# Appendix — Edgell v. McKenna

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0877%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 904

## Text

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APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED AUGUST 17, 2010

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 08-2080/2393
SCOTT E. MCKENNA,
Plaintiff-Appellee/Cross-Appellant,
v.

P. EDGELL and B. HONSOWETZ,
Defendants-Appellants/Cross-Appellees.
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-74546— John Corbett O’Meara, District Judge.
Argued: October 15, 2009
Decided and Filed: August 17, 2010

Before: MOORE, ROGERS, and GIBSON,
Circuit Judges.*

* The Honorable John R. Gibson, Circuit Judge of the
United States Court of Appeals for the Eighth Circuit, sitting by
designation.

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Appendix A
COUNSEL

ARGUED: Susan Lumetta, CUMMINGS, McCLOREY,
DAVIS & ACHO, P.C., Livonia, Michigan, for Appellants.
David R. Parker, CHARFOOS & CHRISTENSEN,
P.C., Detroit, Michigan, for Appellee. ON BRIEF: Susan
Lumetta, CUMMINGS, MeCLOREY, DAVIS & ACHO,
P.C., Livonia, Michigan, for Appellants. David R. Parker,
CHARFOOS & CHRISTENSEN, P.C., Detroit, Michigan,
Hugh M. Davis, Jr.. CONSTITUTIONAL LITIGATION
ASSOCIATES, P.C., Detroit, Michigan, for Appellee.

MOORE, J., delivered the opinion of the court, in
which GIBSON, J., joined. ROGERS, J. (pp. 20-27),
delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge. Scott E.
McKenna (“McKenna”) brought suit against two Royal
Oak police officers (“the defendants” or “the officers”)
who responded to a 911 report that McKenna was having
a medical seizure and who thereafter allegedly violated
his Fourth Amendment rights. The district court rejected
the officers’ argument for summary judgment based on
qualified immunity, and they sought interlocutory appeal.
We dismissed the appeal for lack of subjeet-matter
jurisdiction because the officers’ arguments for qualified
immunity turned on disputed facts. The case proceeded
to trial, where the jury awarded McKenna $6,000 for
medical bills and $275,000 for pain and suffering. The
district court then denied the defendants’ motions for

3a
Appendix A

judgment notwithstanding the verdict and for a new trial
but reduced the award for pain and suffering to $10,000.
The jury and district judge having spoken, the case is
before us now on two issues: first, whether the officers
were entitled to qualified immunity, and second, whether
the remittitur was improper. Because we hold that the jury
reasonably could have found a set of facts indicating that
the officers acted in an objectively law-enforcement rather
than medical-response capacity, we AFFIRM the denial
of qualified immunity. We also AFFIRM the reduction
of damages based on the settled doctrine that a plaintiff
who accepts a remittitur may not appeal it.

I. BACKGROUND
A. Factual Background

We recounted many of the operative facts in our
opinion dismissing the officers’ interlocutory appeal from
the district court’s denial of summary judgment:

In the early morning of March 18, 2004, Scott
McKenna was suffering from a seizure in his
home in Royal Oak, Michigan. At that time,
McKenna was a single father living with his
three daughters, Alexandra, Samantha, and
Jessica. Alexandra, his then fourteen-year-old
daughter, called 911 and told the dispatcher that
she thought her father may be having a seizure
or choking. Officers Edgell and Honsowetz
were dispatched to assist a man having trouble
breathing. The officers arrived before any other

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Appendix A

emergency personnel. Alexandra directed the
officers to McKenna’s bedroom, where they
found McKenna lying in bed.

The course of events after the officers entered
McKenna’s bedroom is disputed. Alexandra
testified that she “couldn’t see exactly what
was going on” for some period, because she
was talking to one of the officers. However,
she also testified that this period was “for
about a minute .... So I was standing there
watching it all.” According to Alexandra, the
officers instructed Scott McKenna to get out
of bed and to get dressed. McKenna got up
and started to pick up his pants, but then sat
back down on the bed and began to lie back
down. Alexandra testified that the officers
then “picked him up by his hands, and they like
pulled him up from the ground and told him to
put his pants on.” McKenna then sat back down
and, according to Alexandra, “was telling them
to stop.” According to Alexandra, the officers
continued to try to get McKenna out of bed
while McKenna “just laid back down.” Finally,
Alexandra testified, the officers handcuffed
McKenna’s wrists and ankles, and only then did
McKenna begin struggling with them.

Contradicting the testimony offered by
McKenna’s daughter, the officers said that after
they found McKenna unresponsive to verbal
questioning, Officer Edgell placed his hand
on McKenna’s upper arm or shoulder to try to

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Appendix A

rouse him. Officer Edgell testified that when
McKenna did rouse he immediately became
aggressive and violent, pushing them and
causing Officer Honsowetz to fall backwards.
The officers asserted that it was necessary
to handcuff McKenna because of his violent
behavior.

Firefighters arrived as the officers were
already restraining McKenna. Scott McKenna
has no recollection of the events that took place
during his seizure.

McKenna v. City of Royal Oak, 469 F.3d 559, 560 (6th Cir.
2006). The parties testified to those facts at trial.

In addition, Alexandra testified that when the officers
arrived, one of them asked her whether McKenna was on
drugs and whether he had assaulted her. She answered
no to both questions. While or just after firefighters
and emergency medical personnel placed McKenna on a
stretcher and removed him from the premises, the two
officers searched through McKenna’s bathroom medicine
cabinet and the top drawer of his dresser. They testified
that they were looking for prescription or illegal drugs.
Alexandra testified that the officers threw out the baby
teeth of all of his children that her father kept in the
cabinet and that they knocked down all of the objects on
top of the dresser.

Officer Honsowetz admitted that even in responding
to medical emergencies, he is always aware that criminal
activity may be involved and he is “always looking to

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Appendix A

investigate it.” Trial Tr. 2/12/08 at 41 (Document (“Doc.”)
108). He testified that he wrote a report explaining that
when he responded to McKenna’s home, he believed he
might be dealing with an intoxicated person, a person on
drugs, or a person having a diabetic reaction. At some
point during the encounter, Honsowetz ran McKenna’s
license plate but did not run his information through the
Law Enforcement Information Network (“LEIN”), which
tracks criminal history and outstanding warrants.

Both parties introduced evidence as to the proper
medical protocol for responding to emergency calls.
McKenna’s witnesses stated that the appropriate response
to a medical seizure is not to restrain the subject but
rather to clear the area and let the episode run its course.
A firefighter testified, “[w]e don’t handcuff patients.” Trial
Tr. 2/19/08 at 72 (Doce. 119). Firefighters and paramedics
testifying for the defendants stated that they are trained
to initiate physical contact to rouse a nonresponsive
subject, to restrain the subject for safety if necessary,
and to look for indications in the environment that might
explain the subject’s condition.

B. Procedural Background

McKenna initially sued the City of Royal Oak, Officers
Edgell and Honsowetz, and a third officer, pleading
deprivation of civil rights under 42 U.S.C. § 1983 and
several state claims. The district court declined to
exercise supplemental jurisdiction over the state claims
and dismissed the § 1983 claim against the third officer,
who was not personally involved in the events of March

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Appendia A

18. The court then granted summary judgment for the
City based on McKenna’s failure to allege facts sufficient
to amount to deliberate indifference in training, but it
rejected Edgell and Honsowetz’s qualified-immunity
argument. The court held that the facts could support a
Fourth Amendment violation. We agreed with the district
court on interlocutory appeal, dismissing the case for
lack of subject-matter jurisdiction. McKenna, 469 F.3d at
562. The officers moved for summary judgment a second
time, arguing that because they had acted in response
to a medical emergency, they were qualifiedly immune
from suit under Peete v. Metropolitan Government of
Nashville and Davidson County, 486 F.3d 217 (6th Cir.
2007). The district court denied the motion. It found
Peete inapplicable because, when viewed in the light most
favorable to McKenna, the facts did not make clear “that
the police officers were attempting to provide medical
assistance.” Op. & Order Denying Defs.’ Second Mot. for
Summ. J. at 6 (Doce. 58).

The case proceeded to trial in 2008, resulting in a jury
verdict for McKenna and an award of $6,000 for medical
bills and $275,000 for pain and suffering. The district court
denied the officers’ motion for judgment notwithstanding
the verdict and for new trial, in which the officers had
again argued qualified immunity, but it granted a motion
for remittitur, reducing the pain-and-suffering award to
$10,000. As to qualified immunity, the district court held:

[I]t is clear that a reasonable jury could come
to the same conclusion that this jury came
to, that is that Plaintiff's Fourth Amendment

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Appendix A

rights were violated. The evidence indicated
a search was conducted and a seizure was
made, both of which according to Plaintiff's
evidence and witnesses were contrary to
established procedure in dealing with seizures.
It is apparent that the jury gave more credit
to Plaintiff’s case than it did Defendants’ case
which is its right. Although the court may
disagree with the jury’s findings, that alone is
not enough to grant judgment notwithstanding
the verdict or a new trial.

McKenna v. City of Royal Oak, No. 04-74546, 2008
WL 2831233, at *2 (E.D. Mich. July 21, 2008). The
court also expressed concern that the law leaves police
uncertain of how to act when responding to a medical
emergency; it commented that “it would be of benefit if
the Sixth Circuit were to directly address the issue of law
enforcement’s obligation to the Fourth Amendment when
law enforcement acts in a non-law enforcement capacity.”
Id. at *4, The district court denied a motion to reconsider
the remittitur and gave McKenna the choice of accepting
the reduction or proceeding with a new trial as to both
liability and damages. McKenna accepted the remittitur on
September 15, 2008. Officers Edgell and Honsowetz now
appeal the district court’s denial of qualified immunity,
and McKenna challenges the remittitur on cross-appeal.

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Appendix A
II. ANALYSIS

A. Standard of Review

The officers appeal the district court’s orders
denying their first motion for summary judgment, second
motion for summary judgment, and post-trial motion for
judgment notwithstanding the verdict and for new trial
under Federal Rule of Civil Procedure 50(b), all of which
turned on the issue of qualified immunity. Under these
circumstances, we review the final order, which was
rendered with the benefit of all evidence presented at
trial. Champion v. Outlook Nashville, Inc., 380 F.3d 893,
899 (6th Cir. 2004). We review de novo an order denying a
Rule 50(b) motion, with all reasonable inferences drawn
for the nonmoving party. /d. at 899-900.

In Champion, we described the additional
considerations that apply when the dispositive issue is
qualified immunity. Qualified immunity is a question of
law, but “where the legal question of qualified immunity
turns upon which version of the facts one accepts, the
jury, not the judge, must determine liability.” Jd. at
900 (internal quotation marks omitted). “Thus, to the
extent that there is disagreement about the facts,” such
as whether the officers handcuffed McKenna before he
showed any aggression, “we must review the evidence
in the light most favorable to the Plaintiff[], taking all
inferences in [his] favor.” Jd. Here, as in Champion, “we
are acutely aware that a jury, faced directly with the tasks
we cannot undertake, believed the evidence presented by
the Plaintiff[].” Jd.

