Jorden Brown v. Samuel Giles, in his individual capacity

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JORDEN BROWN,
Plaintiff-Appellant,
v.
SAMUEL GILES, in his individual capacity; ERIC
SPURLOCK, in his individual and official capacities;
VILLAGE OF COAL GROVE, OHIO; BILL MURPHY, in his
official capacity as Village of Coal Grove Chief of
Police,
Defendants-Appellees.
┐
│
│
│
│
│
│
│
│
│
│
│
┘
No. 23-3142
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:21-cv-00540—Douglas Russell Cole, District Judge.
Decided and Filed: March 5, 2024
Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Gregory A. Napolitano, Paul M. Laufman, LAUFMAN & NAPOLITANO, LLC,
Cincinnati, Ohio, for Appellant. Cassaundra L. Sark, Randall L. Lambert, LAMBERT LAW
OFFICE, Ironton, Ohio, for Appellees.
THAPAR, J., announced the judgment of the court and delivered the lead opinion in
which GIBBONS, J., joined in the result. GIBBONS, J. (pg. 7), delivered a separate concurring
opinion. WHITE, J. (pp. 8–12), delivered a separate dissenting opinion.
>

-- 1 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 2
_________________
OPINION
_________________
THAPAR, Circuit Judge. When Jorden Brown fled from police, Officer Samuel Giles
tased him. The district court dismissed Brown’s excessive force claims against Officer Giles, the
police chief, and the municipality. We affirm.
I.
Jorden Brown, struggling with addiction and homelessness, showed up outside his
mother’s workplace. He hoped she would give him money and a place to stay. Instead, she
asked police for assistance, knowing Brown had a warrant out for his arrest.
Officer Samuel Giles responded to the call. Brown gave Officer Giles a fake name and
denied knowledge of the warrant. While the two spoke, Officer Giles repeatedly told Brown to
stay put. Brown promised, “I ain’t going to run on you.” R. 1-1, at 19:02:40. But the moment
Officer Giles stepped away to take a phone call, Brown bolted.
Officer Giles pursued and, mid-stride, fired his taser. One probe hit Brown’s head, and
the other hit his back. Brown fell and hit his head on the ground. While handcuffing him,
Officer Giles held the taser against Brown in case he continued to resist.
Brown suffered injuries from the fall. So he sued Officer Giles, the police chief, and the
municipality under 42 U.S.C. § 1983. He alleges Officer Giles violated his Fourth Amendment
rights by using excessive force and that department policies or customs enabled the violation.
Brown attached bodycam footage of the event to his complaint.
The defendants moved to dismiss. In a thorough opinion, the district court determined
that Brown failed to allege a violation of clearly established law. Brown now appeals.

-- 2 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 3
II.
We start with Brown’s two excessive force claims against Officer Giles.
1.
First, Brown alleges that Officer Giles used excessive force by tasing him as he fled.
Officer Giles argues he’s entitled to qualified immunity. To overcome that immunity, Brown
must show it’s clearly established that tasing him in this particular context was excessive. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009). And that means he must produce an on-point,
binding case. Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir. 2022). He can’t.
At the outset, Brown runs into trouble because we’ve held that it’s reasonable for officers
to tase fleeing suspects. See Perez v. Simpson, 83 F.4th 1029, 1031 (6th Cir. 2023); see also
Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509–10 (6th Cir. 2012). So the fact that
Officer Giles tased him isn’t enough to establish excessive force.
Moreover, several of the opinions Brown identifies aren’t binding. Cockrell v. City of
Cincinnati, 468 F. App’x 491, 499 (6th Cir. 2012) (Cole, J., concurring); Peabody v. Perry Twp.,
No. 10-CV-1078 (EAS), 2013 WL 1327026, at *8 (S.D. Ohio Mar. 29, 2013). Nonbinding
opinions are never enough to clearly establish a point of law. Bell, 37 F.4th at 367.1 So these
cases don’t help Brown’s argument.
1While the Supreme Court has indicated that some acts are obviously unconstitutional even without
precedent—such as torturing someone for a minor traffic violation—not even the dissent argues that’s true here.
Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021). Instead, the dissent points out that a “robust consensus” of
persuasive authority may clearly establish law. Dissenting Opinion at 8. Although the Supreme Court has
suggested that category might exist in theory, the Court has never found it to exist in fact. See, e.g., City & Cnty. of
San Francisco v. Sheehan, 575 U.S. 600, 617 (2015) (“[N]o such consensus exists here.”); Plumhoff v. Rickard, 572
U.S. 765, 780 (2014); Taylor v. Barkes, 575 U.S. 822, 826 (2015). In fact, the Court hasn’t even held that binding
circuit precedent could clearly establish a right. See, e.g., Reichle v. Howards, 566 U.S. 658, 665-66 (2012)
("Assuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly
established law . . . .”); Barkes, 575 U.S. at 826; Sheehan, 575 U.S. at 614. Police officers protect the public in
uncertain, dangerous, and rapidly evolving situations—not in the cold crucible of the courtroom. Asking Officer
Giles to divine “clearly established” law from the smattering of cases the dissent cites would demand more than the
Supreme Court requires.

