Ulysses Lee Feagin v. Mansfield Police Department; Jordan Moore; Mark Boggs; Clay Blair

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ULYSSES LEE FEAGIN,
Plaintiff-Appellee,
v.
MANSFIELD POLICE DEPARTMENT; JORDAN MOORE;
MARK BOGGS; CLAY BLAIR,
Defendants-Appellants.
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No. 24-3710
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:22-cv-01201—J. Philip Calabrese, District Judge.
Argued: May 8, 2025
Decided and Filed: September 11, 2025
Before: CLAY, THAPAR, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Melvin L. Lute, BAKER ǀ DUBLIKAR, North Canton, Ohio, for Appellants.
Rachael Jensen, ORRICK, HERRINGTON & SUTCLIFFE LLP, Austin, Texas, for Appellee.
ON BRIEF: Melvin L. Lute, BAKER ǀ DUBLIKAR, North Canton, Ohio, for Appellants.
Rachael Jensen, ORRICK, HERRINGTON & SUTCLIFFE LLP, Austin, Texas, Alyssa
Barnard-Yanni, Daniel A. Rubens, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York,
New York, Samuel Weiss, RIGHTS BEHIND BARS, Washington, D.C., for Appellee.
READLER, J., delivered the opinion of the court in which THAPAR, J., concurred.
CLAY, J. (pp. 22–31), delivered a separate dissenting opinion.
>

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OPINION
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READLER, Circuit Judge. Advancing technology reaches every corner of society. The
law is no exception. Consider, on this front, the advent of portable recording devices, from those
attached to the body (body cams) to those placed on a vehicle’s dashboard (dash cams). These
innovations have dramatically changed our collective understanding of law enforcement
encounters. Today, most officer interactions are captured on video. See Logan Seacrest
& Jillian Snider, R St. Inst., The Past, Present, and Future of Police Body Cameras 3 (2025),
https://perma.cc/2KKH-8LY3 (recognizing that over the past decade and a half police cameras
have become “standard operating procedure” in the United States); see also Sean E. Goodison
& Connor Brooks, Bureau Just. Stats., Local Police Departments, Procedures, Policies, and
Technology, 2020–Statistical Tables 6 (2023), https://perma.cc/B8EC-TLQ4 (noting that as of
2020, 79% of local police officers worked in departments using body cams, with use ubiquitous
in major urban areas). With those recordings typically available for broader viewing through
public records laws and the like, body and dash cam video makes the work of law enforcement
more open to public evaluation (and, invariably, debate). See, e.g., Ohio Rev. Code
§ 149.43(A)(1)(jj) (generally subjecting body cam and dash cam videos to public release).
The court system has especially benefitted from these advancements. Whereas
encounters with law enforcement historically had to be understood through witness recollections
alone, video now captures key aspects of the engagement, if not the entire event itself.
According to one recent study, video evidence has resulted in cases being “decided more
quickly, with fewer disputed facts.” See Seacrest & Snider, supra at 3 (discussing how “body
camera footage began to make its way from police stations to courtrooms”). For judges in
particular, video evidence makes us far better equipped to evaluate claims tied to an officer’s
conduct. Especially so in the interlocutory posture in which we review qualified immunity
appeals, where we must measure that conduct against constitutional norms. In the past, it could
be tempting to leave untouched a district court’s assessment of the evidence, as our review was
limited to a paper record. See Johnson v. Jones, 515 U.S. 304, 307–09 (1995) (refusing to

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resolve factual dispute centered on dueling affidavits at summary judgment). But today, where
video allows us in effect to witness the critical events at issue, we are equipped to assess for
ourselves both the factual and legal questions underlying an officer encounter without reflexively
deferring to the district court. After all, while we well appreciate the vital role district courts
play in assessing live testimony or a complex record, we are on more equal footing in reviewing
video evidence. See Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019) (observing that a
“conclusive video allows [an appellate] court to know what happened and decide the legal
consequences”).
Our jurisprudence over interlocutory qualified immunity appeals bears out these
developments. In the increasingly rare excessive force case where the underlying record
contains no video or audio record, and instead consists entirely of conflicting witness testimony,
we have understood our role to be limited. Namely, it is for the jury, not us, to settle any
underlying material factual disputes. Gambrel v. Knox County, 25 F.4th 391, 404–05 (6th Cir.
2022). But when presented with video footage that “accurately depicts most of the relevant
events,” we may utilize that footage to “ensure [that] the district court properly constructed the
factual record” and assessed the legal questions in line with that record. Heeter v. Bowers, 99
F.4th 900, 910 (6th Cir. 2024); Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir. 2015) (using
video evidence when it captures the material facts); Hayden v. Green, 640 F.3d 150, 152 (6th
Cir. 2011) (similar). Put another way, rather than “clos[ing] our eyes to the evidence presented”
through dash or body cam, we instead “assess [that evidence] in the light depicted by the
videotapes.” Moore v. Oakland County, 126 F.4th 1163, 1167 (6th Cir. 2025) (citation
modified). This approach is now the rule more than the exception, with fewer and fewer police
interactions occurring outside the scope of a camera’s lens.
Today’s case is emblematic, with dash cam video vividly telling the tale of Ulysses
Feagin’s most recent encounter with law enforcement officers. Now a prisoner, Feagin sued the
officers under 42 U.S.C. § 1983, raising both excessive force and deliberate indifference claims
tied to the officers’ deployment of a taser and pepper spray to effectuate Feagin’s arrest. The
district court granted summary judgment to defendants on all but two claims: an excessive force
claim related to the use of a taser, and a deliberate indifference claim stemming from the officers

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not tending to Feagin’s medical needs after he was pepper sprayed. Those remaining issues are
now before us as part of the officers’ interlocutory appeal. As explained next, we reverse the
district court’s denial of qualified immunity as to the excessive force claim, dismiss the appeal of
the deliberate indifference claim for lack of jurisdiction, and remand to the district court for
further proceedings.
I.
A settled evidentiary hierarchy governs the factual landscape in this interlocutory appeal.
We start with the available dash cam footage, which largely captures the incident in question and
leaves few facts in dispute. See Scott v. Harris, 550 U.S. 372, 380 (2007). For those moments
where the footage does not aid our understanding, we fill in the blanks by considering disputed
evidence in a light most favorable to Feagin, completing the story with any uncontested factual
assertions the officers proffer. See Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998);
Heeter, 99 F.4th at 910.
Consider what occurred on July 6, 2020, informed, again, largely by police cruiser dash
cam video. Two marked police cars—one driven by Officer Mark Boggs and one driven by
Officer Jordan Moore—were proceeding down a residential street. In the opposite direction,
Ulysses Feagin and a passenger were “cruising around in a black Lincoln SUV” with all its
windows rolled down, “drinking liquor and smoking marijuana.” State v. Feagin, No. 2021-CA-
0084, 2022 WL 6949422, at *1 (Ohio Ct. App. Oct. 12, 2022). Barreling down the middle of the
road and veering to the left, Feagin encountered Boggs’s vehicle, forcing Boggs to swerve into a
ditch, narrowly avoiding a head-on collision. Moore and Boggs both performed U-turns to
follow Feagin. With Moore in the lead, the officers pursued Feagin for roughly half a minute.
About 20 seconds into the pursuit, and with officers activating their vehicles’ flashers and sirens,
Feagin turned into a crowded parking lot in an apartment complex. Officers could now see the
apparently shot out back window of Feagin’s SUV.
After Feagin parked his SUV, Moore approached the vehicle. With Moore directly
outside the driver’s side door, Feagin began rolling up the car’s windows. Feagin then reached
toward the center console of the vehicle. Moore knocked on the window and thrice commanded

