Latoya Aaron, as Legal Guardian of Derek Aaron, an Incompetent Individual v. DARREN KING; EDWARD PAWLOWSKI; EUGENE FIELDER, Officers

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0100p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LATOYA AARON, as Legal Guardian of Derek Aaron,
an Incompetent Individual,
Plaintiff-Appellee,
v.
DARREN KING; EDWARD PAWLOWSKI; EUGENE
FIELDER, Officers,
Defendants-Appellants.
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No. 25-1629
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:22-cv-11062—Shalina D. Kumar, District Judge.
Argued: January 28, 2026
Decided and Filed: April 1, 2026
Before: SUTTON, Chief Judge; STRANCH and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Cheryl L. Ronk, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan,
for Appellants. Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C.,
Southfield, Michigan, for Appellee. ON BRIEF: Cheryl L. Ronk, CITY OF DETROIT LAW
DEPARTMENT, Detroit, Michigan, for Appellants. Robert G. Kamenec, FIEGER, FIEGER,
KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellee.
_________________
OPINION
_________________
SUTTON, Chief Judge. When officers attempted to arrest Derek Aaron for a home
invasion and a violent robbery, he pulled his hands away and refused to place them behind his
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back. After pulling on Aaron’s arms and issuing verbal orders, officers took him to the ground.
When Aaron sued the officers for excessive force under § 1983, they moved for summary
judgment based on qualified immunity. The district court denied the motion in part, reasoning
that a jury could find that the officers violated Aaron’s clearly established rights. We disagree
and reverse.
I.
On May 6, 2019, as Drew Tartalone filled up his gas tank at a Sunoco station in central
Detroit, someone suddenly threw him to the ground and robbed him. Tartalone described his
assailant as around 6'3'' and 250 pounds, and witnesses at the gas station told police that the
perpetrator visited the establishment frequently. Four days later, and only a few blocks away,
two men kicked in Corey Watts’ back door and ran through his home before escaping in a black
SUV. Officers investigating both crimes quickly took an interest in 6'4'', 280-pound Derek
Aaron, age 22, a Sunoco regular who matched security footage of the robbery and called Watts
multiple times immediately before the home invasion. After Watts and Tartalone identified
Aaron out of separate photo lineups, officers sought a warrant to arrest him.
On May 17, 2019, the police received an anonymous report indicating that Aaron was
back at the Sunoco. Uniformed officers converged on the gas station to arrest him, and their
body cameras captured the encounter. Four officers entered the Sunoco and surrounded Aaron,
walking him out of the register line and toward a nearby refrigerator. The officers grabbed
Aaron’s arms, tried to pull them behind his body, and ordered him to place his hands behind his
back. They did not specifically tell Aaron that they intended to arrest him. Aaron pulled his
arms back in front of his body and continually asked, “What’s going on?”, with rising levels of
distress. R.32-20 at 00:36–01:17. For around twenty seconds, officers continued pulling on
Aaron’s arms and ordering him to put them behind his back while Aaron continued to demand an
explanation and hold his hands in front of his body.
Officers lifted Aaron’s legs out from beneath his body and took him to the ground, where
the struggle continued. Multiple officers tried to pull Aaron’s arms behind his back to permit
handcuffing. Aaron, again, pulled his hands in front of his body to prevent handcuffing. At