-- 3 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 4
Brown cites one published, in-circuit case, but that opinion concerns lethal force. See
Sample v. Bailey, 409 F.3d 689, 693, 696–97 (6th Cir. 2005) (gun). Tasers typically aren’t
lethal. See Gambrel v. Knox Cnty., 25 F.4th 391, 401 (6th Cir. 2022). And in the context of
clearly establishing a constitutional right, this difference matters. That’s for good reason: there
are circumstances in which nonlethal force would be reasonable but lethal force excessive.
So Brown can’t “clearly establish” that using tasers is excessive by noting that it would have
been unreasonable for Officer Giles to shoot at him with a gun. White v. Pauly, 580 U.S. 73, 79
(2017) (per curiam).
Trying to sidestep this problem, Brown argues that Officer Giles’s taser use was
particularly dangerous. Brown emphasizes that Officer Giles didn’t just tase him in the back.
One probe hit his head, and heads are uniquely sensitive to injury.2 We doubt that this difference
matters in the context of a mid-chase decision to tase a fleeing suspect. It’s difficult to imagine
how a sprinting officer could aim his taser precisely enough to (1) hit a suspect with both taser
probes while (2) ensuring that neither probe hits the suspect’s head. It’s even harder to imagine
that the Fourth Amendment requires such a feat. That’s precisely why we defer to the “split-
second” decisions of officers in fast-paced, complex situations. Mullins v. Cyranek, 805 F.3d
760, 765–66 (6th Cir. 2015) (quoting Graham, 490 U.S. at 397).
But even if the head-body distinction mattered, Brown still can’t prevail because he
doesn’t have a binding opinion saying that the distinction matters. Brown points to only one
unpublished, out-of-circuit opinion that discusses the danger of head tasings. Wilson v. City of
Lafayette, 510 F. App’x 775, 778–80 (10th Cir. 2013). As already explained, that’s not enough
to meet his burden. Marsh v. Arn, 937 F.2d 1056, 1069 (6th Cir. 1991), abrogated on other
grounds by Farmer v. Brennan, 511 U.S. 825 (1994). Officers in our circuit aren’t expected to
stay abreast of the varying and ever-changing law of other circuits—especially not unpublished
opinions that have no precedential value.
2Brown also tries to bolster his case by alleging Officer Giles intentionally aimed at his head. But Officer
Giles’s subjective intent is irrelevant to excessive force analysis, where we ask what force a reasonable officer
would use. Graham v. Connor, 490 U.S. 386, 399 (1989).