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Appendix A

In his cross-appeal, McKenna appeals the district
court’s grant of the officers’ motion for remittitur and its
denial of his motion for reconsideration under Rule 60(b).
Remittitur and relief from a judgment or order lie in the
discretion of the district court. See Gregory v. Shelby
County, Tenn., 220 F.3d 433, 443 (6th Cir. 2000); Fed. R.
Civ. P. 60(b). We therefore generally review the district
court’s reduction of damages for abuse of discretion.
Gibson v. Moskowitz, 523 F.3d 657, 663 (6th Cir. 2008).
“Once a plaintiff has accepted a remittitur order,” however,
“he cannot appeal it.” Anderson v. Roberson, 249 F.3d 539,
542 n.2 (6th Cir. 2001).

B. Qualified Immunity

Whether government officials performing
discretionary functions are entitled to qualified immunity
involves two questions: “(1) whether, considering the
allegations in a light most favorable to the party injured, a
constitutional right has been violated, and (2) whether that
right was clearly established.” Everson v. Leis, 556 F.3d
484, 494 (6th Cir. 2009) (internal quotation marks omitted).
In accordance with this framework, the officers advance
two independent reasons why qualified immunity applies
to them: First, as responders to a medical emergency,
they assert that they are immune from suit under Peete,
which held that liability under the Fourth Amendment
for torts committed by firefighters, paramedics, and
emergency medical technicians (“EMTs”) in the process
of responding to a medical emergency is not clearly
established. Second, the officers argue that McKenna was
incapable of submitting to any show of authority, such that

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App ndix A

he could not have been “Seized” within the meaning of the
Fourth Amendment.

1. Whether the Right Was Clearly Established

The defendants’ primary argument is that this case
is governed by our observation in Peete that “there are
no cases applying the Fourth Amendment to paramedics
coming to the aid of an unconscious individual as a result
of a 911 call by a family member.” 486 F.3d at 220. In
Peete, firefighters, paramedics, and EMTs responded to
a 911 call reporting that the plaintiff was experiencing
an epileptic seizure. Jd. To stop him from moving, they
tied his hands and ankles behind his back and used their
bodies to apply pressure to his head, neck, shoulders,
arms, torso, and legs. /d. They did not take precautions
to ensure he could still breathe, and he died shortly after
being restrained. Jd. Emphasizing the defendants’ intent
to provide medical aid to the plaintiff, the panel stated
that the plaintiff’s estate’s excessive-force claim “looks
like a medical malpractice claim.” /d. at 222. It noted that
“improper medical] treatment by a government employee,
standing alone, does not violate the Fourth or Fourteenth
Amendment.” Jd. The court applied the doctrine of qualified
immunity because “there is no ‘clearly established law’
creating federal liability for a constitutional tort” that
occurs when paramedics responding to an emergency
restrain a person “while trying to render aid.” Jd. at 219.
The officers contend that this holding applies here because
they, like the defendants in Peete, acted in response to a
medical emergency.

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Appendix A

There are two ways to think about whether Peete
applies to the facts of the instant case. First, as argued
by McKenna, the fact that the defendants here are
police rather than medical-care personnel may render
Peete inapplicable. As a general matter, exposure to
liability does not depend merely on the profession of the
government actors. It would not be coherent, for example,
to say that paramedics who strap a patient to a gurney
without medical need, search his home for evidence of a
crime, and forward what they discover to the police do not
violate the Fourth Amendment, simply because they are
paramedics. On the other hand, the fact that a government
agent is a police officer clearly matters in some cases—
for example, when it bears on the question of whether a
person is “seized” under the Fourth Amendment. See
United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(plurality opinion) (explaining that a person is seized when
the surrounding circumstances. such as “the threatening
presence of several officers” are such that “a reasonable
person would have believed that he was not free to leave”).
The officers urge us to follow the lead of two district courts
that have applied qualified immunity to police based on
Peete. See Daniels v. Bowerman, No. 08-10278, 2008
WL 2743918 (E.D. Mich. July 14, 2008); Mills v. Hall,
No. 06-15689, 2008 WL 2397652 (E.D. Mich. June 10,
2008). We note that these unpublished lower-court cases
are not binding upon us. The instant case, however, does
not require us to resolve the question. Instead, we will
assume without deciding that Peete’s holding could extend
to defendant police officers.

1. Of course, McKenna’s claim that he was seized is based
not on the presence of intimidating officers, but on the fact that
they handcuffed him and pinned him down.

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Appendix A

A second way to think about Peete is that its
applicability depends on a defendant’s objective function
or purpose. Peete may stand for the proposition that
when a government agent acting in the role of a
paramedic—any medical-emergency responders*—
commits an unreasonable search or seizure, it is not yet
clearly established that the conduct violates the Fourth
Amendment. There is support for this interpretation in
the Peete panel’s opinion. It stated that qualified immunity
turns on “the specific purpose and the particular nature
of the conduct alleged in the complaint.” Peete, 486 F.3d
at 220. The panel held that the defendants there were
protected because they intended only to provide medical
aid: “The paramedics did not unreasonably seize [the
patient] for the purpose of interfering with his liberty.
They responded to [his] grandmother’s call that he was
experiencing an epileptic seizure and needed medical
attention. They were not acting to enforce the law, deter
or inearcerate.” Jd. at 222. On this logic, when officers do
act to “enforce the law, deter or incarcerate,” qualified
immunity might not apply. So reasoned the district court
in denying the officers’ second summary-judgment motion
in the instant case: “[T]he police officers here were not
necessarily offering medical assistance. Although the
police officers were first on the scene and ‘first responders,’
it is not clear that trying to get someone out of bed and get
him dressed constitutes medical assistance.” Op. & Order
Denying Defs.’ Second Mot. for Summ. J. at 6 (footnote
omitted).

2. The defendants here refer to such persons as “first
responders.” We eschew that term, as it unduly emphasizes the
fact that these individuals get to a scene first rather than the fact
that they go there to provide medical support—the critical element
of their engagement for the purposes of Peete’s applicability.

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Appendix A

We conclude that whether the officers were entitled
to qualified immunity depends on whether they acted in
a law-enforcement capacity or in an emergency-medical-
response capacity when engaging in the conduct that
McKenna claimed violated the Fourth Amendment.’ If
the officers acted as medical-emergency responders,
then McKenna’s claim would amount to a complaint
that he received dangerously negligent and invasive
medical care. Under a function-dependent view of
Peete, if any right to be free from such unintentional
conduct by medical-emergency responders exists under
the Fourth Amendment, it is not clearly established.
Peete, 486 F.3d at 219. If the defendants acted in a law-
enforcement (e.g., investigative or prosecutorial) capacity,
however, McKenna’s claim does not “look[] like a medical

3. Weare mindful of the challenges police officers face when
acting as medical-emergency responders. Often, they are the first
and only people on the scene. We acknowledge, as the district
court did, the harm to the public that could result from officers’
overexposure to liability for civil-rights violations. Qualified
immunity is itself one way of negotiating the need to allow
plaintiffs to seek relief and the need to protect law enforcement:
even if officers violate a person’s constitutional rights, they will
be shielded from suit unless the rights violated were clearly
established and a reasonable police officer would have known
of them. Moreover, we believe that the framework applied here
offers the sensible middle ground sought by the district court: on
the current state of the law, police accused of violations like those
involved in the instant case receive immunity when they act as
medical responders but not when they act in a law-enforcement
capacity. To be sure, they may have to convince a jury of the role
they objectively played, but the obligation to persuade ajury exists
in all cases in which qualified immunity turns on disputed facts.

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Appendix A

malpractice claim,” 2d. at 222; rather, his claim is that he
was subject to an unreasonable seizure and search. It is
certainly clearly established that police violate the Fourth
Amendment when they handcuff people whom they neither
suspect of criminal wrongdoing nor believe to be a danger
to themselves or others. See United States v. Davis, 514
F.3d 596, 607, 610 (6th Cir. 2008) (noting that an arrest
is valid only if based on probable cause that defendant
committed a crime); Monday v. Oullette, 118 F.3d 1099,
1102 (6th Cir. 1997) (“The Fourth Amendment requires
an official seizing and detaining a person for a psychiatric
evaluation to have probable cause to believe that the person
is dangerous to himself or others.”); cf Marvin v. City of
Taylor, 509 F.3d 234, 248 (6th Cir. 2007) (“[I]t is clearly
established that handcuffing an arrestee in an objectively
unreasonable manner is a Fourth Amendment violation.”).
Likewise, a person has a clearly established right to be
free from unreasonable searches, including a warrantless
search in the absence of exigent circumstances or some
other warrant exception. See United States v. Purcell, 526
F.3d 953, 960 (6th Cir. 2008).

We stress that whether the officers acted as law
enforcement or as medical responders is an objective
inquiry. See Davis v. Scherer, 468 U.S. 183, 191 (1984)
(“Harlow v. Fitzgerald, [457 U.S. 800 (1982),] rejected the
inquiry into state of mind in favor of a wholly objective
standard.”); Mitchell v. Forsyth, 472 U.S. 511, 517 (1985)
(noting that the Supreme Court “purged qualified
immunity doctrine of its subjective components” in

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Appendix A

Harlow).‘ It is not relevant, therefore, whether Officers
Edgell and Honsowetz had a law-enforcement or a
medical-response intent; the focus must be on what role
their actions reveal them to have played.

The issue is then whether this objective determination
of the role that the officers played at McKenna’s home is
for the jury or for the court.® We hold that it is properly a
jury question because “the legal question of immunity is
completely dependent upon which view of the [disputed]
facts is accepted by the jury.” Humphrey v. Mabry,
482 F.3d 840, 846 (6th Cir. 2007) (internal quotation
marks omitted) (alteration in the original). The objective
character of what role the officers played depends on what

4. Consideration of purpose or motive is relevant only
when it is an actual element of a constitutional claim. See, e g.,
Crawford-El v. Britton, 523 U.S. 574, 589 (1998) (citing, inter alia,
discrimination under the Equal Protection Clause and retaliation
for exercise of First Amendment rights).

5. We note that as a general matter, there is nothing
inappropriate about asking a jury to make an objective finding.
Indeed, they are often called upon to apply objective tests. See, e.g.,
Anton v. SBC Global Servs., Inc., 350 F. App’x 39, 42-43 (6th Cir.
2009) (unpublished opinion) (explaining that the jury permissibly
applied an objective test, examining the words and conduct of
the parties, to interpret a sales-commissions contract). Some of
our sister courts have even allowed the issue of whether a police
officer committed an objectively reasonable mistake of law to go
to a jury. See Curley v. Klem, 499 F.3d 199, 208-10 & nn.8-10 (3d
Cir. 2007) (citing cases from the Fifth, Ninth, and Tenth Circuits;
noting that the First, Fourth, Seventh, and Eleventh Circuits find
this approach impermissible; and showing that cases from the
Second and Eighth Circuits go both ways).

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Appendix A

actually happened in the early-morning hours of March
18, 2004, and on what a medical-emergency responder
would have done under the circumstances. The jury heard
testimony on both of these factual issues. Firefighter
Shawn Lambouris testified that in responding to medical
emergencies, “{w]e don’t handcuff patients.” Trial Tr.
2/19/08 at 72. Both sides introduced evidence about the
general protocol that medical personnel follow when
dealing with a person having a medical seizure, evidence
from which the jury could have determined whether the
officers acted in a law-enforcement or medical-emergency-
responder capacity.

