United States District Court, M.D. Tennessee, Nashville Division
AMENDED MEMORANDUM AND ORDER
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
McGilmer brought this action against Officer Dezmond Hughes,
pursuant to 42 U.S.C. § 1983, alleging that Hughes used
excessive force when using a Taser on McGilmer. (Doc. No. 1.)
Before the Court is Hughes' Motion for Summary Judgment
on the basis of qualified immunity. (Doc. No. 33.) For the
following reasons, Hughes' motion is GRANTED IN PART and
DENIED IN PART.
11, 2014, Officer Leonard Cato and his officer-in-training
Joel Callies responded to the Executive Inn in response to an
aggravated assault call. (Doc. No. 40 at 1.) Dispatch
described one suspect as a black male with a mohawk haircut
wearing a black shirt and camouflage shorts that had pulled a
gun on the complainant. (Id.) The other suspect was
a white male wearing a white shirt and blue pants.
(Id.) The suspects were reported to be staying in
room 132. (Id.)
interviewed the complainant, Derrick Stephenson, who told
Cato how the suspects approached him aggressively outside his
room. (Id.) Stephenson reported that the black male
suspect pointed a gun at him and threatened him while
following Stephenson to his car. (Id.) Stephenson
reported that two females were with the suspects, and the
females were attempting to persuade the suspects to go back
to the room to prevent an altercation. (Id. at 1-2.)
This version of events was corroborated by Shontay Smart, a
witness. (Id. at 2.) Cato then reviewed video of the
events, which corroborated Stephenson's story.
(Id.) The video showed that the suspects left the
hotel and were not in room 132. (Id.) Cato briefed
the officers present, including Hughes, on what had happened.
(Id.) Callies prepared a police report, an officer
notified a precinct detective, and the officers left the
scene. (Id. at 3.)
thereafter, dispatch notified Cato and Callies that
Stephenson called to notify them that the suspects had
returned. (Id.) Several officers returned to the
scene, including Cato, Callies, and Detective Polk.
(Id.) Officers attempted several times to make
contact with the suspects who appeared to be in room 132, and
finally a black male partially opened the door and stated
that there was no reason for the officers to be there and
nobody was coming out or in. (Id.) Later, a white
male partially opened the door and told the officers to get a
warrant. (Id. at 3-4.) Officers identified four
people inside the room-two male and two female. (Id.
point, Sergeant Terrence Bradley came to the scene.
(Id. at 4.) Cato informed him that (1) there were
four suspects inside the hotel room; (2) the suspects were
believed to be armed with a handgun; (3) there was a strong
odor of marijuana coming from room 132; and (4) the suspects
were not allowing police to enter the room, and the suspects
would not leave the room. (Id.) Officers secured the
area, cleared the rooms adjacent to room 132, and continued
to attempt to persuade the suspects to come out of the room
while detectives prepared a search warrant to gain entry to
the room. (Id.) The occupants opened and then
quickly shut the door a few times. (Id. at 6.)
the black male, later identified as McGilmer, came out of the
room with his hands up and stood facing police officers in
front of the doorway to the room. (Id.; Doc. No. 42
at 7.) When he did, he stood directly in front of the door
and an officer stood directly in front of him. (Id.;
Doc. No. 41-1 at 3.) McGilmer was holding a bag of skittles
in his left hand. (Doc. No. 42 at 7.) McGilmer told the
officer that he was going to eat his candy. (Doc. No. 40 at
6; Doc. No. 41-1 at 3.) As McGilmer exited the room, the
curtain in the window of the room also opened. (Doc. No. 40
at 7.) Cato could see people moving within the motel room,
but the glare on the window prevented Cato from clearly
seeing what they were doing. (Id.) Bradley advised
the officers to remain covered because of the threat of
McGilmer or one of the remaining occupants having a weapon.
(Id. at 8.) McGilmer never threatened or resisted
the officers, nor did he disobey their commands. (Doc. No.
41-1 at 3.)
moved into position with his police-issued Taser. (Doc. No.
40 at 9.) Cato and Bradley claim that there was a Taser
warning followed by Hughes' deployment of the Taser, but
McGilmer denies hearing a Taser warning. (Id. at
9-10.) The Taser hit McGilmer in the rear and administered a
five second burst, bringing McGilmer to the ground.
(Id. at 10.)
STANDARD OF REVIEW
reviewing a motion for summary judgment, this Court will only
consider the narrow question of whether there are
“genuine issues as to any material fact and [whether]
the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). The Court is required to view
“the facts and reasonable inferences in the light most
favorable to the nonmoving party . . . .” Ferrari
v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016)
(citing Cass v. City of Dayton, 770 F.3d 368, 373
(6th Cir. 2014)). In the qualified immunity setting,
“the plaintiff bears the burden of demonstrating that
the defendant is not entitled to qualified immunity.”
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403
(6th Cir. 2007).
argues that he is entitled to qualified immunity because his
actions were objectively reasonable under the Fourth
Amendment. (Doc. No. 35 at 13-15.) McGilmer argues that there
are disputed issues of fact as to whether he posed a threat
or actively resisted and whether he was warned before the
Taser was discharged, and thus summary judgment is not
immunity is an affirmative defense available to public
officials in cases brought under 42 U.S.C. § 1983.
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). To
determine whether qualified immunity is appropriate, the
court conducts a two-part test: (1) decide whether the facts
in the light most favorable to the plaintiff make out a
violation of a constitutional right; and (2) determine
whether the right was “clearly established” at
the time of the defendant's alleged ...