendation of Middaugh. Hodous Dep., R.25-2,

pp. 334-35. Middaugh testified that he was motivated

in part by a discussion with Howse’s mother about

Howse’s mental health as well as the desire to avoid

Howse having a felony on his record. Middaugh Dep.,

R.25-1, pp. 216-17.

Howse then sued Hodous and Middaugh under 42

U.S.C. § 1983 for violating his Fourth Amendment

rights, bringing causes of action for excessive force,

malicious prosecution, and state law claims of assault

and battery. He also sued the City of Cleveland,

claiming that the City was responsible for the Fourth

Amendment violations. Complaint, R.2. The district

court granted summary judgment for the defendants,

R.41, which was affirmed by the court of appeals, R.44.

The court below unanimously affirmed summary

judgment for Hodous on the excessive force claim, and

Chief Judge Cole issued a separate dissenting opinion

as to the claims against Middaugh and the malicious

prosecution claim against Hodous. R.44, pp. 940, 937945. This petition then followed as to the claims

against Hodous and Middaugh, but not as to the claim

against the City (or the officers in their official

capacities).

7

REASONS FOR DENYING THE PETITION

I.

THIS CASE DOES NOT CREATE A CONFLICT

AMONG THE CIRCUIT COURTS

The majority’s holding on the malicious prosecution

claim is not in conflict with the Second, Third and

Seventh Circuits. The majority did not expressly reject

the “charge-by-charge” approach (i.e., that probable

cause must have existed for each charge for an officer

to defeat a malicious prosecution claim) or hold that, in

all cases, a malicious prosecution claim fails when

probable cause exists for any one charge against an

arrestee. A closer review of the majority’s opinion and

the decisions of its sister circuits reveals no square

conflict on this narrow issue.

In response to the dissent’s citation to other circuit

court opinions, the majority reasoned as follows:

The contrary conclusions of other circuits don’t

persuade us otherwise. The Second Circuit has

held that each criminal charge must be

supported by probable cause. Otherwise, the

court reasoned, an officer might tack on many

additional (meritless) charges. Tacking on

meritless charges, however, does not change the

nature of the seizure. If hypothetically it were

to change the length of the detention, that would

be a different issue. But the plaintiff has not

presented any evidence that the additional

assault charges caused Howse to suffer longer

detention.

Opinion at n. 3, R.44, p. 933 (internal citations

omitted).

8

To the extent the Second, Third and Seventh Circuit

cases cited by Petitioner rationalize adopting a chargeby-charge analysis because tacking on additional

charges may additionally burden the plaintiff, those

decisions are not in conflict with the majority. Petition,

pp. 28-30. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.

1991), Johnson v. Knorr, 477 F.3d 75, 84 (3d Cir. 2007)

and Holmes v. Village of Hoffman Estate, 511 F.3d 673,

682 (7th Cir. 2007). The issue was not addressed below

because that evidence was never presented and the

argument had not been made by Petitioner.

The majority’s decision is not in conflict with the

Seventh Circuit at all. The Seventh Circuit in Holmes,

supra, analyzed the plaintiff’s claim of malicious

prosecution under Illinois state law. No constitutional

analysis was performed to determine whether the

Seventh Circuit recognized a claim of malicious

prosecution in the context of an action brought

pursuant to 42 U.S.C. § 1983. Nor did the court in

Holmes engage in any analysis concerning which

constitutional provision would govern such a claim. Of

note, until this Court’s decision in Manuel v. City of

Joliet, Ill., 137 S. Ct. 911 (2017), the Seventh Circuit

had evaluated unlawful pretrial detention claims

(frequently referred to as malicious prosecution) under

the Due Process Clause rather than the Fourth

Amendment. Id., 916-17.

The Third Circuit has held that the appropriateness

of a charge-by-charge analysis is an intensely factdependent inquiry. Kossler v. Crisanti, 564 F.3d 181,

194 (3d Cir. 2009). Therefore, while some courts in the

Third Circuit follow the narrow holding in Johnson,

9

supra, others follow Wright v. City of Philadelphia, 409

F.3d 595, 604 (3d Cir. 2005), which had held that the

existence of probable cause on one charge disposed of

the plaintiff’s malicious prosecution claims on all the

remaining charges.