The dissent insists that the ultimate characterization
of the historical facts found by the jury- that is, whether
the conduct looked like law-enforcement or medical
-emergency-response work—is a legal question for the
court. One complication with this approach is that we
have sometimes reserved for the jury determinations that
appear to be legal in civil-rights suits under the Fourth
Amendment. The reasonableness of officer conduct in
excessive-force cases is a question for the court. Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007); Muehler v. Mena,
544 U.S. 98, 99 (2005). But we ask the jury to determine
whether a set of facts amounted to exigent circumstances.
See, e.g., Ewolski v. City of Brunswick, 287 F.3d 492, 501
(6th Cir. 2002) (noting that “exigent circumstances is
normally a question for the jury,” but that “where a finder
of fact could reach but one conclusion ... the issue may be
determined by the trial court as a matter of law” (internal
quotation marks omitted)); Jones v. Lewis, 874 F.2d 1125,
1130-31 (6th Cir. 1989) (“[W]hether a reasonable police

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Appendix A

officer, confronted with the situation facing the officers in
this case, could reasonably have concluded that immediate
action to arrest [plaintiff] was necessary in order to
prevent his escape is not indisputable and, therefore, was
a question for the jury.”). And, inconsistently, we have at
times asked the jury and at times reserved for the court
the issue of whether a set of facts provided officers with
probable cause. Compare Parsons v. City of Pontiac, 533
F.3d 492, 503 (6th Cir. 2008) (“We ultimately conclude that
th[e] evidence, when viewed in the light most favorable to
[the plaintiff], is not susceptible to only one reasonable
determination—that the detectives had probable cause
to arrest [him].”), and Radvansky v. City of Olmsted
Falls, 496 F.3d 609, 617 (6th Cir. 2007) (“[T ]he jury heard
testimony sufficient to support its conclusion that the
officers arrested [the plaintiff] with probable cause.”), and
Gardenhire v. Schubert, 205 F.3d 308, 315 (6th Cir. 2000)
(“[W Je must determine whether a jury could conclude that
a reasonable officer could have believed that the couple
had probably committed or were committing a crime.
There is substantial evidence supporting each party’s
position.”), with Hale v. Kart, 396 F.3d 721, 728 (6th Cir.
2005) (“[TJhe jury does not decide whether the facts it has
found are legally sufficient to amount to probable cause or
entitlement to qualified immunity.”), and Ross v. Duggan,
402 F.3d 575, 585 (6th Cir. 2005) (“{T]he judgment] ...
that pre-arrest probable cause existed on a given set of

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Appendix A

facts ... is a mixed issue of law and fact reviewed by the
courts de novo.”).°?

It may be questioned why we have assigned some
Fourth Amendment inquiries in civil suits to the court
and others to the jury, but we need not reach into that
thicket to resolve the instant case. The objective question
in this case involves a highly factual characterization,

6. In Ornelas v. United States, 517 U.S. 690 (1996), the
Supreme Court ruled that when reasonable-suspicion and
probable-cause determinations are made by a district judge in the
context of a motion to suppress in a criminal case, they are to be
reviewed by the court of appeals de novo. /d. at 699. The Supreme
Court did not consider whether those determinations might be for
a jury in the § 1983 context. cf Jones, 874 F.2d at #1130 (noting the
different treatment of exigent circumstances in suppression and
civil damages suits), and it is perhaps for this reason that our cases
have continued to discuss them as jury issues since Ornelas. The
dissent makes a thoughtful argument that the lesson of Ornelas
should be applied in civil suits. As discussed below, however, our
resolution of this case does not turn on this issue and we therefore
need not resolve it.

7. Note that in these eases, we have not merely said that
the jury could find certain facts that would, as a matter of law,
amount to exigent circumstances. We have also said that the jury
is entitled to determine whether a given set of facts satisfies those
objective standards. See, e.g, Parsons, 533 F.3d at 503 (noting that
viewing the evidence in the light most favorable to the plaintiff,
“jury could find that the information known to the detectives when
they arrested [him] falls short of this probable-cause standard”
(emphasis added)); Jones, 874 F.2d at 1130-31 (leaving the issue of
whether officers’ conduct could be characterized as being in “hot
pursuit” of the plaintiff— giving them exigent circumstances—up
to the jury).

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Appendix A

not a legal concept at the center of Fourth Amendment
law like reasonableness in the use of force, exigent
circumstances, or probable cause. The law enforcement/
medical-emergency responder distinction matters only in
the narrow elass of cases in which Peete might bar suit.
And while this question involves more than determining
what acts took place, juries are often asked to go beyond
the finding of historical facts and to make objective
characterizations in their role as factfinders. See, e.@.,
Biegas v. Quickway Carriers, Inc., 573 ¥.3d 365, 376 (6th
Cir. 2009) (stating that whether conduct meets reasonable-
person standard or rather is negligent is “a determination
that is generally left to the jury”); Clay v. United Parcel
Service, Inc., 501 F.3d 695, 707 (6th Cir. 2007) (stating
that whether harassment is “severe or pervasive” such
that it created a hostile work environment in violation
of Title VII “is quintessentially a question of fact”)
(internal quotation marks omitted). Moreover, it is not a
determination with which we have any unique experience
or expertise, and not one for which we can turn to our case
law for guiding principles. Like the jury, we would rely on
the evidence about medical-responder conduct adduced at
trial. Were we to determine this issue, we would simply
be substituting our judgment about the overall character
of a set of facts for that of the jury. And while leaving the
issue to the jury may lead to varied results, this is true
of other objective characterizations left to the jury, as
well. As in those cases, we retain the authority to make
the determination as a matter of law when a reasonable
jury could come to but one conclusion.

Z2la
Appendix A

McKenna’s jury clearly found that the officers had
acted in a law-enforcement capacity. The jury concluded
“(tlhat defendants Honsowetz and E:dgell intentionally
committed acts that violated the plaintiff Seott MeKenna’s
federal constitutional rights not to be subjected to an
unreasonable search or to excessive or unreasonable force
during an arrest.” Form of Verdict at 1 (Doc. 85). It found
the officers liable after being instructed by the judge as
follows: “| I]f you find that the police were not conducting a
search for criminal purposes, then the Fourth Amendment
does not apply and Plaintiff cannot recover on his claim of
unreasonable search.” Jury Instructions at 27 (Doc. 86).
“Where the purposes [sic] to render aid in an emergency,
rather than to enforce the law, the Fourth Amendment
does not apply.” /d. at 28. Both of these instructions
were included at the officers’ request. See Proposed Jury
Instructions at 14, 31 (Doc. 82).* The defendants offered
them with Peete in mind, see 7d. at 4, 13, 31 (citing Peete),
and the district court properly adopted them to account
for that case’s holding that liability for persons acting in
a medical-response capacity is not clearly established.

Accordingly, we must determine whether there
existed any set of facts under which a reasonable jury
could have found that, objectively, the officers acted in
a law-enforcement capacity. We conduct that inquiry
with respect to the two alleged violations in this case,
the unreasonable seizure of McKenna’s person and the
unreasonable search of his home, and find sufficient

8. Plainly, under these circumstances the officers cannot
argue that the charge did not adequately instruct the jury as to
the objective nature of its inquiry.

22a
Appendix A

evidence to support both. We also hold that even if the
question of the officers’ objective role is viewed as a
question for the judge and not the jury, qualified immunity
still does not apply. On the most plaintiff-friendly view
of the facts that could have been found by the jury, we
too conclude that the officers acted in a law-enforcement
capacity.

The jury easily could have found the following: The
officers arrived at the McKenna residence in response
to a 911 call reporting that McKenna might be having a
seizure or choking. One of the officers asked Alexandra
whether her father was using drugs, whether he had
assaulted her, and whether anything like this had ever
happened before. The appropriate response to a medical
seizure was not to restrain the subject but rather to clear
the area and let the episode run its course. Instead of
following that procedure, the officers handled McKenna,
repeatedly attempted to get him to put on his pants, and
tried to force him to rise in the face of his request that
they stop. Completely unprovoked by any aggressive or
dangerous behavior, they then rolled him over, pinned him
on his stomach with their knees, and handcuffed his arms
behind his back and his ankles. After McKenna had been
taken away to the hospital, the officers searched a dresser
drawer in his bedroom and the medicine cabinet in the
bathroom. In the process, they knocked down everything
on top of the dresser and threw out his children’s baby-
teeth collection. One of the officers also ran a check on
McKenna’s license plate.

This view of the facts undoubtedly supports a finding
that the officers acted in a law-enforcement capacity,

23a
Appendia A

and we would make the same judgment ourselves. That
the episode began with a 911 call and that it ended with
a hospital visit rather than an arrest are not the most
probative facts. Those facts are to be expected in a medical
emergency involving a patient who has not committed a
crime. Moreover, those facts mostly involve the conduct of
others, not of the defendant officers: Alexandra made the
911 call, and the firefighters took McKenna to the hospital.
The meat of the inquiry concerns what happened between
the very beginning and the very end—what the officers
themselves did.

Like the district court, we fail to see how it serves
any medical-emergency-responder purpose to persist in
insisting that a medically seizing individual put on his
pants. Questioning Alexandra about MecKenna’s possible
drug use, meanwhile, is equally suggestive of an inquiry
into the cause of McKenna’s medical condition and of an
investigation into wrongdoing. It looks more like the latter,
however, given that the officer also asked Alexandra about
domestic violence. Even so, alone, these questions would
make for a very close case. They are more consistent with
law-enforcement behavior, however, when viewed against
what happened next: the officers handled, subdued, and
handcuffed McKenna at the hands and feet without any
sign of violence on his part. All together, their treatment
of him was consistent with their treatment of a criminal
suspect believed to have abused illegal drugs.’ This

9. In fact, Officer Honsowetz later wrote in a report that he
had exactly this scenario in mind during the McKenna incident.
Of course, we do not consider that fact in an objective analysis of
the officers’ conduct.

24a
Appendix A

objective characterization of the officers’ conduct provides
a law-enforcement purpose for handcuffing McKenna: if an
individual is on drugs or otherwise given to unpredictable
behavior, restraining him gives the investigating officers
greater control over the situation, protects the officers,
and minimizes the individual’s ability to interfere with
their search. See United States v. Foster, 376 F.3d 577,
587 (6th Cir. 2004) (holding that it was reasonable for an
officer conducting a Terry stop and frisk of an individual
he believed to be on PCP to handcuff that individual based
on the officer’s experience that “people on PCP can become
extremely violent”).”°

The search conduct is consistent with this law-
enforcement posture. Under ordinary circumstances,
the officers’ search reasonably would be consistent with
a quest for clues about McKenna’s medical condition,
information that would be valuable to his treatment.
But coming immediately after the officers handcuffed
McKenna without cause instead of letting the medical
seizure run its course, the search looks investigatory.
Indeed, Alexandra’s testimony that the officers knocked
down all the items on top of the dresser and threw away
the baby-teeth collection is consistent with a rummage for
contraband and the indifference of a raid. Their jettisoning

10. If McKenna had lashed out or otherwise posed a physical
danger to himself or others, then restraining him would be
consistent with medical-responder training and behavior. The
dissent seems to recognize this in its second footnote. But if that
is accepted, then it is difficult to say that handcuffing McKenna
without any sign of violence was somehow a “response to
McKenna’s medical needs,” Dissent at 26.

25a
Appendix A

of McKenna’s personal effects does not convincingly
refiect an urgency for time-sensitive medical information:
McKenna had been stabilized by medical personnel and
taken to the hospital.