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Feagin to “get out of the car.” When Feagin refused, Moore attempted to open the driver’s door.
Suddenly, the car began rolling backwards. Moore frantically smashed his fist against the
driver’s side window, prompting Feagin to put the car into park.
With the car at rest, Feagin opened the door. As the door opened, Moore grabbed
Feagin’s arm, causing Feagin’s body to move limply away from the front seat. While Feagin’s
left leg was now out of the car, he kept his right leg inside the vehicle. Feagin stiffened his body
and moved slightly back to his car seat. At this point, Boggs joined Moore at the side of the
SUV. As the officers tussled to remove Feagin from the vehicle, they witnessed bullets fall from
Feagin’s pocket.
“[W]ithin seconds” of Feagin’s removal from the SUV, Feagin later explained, Moore
tased him. Feagin Affidavit, R. 61-2, PageID#452. At that exact moment, Boggs attempted to
grab Feagin’s left arm, while Moore had a partial hold on Feagin’s torso, with Feagin’s right arm
free and flailing against the SUV. Following the tasing, the officers managed to grab Feagin’s
right arm, handcuff him, and place him in the backseat of the police cruiser.
While in the cruiser, Feagin remained uncooperative, refusing to keep his legs in the
police car and later repeatedly kicking the car’s window. Moore warned Feagin that continuing
with this behavior risked the deployment of pepper spray. When Feagin ignored that command,
Moore rolled down the window of his cruiser, sprayed Feagin, and then rolled the window back
up. Several minutes later, officers transferred Feagin to a different police cruiser, eventually
driving him to a police station. An inventory search of the SUV unearthed a large bag of
marijuana; additional bags of cocaine, crack, THC, and heroin; a bevy of pills, including Xanax,
Desyrel, Klonopin, Percocet, Valium, and Ultracet; and two handguns on the passenger side
floorboard (including a stolen police gun).
These events culminated in Feagin being convicted for a host of firearm and drug
trafficking offenses. He received a multiyear sentence that will keep him in the state penitentiary
until at least the end of the decade. While incarcerated, Feagin sued several entities and
individuals, including Moore. Emphasizing that he was tased and maced during his arrest,
Feagin alleged claims of “excessive force” and the denial of “adequate medical care” in violation

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of the Fourth and Eighth Amendments. Following discovery, defendants jointly moved for
summary judgment on qualified immunity grounds, which Feagin opposed.
The district court granted the motion in part and denied it in part. Turning first to the
excessive force claim tied to Moore’s use of a taser, the district court concluded that a genuine
dispute over a material fact existed between the parties, and thus denied defendants’ motion. In
so doing, the district court found dispositive the fact that Feagin’s conduct, based on the video
evidence, “f[ell] in the gray area between active and passive resistance.” Order Den. and
Granting Defs.’ Mots. Summ. J., R. 70, PageID#608. But as to the excessive force claim related
to Moore’s use of pepper spray once Feagin was detained, the district court granted summary
judgment to defendants. To the district court’s mind, the undisputed evidence showed that
Feagin repeatedly disregarded instructions to stop kicking the window and, in so doing,
“interfere[d] with the officers’ efforts to arrest . . . Feagin and safely transport him.” Id. at
PageID#610. With respect to the deliberate indifference claims, the district court recognized that
defendants’ summary judgment motion did not address those claims, and thus set them for trial.
Defendants filed a timely notice of appeal. Before us, they challenge the district court’s
treatment of both the excessive force and deliberate indifference claims. We review the district
court’s decision de novo, resolving all genuine factual disputes in a light most favorable to
Feagin. Lawler ex rel. Lawler v. Hardeman County, 93 F.4th 919, 925 (6th Cir. 2024).
II.
A.1. We begin with the excessive force claim based on Moore’s tasing of Feagin. The
ground rules here are familiar. To overcome Moore’s qualified immunity defense, Feagin needs
to show both that Moore committed a constitutional violation and that any reasonable officer in
Moore’s position would have known that his conduct exceeded constitutional bounds. See
Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). As to the first prong, whether a use of force
qualifies as excessive and therefore an unreasonable seizure under the Fourth Amendment
depends on the “facts and circumstances of each particular case” measured “from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v.
Connor, 490 U.S. 386, 396 (1989). Embedded in this reasonableness calculus is the

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understanding that “police officers are often forced to make split-second judgments” that we, as
jurists, have no right to second guess from the “peace of [our] chambers.” Id. at 396–97 (citation
modified). Relevant to our inquiry are the “severity of the crime” at issue, the nature of Moore’s
conduct, and the nature of Feagin’s conduct, including the threat Feagin posed and whether he
was actively resisting an officer. Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025) (citation
modified).
With respect to the second prong, Feagin must show that Moore’s use of a taser violated
“clearly established” law, meaning that Moore had “fair notice” that his conduct was unlawful.
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam). Because qualified immunity
covers mistakes in judgment, both of fact and law, the summary judgment record must show that
Moore “knew or reasonably should have known” that his conduct was unlawful in light of the
information he possessed. Hicks v. Scott, 958 F.3d 421, 434 (6th Cir. 2020) (citation modified).
Accordingly, it is Feagin’s burden to identify a closely analogous precedent with “facts like the
ones at issue here” that placed the constitutional question beyond debate, Rivas-Villegas, 142 S.
Ct. at 8; Cunningham v. Shelby County, 994 F.3d 761, 764 (6th Cir. 2021), in other words, “on-
point caselaw that would bind a panel of this court,” Moore, 126 F.4th at 1167 (citation
modified). The combination of these two inquiries—the Fourth Amendment’s reasonable officer
test and qualified immunity’s fair notice test—impose two significant hurdles for plaintiffs
alleging excessive force claims. See Browning v. Edmonson County, 18 F.4th 516, 537 (6th Cir.
2021) (Murphy, J., concurring in part and dissenting in part). After all, to prevail, a plaintiff
must show the officer was doubly unreasonable—unreasonable in using force and unreasonable
in his assessment of the facts and law—leaving “all but the plainly incompetent or those who
knowingly violate the law” shielded from liability. Malley v. Briggs, 475 U.S. 335, 341 (1986).
This framework is evident in our decisions addressing taser usage. We impose liability
on individual officers only in the rare instance where an officer tases a suspect who posed no
danger and was fully compliant with officer commands or had completely ceased resisting at the
time of the tasing. See Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509 (6th Cir.
2012); Wright v. City of Euclid, 962 F.3d 852, 867 (6th Cir. 2020). Otherwise, we allow the
deployment of tasers, typically non-lethal force, even if a more lethal weapon (for instance, a

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gun) could not be utilized in the same instance. Brown v. Giles, 95 F.4th 436, 440 (6th Cir.
2024); Hagans, 695 F.3d at 510 (recognizing the low risk of injury posed by tasers). Tasing is a
reasonable response, for instance, to subdue a suspect who poses a threat to officers. See
Shanaberg v. Licking County, 936 F.3d 453, 456 (6th Cir. 2019); Kent v. Oakland County, 810
F.3d 384, 391 (6th Cir. 2016) (acknowledging tasing is appropriate where an individual is armed,
makes an evasive movement to suggest that he had a weapon, or is otherwise violent toward
officers). Tasing is likewise appropriate for subduing a suspect who “actively resists” arrest.
Hagans, 695 F.3d at 509. What is “active” resistance? Physical struggles with the police
qualify. Id. But so can conduct that is perhaps intuitively not all that active. For example,
active resistance can take the form of “verbal hostility or a deliberate act of defiance.” Wright,
962 F.3d at 867 (citation modified). Or it can include an arrestee refusing to move his hands for
police to handcuff him, at least when “coupled with other acts of defiance.” Rudlaff, 791 F.3d at
641 (citation modified).
Of course, some cases fall in between these two extremes: tasing where the suspect is
neither wholly submissive yet neither threatening another nor engaging in active resistance. In
this zone of twilight, when the evidence—viewed in a light most favorable to the plaintiff, but
through the lens of a reasonable officer at the scene—presents a “complex situation[],” leaving
the exact nature of the threat or degree of resistance unclear, we give officers the benefit of the
doubt and excuse any reasonable mistake of judgment in deploying a taser. Brown, 95 F.4th at
440; Hagans, 695 F.3d at 511 (“The essence of qualified immunity . . . is to give government
officials cover when they resolve close calls in reasonable (even if ultimately incorrect) ways.”).
Said more directly, when operating “in the hazy border between excessive and acceptable force,”
the “proper course is to grant summary judgment to the officers” on qualified immunity grounds.
Rudlaff, 791 F.3d at 644; King v. City of Rockford, 97 F.4th 379, 397 (6th Cir. 2024); Thomas v.
City of Eastpointe, 715 F. App’x 458, 461 (6th Cir. 2017) (granting qualified immunity when
plaintiff’s actions “fall somewhere in the middle” between active and no resistance).
2. Where does Feagin’s claim of excessive force lie within the realm of our tasing
jurisprudence? Given the undisputed evidence, the totality of the circumstances counsel that
Moore acted reasonably in tasing Feagin, meaning no constitutional violation resulted. Even if