In fact, referring to Johnson and Wright, the en

banc panel in Kossler noted, “if one of those two cases

must control for purposes of analyzing the probable

cause element, it would be Wright, not Johnson, that

controls.” Kossler, 194, n. 8; see also Peterson v.

Corbett, No. 3:08-CV-2292, 2012 WL 12864183, *12

(M.D. Pa. Dec. 13, 2012), Laphan v. Haines, No. 144063, 2016 WL 627246, *5, n. 10 (E.D. Pa. Feb. 17,

2016). The en banc panel in Kossler recognized that

the holdings in Wright and Johnson are difficult to

reconcile, but “both illustrate that the analysis of

malicious prosecution claims involving multiple

charges is a fact-intensive one.” Kossler, supra, 194.

As in the case at hand, the Third Circuit’s decision

to conduct a charge-by-charge analysis in Johnson

depended heavily on the unique facts of that case. The

majority’s analysis is therefore not squarely in conflict

with Johnson because both courts’ decisions depended

on the particular facts before them. The majority

below concluded that Petitioner had failed to present

any evidence establishing that he was additionally

burdened by having to defend against the assault

charges, which is entirely consistent with Third Circuit

precedent. See, e.g., Campeggio v. Upper Pottsgrove

Twp., No. 14-1286, 2014 WL 4435396, *9 (E.D. Pa.

Sept. 8, 2014) (“a plaintiff cannot establish a malicious

prosecution claim if the charges for which there was no

10

probable cause did not additionally burden the

plaintiff.”)

The Second Circuit’s decision in Posr, supra, does

not present a square conflict either, albeit for different

reasons.

The Second Circuit applies a hybrid

constitutional/common law analysis to malicious

prosecution claims, requiring actual malice as an

element of a malicious prosecution claim brought

pursuant to 42 U.S.C. § 1983. See Posr, supra, 100.

The Second Circuit in Posr drew upon the danger of an

officer’s ill will as the primary reason for adopting its

charge-by-charge analysis: “an officer with probable

cause as to a lesser offense could tack on more serious,

unfounded charges which would support a high bail or

a lengthy detention, knowing that the probable cause

on the lesser offense would insulate him from liability

for malicious prosecution on the other offenses.” Id.

The Sixth Circuit, along with the First and Fourth

Circuits, does not factor the officer’s intent into its

probable cause analysis in malicious prosecution cases.

Sykes v. Anderson, 625 F.3d 294, 309 (6th Cir. 2010)

(“[i]n the context of malicious prosecution, the Fourth

Amendment violation that generates a § 1983 cause of

action obviates the need for demonstrating malice”); see

also Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102 (1st

Cir. 2013) and Brooks v. City of Winston-Salem, NC, 85

F.3d 178, 183-85 (4th Cir. 1996). Therefore, the

officers’ purported intent of “tacking on more charges”

was irrelevant to the majority’s analysis, where the

focus was on the seizure itself and not the officers’

intent in effecting the seizure. Because Petitioner

presented no evidence that he was additionally

11

burdened by the seizure as a result of the additional

assault charges, his claim failed in the context of the

objective analysis employed by the majority.

Petitioner’s observation that the other circuits “have

implicitly adopted” a charge-by-charge analysis

(Petition, p. 31) is questionable at best. The Tenth

Circuit “hasn’t definitively spoken to the question

either way.” Van De Weghe v. Chambers, 569 F. App’x

617, 620 (10th Cir. 2014) (also noting that, on the issue

of a charge-by-charge analysis, it would be “difficult to

conjure how [the plaintiff] might have cleared the

‘clearly established law’ hurdle” when judges disagree

on a constitutional question.)