Finally, after all of this, the officers ran a check on
McKenna’s license plate. Though distinct from a search
of the LEIN, a license-plate database search can produce
incriminating information and is standard operating
procedure in police incidents. See United States v. Evans,
581 F.3d 333, 337 (6th Cir. 2009); United States v. Garrido-
Santana, 360 F.3d 565, 573 (6th Cir. 2004); United States
v. Mansur, No. 08-3872, 2010 WL 1140996, at *3 (6th Cir.
Mar. 25, 2010) (unpublished opinion); United States v.
Swain, 227 F. App’x 494, 495 (6th Cir. 2007) (unpublished
opinion). Certainly there is no self-evident medical-
responder valence to such a search.

We note that our conclusion here is consistent with our
dismissal of the officers’ earlier interlocutory appeal. At
that time, we observed that all of the officers’ arguments
for qualified immunity “rel{ied] on their own disputed
version of the facts, not the facts as alleged by McKenna.”
McKenna, 469 F.3d at 561. We lacked jurisdiction to
consider the appeal because there existed a set of facts
under which the jury could find a violation of clearly
established law. Our conclusion today recognizes that the

jury did find those facts: it believed MeKenna’s version of
the events and was fully capable of doing so.

_The briefing on appeal does suggest one basis for
relief that does not ignore the jury’s reasonable findings

26a
Appendix A

of fact. We could hold as a matter of law that police officers
who are dispatched to a location by a 911 call for medical
attention—a fact emphasized by the dissent—always act
in a medical-response capacity, regardless of the other
facts in the record. This proposal would be an illogical
and dangerous rule. It cannot be that an officer receives
Peete protection simply because he was invited to the
scene of a medical emergency. This proposition overlooks
the possibility that an encounter that begins as medical
in nature may evolve into one that is investigatory. More
importantly, such a rule would give officers who respond
to 911 calls free rein to rifle through callers’ homes in
search of incriminating evidence and to physically abuse
callers in ways unrelated to anyone’s safety. We decline to
immunize misconduct of this sort; instead, we allow this
case to stand on the judgment of the jury, in whose hands
qualified-immunity cases that turn on disputed facts have
traditionally rested. See Brandenburg v. Cureton, 882
F.2d 211, 215-16 (6th Cir. 1989).

2. Whether There Was a Constitutional Violation

It is clearly a violation of the Fourth Amendment
for police officers acting in a law-enforcement capacity
to seize a person and search his home without probable
cause. Dunaway v. New York, 442 U.S. 200, 213-14 (1979);
Chambers v. Maroney, 399 U.S. 42, 51 (1970). The officers
do not contend that they in fact had probable cause. This
is to be expected, as nothing in the record suggests
McKenna or anyone in his family had committed or was
committing a crime when the officers arrived. The officers
argue instead that the evidence adduced at trial does not

27a
Appendix A

support a finding that McKenna was “seized” within the
meaning of the Fourth Amendment. (They do not argue
that his home was not searched.)

In Peete, the court explained that, objectively, a seizure
is marked by “an intentional interference with a person’s
liberty by physical force or a show of authority that would
cause a reasonable person consciously to submit.” Peete,
486 F.3d at 220-21 (citing, inter alia, Bennett v. City of
Eastpointe, 410 F.3d 810, 833 (6th Cir. 2005)). The court
considered the relevance of a case raised by the plaintiff
there, Green v. City of New York, 465 F.3d 65 (2d Cir.
2006). In Green, the court denied qualified immunity to a
fire-department lieutenant who arranged for a nonverbal
ALS patient to be transported to the hospital despite the
patient’s insistence—through coded blinking and a talking
computer—that he had recovered from his episode of
breathing trouble and that he wanted to remain at home
with his family. /d. at 71, 83-84. In distinguishing Green,
the Peete court stated, “[uJnlike the instant case, the
individual in the Green case was conscious and competent
and objected to being taken into custody.” Peete, 486 F.3d
at 221. Apparently on the basis of this discussion in Peete,
the officers argue that McKenna was not seized because
he was not conscious during the incident at his home.
Appellants’ Br. at 38-40.

This argument is unavailing because there was
sufficient evidence of McKenna’s consciousness. Alexandra,
who witnessed almost the entirety of her father’s encounter
with the police, testified that he pulled away from the
officers at one point: “[H]e pulled back. He didn’t want

28a
Appendix A

to—he acted as if he didn’t want to sit up at all. He just
wanted to lay down.” Trial Tr. 2/14/08 at 28 (Doc. 110). The
officers point to McKenna’s complete lack of memory about
the incident, but it is possible for a person to be conscious
during an experience and yet not remember it. Moreover,
Alexandra testified that at one point, her father told the
officers to “stop.” Jd. at 30.

Neither Peete nor Green calls into question the
objective finding that the officers seized McKenna in
violation of his Fourth Amendment rights. The officers do
not contend that McKenna’s home was never “searched”
under the Fourth Amendment. The record contained
ample evidence to support the determination that the
officers unreasonably searched the home and seized
McKenna. As described above, both actions violated
clearly established constitutional rights, and the denial
of qualified immunity was appropriate.

C. Remittitur

On July 21, 2008, when the district court announced its
intention to remit $265,000 of the jury’s $275,000 award for
pain and suffering, it offered McKenna the choice between
the reduced award and a new trial. McKenna accepted the
remittitur on September 15, 2008. The Supreme Court has
clearly stated that a plaintiff cannot appeal a remittitur
after he has accepted it. Donovan v. Penn Shipping Co.,
429 U.S. 648, 649 (1977). McKenna acknowledges this line
of cases but argues that the cases were wrongly decided.
As we are bound by the Supreme Court, we must deny
his cross-appeal.

29a
Appendix A
Ill. CONCLUSION

For the foregoing reasons, we AFFIRM the district
court’s rejection of the officers’ qualified-immunity claim
in denying their motion for judgment notwithstanding the
verdict and for new trial and AFFIRM the remittitur of

damages.

30a
Appendix A
DISSENT

ROGERS, Circuit Judge, dissenting. I agree that
the relevant inquiry in this case is whether, viewed
objectively, the actions of Officers Edgell and Honsowetz
indicated that they acted as law enforcement officers or as
emergency medical responders. Because the nature of the
officers’ actions is a mixed question of law and fact, this
court should review the legal aspect of that determination
de novo. Under de novo review, Officers Edgell and
Honsowetz acted as emergency medical responders, and
thus they are entitled to qualified immunity.

Officers Edgell and Honsowetz are entitled to qualified
immunity if their activities, objectively viewed, indicate
that they were acting as medical responders as opposed
to law enforcement officers. Maj. Op. at 9-10 (citing Peete
v. Metro. Gov't of Nashville & Davidson County, 486 F.3d
217, 219 (6th Cir. 2007)). The jury’s determination does
not control the legal aspect of this issue. The Supreme
Court has held:

In determining whether a Fourth Amendment
violation occurred we draw all reasonable
factual inferences in favor of the jury verdict,
but as we made clear in Ornelas v. United
States, [517 U.S. 690, 697-99 (1996)], we do not
defer to the jury’s legal conclusion that those
facts violate the Constitution.

Muehler v. Mena, 544 U.S. 93, 98 n.1 (2005). In Muehler,
a woman detained during a search of a house pursuant to

dla
Appendix A

a warrant sued the officers who had executed the warrant
under 42 U.S.C. § 1983, arguing that “she was detained
for an unreasonable time and in an unreasonable manner
in violation of the Fourth Amendment.” Jd. at 96 (internal
quotation marks omitted). The district court found that
the officers were not entitled to summary judgment on
the issue of qualified immunity, and the Ninth Circuit
affirmed. /d. at 97. After a trial, a jury concluded that
the plaintiff had been detained in violation of the Fourth
Amendment and awarded her $60,000 in damages. Jd.
The Ninth Circuit again affirmed. Jd. The Supreme Court
vacated and remanded the judgment, holding that even
if all of the facts were construed in the plaintiff’s favor,
the defendants were entitled to qualified immunity. Jd.
at 97-98. In doing so, the Court reviewed the application
of the qualified immunity legal standards to the facts de
novo, even though the appeal was from a jury verdict. Jd.
at 98 n.l.

In the present context, this rule requires this court
to defer to the jury’s conclusions on factual issues such as
whether Officer Honsowetz asked Alexandra McKenna if
her father had assaulted her. This rule, however, requires
independent appellate review of “whether the facts satisfy
the [relevant] statutory [or constitutional] standard, or to
put it another way, whether the rule of law as applied to
the established facts is or is not violated.” Ornelas, 517
U.S. at 696-97 (insertions in original) (quoting Pullman-
Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). Here,
the relevant standard concerns whether the officers acted
as law enforcement officers or as emergency medical
responders, and this court must therefore review the
answer to this question de novo.

32a
Appendix A

This conclusion is consistent with the policy rationale
underlying Ornelas. In Ornelas, the Supreme Court
considered the standard of review applicable to probable
cause and reasonable suspicion determinations. 517 U.S.
at 695. The Court acknowledged that reasonable suspicion
and probable cause “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.” /d. (internal
quotation marks omitted) (quoting Jllinois v. Gates, 462
U.S. 213, 231 (1983)) . The Court further noted that these
two standards “are not readily, or even usefully, reduced to
a neat set of legal rules.” Jd. at 695- 96 (internal quotation
marks omitted) (quoting Gates, 462 U.S. at 232). This
same characterization applies to the question of whether
Officers Edgell and Honsowetz acted as law enforcement
officers or as emergency medical responders; this is
also a standard that deals with the factual and practical
considerations of everyday life, and it would likewise be
difficult to develop neat rules to delineate between law
enforcement and emergency medical response. Like
probable cause and reasonable suspicion determinations,
this question of law enforcement versus medical response
is a “fluid concept[] that take[s] [its] substantive content
from the particular contexts in which the standard[] [is]
being assessed.” /d. at 696. Even so, de novo appellate
review is appropriate for all of these concepts; indeed, such
review is “necessary if appellate courts are to maintain
control of, and to clarify, the legal principles.” /d. at 697.
This is perhaps all the more true here, in the context of
a newly enunciated standard. Deference to fact-finders,
in contrast, would lead to “varied results” which “would

33a
Appendix A

be inconsistent with the idea of a unitary system of law.”
Id.; see also Indmar Prods. Co., Inc. v. Comm’, 444 F.3d
771, 785- 86 (6th Cir. 2006) (Rogers, J., concurring) (noting
the importance of reviewing the legal aspects of mixed
questions of law and fact de novo to prevent “inconsistent
law” from being “applied to similarly situated persons,
even after appeal to a single appellate court”).