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some point, Officer Edward Pawlowski struck Aaron three times in the side with his knee. After
one officer told Aaron that he would break his arm if he did not put his hands behind his back,
Aaron relented. The State charged him with home invasion, unarmed robbery, and resisting and
obstructing a police officer. One charge was dropped, and the others were dismissed, perhaps
because Aaron, unbeknownst to the officers at the time of his arrest, has autism.
Three years after the arrest, Aaron (through his legal guardian Latoya Aaron) sued the
arresting officers under § 1983, alleging violations of the Fourth Amendment based on excessive
force and a failure to intervene by other officers. Asserting qualified immunity, the officers
moved for summary judgment. The district court denied qualified immunity as to the excessive
force claims but granted it as to the failure-to-intervene claims. The officers appealed. See
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
II.
Qualified immunity shields officials from lawsuits for money damages unless they
violated clearly established constitutional rights. Reichle v. Howards, 566 U.S. 658, 664 (2012).
It reflects the reality that subjecting officers to the time, expense, and risk of money-damages
actions for uncertain violations of the Constitution would “dampen the ardor of all but the most
resolute, or the most irresponsible, in the unflinching discharge of their duties.”
Nieves v. Bartlett, 587 U.S. 391, 404 (2019) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir. 1949) (L. Hand, C.J.)). To overcome the officers’ qualified immunity defense, Aaron must
demonstrate (1) that the officers violated a constitutional right, and (2) that the right was clearly
established. White v. Pauly, 580 U.S. 73, 78–79 (2017) (per curiam). Aaron does not satisfy the
second prong, making it unnecessary to consider the first one. Pearson v. Callahan, 555 U.S.
223, 236 (2009).
Because the defense of qualified immunity exists to shield officers who did not act in an
objectively unreasonable fashion, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). We therefore cannot define clearly
established rights at too high a level of generality. City of Tahlequah v. Bond, 595 U.S. 9, 12

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(2021) (per curiam). To prevail, Aaron must establish a violation “beyond debate,” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011), which “usually means the claimant must identify a case with
facts similar enough that it squarely governs this one,” Moore v. Oakland County, 126 F.4th
1163, 1167 (6th Cir. 2025) (quotation omitted). “[G]eneral statements of the law are [also]
capable of giving clear and fair warning to officers even where the very action in question has
not previously been held unlawful.” Walker v. Davis, 649 F.3d 502, 504 (6th Cir. 2011).
He does not make that showing. Consider the circumstances facing the officers and the
sequence of events, all undisputed and most of them captured on camera. Aaron was a large man
(6'4'' and 280 pounds). The police suspected that he had committed several violent crimes in
recent days. Probable cause existed to arrest Aaron (1) for an assault at the Sunoco gas station of
a customer and robbery of him and (2) for a break-in of a nearby home. The robbery at the
Sunoco station was captured on camera, and Aaron does not dispute that the officers had
probable cause to arrest him for both offenses. Given Aaron’s size, the violent nature of the
crimes, and the recency of each of them, the police had ample reason to perform the arrest with
several officers. See Graham v. Connor, 490 U.S. 386, 396 (1989). What turns the arrest into a
physical encounter is Aaron’s decision not to make his hands available for handcuffing and to
resist the officers’ attempts to handcuff him. As the video confirms, he repeatedly moved his
hands away from the officers, making it impossible to handcuff him while he stood. He tensed
his body and locked his arms to prevent the officers from pulling his hands behind his back.
Even after the officers took him to the ground and one of them kneed him in the side, he
struggled against the officers to keep his hands in front of his body. Only when an officer
threatened to break his arm did Aaron relent and permit the officers to handcuff him.
Nor was this a situation in which the suspect merely declined to follow the officer’s
instructions. See, e.g., Browning v. Edmonson County, 18 F.4th 516, 527 (6th Cir. 2021)
(refusing to get out of a car). This was “a physical struggle to maintain control” of the suspect’s
limbs, what amounts to the kind of “volitional and conscious defiance” that permits increasing
exercises of force by the officers to subdue the suspect. King v. City of Rockford, 97 F.4th 379,
396 (6th Cir. 2024) (quotation omitted). When the officers told Aaron to put his hands behind
his back, he did not simply stand there; he prevented the officers from moving his arms behind