The Fourth Circuit has not formally adopted a

specific approach to Fourth Amendment malicious

prosecution claims. See, e.g., Safar v. Tingle, 859 F.3d

241, 246 (4th Cir. 2017) (ultimately declining to

determine whether an officer had a duty to withdraw

warrants upon learning they were meritless because

such duty was not clearly established); see also

Iacobucci v. Town of Bonneau, No. 2:18-0152-DCN-BM,

2019 WL 5874210 (D. SC May 29, 2019) (declining to

follow a charge-by-charge analysis of a malicious

prosecution case because it was not clearly established

in the Fourth Circuit and also noting that, even if the

court were to adopt such an analysis, the plaintiff

presented no evidence to show that he was additionally

burdened by not having the additional charge

dismissed prior to the dismissal of all the other

charges). Finally, the Eighth Circuit does not recognize

malicious prosecution as a constitutional tort

actionable under 42 U.S.C. § 1983. Bates v. Hadden,

12

576 F. App’x 636 (8th Cir. 2014), Harrington v. City of

Council Bluffs, Iowa, 678 F.3d 676 (8th Cir. 2012).

It is notable that Petitioner only started to advocate

for the charge-by-charge analysis of the probable cause

element for the first time after he lost his appeal below.

The arguments advanced here were not presented in

the district court or to the majority panel who made the

decision. In an attempt to create a conflict, Petitioner

now cherry-picks select decades-old cases that have

either no application at all or had evolved to the extent

of contradicting Petitioner’s own arguments, as is

evident from the more recent pertinent cases from the

Third Circuit. In sum, Petitioner has failed to show a

conflict requiring this Court’s review.

II.

THE MAJORITY CORRECTLY APPLIED THE LAW

TO PETITIONER’S MALICIOUS PROSECUTION

CLAIMS

Petitioner contends that the majority failed to follow

this Court’s precedent in Wallace v. Kato, 549 U.S. 384

(2007), when it drew analogies between malicious

prosecution and false arrest claims. Contrary to

Petitioner’s characterization, the majority’s decision

and analysis are consistent with this Court’s treatment

of pretrial detention cases, albeit not termed as

“malicious prosecution.”

This Court has not expressly recognized the

constitutional tort of malicious prosecution as

actionable under 42 U.S.C. § 1983. See, generally,

Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 921-922

(2017). Instead, in Manuel this Court held that “the

Fourth Amendment governs a claim for unlawful

13

pretrial detention even beyond the start of legal

process,” leaving it to the lower courts to determine

both the elements of and the rules associated with an

action seeking damages for such an action. Id. 920.

In his dissenting opinion, Justice Alito, joined by

Justice Thomas, agreed with the Court’s Manuel

holding that the protection provided by the Fourth

Amendment continues to apply after “the start of legal

process,” if the legal process is “understood to mean the

issuance of an arrest warrant” or first court

appearance. Id. at 923. However, in noting that the

Court did not resolve the question of whether a Fourth

Amendment malicious prosecution claim is cognizable

through 42 U.S.C. § 1983, Justice Alito explained that

malicious prosecution claims should not be governed by

the Fourth Amendment at all. Justice Alito reasoned,

in part, that the traditional elements of a tort of

“malicious prosecution,” including the element of

malice, severely mismatch the Fourth Amendment

principles, noting “it is firmly established that the

Fourth Amendment standard of reasonableness is

fundamentally objective.” Id. at 925, quoting al-Kidd,

supra, 736.

The Sixth Circuit has been equally skeptical of

employing the term “malicious prosecution” to describe

claims arising out of unconstitutional pretrial

detentions. Sykes, supra, 310 (“[w]e recognize that

‘designating the constitutional claim as one for

“malicious prosecution” is both unfortunate and

confusing. A better name that would perhaps grasp the

essence of this cause of action under applicable Fourth

Amendment principles might be “unreasonable

14

prosecutorial seizure”’) (citations omitted). The Sixth

Circuit held in Sykes that malice is not an element of a

§ 1983 suit for malicious prosecution. Id.

In drawing analogies between the constitutional

tort of false arrest and the unfortunately named claim

for “malicious prosecution,” the majority correctly

applied the principles that govern both claims. The

Fourth Amendment is the constitutional right deemed

to be violated under both types of claims, the

commonality consistent with this Court’s precedent.

See Manuel, supra, 918 (“pretrial detention can violate

the Fourth Amendment not only when it precedes, but

also when it follows, the start of legal process in a

criminal case”). Both require a finding of probable

cause. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975)

(holding that the Fourth Amendment requires a

judicial determination of probable cause as a

prerequisite to any extended restraint on liberty

following an arrest). Finally, both claims involve the

individual’s right against unreasonable seizure. To

that extent, claims for false arrest and “malicious

prosecution” are more analogous than they are

dissimilar, and the majority did not deviate from this

Court’s analysis in Wallace, which was applied in the

narrow context of accrual of a statute of limitations.