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that were not the case, this dispute falls within the “hazy border between excessive and
acceptable force” that warrants a grant of qualified immunity. Rudlaff, 791 F.3d at 644 (citation
modified).
a. In concluding that Moore did not use excessive force, we measure his conduct against
the reasonableness guideposts from the Supreme Court’s excessive force jurisprudence. Barnes,
145 S. Ct. at 1358; Graham, 490 U.S. at 396. Start with the first guidepost, the severity of the
crimes at issue. Barnes, 145 S. Ct. at 1358. Two officers witnessed Feagin nearly collide head
on with Boggs’s marked police cruiser. Feagin then disregarded officers’ repeated efforts to
bring his SUV to a complete stop—first by refusing to stop for roughly half a minute as two
cruisers tailed him and then by refusing to comply with commands to park the SUV and, in turn,
get out of the car. From these events, officers could conclude that it was fairly probable that
Feagin had just committed multiple felonies under Ohio law, and that his conduct could escalate
from there. See, e.g., Ohio Rev. Code § 2903.11(A)(2) (felonious assault); State v. Sepeda, 157
N.E.3d 889, 898 (Ohio Ct. App. 2020); see also Ohio Rev. Code. § 2921.331(C)(3)–(4) (failing
to bring a motor vehicle to a stop upon signal from police officer). Given the serious crimes at
issue, Moore was reasonably justified in thinking he could use a considerable degree of force to
restrain and arrest Feagin. See Roell v. Hamilton County, 870 F.3d 471, 481 (6th Cir. 2017).
Indeed, given the alternatives facing the officers when they encountered Feagin, it strikes us as
laudable that a particularly dangerous situation was contained without harm to a third party. See
Barnes, 145 S. Ct. at 1362–63 (Kavanaugh, J., concurring) (acknowledging that there are “no
easy or risk-free answers” to officers when confronted with a fleeing driver, with many
alternatives presenting serious risks to the officers and the community-at-large).
Second, the “actions [Moore] took during the stop” were restrained given the crimes he
had just witnessed. Barnes, 145 S.Ct. at 1358 (majority op.). Only after repeated commands that
Feagin submit to law enforcement went unheeded did Moore opt to use non-lethal force—
tasing—to procure Feagin’s handcuffing. Brown, 95 F.4th at 440.
Finally, consider the suspect’s conduct, the issue on which “[m]any of our tasing cases
rise and fall.” Shanaberg, 936 F.3d at 456. Two questions fall under this rubric: What threat

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would a reasonable officer have perceived from Feagin’s conduct, and was Feagin actively
resisting? See Barnes, 145 S. Ct. at 1358.
As to the first question, there were safety concerns from the very moment Feagin
encountered law enforcement. Driving an SUV that appeared to have had its rear window shot
out, Feagin narrowly avoided ramming a police cruiser. Feagin’s SUV continued to be a threat
to Moore even after the vehicle entered the parking lot. Feagin ignored Moore’s repeated
commands to exit the vehicle. Making matters worse, the SUV began to move in reverse out of
its parking spot, suggesting to the officers that Feagin may have been trying to escape. As these
events reveal, the stop that Moore initiated, an “inherently risky” activity itself, was becoming
exponentially more dangerous by the second. Barnes, 145 S.Ct. at 1361 (Kavanaugh, J.,
concurring); id. at 1363 (discussing the “extraordinary dangers and risks facing police officers
and the community at large” when an officer conducts a traffic stop and the driver does not
comply).
Now add in what Moore witnessed with respect to Feagin’s conduct during the stop.
While the parties dispute Feagin’s exact motives, all agree that as Moore approached the SUV,
Feagin reached toward the center console of the vehicle, a move that fairly suggests he was
trying to access a weapon. See United States v. Ledbetter, 929 F.3d 338, 347 (6th Cir. 2019).
Couple that fact with the undisputed evidence that bullets fell from Feagin’s pockets as officers
labored to get him out of the SUV. “Where there are bullets, it’s fair to infer that a gun is
nearby.” United States v. Walker, 750 F. App’x 324, 329 (5th Cir. 2018). On this record,
significant evidence suggested that Feagin posed an immediate threat to the officers’ lives that
made it quite reasonable to think Feagin needed to be restrained as soon as possible. Later
discovered evidence—including the firearms found in or around the SUV—further confirms the
veracity of the officers’ initial impressions of the safety concerns they faced. See Kapuscinski v.
City of Gibraltar, 821 F. App’x 604, 609 (6th Cir. 2020) (recognizing that “subsequent”
observations can confirm the prior perspective of the reasonable officer at the scene).
What about evidence of Feagin’s active resistance? There was plenty. Recall that
Feagin’s first actions in the parking lot were to defy Moore’s repeated commands to get out of
the vehicle. See Wright, 962 F.3d at 867 (recognizing deliberate defiance by a suspect can

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constitute active resistance). Instead of promptly exiting the car, Feagin opted to roll up the
vehicle’s (unbroken) windows and seemingly put the car in reverse. Feagin then struggled for
several seconds with officers after his car door opened. See Hagans, 695 F.3d at 509. He kept at
least one leg in the vehicle as officers tried to extract him, moving his body back inside the SUV
during the struggle. At the moment he was tased, Feagin was still not handcuffed, with his right
arm flailing. Collectively, the undisputed evidence shows that Moore acted reasonably in tasing
Feagin. Accordingly, no constitutional violation occurred.
b. Even if one were to read the record differently, defendants would still prevail in their
assertion of qualified immunity. Recall that, at this juncture, Feagin needs to show not only that
Moore was unreasonable in tasing him, but also that he was unreasonable in his understanding of
what the law permitted him to do. See Malley, 475 U.S. at 341. On this issue, it is Feagin’s
burden to identify a closely analogous precedent that would have put Moore on notice that his
actions were unlawful given the information he possessed. See Rivas-Villegas, 142 S. Ct. at 8;
Hicks, 958 F.3d at 433–34; Cunningham, 994 F.3d at 764. At no stage of this litigation has
Feagin done so.
Begin with Feagin’s motion opposing summary judgment. Most of his cited use-of-force
cases were unpublished, which plainly fail to satisfy his burden. Bell v. City of Southfield, 37
F.4th 362, 368 (6th Cir. 2022) (“[H]ow can an unpublished case place a question beyond debate
when it doesn’t even bind a future panel of this court?”). In passing, he also mentioned an out of
circuit case, Coles v. Eagle, 704 F.3d 624 (9th Cir. 2012). But our sister circuits’ case law is
“usually irrelevant” to the clearly established inquiry, save for the extraordinary case that
announces a right “clearly foreshadowed” by the direct holding of our own case law so that the
officers is left with “no doubt” as to whether his conduct was lawful. Ashford v. Raby, 951 F.3d
798, 804 (6th Cir. 2020) (citation modified). We need not dwell on whether Coles meets that
high bar. For one thing, it did not involve the use of a taser. For another, its facts—the use of
considerable force (dragging a suspect out of a car through a shattered car window) without any
serious crime, threat to the officer’s lives, or resistance from the suspect at issue—are miles from
this case. See Coles, 704 F.3d at 630.

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That leaves the sole published case Feagin discussed in any detail, Solomon v. Auburn
Hills Police Department, 389 F.3d 167 (6th Cir. 2004). But consider its facts: an officer who,
upon confronting a woman suspected of sneaking into a movie, used a leg-sweep maneuver even
though the woman posed no threat to the officer and was fully compliant with his requests. Id. at
175. Comparing Feagin’s high risk behavior to that of the matinee goer in Solomon gives
analogy a bad name.
Feagin’s appellate briefing fares no better. Gradisher v. City of Akron, 794 F.3d 574 (6th
Cir. 2015), his lone citation on the merits of qualified immunity, was never raised with the
district court. Assuming we could excuse that forfeiture, Gradisher is still distinguishable.
There, the facts suggested that officers tased a fully compliant suspect and continued gratuitously
tasing him once incapacitated. Id. at 586. At day’s end, Feagin has failed to even hint at a case
with “facts like the ones at issue here,” i.e., where an officer tases a non-complaint individual
suspected of committing a serious crime in part to prevent access to a potential firearm. See
Rivas-Villegas, 142 S. Ct. at 8. With nothing to suggest Moore should have been on notice about
the putative unlawfulness of his conduct, Feagin would fail to overcome Moore’s assertion of
qualified immunity as to the tasing claim, had he made out a constitutional violation (which,
again, he did not).
3.a. Much of Feagin’s appellate briefing emphasizes a procedural point: that, according
to Feagin, we lack jurisdiction over the appeal under Johnson v. Jones, 515 U.S. 304 (1995).
Johnson generally limits our jurisdiction in interlocutory qualified immunity appeals to questions
of law. Id. at 313. Questions of evidence sufficiency, that is, “which facts a party may, or may
not, be able to prove at trial,” typically are not resolved in an interlocutory posture. Id. To
Feagin’s mind, because Moore continues to contend that a jury could not accept Feagin’s telling
that he was not resisting arrest, this appeal is a fact-based one that falls outside of our
jurisdiction.
We disagree. Consider the classic “he said, she said” dispute in which the defendant’s
argument in its entirety is an attack on the plaintiff’s evidence-supported version of the material
facts. See Plumhoff, 572 U.S. at 773 (recognizing that Johnson limits the scope of our
jurisdiction over qualified immunity denials only to the extent they involve “purely factual