This court’s varying precedents on the standard
of review applicable to probable cause and exigent
circumstances determinations do not provide a basis for
ignoring the Supreme Court’s holdings from Muehler
and Ornelas. Mixed questions of law and fact, such as
probable cause and exigent circumstances determinations,
are sometimes reviewed deferentially—when the relevant
dispute concerns the underlying facts—and are at other
times reviewed de novo—when the relevant dispute
concerns the application of law to the underlying facts.
This court’s precedents state both of these principles
clearly with respect to both probable cause and exigent
circumstances determinations. Hale v. Kart, 396 F.3d 721,
728 (6th Cir. 2005) (“If disputed factual issues underlying
probable cause exist, those issues must be submitted to
a jury for the jury to determine the appropriate facts.”);
Ross v. Duggan, 402 F.3d 575, 585 (6th Cir. 2004) (holding
in a § 1983 suit that whether “pre-arrest probable cause
existed on a given set of facts” is “a mixed issue of law
and fact reviewed by the courts de novo” (citing Ornelas,
517 U.S. at 696-98)); Peterson Novelties, Inc. v. Clinton
Twp., 225 F.3d 659 (Table), 2000 WL 1091487, at *4 (6th
Cir. 2000) (“{T]he [district] court’s factual findings on
the existence of exigent circumstances will be disturbed

34a
Appendix A

only if they are clearly erroneous.” (second alteration
in original) (internal quotation marks omitted) (quoting
United States v. Johnson, 9 F.3d 506, 508 (6th Cir. 1993)));
Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.
1992) (“This court reviews de novo the district court’s
legal conclusions with respect to the issue of exigency.”).
At other times, however, we have been less clear about
when the underlying issues are legal or factual, and this
may have led to some drift of the applicable standard of
review between that for legal questions and that for factual
questions. See Indmar, 444 F.3d at 785-86 (Rogers, J.,
concurring) (describing how such drift could occur). And
in at least one case, we have apparently held that both
deferentia] and non-deferential standards of review apply
to the same issue:

The question of whether a set of historical
facts amounts to probable cause is a mixed
question of law and fact appropriate for de novo
appellate review. In general, the existence of
probable cause in a § 1983 action presents a jury
question, unless there is only one reasonable
determination possible.

Wrubel v. Bouchard, 65 F. App’x 933, 936 (6th Cir. 2003)
(internal quotation marks omitted) (citations omitted).

The clearest example of review-standard drift is in
Jones v. Lewis, 874 F.2d 1125 (6th Cir. 1989). Jones stated
simply:

Although, in a motion to suppress evidence
in a criminal case, the factual determination

Appendix A

whether exigent circumstances existed to
excuse a warrantless arrest is a question
for the court, when the issue arises in a civil
damage suit it is properly submitted to the jury
providing, given the evidence on the matter,
there is room for a difference of opinion.

ld. at 1130 (citations omitted). In so holding, the court
relied upon three other circuit court cases that, properly
read, do not support such a flat holding. '

1. In one cited case, Hindman v. City of Paris, Texas, 746
F.2d 1063 (5th Cir. 1984), the Fifth Circuit cited its own precedent
in explaining that “where facts relied upon to show probable
cause in a § 1983 action [for false arrest] are controverted, they
must be resolved by the jury before controlling legal principles
are applied.” /d. at 1067 (insertion in original) (internal quotation
marks omitted). Thus, the cited case held that the factual aspect
of probable cause must be decided by the jury before the legal
aspect can be decided by the court. This distinction was omitted
when Hindman was cited by Jones. The same flaw ultimately
underlies Jones’ citation to Gzordano v. Lee, 484 F.2d 1227 (8th
Cir. 1970). Giordano stated that “in civil rights actions... wherea
genuine issue of fact on the existence of probable cause for arrest
is presented, the question should be submitted to the jury.” /d.
at 1230. Giordano cited a Supreme Court case, Adickes v. S. H.
Kress & Co, 398 U.S. 144 (1970), for this proposition. Giordano,
434 F.2d at 1230. But Adickes held only that summary judgment
was inappropriate in a civil rights case where a purely fact tal
dispute remained contested, 398 U.S. at 157, and thus did not stand
for the conclusion reached by Giordano that mixed questions of
law and fact ought also to be submitted to the jury .ad reviewed,
in both their factual and legal aspects, deferentiaily. Finally, the
third case cited by Jones, Llagunov Mingey, 763 F.2d 1560, 1565
(7th Cir. 1985), did clearly state that “where the issue [of probable

36a
Appendix A

Outside of the exigent circumstances context, the
general principle that we review the legal aspect of
mixed questions of law and fact de novo is relatively well
preserved. In the probable cause context, we recently
outlined the distinction between the legal and the factual
aspects of this mixed question of law and fact:

When no material dispute of fact exists,
probable cause determinations are legal
determinations that should be made by a court.
[Case citations omitted.]

All of these Sixth Circuit cases stand for
the proposition that a jury trial is appropriate
where reasonable disputes of material fact
exist on facts underlying a probable cause
determination. However, where only one
reasonable reading of the facts is possible, i.e.,
where the facts that relate to probable cause are
not in dispute, the question of probable cause
retains its legal character and should be decided
by the judge. We admit that some of these Sixth
Circuit cases are confusing and many of the
factual recitals in them do not lend themselves
to a clear understanding of exactly what facts

cause] arises in a damage suit, it is . .. a proper issue for the jury if
there is room for a difference of opinion.” But the Seventh Circuit
has since overruled this holding of Llanguno in light of Ornelas
and Graham v. Connor, 490 U.S. 386 (1989). Bell v. Irwin, 321
F.3d 637, 640-41 (7th Cir. 2003). In the Seventh Circuit’s words,
Ornelas and Graham stand for the proposition that “[jjudges
rather than juries determine what limits the Constitution places
on official conduct.” Jd. at 641.

ava
Appendix A

were in dispute. Nevertheless, the rule that
probable cause is a legal question seems clear.

If disputed factual issues underlying
probable cause exist, those issues must be
submitted to a jury for the jury to determine
the appropriate facts. Similarly, with qualified
immunity, a court can submit to the jury the
factual dispute with an appropriate instruction
to find probable cause and qualified immunity
if the factual inquiry is answered one way and
to find probable cause and qualified immunity
lacking if the inquiry is answered in another
way. However, the jury does not decide whether
the facts it has found are legally sufficient to
amount to probable cause or entitlement to
qualified immunity.

Hale, 396 F.3d at 728.

But even if we have not always correctly applied
Ornelas and Muehler to other aspects of our Fourth
Amendment jurisprudence, we are bound to apply them
correctly here. These cases provide two clear holdings:
First, appellate courts review the legal aspect of mixed
questions of law and fact under the Fourth Amendment
de novo. Ornelas, 517 U.S. at 696-98. Second, this
standard of review applies to § 1983 suits as well as to
criminal appeals, and it applies even when an appellate
court is reviewing a jury verdict. Muehler, 544 U.S. at
98 n.1. We should therefore review the legal aspect of the
determination of the nature of the officers’ actions de novo.

asa
Appendix A

Viewed objectively in the light most favorable to
McKenna, the evidence from trial establishes that Officers
Edgell and Honsowetz acted as emergency medical
responders. The officers responded to Alexandra’s 911
call reporting that her father appeared to be choking
and was perhaps having a seizure. When the officers
arrived, Alexandra directed them to her father’s room.
The officers attempted to speak to McKenna but found him
unresponsive. Officer Honsowetz then pulled Alexandra
aside and asked her whether her father had taken any
drugs, whether and where there were any medicines or
illegal drugs in the house, and whether anything similar
had ever previously occurred. Alexandra responded that
her father had not taken any drugs, that the family stored
medicines in her father’s bathroom cupboard, and that
nothing similar had ever previously occurred. Officer
Honsowetz also asked Alexandra if her father had tried
to hit her, and she responded that he had not.

The officers then asked McKenna to sit up, and they
instructed Alexandra to make the same request of her
father. McKenna remained unresponsive. The officers
eventually foreed McKenna to sit on the side of the bed,
despite his continued attempts to lie down. Once McKenna
was sitting up, the officers asked him to put on his pants.
When McKenna did not respond to this request, the
officers tried to dress McKenna in his pants. At some
point during this period, McKenna mumbled the word
“stop.” When the officers attempted to stand McKenna
up to finish dressing him in his pants, McKenna was able
to free himself from the officers’ grip; McKenna fell onto
the bed, and one of the officers fell backwards towards

39a
Appendix A

McKenna’s bedroom dresser. The officers then handcuffed
McKenna’s wrists and ankles. McKenna’s only physical
resistance to this point had been his attempts to lie
_ down, and he had not to this point acted in an aggressive
manner towards the officers. Once handcuffed, McKenna
struggled against his restraints, and the officers held him
down on the bed. Soon after the officers had handcuffed
McKenna, the first firefighters and Emergency Medical
Response personnel arrived at the McKenna residence.
McKenna, still handcuffed, was placed on a stretcher,
taken downstairs to an ambulance, and then transported
to a hospital.

After the arrival of the firefighters and EMS
personnel, Officers Edgell and Honsowetz searched
McKenna’s bathroom cabinet and the top drawer of his
bedroom dresser. In searching the bedroom dresser, the
officers ousted much of its contents. At some point, the
officers requested that their dispatcher run McKenna’s
license plate. The officers did not run McKenna’s
information through the Law Enforcement Information
Network, which is standard procedure whenever there is
suspicion of criminal behavior.

The officers’ actions were more consistent with
emergency medical response than with enforcing the
law. The most general facts are the most probative: the
officers arrived in response to a 911 call complaining
of a medical emergency, and the results of the officers’
response were that McKenna was taken to the hospital
in an ambulance and that he received medical treatment.
McKenna was never arrested, incarcerated, or charged

40a
Appendix A

with any crimes. Cf Mills v. Hall, No. 06-15689, 2008 WL
2397652, at *8 (E.D. Mich. June 10, 2008). Neither the
handcuffing of McKenna nor the search of the bedroom
and bathroom is indicative of criminal investigation. The
officers’ handcuffing of McKenna might not have been
an ideal response to McKenna’s medical needs, but if
we believe Alexandra’s testimony that McKenna was
not posing any threat to the officers at the time they
handcuffed McKenna, the handcuffing also served no
plausible investigative purpose.” The officers’ search of
the bathroom cabinet and McKenna’s top dresser drawer
was consistent with a search for medicines or illegal drugs
that might explain McKenna’s condition. The officers did
not search any locations unlikely to contain medicines or
illegal drugs, and their choice to search the bathroom
cabinet followed naturally from Alexandra’s identification
of that cabinet as the likely location of any medicines in
the house. The only activity during the entire encounter
that might plausibly be viewed as more consistent with
a criminal investigation than with a medical response
was questioning Alexandra as to whether her father had
tried to hit her. But even this question was not clearly

2. If, contrary to Alexandra’s testimony, the handcuffing
served the purposes of controlling McKenna’s unpredictable
behavior and of protecting the officers’ safety, then it was not
unreasonable.

Firefighter Lambouris’s testimony that firefighters do
not handcuff patients is not probative of any relevant issue.
Firefighters do not handcuff patients because firefighters do not
carry handcuffs. They do carry leather restraints, and they use
them when necessary.

Ala
Appendix A

inconsistent with a medical response, as it might have both
assisted the officers in diagnosing the nature of McKenna’s
condition and alerted them to any possible danger that
McKenna might have posed. Even if this question was
investigatory, it certainly cannot alone overcome the
remainder of the evidence, all of which strongly indicates
that Officers Edgell and Honsowetz were acting as
emergency medical responders.

Because, objectively viewed, the officers were acting
as emergency medical responders, they are entitled
to qualified immunity. I would therefore reverse the
judgment of the district court.

42a

APPENDIX B — OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION FILED JULY 21, 2008

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Case No. 04-74546
Hon. John Corbett O’Meara

SCOTT E. McKENNA,
Plaintiff,
v.