In conclusion, the majority properly applied the law

in analyzing Petitioner’s malicious prosecution claims

and created no conflict with this Court’s precedent or

with its sister circuits. For these reasons, the petition

should be denied.

15

III.

THE MAJORITY CORRECTLY APPLIED THE LAW

TO PETITIONER’S EXCESSIVE FORCE CLAIMS

A. S U M M A R Y J U D G M E N T

CORRECTLY APPLIED

STANDARD

Petitioner argues that the majority misapplied the

summary judgment standard under Rule 56 of the

Federal Rules of Civil Procedure because it failed to

“properly acknowledge” three alleged facts:

(1) Detective Middaugh told Howse “you are going to

jail,” (2) Detective Middaugh struck Howse on the back

of the neck while attempting to handcuff him, and

(3) the events occurred on Howse’s porch. Petition,

p. 13.

In its recitation of facts, the majority accepted

Howse’s version of the facts, specifically acknowledging

that the events took place on Howse’s porch, that he

was struck in the back of his neck and that Detective

Middaugh allegedly stated “you are going to jail.”

Opinion, R.44, pp. 926-27. These facts did not alter the

majority’s legal analysis, but they were never

discounted. In applying qualified immunity, the

majority analyzed the totality of circumstances in light

of what was known to the officers as the events

unfolded rather than surgically dissecting the facts, as

Petitioner suggests should have been done.

In District of Columbia v. Wesby, 138 S. Ct. 577

(2018), this Court criticized the lower court for

“view[ing] each fact in ‘isolation, rather than as a factor

in the totality of the circumstances.’” Id., 588, citing

Maryland v. Pringle, 540 U.S. 366, 372, n. 2 (2003); see

also U.S. v. Cortez, 449 U.S. 411, 417-18 (1981)

16

(applying the totality of circumstances to investigatory

stops).

The “totality of circumstances” analysis

requires courts to consider “the whole picture.” Cortez,

supra, 417.

The Supreme Court’s “precedents

recognize that the whole is often greater than the sum

of its parts – especially when the parts are viewed in

isolation.” Wesby, supra, 588, citing U.S. v. Arvizu, 534

U.S. 266, 277-278 (2002). The process of analyzing the

totality of the circumstances “does not deal with hard

certainties, but with probabilities.” Cortez, supra, 418.

In determining whether a stop is justified by a

reasonable suspicion, the officer can make “inferences

and deductions that might well elude an untrained

person.” Id. The information collected by the officer

“must be seen and weighed not in terms of library

analysis by scholars, but as understood by those versed

in the field of law enforcement.” Id.

In this case, the totality of circumstances leads only

to the conclusion that Middaugh and Hodous had a

reasonable suspicion that a crime was committed or

about to be committed. This is based on their law

enforcement experience as members of the Gang

Impact Unit, their familiarity with the neighborhood

and the high incidence of violent crime in the

neighborhood, coupled with their observation of an

individual lingering on the front porch of what

appeared to be a vacant home, fumbling in front of him

but not entering the home and appearing nervous.

Even after he was asked what he was doing and

responding that he lived there, Howse still did not

enter the home. Once the officers approached Howse in

an attempt to further investigate, he appeared furtive,

nervous and hostile and refused to follow the officers’

17

commands, necessitating his handcuffing. He actively

resisted the officers’ attempts to handcuff him before

and after he was on the ground, as he admitted in his

deposition. The totality of circumstances supported the

officers’ conclusion that Howse’s detention was

warranted by reasonable suspicion and the application

of force was reasonable under the circumstances.

It would also have been contrary to law for the

majority to impute Petitioner’s subjective experience to

what was known to the officers at the time of the

encounter. Twenty/ twenty hindsight has no place in

qualified immunity jurisprudence. The officers’ actions

are to be examined in light of what was known to them

as the events unfolded. Hernandez v. Mesa, 137 S. Ct.

2003, 2007 (2017) (“[f]acts an officer learns after the

incident ends - whether those facts would support

granting immunity or denying it—are not relevant.”).