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issues”). In that setting, Johnson concerns are most acute. See Pollard v. City of Columbus, 780
F.3d 395, 401 (6th Cir. 2015); Leary v. Livingston County, 528 F.3d 438, 441 (6th Cir. 2008).
But Johnson does not impose a magical rule of docket clearing whenever an appealing party
simply mentions an issue of fact in their appellate briefing on qualified immunity or fails to
wholly abandon their trial defense while on appeal. Romo v. Largen, 723 F.3d 670, 678 (6th Cir.
2013) (Sutton, J., concurring in part and dissenting in part); see also Sevy v. Barach, 815 F.
App’x 58, 68 (6th Cir. 2020) (Readler, J., concurring in part and concurring in the judgment);
Est. of Matthews ex rel. Matthews v. City of Dearborn, 826 F. App’x 543, 548 (6th Cir. 2020)
(Readler, J., concurring in the judgment). Nor does “Johnson mean that every . . . denial of
summary judgment is nonappealable” simply because the district court determined that there
were “controverted issues of material fact.” Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996).
Quite the opposite. When defense counsel includes fact-based arguments in a qualified
immunity appeal, our obligation is to “separate” the legal wheat from the factual chaff and
proceed. Johnson, 515 U.S. at 319–20; DiLuzio v. Village of Yorkville, 796 F.3d 604, 610 (6th
Cir. 2015); Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018).
In fairness to Feagin, Moore certainly overindulges in record-based arguments. Yet we
cannot say that his entire appeal is devoid of any legal argument. Instead, his briefing raises a
number of issues we have long recognized as legal questions or mixed questions of law and fact
that we can (and do) resolve here. Moore’s lead argument is that the district court erred in
denying him qualified immunity. Embedded within that argument are a bevy of cascading legal
questions that Moore raises in his briefing on appeal. Does the undisputed evidence warrant a
grant of summary judgment on the merits of the constitutional question? Or did Feagin satisfy
his legal burden at summary judgment? If so, did Moore violate clearly established law? Or
were his actions instead within the “hazy border between excessive and acceptable force” that
would justify a grant of qualified immunity? See Appellant’s Br. at 11 (concluding the qualified
immunity section of his brief by maintaining that the district court “erred when it found that there
was a genuine dispute of material fact in this case” and that Moore, at best, was not on notice
that his actions were clearly out of bounds (quoting Rudlaff, 791 F.3d at 644)). All of these
inquiries have long been standard fare in qualified immunity appeals. See, e.g., Chappell v. City
of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009) (recognizing jurisdiction to determine whether

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the plaintiff’s evidence raises a genuine issue of material fact warranting trial); Doe ex rel. Doe
v. City of Roseville, 296 F.3d 431, 438 (6th Cir. 2002) (same); Williams v. Mehra, 186 F.3d 685,
690 (6th Cir. 1999) (en banc) (same); Farm Lab. Org. Comm. v. Ohio State Highway Patrol, 308
F.3d 523, 531 n.3 (6th Cir. 2002) (holding we have jurisdiction to determine whether, in
accepting the plaintiff’s evidence, the defendants violated a clearly established legal right). With
plenty of non-purely factual questions for us to examine, Johnson’s limits on fact-based appeals
are beside the point.
Like Feagin, the dissenting opinion also presses for an aggressive, review-limiting
understanding of Jones. Rather than allowing appealing parties to have their day in court, the
dissent seemingly would extinguish that right in cases where, having looked to the “core of
Defendants’ argument,” one can detect “Defendants [to have] use[d] their appellate briefing to
argue” that the district court erred as to its assessment of a factual matter in the record.
Dissenting Op. at 24–25. But the mere existence of “competing allegations on both sides” does
not stand in the way of us assessing whether legal arguments likewise exist. Id. at 22. Indeed,
we have long recognized that the “district court’s assertion that there were genuine issues of
material fact does not, standing alone, destroy the appealability of a qualified immunity ruling.”
See Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997). We instead consider the facts in a light
most favorable to the plaintiff. Id. Any other approach risks eliminating our review altogether in
this setting. After all, facts permeate every qualified immunity dispute. See Sevy, 815 F. App’x
at 66–67. And qualified immunity exists to protect against a government official’s mistake of
both fact and law. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Those protections would be
“effectively lost if” an appeal were dismissed and a case “permitted to go to trial” simply
because a party highlighted factual disputes in the court of appeals. Id. (citation modified). So
rather than throwing up our hands whenever the parties disagree over the facts or whenever the
district court has assessed the record, we instead roll up our sleeves and train our attention on any
remaining legal questions. See Johnson, 515 U.S. at 319–20; DiLuzio, 796 F.3d at 610; Bunkley,
902 F.3d at 560.
The dissenting opinion’s contrary approach runs counter to Supreme Court authority.
Especially with video evidence available here and elsewhere, we can assess many of the facts for

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ourselves, regardless how the parties portray them, filling in any holes with the plaintiff’s
evidence and the defendant’s uncontested evidence. And in doing so, as the Supreme Court
recently reminded us, we look comprehensively at “any relevant events” that influenced the use
of force, Barnes, 145 S. Ct. at 1360 (majority op.), rather than narrowly considering, as does the
dissenting opinion, only whether Feagin was resisting when he was “pulled upright from his
vehicle.” Dissenting Op. at 27. We may not make that our sole concern, as we might have done
in days gone by. Barnes, 145 S. Ct. at 1358.
Rather than following this straightforward path, the dissenting opinion takes odd detours.
Case in point, instead of “put[ting] aside factual disputes that are minor or . . . immaterial,” Clark
v. Abdallah, 131 F.4th 432, 445 (6th Cir. 2025), as we must, the dissenting opinion embraces
them. We need not, for example, dwell on Feagin’s motive in reaching toward the center
console of his SUV, let alone, as the dissenting opinion mischaracterizes our opinion as saying,
on whether “Feagin reached toward the center console of his vehicle for a weapon,” Dissenting
Op. at 29 (emphasis added). Nor is it material whether Feagin in fact put his car in reverse or the
reason his arm was flailing as officers tried to subdue him. See id. at 27–29. On these points,
again, the relevant touchstone is how a “reasonable officer on the scene” would perceive those
actions, not Feagin’s mindset. Graham, 490 U.S. at 396. And contrary to the dissenting
opinion’s understanding, see Dissenting Op. at 30, the absence of evidence, such as any
limitations on what the video shows or Feagin’s naked assertions that he was not resisting,
cannot create genuine disputes of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). In the end, the dissenting opinion would allow a plaintiff to survive summary
judgment and escape our interlocutory review by simply pointing to the absence of evidence or
irrelevant evidentiary disputes. Much more is necessary before we would turn away on
jurisdictional grounds a party seeking review of a qualified immunity denial.
b. That leaves Feagin’s arguments on the merits. Primarily, he contends there are
disputed facts in the record as to whether he was actively resisting at the exact moment he was
removed from his vehicle. But his focus on whether there was active or passive resistance at that
moment largely misses the point. We do not evaluate a particular use of force by considering
just one tile in the reasonableness mosaic. Rather, the totality of the circumstances, not just one