-- 4 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 5
2.
What about Officer Giles’s second alleged use of excessive force? Brown alleges that
Officer Giles continued to tase him after he had been incapacitated. If true, this would be
excessive force. Brown v. Chapman, 814 F.3d 447, 461 (6th Cir. 2016). And normally, Brown
would need only to allege those facts to survive a motion to dismiss. Kottmyer v. Maas, 436
F.3d 684, 688 (6th Cir. 2006). But Brown didn’t just describe the incident. He also provided the
court with video footage of the incident and mentioned that footage throughout his complaint. In
this context, we don’t need to accept as true any allegation “blatantly contradicted” by the video.
Scott v. Harris, 550 U.S. 372, 380 (2007). This dooms Brown’s claim.
The video shows that Officer Giles tased Brown only once. As Brown notes, Officer
Giles held the taser against him after he was incapacitated. But as the video makes clear, Officer
Giles didn’t use it. Active tasers—including the model Officer Giles used—make noises in both
probe and drive-stun mode. R. 1, Pg. ID 7 (Axon X26 taser); see, e.g., Wade v. Fresno Police
Dept., No. 09-CV-0599 (AWI), 2012 WL 253252, at *7 & n.15 (E.D. Cal. Jan. 25, 2012) (noting
noise from an X26 taser before a “contact” tase). Indeed, we hear the taser sound in the video—
but only once, and not when Officer Giles holds the taser against Brown. The lack of noise
“utterly discredit[s]” Brown’s claim. Scott, 550 U.S. at 380.
The dissent points out that the lack of sound from an audio recording may not be
“reliabl[e].” Dissenting Opinion at 12 (quoting Coble v. City of White House, 634 F.3d 865, 869
(6th Cir. 2011)). But we don’t just rely on the lack of sound. The presence of the taser sound
when Officer Giles initially tases Brown, contrasted with the conspicuous silence mere seconds
later, belies his claims. And Brown never even tries to explain why the taser would fire silently a
few seconds after firing audibly.
Qualified immunity gives police officers immunity from suit “at the earliest possible
stage.” Bell, 37 F.4th at 364. Officer Giles appropriately raised qualified immunity at the
motion to dismiss stage. Thus, he is entitled to qualified immunity now.

-- 5 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 6
III.
Brown also appeals his claims against the police chief and municipality. But both parties
agree that in this context Brown’s municipal liability claims survive only if he successfully
raised an underlying constitutional claim. Appellant Br. at 26; Appellee Br. at 23; see also
Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994–95 (6th Cir. 2017). Since Brown’s
claims against Officer Giles fail, he can’t prevail on these claims either.
* * *
We affirm.

-- 6 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 7
_________________
CONCURRENCE
_________________
JULIA SMITH GIBBONS, Circuit Judge, concurring in the result. Officer Giles is
entitled to qualified immunity under the circumstances presented; I therefore concur in our
affirmance of the district court. I write separately to clarify my understanding of the measure of
precedent required to demonstrate a “clearly established” constitutional or statutory right in an
action brought under 42 U.S.C. § 1983.
To prevail in the face of an officer’s qualified immunity defense, a § 1983 plaintiff need
not show that “the very action in question has previously been held unlawful” in a reported, in-
Circuit (or Supreme Court) case. Ziglar v. Abbasi, 582 U.S. 120, 151 (2017). Instead, he must
demonstrate that the constitutional or statutory right of which he was deprived boasts “a
sufficiently clear foundation in then-existing precedent” so as to constitute “settled law.” D.C. v.
Wesby, 583 U.S. 48, 63 (2018). He may demonstrate as much by identifying “controlling
authority in [his] jurisdiction at the time of the incident which clearly established the rule on
which [he] seek[s] to rely.” Wilson v. Layne, 526 U.S. 603, 617 (1999). But he may also do so
by identifying a “robust consensus . . . of persuasive authority” that “every reasonable official
would interpret” as establishing the claimed legal right. Wesby, 583 U.S. at 63.
What does this mean for Plaintiff Jorden Brown? Two things. For one, he need not
identify a “binding case,” Lead Op. 2, that speaks directly to the facts underlying his suit.
Abbasi, 582 U.S. at 151. But for another, if he cannot identify such a case, the “robust
consensus” of persuasive authority that he identifies in the alternative must nevertheless “place[]
the statutory or constitutional question beyond debate.” Rivas-Villegas v. Cortesluna, 595 U.S.
1, 5 (2021). Because Brown fails to make either showing, Officer Giles is entitled to qualified
immunity, and the district court did not err in dismissing Brown’s suit.