The officers did not know Howse lived in the house,

which appeared abandoned, and they were not required

to accept Howse’s claim that he lived there, given his

nervousness and agitation and the appearance of the

house. See, e.g., Wesby, supra, 577-78 (officers were not

required to accept a version of the facts from a witness

who was nervous, agitated and evasive.) Objectively,

the officers encountered a suspect who appeared to be

attempting to break into a vacant home; and the

situation quickly escalated as he refused to follow

orders, was swearing and screaming at the top of his

lungs, and was physically resisting attempts to

handcuff him for officers’ safety (all by his own

admission).

18

The majority properly applied the summary

judgment standard in conducting its qualified

immunity analysis by viewing the facts in the light

most favorable to Petitioner but also following this

Court’s mandate in viewing the totality of the

circumstances based on information that was known to

the officers as they encountered the situation.

B. Q U A L I F I E D I M M U N I T Y

CORRECTLY APPLIED

STANDARD

Petitioner manipulates the operative facts of the

case in order reduce the “clearly established” analysis

for application of qualified immunity1 to a level of

generality that has been repeatedly rejected by this

Court. Petitioner attempts to transform the detention

from a Terry stop to a full-blown arrest in order to

argue that Petitioner’s right to be free from use of

excessive force during an arrest which was not

supported by probable cause was so obvious that it was

clearly established. Petition, p. 21.

1

“Qualified immunity is warranted even if a constitutional

violation has occurred if the right violated was not clearly

established.” Rodriguez v. City of Cleveland, 439 F. App’x 433, 44748 (6th Cir. 2011), cert den. 566 U.S. 987 (2012); Schulkers v.

Kammer, 955 F.3d 520, 532-33 (6th Cir. 2020) (a defendant enjoys

qualified immunity unless he or she (1) violated a constitutional

right and (2) the right was clearly established). The Court may

proceed directly to the “clearly established” inquiry. Rodriguez,

supra, at 448. Pearson v. Callahan, 555 U.S. 223, 232-33 (2009).

19

1. The majority reviewed the officers’

conduct at the level of specificity

required by this Court

Petitioner places the “clearly established” standard

by which he believes the officers’ actions ought to have

been judged for purposes of qualified immunity at a

high level of generality, which has been repeatedly

rejected by this Court. See City and Cty. of San

Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765,

1776 (2015) (“[q]ualified immunity is no immunity at

all if ‘clearly established’ law can simply be defined as

the right to be free from unreasonable searches and

seizures”); White v. Pauly, 137 S. Ct. 548, 552 (2017)

(“[t]oday, it is again necessary to reiterate the

longstanding principle that ‘clearly established law’

should not be defined ‘at a high level of generality’”);

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (noting

that the Supreme Court has repeatedly told courts not

to define clearly established law at a high level of

generality); City of Escondido, Calif. v. Emmons, 139

S. Ct. 500, 503 (2019) (“[t]he Court of Appeals should

have asked whether clearly established law prohibited

the officers from stopping and taking down a man in

these circumstances. Instead, the Court of Appeals

defined the clearly established right at a high level of

generality”).

This Court has repeatedly emphasized that

specificity “is especially important in the Fourth

Amendment context, where the Court has recognized

that it is sometimes difficult for an officer to determine

how the relevant legal doctrine, here excessive force,

will apply to the factual situation the officer confronts.”

20

Kisela, supra, 1152, quoting Mullenix v. Luna, 577 U.S.

7, 12 (2015) (per curiam); see also Wesby, supra, 590.

To be clearly established, “a legal principle must have

a sufficiently clear foundation in then-existing

precedent.” Wesby, supra, 589. The rule must be

“settled law,” which means it is dictated by “controlling

authority” or “a robust consensus of cases of persuasive

authority.” Wesby, 589-590, quoting Hunter v. Bryant,

502 U.S. 224, 228 (1991) (per curiam) and Ashcroft v.

al-Kidd, 563 U.S. 731, 741-742 (2014).

Additionally, “[u]se of excessive force is an area of

the law ‘in which the result depends very much on the

facts of each case,’ and thus police officers are entitled

to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue.” Kisela,

supra, 1153, citing Mullenix, supra, 13 (emphasis

added). “An officer cannot be said to have violated a

clearly established right unless the right’s contours

were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that he

was violating it.” City of Escondido, Calif. v. Emmons,

139 S. Ct. 500 (2019), citing Kisela, supra, 1153

(emphasis added).