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circumstance in isolation, informs our views. See Barnes, 145 S. Ct. at 1358. As the Supreme
Court recently confirmed, Feagin’s resistance, while necessary to our calculus, should be
evaluated together with the nature of the crime he was suspected of committing, Moore’s
response, and the threat Feagin posed to officers. Id. And, as just explained, Moore was
justified in using non-lethal force to disable the immediate threat posed by Feagin.
In believing otherwise, Feagin asks us to instead focus narrowly on whether he resisted
just before being tased. Ample case law, in particular, the Supreme Court’s recent decision in
Barnes, rejects Feagin’s artificial dicing of the record. We pause here to reflect on the last few
decades of relevant precedent. The seminal Supreme Court cases on use of force simultaneously
emphasize the “split-second judgments” that an officer must make in a use of force situation
while instructing lower courts nonetheless to employ a “totality of circumstances” approach.
See, e.g., Graham, 490 U.S. at 396; Tennessee v. Garner, 471 U.S. 1, 8–9 (1985). Appellate
courts reconciled these commands in different ways in use of force cases. Some took a broad
view and considered “all context and causes prior to the moment” of the use of force, see
Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999), even examining whether an independent
Fourth Amendment violation created the need for an otherwise reasonable use of force and
rendered the force impermissible, see Billington v. Smith, 292 F.3d 1177, 1190–91 (9th Cir.
2002). Others took a narrow approach, one that considered only the seconds immediately
surrounding the use of force when the moment of threat arose. See, e.g., Fraire v. City of
Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992). We took a third path: “carv[ing] up [an]
incident” into “conceptually distinct” segments, “judg[ing] each on its own terms to see if the
officer was reasonable at each stage.” Dickerson v. McClellan, 101 F.3d 1151, 1161–62 (6th
Cir. 1996) (citation modified); Pleasant v. Zamieski, 895 F.2d 272, 276 (6th Cir. 1990). This
segmented approach allows for evaluation of the “events preceding” the use of force occurring in
“close temporal proximity,” Bletz v. Gribble, 641 F.3d 743, 752 (6th Cir. 2011), while excluding
distinct events that played no direct or foreseeable role in a particular use of force, see, e.g.,
Puskas v. Delaware County, 56 F.4th 1088, 1097 (6th Cir. 2023); Claybrook v. Birchwell, 274
F.3d 1098, 1103 (6th Cir. 2001); Pleasant, 895 F.2d at 276–77.

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Admittedly, we sometimes strayed from this approach, albeit in different ways. Here and
there, we nodded towards the over-inclusive provocation approach utilized elsewhere,
considering whether an officer should be denied immunity because he unreasonably “placed
himself in potential danger” at some point prior to the incident necessitating the use of force.
See, e.g., Latits v. Phillips, 878 F.3d 541, 552 (6th Cir. 2017) (faulting officer for violating police
procedures by ramming suspect’s car, leading to a later use of deadly force); Kirby v. Duva, 530
F.3d 475, 482 (6th Cir. 2008). Yet on other occasions, we veered in the opposite direction,
narrowing the timeframe question functionally to adopt the moment of threat doctrine. See, e.g.,
Reich v. City of Elizabethtown, 945 F.3d 968, 978 (6th Cir. 2019). In extreme outlier cases, we
even “hyper-segment[ed]” within the moment of the use of force. See Osborn v. City of
Columbus, No. 22-3570, 2023 WL 2523307, at *7 (6th Cir. Mar. 15, 2023) (Readler, J.,
concurring in part and dissenting in part). At the height of such absurdity, we went so far as to
divvy up shots fired just seconds apart in the heat of a continuous confrontation to analyze each
as a discrete use of force. See Palma v. Johns, 27 F.4th 419, 441 (6th Cir. 2022), see also Hart v.
Michigan, 138 F.4th 409, 420 (6th Cir. 2025) (distinguishing between an officer’s use of pepper
spray and use of tear gas moments after the pepper spray proved ineffective); Hood v. City of
Columbus, 827 F. App’x 464, 469–70 (6th Cir. 2020). But see Palma, 27 F.4th at 453 (Readler,
J., dissenting); Hart, 138 F.4th at 427 (Larsen, J., concurring in part and dissenting in part);
Hood, 827 F. App’x at 472 (Guy, J., concurring in part and dissenting in part) (criticizing the
majority for segmenting an exchange of gunfire “within a period of approximately five
seconds”).
Aware of this confusion, the Supreme Court in recent years clarified the temporal
question in use of force cases. In so doing, the Supreme Court mercifully scrubbed any
precedential value from many of these outlier cases adopting either extreme view. As to the
broad temporal view, the Supreme Court dispelled the notion that the totality of the
circumstances test requires consideration of irrelevant circumstances, such as whether an officer
at some earlier point in time acted in a way that later led to the use of force. See Plumhoff, 572
U.S. at 776 n.3 (rejecting that deadly force cannot be justified simply due to an officer’s
“deci[ding] to continue” chasing a suspect); County of Los Angeles v. Mendez, 581 U.S. 420, 429
(2017) (holding that an unreasonable use of force cannot be premised on a separate incident that

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“in some sense set the table for the use of force”). At the other end of the spectrum, the Supreme
Court earlier this year barred courts from restricting the relevant timeframe to seconds or less,
expressly rejecting the moment of threat doctrine. Barnes, 145 S. Ct. at 1356; see also Est. of
Hernandez ex rel. Hernandez v. City of Los Angeles, 139 F.4th 790, 829 (9th Cir. 2025) (en
banc) (Bumatay, J, dissenting) (observing that Barnes abrogated the moment of the threat
doctrine and other “extreme version[s]” of that rule in which a court “puts on . . . blinders to
ignore everything” except the last seconds of a particular interaction). “[N]arrowing [of] the
requisite Fourth Amendment analysis” to focus on just the “climatic moment” where force was
used, the Supreme Court explained, is, as all agree, improper. Barnes, 145 S. Ct. at 1356;
Hodges v. City of Grand Rapids, 139 F.4th 495, 517 (6th Cir. 2025) (recognizing that Barnes
rejected “such a segmented approached” that limits the scope of the inquiry to the seconds
immediately prior to a shooting); Heid v. Rutkoski, 143 F.4th 1255, 1264 (11th Cir. 2025)
(similar); Dissenting Op. at 31 (recognizing Barnes controls the determination as to Moore’s
reasonableness). Instead, the Supreme Court embraced a middle path, one akin to our segmented
approach when it was properly applied. In utilizing the objective reasonableness analysis, a
court must “separately” consider “each search or seizure that is alleged to be unconstitutional.”
Mendez, 581 U.S. at 428; see also Plumhoff, 572 U.S. at 777 (considering 15 gunshots as a single
use of force); Mullins v. Cyranek, 805 F.3d 760, 768 (6th Cir. 2015) (considering multiple
gunshots as a single use of force for purposes of qualified immunity analysis because the
“second shot did not come at a time after which a reasonable officer would think the threat had
passed”). And for each purported violation, in turn, we must consider all the “relevant
circumstances” “leading up to the climactic moment.” Barnes, 145 S. Ct. at 1356. While no
artificial “time limit” cabins our consideration of a given use of force, id. at 1358, our focus is on
what “proximately caused” any Fourth Amendment violation, Mendez, 581 U.S. at 430–32;
Puskas, 56 F.4th at 1097 (holding Mendez requires some direct and foreseeable relation between
the circumstances being considered and the use of force).
Heeding these commands, the timeframe to consider here is not just the seconds before
Feagin’s tasing, but instead all of the events that foreseeably led to the use of force. Viewed in
this light, the undisputed evidence reveals active, unceasing resistance, as well as threatening
behavior by Feagin up to the point he was tased. In the preceding minute, recall, Feagin made a