-- 7 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 8
_________________
DISSENT
_________________
HELENE N. WHITE, Circuit Judge, dissenting. This court has said time and again that
qualified immunity and Federal Rule of Civil Procedure 12(b)(6) are “often a bad fit.” Siefert v.
Hamilton County, 951 F.3d 753, 762 (6th Cir. 2020). For good reason: Qualified immunity
demands a “fact-intensive” inquiry, id., yet “the precise factual basis for the plaintiff’s claim or
claims” is hard to come by at the pleadings stage, Pearson v. Callahan, 555 U.S. 223, 238
(2009). Further compounding the problem, the “burden is not high at the 12(b)(6) stage.”
MacIntosh v. Clous, 69 F.4th 309, 315 (6th Cir. 2023). Allegations are deemed true, read “in the
light most favorable to the plaintiff,” and need only amount to a “plausible” claim “that an
official’s acts violated a clearly established constitutional right.” Id. (quoting Courtright v. City
of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)). Despite the headwinds of the procedural
posture, my colleagues uphold the district court’s dismissal of Brown’s claims out the gate,
concluding based on qualified immunity that neither of Officer Giles’s alleged uses of a taser on
Brown plausibly state a claim for excessive force. I disagree.
I.
The lead opinion says that the claim based on Giles’s first alleged use of force—tasing
Brown in the head while he was running—cannot succeed because there is no “binding opinion”
that has deemed that specific conduct unconstitutional. Lead Op. 4. But “binding” precedent
holding the specific conduct unconstitutional is not the standard for qualified immunity. What
matters is whether the challenged action’s unlawfulness is “apparent” given “pre-existing law.”
Rhodes v. Michigan, 10 F.4th 665, 679 (6th Cir. 2021) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). That clarity can come from either “controlling authority or a robust consensus
of cases of persuasive authority,” Akima v. Peca, 85 F.4th 416, 423 (6th Cir. 2023) (emphasis
added) (quoting District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)) (cleaned up), as Judge
Gibbons’s concurrence also notes, see Concurring Op. 7. “[I]n an obvious case,” even general
standards “without a body of relevant case law” suffice. Brosseau v. Haugen, 543 U.S. 194, 199
(2004). Simply put, “it is not necessary to find a ‘case directly on point’ in order to show that the