The majority applied the required level of specificity

to the officers’ conduct under the particular

circumstances of this case. Petitioner’s suggestion that

the facts of the case present an obvious constitutional

violation would have required the majority to reject

this Court’s precedent and apply the standard of

conduct at a high level of generality, which has been

specifically rejected by this Court.

21

2. Petitioner’s manipulation of the

record cannot change the fact that

there was no obvious constitutional

violation justifying review at an

impermissible level of generality

Petitioner manipulates the facts in an attempt to

change the parameters of the “clearly established”

standard applicable in this case from permissibly

specific to impermissibly general.

He does so by

transforming what was an investigatory detention into

a full-blown arrest, which would require the higher

burden of showing probable cause rather than

reasonable suspicion, and thus make the “arrest” and

the subsequent use of force an obvious constitutional

violation. Specifically, Petitioner argues that the

alleged “you are going to jail” statement made by

Middaugh, coupled with an attempt to handcuff

Petitioner after he refused to comply, made it obvious

that the investigatory stop of Howse ripened into an

arrest at the moment the officers took him to the

ground.

Petitioner advances that, under these

circumstances, it was clearly established that the

arrest was not supported by probable cause. Therefore,

it purportedly follows, the prohibition against the use

of excessive force during an unlawful arrest was so

obvious that it was clearly established.

There are several problems with this argument.

First, Petitioner never challenged the validity of his

arrest; nor did he state a claim for “false arrest” in his

Complaint or argue this issue in the Courts below.

Complaint, R.2; Opinion, R.44, p. 928. The Court

should not consider arguments not raised below. See

22

e.g., Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S.

189, 201 (2012) (ordinarily the Supreme Court does

“not decide in the first instance issues not decided

below”) (citation omitted).

Having failed to challenge the validity of the arrest

in the courts below, Petitioner indirectly attacks the

arrest by reinventing the timeline and changing his

arguments completely.

(Compare Petitioner’s

Appellate Brief wherein he expressly argues that

Howse’s “seizure” was “without the requisite

individualized, reasonable, articulable suspicion that

Shase Howse was armed or had committed or was

about to commit a crime,” referring to the standard for

investigatory stops under Terry v. Ohio, 392 U.S. 1

(1968); App. Br., 6th Cir. No. 19-3418, R.21, 25.)

Nowhere in his appellate brief in the court below does

Petitioner advance the argument that it was not a

Terry stop, after all, but an arrest unsupported by

probable cause.

Second, in response to the same argument made by

Sixth Circuit Chief Judge Cole in his dissenting

opinion, the majority concluded that “[t]he mere act of

handcuffing someone doesn’t transform a stop into an

arrest, … an officer may temporarily handcuff someone

during a Terry stop ‘so long as the circumstances

warrant that precaution.’” Opinion at n. 1, R.44, p. 930

(italics in original), quoting U.S. v. Foster, 376 F.3d

577, 587 (6th Cir. 2004).

A stated intent to arrest someone does not

transform an investigatory stop into an arrest.

Although there is no bright line to distinguish an

investigative detention from an arrest, the Sixth

23

Circuit has historically held that police officers cross

that line when they place a suspect in a police vehicle

for questioning. See U.S. v. Butler, 223 F.3d 368, 375

(6th Cir. 2000) (“[t]he officer's continued detention of

Defendant in the back of the locked patrol car ripened

the investigatory stop into an arrest”); U.S. v. LopezArias, 344 F.3d 623, 627-28 (6th Cir. 2003) (the Sixth

Circuit has long recognized that an investigatory stop

crosses the line and becomes an arrest when a suspect

is placed in a police vehicle); Opinion at n. 1, R.44,

p. 930 (“Of course, the officers hadn’t removed Howse

from the scene when they initially threw him down. So

that would mean the officers didn’t need probable cause

until they removed him from his home and took him to

the station”) (citations omitted).