CITY OF ROYAL OAK, P. CLONAN, PERRY
EDGELL and BRIAN HONSOWETZ,

Defendants.

OPINION AND ORDER DENYING MOTIONS FOR
JUDGMENT NOTWITHSTANDING THE VERDICT
AND FOR A NEW TRIAL AND GRANTING THE
MOTION FOR REMITTITUR

Before the court are Defendants’ Motions for Judgment
Notwithstanding the Verdict, for a New Trial, and for
Remittitur. The motions were filed March 18, 2008 and
have been fully briefed. For the reasons stated below, this
court denies the motions for judgment notwithstanding
the verdict and for a new trial, and grants the motion for
remittitur.

43a

Appendix B
FACTUAL BACKGROUND

The motions arise out of a March 4, 2008 jury
verdict that found Defendants Edgell and Honsowetz
(Defendants) liable for $281,000 in damages for violating
Plaintiffs Fourth Amendment rights. The facts presented
to the jury revolve around the March 18, 2004 response by
Defendants to a medical emergency. That day, Plaintiff's
14 year old daughter, Alexandra, called 911 because she
thought her father was choking and needed immediate
medical attention. What she was in fact describing
were signs of a seizure. Alexandra told 911 that her
father was making “growling noises” and his teeth were
clenched. When she called him by name, her father could
not respond. As a result, two Royal Oak Police Officers,
Defendants Edgell! and Honsowetz (Defendants), were
dispatched to Plaintiffs home in Royal Oak.

When they arrived, Defendants found Plaintiff in his
bedroom. Defendants stated that when they called Plaintiff
by name and gently shook him, he was able to somewhat
sit up in his bed and open his eyes, but that Plaintiff had
a “wild eyed” look in his face. Defendants testified that
they tried calming Plaintiff through verbal assurances
and by putting a hand on his shoulder; however, according
to Defendants, their words did not seem to register with
Plaintiff, and instead, Plaintiff became aggressive. As
Plaintiff struggled, Defendants held him on the bed and
eventually handcuffed Plaintiff for his own safety and
theirs. At about this time, EMS personnel arrived and
Plaintiff was sent by ambulance to Beaumont Hospital
for treatment. In all, Defendant officers portrayed their

44a
Appendix B

actions as purely medical, a first response to an emergency
that arose from Plaintiff’s seizure. Paramedics testified
that Defendants followed proper protocol by both holding
down Plaintiff and in searching for aleohol or drugs that
may have caused the seizure.

Plaintiff's view was significantly different. Plaintiff
through Alexandra’s testimony adds that the Defendant
officers took more of a law enforcement posture when
they arrived. Defendants asked if Plaintiff was using
drugs and if he had assaulted Alexandra. Plaintiff
portrayed the actions as non-medical, and investigatory
in nature. Defendants ran Plaintiff’s license plate, asked
the daughter about the possibility of assaults against
her and the use of illicit drugs, and searched Plaintiff's
bedroom and bathroom for drugs. Plaintiff also cited to
expert testimony to support the idea that Defendants’
use of restraint was inconsistent with police procedure
in medical emergencies.

LAW AND ANALYSIS
A. Standards of Review

In order to grant a judgment not withstanding the
verdict, the court must determine that “no reasonable jury
could have found for the nonmoving party.” United States
v. Alpine Industry, 352 F.3d 1017, 1022 (6" Cir. 2008). In
doing so, this court must view the evidence in a light most
favorable to the non moving party. /d.; Wehr v. Ryan’s
Family Steak Houses, 49 F.3d 1150, 1152 (6" Cir 1995).
Review of a decision in this matter will be done under a
de novo standard. Alpine Industries, 352 F.3d at 1022.

45a
Appendix B

Fed. R. Civ. P. 59(a)(1)(A) states that a court may
grant a new trial for any reason for which a new trial
has been granted previously in an action at law in
federal court. This court’s authority under Rule 59 “is
large” Bell v. Johnson, 404 F.3d 997, 102 (6 Cir. 2005);
however, generally a new trial is warranted under three
circumstances: (1) the verdict went against the weight of
the evidence; (2) the damages were excessive; or (3) the
trial was prejudiced or biased against the moving party.
Holmes v. City of Massillon, 78 F.3d 1041, 1045-46 (6 Cir.
1996). Where there is sufficient evidence that a reasonable
juror could have reached the challenged verdict, a new
trial is improper. Barnes v. Owens-Corning Fiberglas
Corp., 201 F.3d 815, 820-21 (6"" Cir. 2000).

A trial court may grant remittitur of a verdict when,
“after reviewing all the evidence in the light most favorable
to the awardee, it is convinced that the verdict is clearly
excessive, resulted from passion, bias or prejudice; or is so
excessive or inadequate as to shock the judicial conscience
of the court.” Mid-Michigan Computer Systems v. Marc
Glassman, Inc., 416 F.3d 505, 509 (6'* Cir. 2005).

B. Judgment Notwithstanding the Verdict and a New
Trial are not warranted. Remittitur is warranted.

The difficulty of the jury’s verdict is that it leaves
law enforcement in a tenuous position. On the one hand,
Defendants’ attempts to provide medical assistance have
left them with a Fourth Amendment violation that found
damages in excess of a quarter of a million dollars. On the
other hand, what would have happened had the officers
stood by and done nothing until paramedics arrived,

46a ’
Appendix B

or if the seizure was drug induced and the officers had
failed to inform treating physicians of this potential issue
because they failed to search for drugs? It is rather likely
that Defendants would have face a deliberate indifference
claim. Comstock v. McCray, 273 F.3d 693, 702 (6 Cir.
2001)

Although this quandary inclines this court toward
reversing the jury’s verdict, it cannot. When viewing
the evidence in a light most favorable to the non-moving
party, it is clear that a reasonable jury could come to
the same conclusion that this jury came to, that is that
Plaintiff's Fourth Amendment rights were violated. The
evidence indicated a search was conducted and a seizure
was made, both of which according to Plaintiff’s evidence
and witnesses were contrary to established procedure in
dealing with seizures. It is apparent that the jury gave
more credit to Plaintiff’s case than it did Defendants’
case which is its right. Although the court may disagree
with the jury’s findings, that alone is not enough to grant
judgment notwithstanding the verdict or a new trial. See
Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815,
820-21 (6 Cir. 2000)

That said, the award that the jury made in this case
is excessive and it shocks the conscience of this court.
The jury award was split into $6,000 for medical damages
and $275,000 for pain and suffering. Because Defendants
fail to argue the propriety of the $6000 medical damages
award, the court assumes that Defendants concede the
issue. As to the damages for pain and suffering, it is true
that there was testimony that Plaintiff’s attitude toward
police has changed since this incident; however, Plaintiff

47a
Appendix B

did not miss work or lose wages because of the incident.
Plaintiff admitted that overall, he and his family are doing
well and his family has since called the Royal Oak Police
Department for assistance which suggests at the most
a minimal amount of apprehension, but hardly a fear of
the police. As for the actual incident, Plaintiff concedes
that he has no recollection of it. His only real damage is a
subjective fear, again better phrased as apprehension, of
the police that still allows him and his family to turn to the
police when necessary. The court cannot find a reasonable
basis for such a large amount of pain and suffering
damages. The “pain and suffering” caused by Defendants’
actions is minimal at best, and one must fear what physical
damage could have been done had Defendants not acted.
In light of the evidence, the court finds that $10,000 is a
reasonable amount for pain and suffering. Accordingly,
the court will remit $265,000. If the Plaintiff chooses not
to accept the remittitur then a new trial will be required.

ORDER AND CONCLUSION

ITIS HEREBY ORDERED that Defendants’ motions
for judgment notwithstanding the verdict and for a new
trial are DENIED. Defendants’ motion for remittitur is
GRANTED.

The court affirms the jury’s medical damages award of
$6,000 and reduces the jury’s pain and suffering damages
award to $10,000.

SO ORDERED.

48a
Appendix B

In conclusion, this order sufficiently addresses the facts
and issues of this case, however, it does not necessarily
answer the greater question posed to this court: what
exactly should the police do in a situation such as this?
Plaintiff suggests that the answer lies in Champion v.
Outlook Nashville, 380 F.3d 893 (6% Cir. 2004) in which
the Sixth Circuit affirmed the district court’s decision
to deny the police qualified immunity and the district
court’s ruling that police used excessive force to seize a
nonverbal autistic adult. Although somewhat germane to
this case, the restraints used in Champion were much
more forceable to the point that they may have caused
Champion’s death. In this instance the force used merely
subdued a seizure victim until paramedics could attend
to his needs. Further, the search of McKenna’s home was
arguably reasonable since those attending to McKenna
had no knowledge at the time what caused the seizure.
As stated previously, it could have been precipitated by
drugs or alcohol.

What Plaintiff would have this court do is treat police
officers exclusively as law enforcement agents, holding
them strictly to the protections of the Fourth Amendment
regardless of their actions or intentions. However, the
responsibilities of police officers entail much more than
law enforcement. They are public safety officers who at
times are asked to give medical attention to citizens. The
home search in this case illustrates this function. The
court seriously doubts the officers intended to conduct
a search of Plaintiff’s bedroom and bathroom so they
could later arrest him for illegal drugs. Instead, they
were in the midst of a medical emergency that could be
better addressed if Plaintiff's paramedics and doctors
knew the cause of his seizure. That said, this court also

49a
Appendia B

acknowledges that giving police officers free reign in such
a situation essentially creates yet another exception to the
Fourth Amendment because of such an exception is open
to abuse in criminal investigations. This court is of the
mind that a middle ground could be found, one in which
police officers are granted qualified immunity to take the
steps necessary to ensure a citizen’s health and medical
needs. At the same time however, evidence found during
solely non-law enforcement conduct could be excluded.
Such a compromise would allow police officers the peace
of mind to address non-law enforcement issues while still
protecting the Fourth Amendment rights of a citizen.

Given the financial constraints of communities, it is
very likely this situation will appear again before this
court and others. Rather than submitting it to a jury, it
would be of benefit if the Sixth Circuit were to directly
address the issue of law enforcement’s obligation to the
fourth Amendment when law entorcement acts in a non-
law enforcement capacity.

/s/
John Corbett O'Meara
United States District Judge

Date: July 21, 2008

I hereby certify that a copy of the foregoing document
was served upon the parties of record on this date, July
21, 2008, by electronic and/or ordinary mail.

/ s/

William Barkholz
Case Manager

50a

APPENDIX C — OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION,

FILED SEPTEMBER 21, 2007

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Hon. John Corbett O’Meara
Case No. 04-74546
SCOTT E. McKENNA,
Plaintiff,
V.

THE CITY OF ROYAL OAK, a municipal
corporation, OFFICER P. CLONAN, BADGE
NO. 168, OFFICER P. EDGELL, BADGE NO. 208,
OFFICER B. HONSOWETZ, BADGE NO. 173, and
POLICE OFFICER JOHN DOES,
jointly and severally,

Defendants.

OPINION AND ORDER DENYING DEFENDANTS’
SECOND MOTION FOR SUMMARY JUDGMENT

Before the court is Defendants’ motion for summary
judgment, filed July 12, 2007. This matter has been fully

5la
Appendix C

briefed. The court heard oral argument on September
20, 2007, and took the motion under advisement. For the
reasons set forth below, Defendants’ motion is denied.