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furtive movement to the inside of the vehicle, ignored Moore’s repeated commands to exit the
SUV, seemingly put his car in reverse while Moore was standing next to it, dropped bullets from
his pockets, and then refused to submit to handcuffing, instead tussling with the officers. See
Wright, 962 F.3d at 867; Hagans, 695 F.3d at 509. And in the seconds around the time of the
tasing—a relevant (but not the lone) consideration in assessing the permissibility of the force
used— Feagin’s right arm was flailing against the SUV as Moore tried to handcuff him. See
Barnes, 145 S. Ct. at 1358 (“Of course, the situation at the precise time of the shooting will often
be what matters most.”). But see Cunningham, 994 F.3d at 766–67 (rejecting that qualified
immunity can be denied based on “stop-action viewing of the real time situation” an officer
encountered). In the absence of evidence that Feagin posed no danger and was either fully
compliant with officer commands or had ceased resisting, Moore’s conduct was not
unreasonable. Rudlaff, 791 F.3d at 642; Hagans, 695 F.3d at 509.
Were that not the case, Feagin still fails to show that Moore was on sufficient notice that
his use of force was unreasonable. As already explained, he cites no case denying qualified
immunity in circumstances similar to this one. See Rivas-Villegas, 142 S. Ct. at 8. The district
court, recall, described the events here as falling in the “gray area between active and passive
resistance.” Order Den. and Granting Defs.’ Mots. Summ. J., R. 70, PageID#608. In that
instance, our precedents require a grant of qualified immunity. See Rudlaff, 791 F.3d at 644
(“Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines.” (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992))); see also Brown, 95
F.4th at 440; Hagans, 695 F.3d at 511; King, 97 F.4th at 397.
Nor do Feagin’s assertions in his affidavit move the ball in his direction. To rebut
Moore’s showing that summary judgment is warranted, Feagin “must come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Blanket denials of
a defendant’s evidence are “not enough” to create a genuine issue of material fact. Irvin v. Airco
Carbide, 837 F.2d 724, 726 (6th Cir. 1987). As such, Feagin does not receive an “automatic
trial” simply by “assert[ing], without any evidence, that ‘the police are lying’” as to whether he
was resisting. See Elliott v. Leavitt, 105 F.3d 174, 175 (4th Cir. 1997) (Wilkinson, J., concurring

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in the denial of rehearing en banc). That point is compelling here, where Feagin’s affidavit
consists merely of unadorned assertions that he was “not resisting arrest” when he was tased.
Feagin’s statements at most reflect his subjective belief that he was not intending to actively
resist arrest at the time of the tasing. Yet Feagin’s view of his own actions is “not the whole
ballgame”; we instead ask “whether, at the time [Moore] fired his taser, every reasonable officer
would have perceived [Feagin] as no longer actively resisting arrest.” Perez v. Simpson, 83 F.4th
1029, 1031 (6th Cir. 2023); see Lanman v. Hinson, 529 F.3d 673, 680 (6th Cir. 2008). Based on
the objective unrebutted evidence, there is no dispute of fact worthy of a trial as to whether a
reasonable officer would have perceived Feagin as having surrendered himself when he was
tased.
Lastly, Feagin protests that Moore did not warn him before deploying his taser. Perhaps
so. But officers need not do as much. See, e.g., Thomas v. City of Columbus, 854 F.3d 361, 366
(6th Cir. 2017). Our precedent on that score is especially understandable when one remembers
that the Supreme Court’s use of force rulings allow officers to make split-second decisions in
employing force. Graham, 490 U.S. at 396.
All told, a grant of summary judgment is warranted as to the tasing claim against Moore.
B. That leaves the deliberate indifference claims stemming from the allegedly inadequate
medical care Feagin received in the wake of Moore deploying pepper spray while Feagin was
detained in the police cruiser. The district court refused to grant summary judgment on that
claim solely on the basis that defendants never moved on the ground, a position defendants
concede. That fact dooms the officers’ assertion that we may opine on the deliberate
indifference claim. While our interlocutory jurisdiction can include qualified immunity appeals,
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); DiLuzio, 796 F.3d at 609–10, it is difficult to see
how it would extend to claims to which officers never sought such immunity, see Glennborough
Homeowners Ass’n v. U.S. Postal Serv., 21 F.4th 410, 414 (6th Cir. 2021) (recognizing appellant
can forfeit an affirmative argument for jurisdiction by not raising the issue below).
Defendants explain this oversight by noting that they did not read Feagin’s deliberate
indifference claim to concern the arresting officers, as opposed to the county jail officials.

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Either way, without subject matter jurisdiction, we are powerless to render a judgment on the
proper scope of that claim. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). That said, if
Feagin is in fact pursuing a claim beyond the reach of his pleadings, the district court is well
positioned to address that concern through proper trial management.
III.
We reverse the district court’s denial of qualified immunity as to Feagin’s excessive force
claim, dismiss the appeal of Feagin’s deliberate indifference claim for lack of jurisdiction, and
remand to the district court for further proceedings.

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_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. This case unfortunately follows the paradigm of so
many qualified immunity appeals involving the use of excessive force by police. Despite the
existence of disputed facts, Defendants attempt to obscure, minimize, or misrepresent the events
leading to the allegations of police misconduct. Qualified immunity supposedly exists for a
reason, and no one wishes to see a law enforcement officer subjected to the vagaries of litigation
where the facts fail to arguably support a cause of action. But this case is not one in which the
incident at issue, when properly construed, should permit judgment to be rendered in the
officer’s favor based on the reversal of the district court’s denial of qualified immunity. In fact,
the competing allegations on both sides of this case render the conferring of qualified immunity
out-of-bounds under our controlling caselaw. Instead of following legal precedent, Defendants
vigorously dispute Plaintiff’s version of the facts. Because we can resolve only legal issues on
an interlocutory appeal of the denial of qualified immunity, and Defendants present us with none,
the appeal should be dismissed for lack of jurisdiction.
The relevant facts may be described, in part, as follows: Ulysses Feagin was driving
down the center of a narrow street in Mansfield, Ohio, and approached a Mansfield Police
Department (“MPD”) police cruiser driving in the opposite direction. Feagin did not stop as he
approached the cruiser, though the officer driving, Defendant Mark Boggs, honked his horn in
warning. Fearing an accident, Boggs swerved on the road. Immediately thereafter, Boggs and
another MPD officer, Defendant Jordan Moore, who was driving a second cruiser, turned to
pursue Feagin. Moore and Boggs followed Feagin for about forty seconds before Feagin drove
his vehicle to the parking lot of an apartment building, turned into a parking space, and stopped.
Believing that Feagin was unresponsive to Moore’s initial orders to exit his vehicle, Moore
pulled him out of the vehicle. Moore and Boggs then held him against the driver’s side door, and
Moore tased him twice. The district court denied qualified immunity to Moore, finding that
genuine disputes of fact existed as to the crucial question of whether Feagin actively resisted
Moore prior to the tasing. The majority would reverse the district court’s denial of qualified

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immunity to Moore for this use of force, arguing in this appeal that we have jurisdiction over
Feagin’s allegations of the officers’ use of excessive force. But Moore raises only a factual
challenge to the denial of qualified immunity. We do not have jurisdiction over such an appeal,
and therefore should dismiss this appeal.
In determining whether government officials are entitled to qualified immunity, this
Court conducts a two-step inquiry, determining: “(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). To prevail on his excessive force claim, Feagin must show that
Moore’s use of the taser violated his clearly established constitutional rights. See Meadows v.
City of Walker, 46 F.4th 416, 422 (6th Cir. 2022). On this point, the question of whether Feagin
actively resisted the officers’ efforts to apprehend and handcuff him is a crucial one. “A suspect
has a clearly established constitutional right to be free from the use of physical force by police
officers when he is not resisting efforts to apprehend him.” Coffey v. Carroll, 933 F.3d 577, 589
(6th Cir. 2019). But the majority correctly states that tasing is a reasonable response when a
suspect actively resists arrest. “We have often found that the reasonableness of an officer’s use
of a taser turns on active resistance.” Kent v. Oakland Cnty., 810 F.3d 384, 392 (6th Cir. 2016).
“Active resistance includes physically struggling with, threatening, or disobeying
officers, . . . refusing to move your hands for the police to handcuff you, . . . or fleeing from
police.” Id. (internal quotation marks and citations omitted). Contrary to the majority’s
assertions, however, tasing is not justified in instances of “passive resistance,” such as when a
suspect fails to fully comply with an officer’s commands but does not pose a physical threat. See
id. at 392–94 (where a suspect did not comply with officers’ commands and “demonstrated
‘verbal hostility,’” dismissing officers from his home, but was physically submissive, tasing was
unreasonable). The district court denied qualified immunity to Moore because it found that
whether Feagin actively or passively resisted, despite some noncompliance, depended on how a
factfinder addressed disputed evidence. In other words, whether Feagin actively resisted was a
genuine dispute of material fact precluding the grant of qualified immunity to Moore, and
Feagin’s resistance was also determined by disputed facts.