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No. 25-1629 Aaron v. King et al. Page 5
his back for handcuffing by crying out and pulling his arms away, tensing his body and arms,
and holding them tight against his side. See Rudlaff v. Gillispie, 791 F.3d 638, 642 (6th
Cir. 2015) (noting that the arrestee “locked up his body . . . and admittedly refused to give [the
officer] his hands”); Moore, 126 F.4th at 1168 (“resisting handcuffs”); Bell v. City of Southfield,
37 F.4th 362, 368 (6th Cir. 2022). In the context of the serious crimes at issue, the officers did
not violate any clearly established law when they responded to Aaron’s active resistance.
Aaron invokes several cases of his own in challenging this conclusion, but each
is “several material steps removed from this one.” DeLanis v. Metro. Gov’t of Nashville
& Davidson County, 160 F.4th 732, 745 (6th Cir. 2025). Few involve suspects arrested for
serious and violent crimes, fewer still involve large suspects who pulled their hands away from
officers and hid them to prevent handcuffing, and none involves all of these circumstances.
One of the cited cases, Smith v. City of Troy, illustrates the point. 874 F.3d 938 (6th Cir.
2017) (per curiam). An epileptic man experienced a seizure while driving, exited his car, and
grabbed a chain-link fence. Id. at 942. A police officer arrived at the scene and peeled the man’s
hands off the fence. Id. The man pulled his hand away from the officer, who responded by
wrestling him to the ground. Id. We emphasized that even the officer admitted that the man was
sick and off balance. Id. at 945. And we held that “a non-violent, non-resisting, or only
passively resisting suspect who is not under arrest has a right to be free from an officer’s use of
force.” Id. (emphasis added). We cannot see how a case about a physically vulnerable man who
did not commit any crime and was not attempting to resist arrest clearly establishes the law
governing the arrest of a large and physically able man who was resisting arrest and for whom
probable cause existed that he committed a home invasion and a violent robbery. See Anderson,
483 U.S. at 640.
Aaron next invokes a trio of cases, each involving far less serious offenses. See
Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009) (disturbing the peace); Atkins v. Township of
Flint, 94 F. App’x 342, 349 (6th Cir. 2004) (prank calling); Adams v. Metiva, 31 F.3d 375, 378
(6th Cir. 1994) (seat belt infraction). Those decisions also involve plaintiffs who were entirely
incapacitated or fully compliant at the time of the challenged seizure. Adams, for instance,
simply pointed out that “[a] reasonable person would know that spraying mace on a blinded and

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incapacitated person sitting in a car would violate the right to be free from excessive force.”
31 F.3d at 387. Cases about compliant prank callers do not provide officers with fair notice of
the standards applicable to the detention of a probable serial robber who resists arrest. See
Poe v. Haydon, 853 F.2d 418, 423 (6th Cir. 1988). No less importantly, “[u]npublished
decisions” like Atkins “cannot create clearly established rights.” Chaney-Snell v. Young, 98
F.4th 699, 725 (6th Cir. 2024). The officers who arrested Aaron, it follows, did not violate
clearly established rights.
Saalim v. Walmart does not change matters. 97 F.4th 995, 1007 (6th Cir. 2024). In that
case, an officer stopped a taxi driver for “a parking violation.” Id. at 1000. The officer pulled
his taser, forced the driver out of the cab, and shoved him so that his hands were on the cab and
his back faced the officer. Id. at 999–1000. When the driver turned around to face the officer
“with both hands visible and empty,” the officer tased him for nine seconds. Id. at 1000. We
held that the officer violated the driver’s clearly established constitutional rights, but that
conclusion does not help Aaron. Id. at 1010. For one thing, the officer in Saalim tased the cab
driver while arresting him for “a parking violation,” not a robbery and a home invasion. Id.
at 1004. Saalim, furthermore, distinguished Hagans v. Franklin County Sheriff’s Office, 695
F.3d 505 (6th Cir. 2012), and Caie v. West Bloomfield Township, 485 F. App’x 92, 96 (6th Cir.
2012), because both cases involved arrestees who “actively hid[] their hands from the officers.”
Id. at 1008. Aaron did precisely that. And while Saalim noted that Hagans and Caie involved
“erratic and dangerous behavior” on the part of the arrestees, neither of those cases involved
serious or violent crimes of arrest. Saalim, 97 F.4th at 1008; see Hagans, 695 F.3d at 511
(noting officers suspected Hagans of at most an “innocuous crime[],” and potentially no crime at
all); Caie, 485 F. App’x at 96 (“Plaintiff was not being arrested for a crime . . . .”).
At oral argument, Aaron’s counsel emphasized that the officers did not tell Aaron he was
under arrest with respect to the assault and burglary. Whether at argument or in his brief,
however, Aaron never identifies a case that shows that the officers exceeded a clearly forbidden
line by failing to make this point at the beginning of the encounter. While it may be good
practice to tell a suspect that he is under arrest at the outset of an encounter, particularly where
the police deny a suspect a reasonable chance to comply, see Grawey, 567 F.3d at 311, or the

