Excessive force Fourth Amendment violation claim under 42 USC § 1983; Qualified immunity; Whether defendants use of force violated a “clearly established right”

[This appeal was from the WD-MI.] The court held that defendants-police officers were entitled to qualified immunity because plaintiff-Dannah failed to show they violated a clearly established right. The police stopped a vehicle for a traffic infraction and requested that Dannah (the passenger) and his girlfriend (the driver) exit the vehicle. As an officer tried to complete a pat down, “Dannah twisted away and started to run.” He was tackled and handcuffed. He sued under § 1983 alleging that the police search and seizure, and the use of “excessive force,” violated the Fourth Amendment. The district court denied the officers qualified immunity on the excessive-force claim. On appeal, the court held that there was no “clearly established right that prevented the officers from using force to rein in Dannah’s ‘volitional and conscious defiance’ during the frisk.” He had been noncompliant “from the start. When the officers pulled Dannah aside to conduct a frisk, he ‘kept placing his hands down by his waistband’ even after repeated commands to place his hands on his head.” A physical struggle then occurred when he broke away from an officer “and tried to run away. Dannah’s active, physical resistance and potential threat ‘permit[ted] increasing exercises of force . . . to subdue [him].’ Officers hit and grabbed him only while ‘attempt[ing] to restrain’ him as he flailed and kept his hands out of reach.” The court noted once he “was handcuffed and no longer a threat, the physical force ended.” It concluded that no case law clearly established “that this amount of force entered the forbidden territory of excessiveness, much less in an ‘obvious’ way.” It found that the “punches and yanking in this instance present no greater physical imposition than a typical tasing, which we have permitted in similar circumstances. Given an unalleviated concern about a weapon and given Dannah’s continued physical resistance, the officers’ choice to apply physical force until they could handcuff [him] did not cross any clearly established lines.” The fact that they did not uncover drugs or a weapon did not support his proposed inference “that they never should have frisked him in the first instance.” What mattered was “whether a reasonable officer in this situation would have had a legitimate reason to conduct this frisk and to take the subsequent actions these officers did to protect their safety.” Reversed.