It follows that, even under Petitioner’s fact scenario,

the officers would not have known that they were

effecting an arrest rather than an investigatory stop or

that Howse’s detention would have to be supported by

probable cause. In other words, it was not clearly

established that Middaugh and Hodous were effecting

an arrest rather than an investigatory stop when they

attempted to handcuff Howse or that the encounter, at

that point, required more than a reasonable suspicion

that a crime was or about to be committed.

Petitioner contends this presents an obvious case,

yet, in light of Sixth Circuit precedent, it is far from

obvious. Petitioner fails to cite any cases which, under

these circumstances, would have put the officers on

notice that their conduct was unconstitutional. See,

e.g., Anderson v. Creighton, 483 U.S. 635, 640-41 (1987)

(the lower court erred in failing to address whether the

24

circumstances with which the defendants were

confronted constituted probable cause and exigent

circumstances; the conclusion that the search was

objectively unreasonable did not “follow immediately”

from the principle that warrantless searches not

supported by probable cause and exigent circumstances

violate the Fourth Amendment; therefore the violation

was not clearly established).

Third, Petitioner’s argument must fail because he

essentially uses a separate Fourth Amendment

violation (the allegedly illegal arrest) as the basis for

liability for the use of force committed during the

allegedly illegal arrest. In Cty. of Los Angeles, Calif. v.

Mendez, 137 S. Ct. 1539, 1543 (2017), this Court was

confronted with the same question:

If law enforcement officers make a “seizure” of a

person using force that is judged to be reasonable based

on a consideration of the circumstances relevant to that

determination, may the officers nevertheless be held

liable for injuries caused by the seizure on the ground

that they committed a separate Fourth Amendment

violation that contributed to their need to use force?

The Court answered that question in the negative,

holding that “[a] different Fourth Amendment violation

cannot transform a later, reasonable use of force into

an unreasonable seizure.” Id., 1544. So it must also

follow that a separate Fourth Amendment violation

25

cannot revive an officer’s liability for a use of force to

which qualified immunity applies.2

3. The alleged unconstitutionality of the

officers’ actions was not clearly

established under Sixth Circuit

precedent

A persuasive line of authority in the Sixth Circuit

justifies the use of force to subdue and control an

actively resisting suspect like Howse. In Stanfield v.

City of Lima, 727 F. App’x 841 (6th Cir. 2018)

(underlying facts taking place in 2013), the Court found

that the officers were entitled to qualified immunity in

performing a takedown of an intoxicated suspect. The

plaintiff argued that he merely lost his balance when

2

Petitioner’s fall back argument, that the detention was not

supported by a reasonable suspicion, is not supported by law. This

Court has previously acknowledged that “[a]rticulating precisely

what ‘reasonable suspicion’ and ‘probable cause’ mean is not

possible.” Ornelas v. U.S., 517 U.S. 690, 695 (1996). “They are

commonsense, nontechnical conceptions that deal with ‘“the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.’”” Id.,

citing Illinois v. Gates, 462 U.S. 213, 231 (1983) (additional

citations omitted). This Court has described reasonable suspicion

was a “particularized and objective basis” for suspecting the person

stopped of criminal activity. Id. at 696, quoting Cortez, supra, 417418. Here, Middaugh and Hodous encountered an individual in a

high-crime area, in the dark hours of the night, lingering on the

front porch of what looked like a vacant home and appearing

nervous. The suspicion that Howse may have been attempting to

break into the house was entirely reasonable. The suspicion of

criminal activity and the possibility that Howse was potentially

armed was further bolstered by his belligerent behavior and

admitted refusal to cooperate.

26

the officers were putting his hands behind his back and

thus used excessive force in taking him to the ground.

The court’s decision pivoted on the determination

whether the plaintiff’s conduct could be considered

“active resistance.” Id., 847-48. See also Jackson v.

Washtenaw Cty., 678 F. App’x 302, 306-07 (6th Cir.

2017) (firing a taser at an individual suspected of drug

activity who fled into his mother’s house after being

told to stop was objectively reasonable because the

officer had reason to believe the suspect may be armed;

“[w]here a suspect has refused to follow police orders

and may be in possession of a weapon, we have

determined there is no clearly established right to

resist that can defeat qualified immunity”).