-- 8 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 9
law governing a plaintiff’s claim is clearly established. Some measure of abstraction and
common sense is required with respect to police methods and weapons . . . .” Terebesi v.
Torreso, 764 F.3d 217, 237 n.20 (2d Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). Indeed, a contrary conclusion would give officers “a free pass to use” weapons “in any
manner” they see fit “until a case from the Supreme Court or from this circuit involving that
particular weapon is decided.” Phillips v. Comm. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012).
Qualified immunity demands no such thing.
Regardless, the relevant law is clearly established here. A use of force is considered
deadly when it poses “a substantial risk of causing death or serious bodily harm.” Robinette v.
Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (quoting Model Penal Code § 3.11(2) (Am. L. Inst.,
Proposed Official Draft 1962)). Even a normally nonlethal weapon “qualif[ies] as ‘deadly
force’” under certain circumstances, “especially if an officer hits a suspect in the head.”
Gambrel v. Knox County, 25 F.4th 391, 401 (6th Cir. 2022) (quoting Robinette, 854 F.2d at 912)
(collecting cases). We have previously noted that tasing in risky situations may cause significant
harm. See, e.g., Baker v. Union Twp., 587 F. App’x 229, 234 (6th Cir. 2014) (“It is widely
known among law enforcement . . . that tasers should not be employed against suspects on
elevated surfaces because of the risk of serious injury from a resulting fall.”). And numerous
other courts have held that tasing can cause serious injury or death, particularly when a person’s
head is involved.1 Moreover, it is well established that “deadly force is objectively reasonable
only when there is probable cause to believe that the suspect poses an immediate threat to the
officer or to others.” Raimey v. City of Niles, 77 F.4th 441, 448 (6th Cir. 2023). That threat must
be “of serious physical harm.” Palma v. Jacobs, 27 F.4th 419, 432 (6th Cir. 2022). The analysis
turns on the totality of the circumstances, but “[t]he threat factor is a minimum requirement for
1See Buehler v. Dear, 27 F.4th 969, 987 (5th Cir. 2022) (“[T]he use of ‘a taser can cause death or serious
injury.’” (quoting Pena v. City of Rio Grande City, 816 F. App’x 966, 972 n.8 (5th Cir. 2020))); Wilson v. City of
Lafayette, 510 F. App’x 775, 778 (10th Cir. 2013) (“[T]he use of a taser, especially if one probe hits the head,
amounts to a significant physical intrusion requiring a correspondingly significant justification.”); Bryan v.
MacPherson, 630 F.3d 805, 825 & n.7 (9th Cir. 2010) (noting that, “like any generally non-lethal force, the taser is
capable of being employed in a manner to cause the victim’s death” despite generally “fall[ing] into the category of
non-lethal force”); cf. Mercado v. City of Orlando, 407 F.3d 1152, 1160 (11th Cir. 2005) (concluding that a Sage
Launcher, although generally a “‘less lethal’ munition,” was “deadly force” when used to “[s]hoot[] a suspect in the
head”).

-- 9 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 10
the use of deadly force,” and this court “ha[s] authorized the use of deadly force only in rare
instances.” Id. (cleaned up).
Here, Brown’s claim based on the tasing of his head should survive the pleadings stage.
Tasing involves a significant electrical charge capable of causing “excruciating pain.” Brown v.
Chapman, 814 F.3d 447, 459 (6th Cir. 2016). The head is among the most “sensitive and vitally
important part[s] of [the human] body.” Baker v. City of Hamilton, 471 F.3d 601, 609 (6th Cir.
2006). Unsurprisingly, putting the two together poses “a substantial risk of causing death or
serious bodily harm,” Robinette, 854 F.2d at 912 (quoting Model Penal Code § 3.11(2)). This
case bears out that point: In the bodycam video, Brown is seen bleeding profusely from his head
and suffering multiple seizures before emergency medical staff arrives. And he alleges that his
injuries led to a multiday coma.
Finally, Brown did not pose an immediate threat of serious harm to anyone. His arrest
warrant was from a local mayor’s court for failure to pay a fine. He had no weapons and did not
physically threaten Giles or members of the public. All Brown did was run.
The lead opinion responds that the Supreme Court has not invoked “a ‘robust consensus’
of persuasive authority” to conclude that the law was clearly established, and the lead opinion
will not do so here because police officers have challenging jobs. Lead Op. 3 n.1 (citation
omitted). First, “in applying the rule of qualified immunity,” the Court itself has “referred to
decisions of the Courts of Appeals”—not binding on the Court—“when enquiring whether a
right was ‘clearly established.’” United States v. Lanier, 520 U.S. 259, 269 (1997) (collecting
cases). Second, even if the Court had not invoked a robust consensus of persuasive authority, the
Court has nonetheless confirmed repeatedly that a consensus can be enough. See, e.g., Wesby,
583 U.S. at 63; Plumhoff v. Rickard, 572 U.S. 765, 780 (2014); Wilson v. Layne, 526 U.S. 603,
617 (1999). And our court has used nonbinding decisions to conclude that the law was clearly
established. See, e.g., Moldowan v. City of Warren, 578 F.3d 351, 382 (6th Cir. 2009); Young v.
Kent Cnty. Sheriff’s Dep’t, No. 21-1222, 2022 WL 94990, at *5 (6th Cir. Jan. 10, 2022). Third,
binding precedent concerning deadly force and the lethality of applying normally nonlethal
weapons to the head operated to define at a reasonably particularized level of generality the
unlawfulness of Giles conduct. And fourth, “common sense,” Terebesi, 764 F.3d at 237 n.20,