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Defendants’ appeal of the district court’s denial of qualified immunity presents a
jurisdictional issue, as “[w]e are authorized to hear appeals only from ‘final decisions’ of the
district court,” Adams v. Blount Cnty., 946 F.3d 940, 948 (6th Cir. 2020) (quoting 28 U.S.C.
§ 1291), and a district court’s denial of a claim of qualified immunity is an appealable final
decision only “to the extent that it turns on an issue of law.” Ouza v. City of Dearborn Heights,
969 F.3d 265, 276 (6th Cir. 2020) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
“That is, on an interlocutory appeal from the denial of qualified immunity, we have jurisdiction
to review only the ‘purely legal’ question of ‘whether the legal norms allegedly violated by the
defendant were clearly established at the time of the challenged actions.’” Id. (quoting Mitchell,
472 U.S. at 528 & n.9). And “[w]e have jurisdiction only to the extent that the defendant limits
his argument to questions of law premised on facts taken in the light most favorable to the
plaintiff.” Adams, 946 F.3d at 948 (alteration adopted) (internal quotation marks omitted).
The issue in dispute in this appeal is not one of law. Defendants argue against the
conclusion that this appeal involves a disputed issue of material fact as to whether Feagin
actively resisted arrest, raising only a factual challenge. The core of Defendants’ argument is
that “Feagin was actively resisting arrest at the time Officer Moore deployed the taser,” and
therefore that Moore’s use of force is reasonable and qualified immunity is due. Appellant’s Br.,
10. Feagin vigorously denies Defendants’ factual allegations in this regard, and denies the
allegation that he was actively resisting when the taser was used.
In this case, the district court found that disputes of fact governed whether Feagin’s
actions amounted to active resistance. The Supreme Court made clear in Johnson v. Jones, 515
U.S. 304 (1995), that a defendant “may not appeal a denial of a motion for summary judgment
based on qualified immunity ‘insofar as that order determines whether or not the pretrial record
sets forth a “genuine” issue of fact for trial.’” Adams, 946 F.3d at 948 (quoting Johnson, 515
U.S. at 320). In this case, the district court determined that the video evidence presented a “gray
area” in which it was disputed whether Feagin was passively resisting arrest. Op., R. 70, Page
ID #608. The question of Feagin’s active or passive resistance rests on the characterization of
Feagin’s actions and movements under the circumstances, as seen in the video and described in
the record. This is a quintessentially fact-bound inquiry. The district court found that factual

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disputes raised the possibility that a jury could reasonably conclude that Feagin did not actively
resist, and only passively resisted—so as to warrant liability for excessive force. Cf. Meadows,
46 F.4th at 423–24 (distinguishing between a “gray area” in which “facts are disputed, but a
reasonable jury could find a set of facts that, if proven at trial, would show that an officer’s
actions violated a clearly established right,” and a situation in which the undisputed “facts
confronting an officer leave ambiguity about whether the officer’s actions violate a constitutional
right”).
In arriving at its ultimate conclusion that Feagin’s active resistance was disputed, the
district court identified areas of factual dispute from which a jury could conclude that Feagin was
not actively resisting. First, the district court read the facts in the record to dispel “a concern for
potential escape or immediate harm,” concluding that Feagin “parked at the apartment complex”
to await the officers’ arrival and “made no effort to flee,” evincing no threat to the officers. Op.,
R. 70, Page ID #607. Second, the district court viewed the video to support “run-of-the-mill
noncompliance” and that Feagin was “under control” and not resisting when Moore used his
taser. Id. at Page ID #608.
Defendants dispute both findings using their characterization of the evidence that Feagin
was persistently resisting arrest. See Appellant’s Br., 4, 10. Defendants argue that “arrest
reports, the affidavits of the officers, the response to resistance forms, and the video all establish
that Mr. Feagin was actively and persistently resisting arrest,” and claim that evidence to the
contrary—Feagin’s sworn affidavit—is inadmissible. Id. at 10–11. This itself is jurisdiction-
defeating. We have “consistently enforced Johnson’s jurisdictional bar in cases in which the
defendant's qualified immunity appeal is based solely on his or her disagreement with the
plaintiff's facts.” Ouza, 969 F.3d at 277. Defendants’ appeal is based on such disagreement, as
they quibble with the district court’s contrary findings and Feagin’s contrary attestations. Feagin
attested that “he never physically resisted” the officers, never reached for a weapon, and never
reversed his car. Feagin Aff., R. 61-2, Page ID #451–52. As described, the district court
concluded that Feagin never fled, never presented a threat, and that a reasonable jury could
conclude that Feagin, though noncompliant, did not resist arrest. Defendants use their appellate
briefing to argue otherwise. They state instead that Feagin resisted arrest, reached in the back of

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his vehicle, and reversed out of his parking spot in an attempt to flee officers. These facts,
Defendants argue, establish that the district court erred in finding a genuine dispute of material
fact and denying qualified immunity.1
Defendants’ arguments defeat our jurisdiction because they reflect a challenge to the
district court’s determinations about genuine disputes of fact. See Gregory v. City of Louisville,
444 F.3d 725, 744 (6th Cir. 2006). Defendants’ protestations further defeat our jurisdiction by
constituting a failure to accept Feagin’s version of the facts as true, thwarting our well-
established rule that “to bring an interlocutory appeal of a qualified immunity ruling, the
defendant must be willing to concede the plaintiff's version of the facts for purposes of the
appeal.” Ouza, 969 F.3d at 277 (quoting Jefferson v. Lewis, 594 F.3d 454, 459 (6th Cir. 2010));
cf. Heeter v. Bowers, 99 F.4th 900, 909 (6th Cir. 2024) (“A defendant may invoke our
jurisdiction by conceding the district court’s version of the facts, as construed in the light most
favorable to the plaintiff.” (internal quotation marks omitted)). Because Feagin’s actions are
disputed, we simply cannot reach the legal question of whether his actions amounted to active
resistance. Cf. Adams, 946 F.3d at 949 (declining to exercise jurisdiction because the defendant
contested factual determinations at “the heart of the legal issue” determining whether his conduct
amounted to excessive force). This precludes our jurisdiction in this case.
To be sure, “[t]here are two narrow circumstances in which an interlocutory appeal
record may contain some dispute of fact,” such as the one Defendants raise. Id. at 948. One
exception is worth discussing here: “[I]n exceptional circumstances, we may decide an appeal
challenging the district court’s factual determination if that determination is ‘blatantly
contradicted by the record, so that no reasonable jury could believe it.’” Id. (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)). Often, these circumstances come about where there is video
footage, as in the prototypical example of Scott v. Harris, where video footage “clearly
contradict[ed]” the facts as told by the plaintiff and adopted by the lower court. 550 U.S. at 378.
1Defendants seem to make the bizarre argument that when there are unresolved factual disputes, “rather
than throwing up our hands whenever the district court has assessed the record,” Maj. Op., 18, we should address
remaining legal questions. Defendants miss the point that when there are material factual disputes, this Court is
without jurisdiction and should not reach the legal questions. It is not our place to “[fill] in any holes with the
plaintiff’s evidence,” as Defendants would have us do. Id.

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Where video footage “resolves many of the factual disputes” in a case, “[w]e may view the facts
in the light depicted by the videotape and use it to ensure the district court properly constructed
the factual record.” Heeter, 99 F. 4th at 910 (internal quotation marks omitted).
But in this case, video footage fails to resolve the disputed question of Feagin’s resistance
and fails to contradict the district court’s determination that Feagin’s resistance was a genuinely
disputed fact. The district court was correct that the video fails to illuminate whether Feagin
actively resisted. Thus, the video does not resolve the issue of our jurisdiction over this appeal.
The majority makes two errors in exercising jurisdiction anyway and deciding that Moore is
entitled to qualified immunity. First, the majority misrepresents by overstating the events
depicted in the video to decide the factual and legal issues at hand, implicitly using this
decisiveness to exercise jurisdiction. Second, the majority reaches outside of the video and
distorts facts in Defendants’ favor in order to grant qualified immunity.
The video shows exactly the gray area the district court described, evincing a genuine
dispute of material fact that precludes qualified immunity for Moore on Feagin’s excessive force
claim. From the video, it is apparent that Moore and Boggs are physically controlling Feagin’s
body before Moore tases Feagin at close range. Feagin opened his car door for the officers, and
Moore and Boggs immediately pulled him upright, wrestled his hands behind his back, and
pulled him into a standing position. The officers held Feagin against the vehicle and attempted
to handcuff him. Moore deployed his taser while the officers were handling Feagin’s body in an
effort to secure the handcuffs. On the available video footage, much of Feagin’s body is
obscured. But once he is pulled upright from his vehicle, Feagin does not appear to fight the
officers. He was not resisting.
The district court’s description of Feagin’s movements as he was pulled out of his
vehicle, tased, and handcuffed is persuasive. According to the district court, Feagin “appear[ed]
to go limp as the officers wrestle[d] him from the driver’s seat of the car to a standing position
beside it.” Op., R. 70, Page ID #594. As the officers put handcuffs on Feagin, “Feagin
appear[ed] to cooperate and not resist.” Id. at Page ID #595. Indeed, Feagin appears to have
been unable to resist, because the officers were in control of his body. Though the majority
characterizes Feagin’s arm as “flailing” in resistance at the point Moore deployed his taser at

