Phelps v. City of Saginaw

Incident Summary & Facts

On July 26, 2020, Cornelius Phelps and other members of the activist group “Ghost of George Floyd” set up a table on a grassy strip next to the Saginaw Fraternal Order of Police lodge, inviting officers to talk about police brutality. After the FOP president said the land was private property, Officers Jackson, Kzinowek, and Moore approached. The encounter was captured on three body cameras, a dashcam, and a bystander’s phone. Phelps calmly argued that the group was on a public right-of-way. When Phelps said he had no ID, Jackson told him to put his hands behind his back and grabbed his wrist. Phelps kept his arms in front of him, hands open, said he was afraid and had been assaulted by police before, and asked officers to “slow down.” One handcuff was placed on his left wrist. Officers took him to the ground, and Jackson kneed him four times while Phelps was on his hands and knees. Phelps apparently pulled his right arm from Kzinowek’s grasp. He was not told he was under arrest until later.

Phelps then turned to sit on the ground, leaning back and facing the officers with his open hands raised, pleading “please don’t” and “I’m begging you.” For about a minute and a half, no officer touched him while Moore stood “several feet” away pointing a taser and officers repeatedly ordered him to put his hands behind his back. After warnings, Moore fired the taser in probe mode, then tased him three more times: about three seconds, about fifteen seconds, and fifteen seconds after that, for four tasings within roughly thirty-five seconds. Phelps said “I can’t move” before the fourth. He was handcuffed, had a bloody wound, soiled himself, and later urinated blood. He was acquitted of trespassing, and the resisting and obstruction charges were dismissed.

Phelps sued under § 1983. The district court denied Officer Moore summary judgment on qualified immunity for the excessive-force claim, and Moore brought an interlocutory appeal.

Core Legal Issue

Whether, viewing the video evidence in the light most favorable to Phelps, Officer Moore’s repeated tasing of a seated, hands-up, non-compliant but non-violent suspect was excessive force under the Fourth Amendment, and whether the right not to be tased when not actively resisting was clearly established in July 2020.

The Holding

A reasonable jury could find that Phelps was not actively resisting when he was tased, so the tasing violated the Fourth Amendment, and that right was clearly established by July 2020. The panel affirmed the denial of qualified immunity and remanded.

The Court’s Analysis:

• Severity of the crime (Graham): Trespassing is a “minor offense,” and nonviolent obstruction or resisting is not severe. The officers were on routine patrol, not answering an emergency.
• Immediate threat: Phelps stayed calm, made no threats, and showed no sign of a weapon: “no evasive movements towards a waistband, no threats of violence, no charging towards the officer.” Hands raised in “the surrender position” indicate little threat. The court rejected Moore’s arguments about the dangling handcuff and the gun on Moore’s ankle because the video showed no attempt to use either.
• Active vs. passive resistance: “Noncompliance alone does not indicate active resistance.” Failing to present one’s arms for cuffing is passive resistance at most and does not justify a taser. Flailing after the probes hit was “fairly attributable to the effects of the taser,” and Moore gave insufficient time to comply between cycles. Tasing a suspect who “has ceased resisting” is excessive “even if the suspect did offer some resistance at the outset.”
• Barnes v. Felix: The court said it had not “put on chronological blinders.” The earlier struggle was considered but was “not particularly relevant” given the ninety seconds of relative calm. An “officer’s frustration does not make reasonable a use of force.”
• Clearly established: Goodwin v. City of Painesville and Kent v. Oakland County, among other cases, put Moore on notice. Circuit precedent had settled the right “by 2018,” “by 2019,” and “in April 2020.”
• Dissent (Thapar, J.): Phelps disobeyed more than 70 orders, physically fought off handcuffing, and had a loose metal handcuff usable as a weapon. Circuit law on whether resisting handcuffs is “active resistance” was “seemingly contradictory,” so the law was not clearly established, and the majority’s 90-second focus itself applied chronological blinders.