In Rudlaff v. Gillispie, 791 F.3d 638 (6th Cir. 2015)

(cited on p. 6 of decision below, R.44, p. 930), the Sixth

Circuit found that use of a knee strike and a taser to

subdue an arrestee who was struggling to keep the

officers from handcuffing him was objectively

reasonable.

Finding pivotal the arrestee’s own

admission that he was trying to prevent the officers

from handcuffing him, i.e. that he was resisting arrest,

the court found the officers’ use of force justified. Id. at

641 (“[a]ctive resistance includes ‘physically struggling

with, threatening, or disobeying officers,” and “it

includes refusing to move your hands for the police to

handcuff you, at least if that inaction is coupled with

other acts of defiance”) (citations omitted). See also

Caie v. West Bloomfiel Twp., 485 F. Appx 92, 96-97 (6th

Cir. 2012) (use of taser in drive-stun mode on a

mentally ill arrestee found to be objectively reasonable,

even though he was not being arrested for a crime; “the

fact that Plaintiff was taken to the ground and

27

arguably ‘subdued’ when [the officer] employed the

taser does not … compel the conclusion that … use of

force was unreasonable” because “there is no dispute

that Plaintiff continued to be uncooperative by actively

resisting the officers’ attempts to secure his arms

behind his back.”)

In Marvin v. City of Taylor, 509 F.3d 234 (6th Cir.

2008), the Sixth Circuit held that the officers acted in

an objectively reasonable manner when they forcefully

twisted the 78-year-old arrestee’s arms behind his

back, acutely rupturing his bicep. The Court found that

the arrestee’s intoxication, coupled with his verbal

refusal to put his hands behind his back and abusive

language justified the officers’ actions. Id. at 248.

Petitioner’s resort to cases from the First, Tenth

and Ninth Circuits in an attempt to create a circuit

split on this issue is to no avail. (Blankenhorn v. City

of Orange, 485 F.3d 463 (9th Cir. 2007); Raiche v.

Pietroski, 623 F.3d 30 (1st Cir. 2010); Morris v. Noe,

672 F.3d 1185, 1198 (10th Cir. 2012), Petition, pp. 2425.) These cases had been decided before City and

County of San Francisco, Calif. v. Sheehan, 575 U.S.

600 (2015), where this Court admonished the circuit

courts against resort to the general Graham factors in

defining the clearly established standard and reversed

the Ninth Circuit’s denial of qualified immunity. See

also Pauly, supra (reversing the Tenth Circuit’s denial

of qualified immunity); Kisela, supra (reversing the

Ninth Circuit’s denial of qualified immunity); Emmons,

supra (reversing the Ninth Circuit’s denial of qualified

immunity). Rather than creating a circuit split, the

Sixth Circuit followed the express directive from this

28

Court that officers’ conduct must be evaluated with the

requisite level of specificity. Petitioner’s manipulation

of facts does not turn this case into one presenting such

an obvious constitutional violation as to overlook this

Court’s precedent.3

In conclusion, the majority correctly applied the

summary judgment standard, viewing the facts in the

light most favorable to Petitioner while considering the

totality of the circumstances and what was known to

the officers as the events unfolded. The majority

correctly applied the clearly established standard by

reviewing the officers’ conduct with the level of

specificity required by this Court and in light of the

Sixth Circuit precedent which has held that officers’

actions in analogous situations did not violate the

Fourth Amendment.

3

Even if this Court were to determine that a conflict among the

circuits exists, the officers would be entitled to qualified immunity

based, in part, on the very existence of the alleged conflict. The

officers should not be expected to be held liable for a violation of a

legal standard that is not only not clearly established, but one that

is subject to varying degrees of disagreement among the circuits.

See, e.g., Wilson v. Layne, 526 U.S. 603, 618 (1999) (“[if] judges …

disagree on a constitutional question, it is unfair to subject police

to money damages for picking the losing side of the controversy”).

29

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

ELENA N. BOOP*

Chief Assistant Director of Law

TIMOTHY J. PUIN

Assistant Director of Law

CITY OF CLEVELAND

DEPARTMENT OF LAW

601 Lakeside Ave. E., Rm. 106

Cleveland, Ohio 44114

(216) 664-2800

eboop@clevelandohio.gov

tpuin@clevelandohio.gov

*Counsel of Record

Counsel for Respondents