BACKGROUND FACTS

This is Defendants’ second motion for summary
judgment. With respect to the first motion, the court
granted summary judgment in favor of the City of Royal
Oak, but denied summary judgment with respect to
Plaintiff's claims against the individual police officers.
Specifically, the court denied the officers’ claim of qualified
immunity because the facts underlying that claim were
in dispute. The officers appealed; and the Sixth Circuit
affirmed. Subsequent to that appeal, the officers filed this
motion, claiming that a new Sixth Circuit case requires
that summary judgment be granted in their favor. See
Peete v. Metropolitan Govt. of Nashville, 486 F.3d 217
(6th Cir. 2007). For convenience, the court wil] restate
the facts.

This is an action brought pursuant to 42 U.S.C. §
1983. On March 18, 2004, Plaintiff, Scott McKenna,
was suffering from a seizure in his home in Royal Oak,
Michigan. He had apparently never had a seizure before.
His fourteen-year-old daughter, Alexandra, heard
McKenna making “growling” noises and thought he
sounded like he was choking. She called 911 and Royal
Oak police and emergency medical technicians were
dispatched to the home. Royal Oak police officers Edgell
and Honsowetz arrived first. Plaintiff's daughter directed
them to Plaintiff's bedroom, where they found Plaintiff

o2a
Appendix C

lying in bed. According to the officers, Plaintiff's breathing
was labored.

Alexandra McKenna testified that one officer asked
her some questions about her father’s condition, while the
other checked on Plaintiff. According to Alexandra, the
officers attempted to rouse Plaintiff and to help him get
dressed. Pl.’s Ex. D at 15-20.

The officers were talking to him, asking him
if he could get up.

They asked him to get up off his bed

Q: Did he respond to that in any fashion?

A: Not for a while. He sat up, but he was still
like mumbling, and he was still like doing
the same things.

After that, they told him to get his pants
on, and he got up. He started picking up his
pants, but then he just like sat back down
and started laying back down, and the police
tried to pick him back up.

They picked him up by his hands, and they
like pulled him up from the ground and told
him to put his pants on.

53a

Appendix C

Then he sat back down, and he didn’t want
them — I can’t say that. He rejected what
they were doing. He was trying to pull back,
and he didn’t want the police touching him.

He was telling them to stop.

Could you understand those words?

A: Yeah.

Was he still muttering and growling and
going on at the same time?

: Yes.

Okay. We’re at the point where they try to
what, guide him up with his hands?

: They took his wrists and pulled him up

They just tried to put — get his pants on, and
he was like — he kept pushing back and like
trying not to get them to — for them to — he
just didn’t want anyone touching him.

He was pulling back from them. So they
were trying to pull him up, and he was
trying to lay back down.

4a
Appendix C

Next the police officers kept on trying to
pull him up and get him to be standing
up, and he just laid back down, and they
eventually started handcuffing his wrists
and his ankles so he couldn’t move. And then
he got — he started moving a lot more after
that.

* * +

He started trying to move to try to get out
of the handcuffs, so he was moving around
a lot. His arms he was trying to get out of
the handcuffs as well as ankles. And so he
just was really moving a lot and the police
tried to get him to stop moving.

* * *

They were pressing down on him, so he
would stop moving.

Pl.’s Ex. D at 15-19.

The police officers presented a different story.
According to the officers, one of them attempted to rouse
Plaintiff by gently shaking him. The officers testified that
Plaintiff immediately became aggressive and violent,
pushing the officers away and causing Officer Honsowetz
to fall backwards. Officer Edgell claims that Plaintiff
ripped off the officer’s clip-on tie and his leather gloves.
The officers assert that it was necessary to handcuff
Plaintiff because of his violent and aggressive behavior.

O08
Appendix C

When the Royal Oak firefighters arrived on the
scene, they also described Plaintiff as “fighting with
the police” and “combative and strong.” The firefighters
strapped Plaintiff to a stretcher and transported him to
Beaumont Hospital. After receiving some medication,
Plaintiff apparently calmed down. He was diagnosed by
the emergency room doctor as having had a “new onset
seizure.” Plaintiff has no recollection the events that took
place during his seizure; he only remembers “waking up”
in the hospital.

Plaintiff filed this action against the City of Royal
Oak and Officers Edgell, Honsowetz, and Clonan.
Plaintiff's complaint asserts claims of assault and battery,
deprivation of civil rights pursuant to § 1983, false arrest
and imprisonment, and slander. The state claims were
remanded to state court, leaving Plaintiff’s § 1983 claim.
Specifically, Plaintiff contends that his Fourth Amendment
rights were violated when he was handcuffed, “arrested,”
and subjected to excessive force. As noted above, the court
has already dismissed the municipal liability claim against
the City of Royal Oak.

LAW AND ANALYSIS

The Defendant officers contend that they are entitled
to qualified immunity because their actions did not violate
Plaintiff’s clearly established constitutional rights. “In
civil damage actions arising out of governmental officials’
performance of discretionary functions, the officials are
generally entitled to qualified immunity from suit ‘insofar
as their conduct does not violate clearly established

56a
Appendix C

statutory or constitutional rights of which a reasonable
person would have known.” Greene v. Barber, 310 F.3d
889, 894 (6th Cir. 2002) (citation omitted). In determining
whether Defendants are entitled to qualified immunity,
the initial inquiry is as follows: “Taken in the light most
favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional
right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). “{I]
f a violation could be made out on a favorable view of
the parties’ submissions, the next, sequential step is to
ask whether the right was clearly established .... The
relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the
situation he confronted.” Jd. at 201-202.

Defendants contend that they are entitled to qualified
immunity pursuant to Peete. In that case, the defendants
were firefighters, paramedics and emergency medical
technicians. They were called to a home after the
decedent’s grandmother called 911. The decedent was
having an epileptic seizure. Upon arriving, the defendants
restrained the decedent by “using their bodies to apply
weight and pressure to his head, neck, shoulders, arms,
torso and legs in an attempt to prevent the decedent
from moving.” Peete, 486 F.3d at 220. Shortly after being
restrained in this manner, the decedent died.

The Sixth Circuit determined that there was no
Fourth Amendment violation, noting that “there are no
cases applying the Fourth Amendment to paramedics
coming to the aid of an unconscious individual as a result

ova
Appendix C

of a 911 call by a family member.” Jd. at 220. The court also
stated that “where the purpose is to render solicited aid
in an emergency rather than to enforce the law, punish,
deter, or incarcerate, there is no federal case authority
creating a constitutional liability for the negligence,
deliberate indifference, and incompetence alleged in the
instant case.” Jd. at 221.

The Defendant police officers assert that they arrived
at the McKenna house as “first responders” and that,
pursuant to Peete, the Fourth Amendment does not
apply to their actions. Defendants argue that they were
attempting to help McKenna and were not there in a law
enforcement capacity. Although Defendants’ argument
has some appeal, the court must view the facts in the
light most favorable to Plaintiff. Viewing the facts in that
light, it is not clear that the police officers were attempting
to provide medical assistance. According to Plaintiff's
daughter, the officers attempted to get Plaintiff out of bed
and get him dressed. Plaintiff resisted and attempted to
lie back down. According to the officers (and contrary to
Plaintiff's daughter’s testimony), Plaintiff then became
aggressive and violent and needed to be restrained. Unlike
the paramedics in Peete, the police officers here were
not necessarily offering medica! assistance.’ Although
the police officers were first on the scene and “first
responders,” it is not clear that trying to get someone out
of bed and get him dressed constitutes medical assistance.
At minimum, it appears that the police officers’ motivation

1. In Peete, the facts surrounding the paramedics’ actions
did not appear to be in dispute.

58a
Appendix C

is at issue. Accordingly, the court finds that Peete does
not apply here. See also Champion v. Outlook Nashville,
Inc., 380 F.3d 893, 900 (6th Cir. 2004) (“[W Jhere the legal
question of qualified immunity turns upon which version
of the facts one accepts, the jury, not the judge, must
determine liability.”).

Defendants also claim that the Fourth Amendment is
not designed to create liability for “inappropriate medical
treatment.” However, as noted above, it is not clear that
the police officers were attempting to render any medical
treatment. Therefore, this argument is inapposite.

ORDER

ITIS HEREBY ORDERED that Defendants’ July 12,
2007 motion for summary judgment is DENIED.

/s/John Corbett O’Meara
United States District Judge

Dated: September 21, 2007

I hereby certify that a copy of the foregoing document was
served upon the parties of record on this date, September
24, 2007, by electronic and/or ordinary mail.

/s/William Barkholz

Case Manager

59a

APPENDIX D — OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION,

FILED OCTOBER 19, 2005

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SCUTHERN DIVISION

Hon. John Corbett O’Meara
Case No. 04-74546
SCOTT E. McKENNA,
Plaintiff,
v.
THE CITY OF ROYAL OAK, a municipal
corporation, OFFICER P. CLONAN, BADGE
NO. 168, OFFICER P. EDGELL, BADGE NO. 208,
OFFICER B. HONSOWETZ, BADGE NO. 173, and

POLICE OFFICER JOHN DOES,
jointly and severally,

Defendants.
OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Before the court is Defendants’ motion for summary
judgment, filed August 15, 2005. Plaintiff submitted a

60a
Appendix D

response on September 14, 2005; and Defendants filed
a reply on September 19, 2005. The court heard oral
argument on October 6, 2005, and took the matter under
advisement. For the reasons set forth below, the court
grants in part and denies in part Defendants’ motion.

BACKGROUND FACTS

This is an action brought pursuant to 42 U.S.C.
§ 1983. On March 18, 2004, Plaintiff, Scott McKenna,
was suffering from a seizure in his home in Royal Oak,
Michigan. He had apparently never had a seizure before.
His fourteen-year-old daughter, Alexandra, heard
McKenna making “growling” noises and thought he
sounded like he was choking. She called 911 and Royal
Oak police and emergency medical technicians were
dispatched to the home. Royal Oak police officers Edgell
and Honsowetz arrived first. Plaintiffs daughter directed
them to Plaintiff's bedroom, where they found Plaintiff
lying in bed. According to the officers, Plaintiffs breathing
was labored.

Alexandra McKenna testified that one officer asked
her some questions about her father’s condition, while the
other checked on Plaintiff. According to Alexandra, the
officers attempted to rouse Plaintiff and to help him get
dressed. Pl.’s Ex. 4 at 15-20.

The officers were talking to him, asking him
if he could get up. They asked him to get up
off his bed.

Q:
A:

Q:

Q:

6la
Appendix D
Did he respond to that in any fashion?

Not for a while. He sat up, but he was still
like mumbling, and he was still like doing
the same things.

* * *

After that, they told him to get his pants
on, and he got up. He started picking up his
pants, but then he just like sat back down
and started laying back down, and the police
tried to pick him back up. They picked him
up by his hands, and they like pulled him
up from the ground and told him to put his
pants on.

* * *

Then he sat back down, and he didn’t want
them - I can’t say that. He rejected what
they were doing. He was trying to pull back,
and he didn’t want the police touching him.

He was telling them to stop.

Could you understand those words?

A: Yeah.

Was he still muttering and growling and
going on at the same time?

A:

Q:

A:

62a
Appendia D
Yes.

Okay. We’re at the point where they try to,
what, guide him up with his hands?