-- 10 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 11
alone suggests an officer should know better than to tase a running person posing no threat to
others in the head.
Further, the lead opinion appears to excuse Giles’s conduct because it was “a mid-chase
decision.” Lead Op. 4. “It’s difficult to imagine,” it reasons, “how a sprinting officer could aim
his taser precisely enough to (1) hit a suspect with both taser probes while (2) ensuring that
neither probe hits the suspect’s head.” Id. But it does not explain on what basis it concludes that
achieving “such a feat,” id., was impossible or difficult under the circumstances of this case, and
assuming as much is inappropriate on a motion to dismiss. The video does not clearly depict the
critical moment of the tasing and does not even show the relative positioning of Brown and Giles
clearly. The video does, however, record Giles saying when speaking with other emergency
staff afterwards that he tased Brown when he was close and did so because “it was too hot to
run.” MP4: Giles Body Cam 2 of 2, at 2:39–42, 5:02–04 (Coal Grove Police Dep’t 2019). And
Brown alleges that Giles intentionally aimed at his head. The lead opinion thus fails to view the
allegations in the light most favorable to Brown, see MacIntosh, 69 F.4th at 315.
II.
The lead opinion also concludes that Giles’s second alleged use of the taser—after Brown
hit the pavement and was incapacitated—never happened because the bodycam video “blatantly
contradict[s]” Brown’s allegations that it occurred, Lead Op. 5 (quoting Scott v. Harris, 550 U.S.
372, 380 (2017)). I disagree. This negative deduction hinges on the absence of a sound and cites
a single unpublished district-court decision for the proposition that a taser necessarily makes a
sound whenever used. But that decision said only that officers’ declarations at summary
judgment indicated that the taser used there made a noise when “activated” but before it was
“applied.” Wade v. Fresno Police Dep’t, No. 09–CV–0599, 2012 WL 253252, at *7 n.15 (E.D.
Cal. Jan. 25, 2012). That decision does not show that a taser necessarily makes a noise when
applied directly to a person in drive-stun mode. Nor can we assume as much for the taser used
here based on the sound it made during the first tasing. Such an assumption is especially
unwarranted when tasers include multiple modes. Here, the first tasing occurred in probe mode
(two probes shot as a projectile), while the second tasing is alleged to have occurred in drive-stun
mode (direct contact between the taser and Brown’s body).

-- 11 of 12 --

No. 23-3142 Brown v. Giles, et al. Page 12
More fundamentally, however, “[t]he lack of sound on an audio recording cannot be
reliably used to discount” testimony at the summary judgment stage, Coble v. City of White
House, 634 F.3d 865, 869 (6th Cir. 2011), let alone allegations in a complaint. “Many factors
could affect what sounds are recorded, including the volume of the sound, the nature of the
activity at issue, the location of the microphone, whether the microphone was on or off, and
whether the microphone was covered.” Id. Thus, it is inappropriate to assume the absence of a
second tasing from the absence of a sound despite “[t]he presence of the taser sound” during the
first tasing, Lead Op. 5. Again, the two alleged tasings occurred in different modes, and the
“[m]any factors” affecting “what sounds are recorded” could apply at some but not other points
of an audio recording, Coble, 634 F.3d at 869. In short, it cannot be said based on the video that
it is blatant—“completely obvious,” Blatant, Merriam-Webster, https://perma.cc/RHS8-R56V—
that Giles did not use his taser a second time. Further factual development should be permitted
on Brown’s claim based on this allegation, too.
* * *
For the reasons stated, I dissent.

-- 12 of 12 --