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close range, Maj. Op. 13, Feagin’s arm is largely obscured by the officers at the critical point.
The officers have a hold on Feagin’s shoulders and upper arm, and a reasonable jury could
conclude that the “flailing” might be characterized as an involuntary response to the hold, rather
than a form of resistance. As Moore tases Feagin, he and Boggs remain in control of Feagin’s
body.
The district court was also correct to qualify its statements as Feagin’s “apparent”
movements. The angle of the footage does not give much insight as to the rigidity of Feagin’s
body as he was forced against the car, nor to the subtlety of his movements, because the officers
are obscuring much of his body as they force him into handcuffs. This leaves us with a factual
dispute, as the district court recognized, and thus no jurisdiction. Cf. Heeter, 99 F. 4th at 910
(exercising jurisdiction where the video gave a “clear view” of the events relevant to plaintiff’s
claim). I therefore differ from the majority in my view of the video and its ability to resolve the
issues in this appeal.
The majority is also of the mind that utilizing the video and the record exception is
unnecessary to exercise our jurisdiction. The majority says that Defendants have raised legal
disputes because, despite “overindulg[ing] in record-based arguments,” Defendants’ “lead
argument is that the district court erred in denying [Moore] qualified immunity.” Maj. Op., 17.
But in other appeals in which we have denied jurisdiction because the interlocutory appeal
concerned a factual dispute, defendants necessarily raised the same argument, because they all
challenged the denial of qualified immunity. See, e.g., Gregory, 444 F.3d at 743–44; McGrew v.
Duncan, 937 F.3d 664, 667, 669 (6th Cir. 2019). The majority raises for itself questions that it
claims are “embedded” within the appeal, such as whether “the undisputed evidence warrant[s] a
grant of summary judgment,” or whether “Moore violated clearly established law.” Maj. Op.,
17. Defendants did not raise these issues, as their appeal relies on disputing Feagin’s version of
events, and they never mention the legal issue of whether the tasing violated clearly established
law. It is not our duty to discern “embedded” legal questions for an appellant who does not raise
them.
Rather, the majority distorts our precedent in order to assume jurisdiction and reverse the
district court. In addition to its outsized misconstrual of the video, it does so by failing to

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construe other facts in Feagin’s favor while purporting to do so. See id. at 8 (“We review the
district court’s decision de novo, resolving all genuine factual disputes in a light most favorable
to Feagin.”). This allows the majority to consider disputed facts in the record as “tile[s] in the
reasonableness mosaic” supposedly supporting Moore’s use of force. Id. at 18. By resting its
decision on both the unclear video and disputed circumstances surrounding it, the majority
reaches far outside our jurisdiction. Cf. Heeter, 99 F. 4th at 910 (concluding an appeal of the
denial of qualified immunity was within our jurisdiction because we could conduct a legal
analysis based on a clear video and undisputed facts).
To reiterate, we must “take the facts in the light most favorable to [Feagin] unless they
are clearly contradicted by video.” Ayala v. Hogsten, 786 F. App’x 590, 591 (2019). What
follows are a few ways in the which the majority fails to do so.
First, the majority states that Feagin reached toward the center console of his vehicle for a
weapon. Maj. Op., 5. Defendants’ “response to resistance” report states that Feagin reached
toward the floorboards of his vehicle. Feagin disputes that he reached for the floorboards and
acknowledges only that the gear shift is in the center console; he disclaims that he reached for a
weapon while he was in his vehicle or as he was pulled from it. The video does not provide a
view as to whether Feagin reached for the console—it only shows Feagin being pulled from the
car.
Second, the majority asserts that Feagin “[s]uddenly” reversed his car after parking it, in
an effort to evade arrest. Id. Feagin denies in his sworn affidavit that he attempted to reverse his
vehicle. The district court only characterized the vehicle as “roll[ing] slightly backward,”
without attributing the rollback to Feagin’s efforts, acknowledging instead that the rollback
occurred when the vehicle “shifted into park and the engine settled into gear.” Op., R. 70, Page
ID #594. Again, the video does not show Feagin inside the car. Consequently, the mechanism
by which the car rolled back is unclear. Taking the facts in Feagin’s favor, we would construe
the evidence as supporting the narrative that the car rolled back as it settled into park, not
because of an intentional reversal. From what the video does show, the car’s rollback can be
characterized as unintentional. Further, the district court astutely noted that “[n]o evidence in the
record suggest[ed] a concern for potential escape or immediate harm,” because Feagin

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voluntarily parked at the apartment complex and “officers blocked his car.” Id. at Page ID #607.
The circumstances fail to support Defendants’ allegation that Feagin intended to flee—he
willingly parked his car in the first place, after a limited pursuit.
Third, the majority asserts that bullets fell from Feagin’s pocket as the officers were
pulling Feagin from his vehicle. Maj. Op., 5. This is based on assertions from Defendants’
“response to resistance” report and Boggs’ affidavit. As the district court concluded, however,
“the video footage does not show ammunition falling from Mr. Feagin’s pocket, though it might
be too small to see.” Op., R. 70, Page ID #595.
The majority’s mischaracterization of Feagin’s conduct before he was tased allows it to
conclude that Feagin was a continuing threat to Moore and Boggs, supporting the conclusion that
Moore’s use of the taser was reasonable. See Maj. Op., 12–13. But these are not facts that the
district court found, and for good reason. The majority is wrong to conclude that these purported
facts were “undisputed,” and to discount Feagin’s averments to the contrary. See id. “An
appellate court reviewing the denial of the defendant’s claim of immunity need not consider the
correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff’s
allegations actually state a claim.” Mitchell, 472 U.S. at 528 (1985). We are obliged instead to
accept the plaintiff’s factual allegations as true, and to utilize them only in resolving the relevant
legal claims. Id. Ignoring this, the majority takes the officers’ version of events at face value,
contradicting our summary judgment standards. That the majority must bend the record to
Defendants’ favor evinces the existence of factual disputes precluding a resolution at this
juncture. But to any objective observer, it is clear that Feagin has raised disputes as to the
Defendants’ characterization of events. To be sure, where the moving party comes forward with
evidence to support summary judgment, a non-moving party must advance more than a “blanket
denial” to defeat the motion. Irvin v. Airco Carbide, 837 F.2d 724, 726 (6th Cir. 1987). But in
this case, the evidence that Defendants provided itself presented “a sufficient disagreement to
require submission to a jury,” and was not “so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 251–52 (1986). The record evidence in this
case cannot be characterized as one-sided given the ambiguity of the interactions in the video
and, indeed, what it does not show. There is more than “metaphysical doubt” as to the officers’

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versions of material facts and whether the use of force was justified. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In addition to Feagin’s sworn attestations,
the video fails to show that Feagin was actively resisting when the taser was deployed and fails
to corroborate the officers’ testimony as to the events leading to the tasing.
In any event, the minutiae of the disputes as to the events preceding the tasing should be
irrelevant for the purposes of this appeal. What is relevant is that such disputes exist, and that
Defendants rely upon them to argue against the denial of qualified immunity. The majority
contends that the reasonableness of Moore’s use of force depends on the “totality of the
circumstances.” See Barnes v. Felix, 605 U.S. ---, 145 S. Ct. 1353, 1358–59 (2025) (internal
quotation marks omitted). Were we making a determination as to Moore’s purported
reasonableness, Feagin’s conduct outside the moment of the tasing might affect our judgment.
But Defendants’ appeal, which raises only factual disputes, prevents us from reaching the merits
of this issue. Furthermore, our duty to construe factual disputes in Feagin’s favor prevents us
from viewing the totality of circumstances in the misleading way that the majority does in
attempting to sift through unresolved factual disputes.
For these reasons, though I concur in the dismissal of the appeal as to Feagin’s deliberate
indifference claim, I respectfully dissent from the reversal of the district court’s denial of
qualified immunity as to Feagin’s excessive force claim.

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