They took his wrists and pulled him up.

* * *

They just tried to put - get his pants on, and
he was like - he kept pushing back and like
trying not to get them to - for them to - he
just didn’t want anyone touching him.

He was pulling back from them. So they
were trying to pu)] him up, and he was
trying to lay back down.

Next the police officers kept on trying to
pull him up and get him to be standing
up, and he just laid back down, and they
eventually started handeuffing his wrists
and his ankles so he couldn’t move. And then
he got - he started moving a lot more after
that.

* * *

He started trying to move to try to get out
of the handcuffs, so he was moving around
a lot. His arms he was trying to get out of
the handcuffs as well as ankles. And so he

63a
Appendix D

just was really moving a lot and the police
tried to get him to stop moving.

They were pressing down on him, so he
would stop moving.

Pl.’s lex. 4 at 15-19.

The police officers presented a different story.
According to the officers, one of them attempted to rouse
Plaintiff by gently shaking him. The officers testified that
Plaintiff immediately became aggressive and violent,
pushing the officers away and causing Officer Honsowetz
to fall backwards. Officer Edgell claims that Plaintiff
ripped off the officer’s clip-on tie and his leather gloves.
The officers assert that it was necessary to handcuff
Plaintiff because of his violent and aggressive behavior.

When the Royal Oak firefighters arrived on the
scene, they also described Plaintiff as “fighting with
the police” and “combative and strong.” The firefighters
strapped Plaintiff to a stretcher and transported him to
Beaumont Hospital. After receiving some medication,
Plaintiff apparently calmed down. He was diagnosed by
the emergency room doctor as having had a “new onset
seizure.” Plaintiff has no recollection the events that took
place during his seizure; he only remembers “waking up”
in the hospital.

64a
Appendix D

Plaintiff filed this action against the City of Royal
Oak and Officers Edgell, Honsowetz, and Clonan.
Plaintiff's complaint asserts claims of assault and battery,
deprivation of civil rights pursuant to § 1983, false arrest
and imprisonment, and slander. The state claims were
remanded to state court, leaving Plaintiff's § 1983 claim.
Specifically, Plaintiff contends that his Fourth Amendment
rights were violated when he was handcuffed, “arrested,”
and subjected to excessive force.

LAW AND ANALYSIS

Defendants claim that (1) Plaintiff has failed to
establish a cause of action against the individual officers
because Plaintiff was not arrested and the officers used
reasonable force to restrain him; (2) the officers are
entitled to qualified immunity; and (8) the City of Royal
Oak is not liable because there is no evidence that the
city’s policy was the moving force behind the alleged
constitutional violations.’

I. Fourth Amendment Violations

Defendants claim that there is no Fourth Amendment
violation because Plaintiff was not technically “arrested”
and that reasonable force was used to restrain him.
However, a person need not be “arrested” and transported
to the station house to be considered “seized” within the

1. Defendants also argued that Officer Clonan should be
dismissed because he was not personally involved with the events
at issue here. The parties agreed at the hearing that Officer Clonan
should be dismissed without prejudice.

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Appendix D

meaning of the Fourth Amendment. A “person has been
seized within the meaning of the Fourth Amendment only
if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that
he was not free to leave.” United States v. Buchanon,
72 F.3d 1217, 1223 (6th Cir. 1995) (citation omitted). See
also Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (“A
‘seizure’ triggering the Fourth Amendment’s protections
occurs only when government actors have, ‘by means
of physical force or show of authority, . . . in some way
restrained the liberty of a citizen.””).

In this case, it is undisputed that Plaintiff was
handcuffed and restrained by the officers. A reasonable
person would not have believed Plaintiff was free to leave
at that time. Although Defendants claim that Plaintiff
was only restrained so that he was not “free to attack
the officers,” there are differing accounts of the events
that day. Plaintiff's daughter testified that Plaintiff did
not “attack” the police, but was merely attempting to
remain in bed. Notably, Defendants do not argue that
their actions were reasonable even if Plaintiff’s version
of events is accepted.

“Tn order to assess the reasonableness of [the officer’s]
conduct as a general proposition, it is necessary ‘first to
focus upon the governmental interest which allegedly
justifies official intrusion upon the constitutionally
protected interests of the private citizen,’ for there is ‘no
ready test for determining reasonableness other than by
balancing the need to search (or seize) against the invasion
which the search (or seizure) entails.” Terry v. Ohio,

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Appendix D

392 U.S. 1, 21 (1968) (citation omitted). Because the facts
are disputed, this court is not in a position to determine
whether the defendant officers’ seizure of Plaintiff was
reasonable under the circumstances. These questions of
fact preclude summary judgment on the issue of whether
Plaintiff's seizure was reasonably necessary to protect
the officers’ safety, as they claim.

The same is true with respect to Plaintiff's excessive
force claim. “Determining whether the force used to
effect a particular seizure is ‘reasonable’ under the
circumstances requires a careful balancing of the
nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing
government interests at stake.” See Graham, 490 U.S. at
396 (citation and internal quotation marks omitted).

Plaintiff asserts that the officers provoked the
situation by forcing the Plaintiff to get out of bed before
the EMTs arrived to treat him. Defendants claim that
they used reasonable force under the circumstances,
because Plaintiff was violent and aggressive. Plaintiff’s
daughter testified, however, that her father kept trying
to get back in bed and did not “attack” the police. Based
upon Plaintiff’s daughter’s account of the events, it
may not have been reasonable for the police to forcibly
handcuff and restrain Plaintiff. See Champion v. Outlook
Nashville, Inc., 380 F.3d 893, 900-905 (6th Cir. 2004)
(“The diminished capacity of an unarmed detainee must
be taken into account when assessing the amount of force
exerted.”). Again, Defendants do not cite authority for
the proposition that, under Plaintiff’s version of events,

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Appendix D

the amount of force was reasonable as a matter of law.
Accordingly, there are material questions of fact that
preclude summary judgment on this issue.

II. Qualified Immunity

In the alternative, Defendants claim that the
individual officers are entitled to qualified immunity. “In
civil damage actions arising out of governmental officials’
performance of discretionary functions, the officials are
generally entitled to qualified immunity from suit ‘insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Greene v. Barber, 310 F.3d
889, 894 (6th Cir. 2002) (citation omitted). In determining
whether Defendants are entitled to qualified immunity,
the initial inquiry is as follows: “Taken in the light most
favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional
right?” Saucier v. Katz, 533 U.S. 194, 201 (2001).
“(I]f a violation could be made out on a favorable view of
the parties’ submissions, the next, sequential step is to
ask whether the right was clearly established ... . The
relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the
situation he confronted.” Jd. at 201-202.

As discussed above, taken in the light most favorable
to Plaintiff, the facts suggest that Plaintiff’s Fourth
Amendment rights were violated. Defendants contend,
without much analysis, that a reasonable person in their

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Appendix D

position would have believed their actions were lawful.
However, Defendants’ argument hinges on the court’s
acceptance of Defendants’ version of the facts — that
Defendants were only acting to restrain a violent and
aggressive individual. Defendants do not argue that they
are entitled to qualified immunity under Plaintiffs version
of the facts of this case. Accordingly, as discussed above,
these disputed issues of fact make summary judgment
inappropriate on Defendants’ qualified immunity claim.
See Champion, 380 F.3d at 900 (“[W]Jhere the legal
question of qualified immunity turns upon which version
of the facts one accepts, the jury, not the judge, must
determine liability.”).

III. Municipal Liability

Plaintiff claims that the City of Royal Oak is liable
under § 1983 because it has a policy or practice of failing
to properly train its officers to respond to calls for medical
assistance. The standard for liability for failure to train
is as follows:

We hold today that inadequacy of police training
may serve as a basis for § 1983 liability only
where the failure to train amounts to deliberate
indifference to the rights of persons with whom
the police come into contact. This rule is most
consistent with our admonition in Monell. . .
that a municipality can be liable under § 1983
only where its policies are the moving force
[behind] the constitutional] violation. Only where
a municipality’s failure to train its employees

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Appendix D

in a relevant respect evidences a “deliberate
indifference” to the rights of its inhabitants
can such a shortcoming be properly thought
of as a city policy or custom that is actionable
under § 1983.

City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Plaintiff acknowledges that the officers “have had one
course in Epileptic training,” although he asserts that “it
was apparently inadequate or the officers would not have
conducted themselves in the manner they did.” PIl.’s Br.
at 7. Plaintiff does not appear to meet, however, the high
standard of “deliberate indifference” outlined in Harris:

In resolving the issue of a city’s liability, the
focus must be on adequacy of the training
program in relation to the tasks the particular
officers must perform. That a particular officer
may be unsatisfactorily trained will not alone
suffice to fasten liability on the city, for the
officer’s shortcomings may have resulted from
factors other than a faulty training program. It
may be, for example, that an otherwise sound
program has occasionally been negligently
administered. Neither will wt suffice to prove
that an injury or accident could have been
avoided if an officer had had better or more
training, sufficient to equip him to avoid the
particular injury-causing conduct. Such
a claim could be made about almost any
encounter resulting in injury, yet not condemn

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Appendix D

the adequacy of the program to enable officers
to respond properly to the usual and recurring
situations with which they must deal. And
plainly, adequately trained officers occasionally
make mistakes; the fact that they do says little
about the training program or the legal basis
for holding the city liable.

Harris, 489 U.S. at 390-91 (emphasis added). Based on
the record before the court, it appears that Plaintiff is
merely claiming that the officers here would not have
handcuffed or injured him had they been properly trained.
This is not sufficient under Harris. Accordingly, summary
judgment is appropriate in favor of the City of Royal Oak
on Plaintiff’s municipal liability claim.

ORDER

Therefore, IT IS HEREBY ORDERED that
Defendants’ motion for summary judgment is GRANTED
IN PART with respect to Plaintiffs claim against the City
of Royal Oak.

It is further ORDERED that Defendants’ motion for
summary Judgment is DENIED IN PART with respect to
Plaintiff’s Fourth Amendment and Defendants’ qualified
immunity claims.

Tla
Appendix D

It is further ORDERED that, consistent with the
agreement of the parties, Plaintiff’s claim against
Defendant Officer Clonan is DISMISSED WITHOUT
PREJUDICE.

/s/
John Corbett O’Meara
United States District Judge

Dated: October 19, 2005

72a
APPENDIX E — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED ON OCTOBER 26, 2010

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 08-2080
SCOTT E. MCKENNA,
Plaintiff-Appellee,
v.
OFFICER P. EDGELL, ET AL.,
Defendants-Appellants.
FILED
Oct 26, 2010
LEONARD GREEN, Clerk
ORDER

BEFORE: MOORE, ROGERS, and, GIBSON,* Circuit
Judges.

The court having received a petition for rehearing
en banc, which was circulated to all active judges of this

* Hon. John R. Gibson, Senior United States Circuit Judge
for the Eighth Circuit Court of Appeals, sitting by designation.

73a
Appendix E

court, none of whom requested a vote on the suggestion
for rehearing en banc, the petition for rehearing has been
referred to the original panel.

The panel has further reviewed the petition for
rehearing and concludes that the issues raised in
the petition were fully considered upon the original
submission and decision of the case. Accordingly, the
petition is denied. Judge Rogers would grant rehearing
for the reasons stated in his dissent.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0877%3A2. Public record. Not legal advice.