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arrest concerns a minor crime, see Atkins, 94 F. App’x at 349; Richards v. County of Washtenaw,
818 F. App’x 487, 492 (6th Cir. 2020) (public intoxication), no authority to our knowledge
requires such notice during an arrest for two violent felonies where the officers gave the suspect
ample time to comply with their orders.
Aaron turns to an alternative theory. The officers violated his Fourth Amendment rights,
he claims, by using knee strikes to subdue him once he fell to the ground. But Aaron’s cases, yet
again, turn on materially different facts and thus fail to provide the kind of clearly established
law needed to pierce qualified immunity. In Champion v. Outlook Nashville, Inc., for instance,
officers handcuffed a prone arrestee and bound his ankles together. 380 F.3d 893, 897, 901 (6th
Cir. 2004). Because the officers had already incapacitated the suspect, they violated the Fourth
Amendment when they sprayed mace in his face and applied asphyxiating pressure to his back.
Id. at 903. To describe the case is to distinguish it. Aaron continued to prevent handcuffing
even on the ground; he was not incapacitated at the time Officer Pawlowski struck him with his
knee.
Aaron’s other cases are equally unhelpful. Some of them involve arrestees suspected of
far less serious offenses that do not involve violence. See, e.g., Harris v. City of Circleville,
583 F.3d 356, 366–67 (6th Cir. 2009) (DUI); Phelps v. Coy, 286 F.3d 295, 297, 301 (6th Cir.
2002) (open container violation); Lawler v. City of Taylor, 268 F. App’x 384, 386 (6th Cir. 2008)
(OWI); Shumate v. City of Adrian, 44 F.4th 427, 441 (6th Cir. 2022) (“misdemeanor statute of
opposing and obstructing an officer”). While others involve more serious crimes of arrest, they
involve compliant or incapacitated arrestees. The police, for instance, arrested one of the
plaintiffs in Baker v. City of Hamilton for burglary of a car. 471 F.3d 601, 604 (6th Cir. 2006).
But he had already announced his willingness to comply when the officers choked him, sat on
his back, and struck his head and legs. Id. at 608–09. Officers likewise arrested the plaintiff in
Smoak v. Hall for armed robbery. 460 F.3d 768, 774–75 (6th Cir. 2006). But they had already
handcuffed him, and he had already generally complied with orders by the time they slammed
him to the ground face first. Id. at 783.
Aaron protests that the defendants’ briefing in the district court forfeited the argument
that he resisted the arrest. Although the district court agreed, it found only that the officers

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forfeited this argument with respect to the first prong of the qualified immunity analysis.
Because we consider only whether the defendants violated clearly established law, not whether
they violated a constitutional right, any forfeiture with respect to the latter question does not
matter. Cf. Ashford v. Univ. of Mich., 89 F.4th 960, 975 (6th Cir. 2024) (holding that the
defendants forfeited one prong of the qualified immunity analysis but not the other).
In a similar vein, Aaron argues that the defendants forfeited any argument as to the
clearly established prong of the qualified immunity analysis by failing to raise it in their opening
appellate brief. Parties, it is true, forfeit challenges to the district court’s decision by failing to
raise them in their opening brief. Scarber v. Palmer, 808 F.3d 1093, 1097 (6th Cir. 2015). And
defendants, it is also true, may forfeit the defense of qualified immunity. Cockrun v. Berrien
County, 101 F.4th 416, 419 (6th Cir. 2024). But our forfeiture rule exists “to avoid surprise and
prevent sandbagging of appellees.” Glennborough Homeowners Ass’n v. U.S. Postal Serv.,
21 F.4th 410, 415 (6th Cir. 2021) (quotation omitted). For that reason, we require only “some
effort at developed argumentation,” particularly where the opposing party was, as here, not
surprised or prejudiced by the underdeveloped arguments. Cockrun, 101 F.4th at 420 (quotation
omitted). And “[o]nce the defense is raised” Aaron—not the officers—bears “the burden of
showing that the [officers’] conduct violated a right so clearly established that a reasonable
official in that position would have clearly understood that he or she was under an affirmative
duty to refrain from such conduct.” Barrett v. Steubenville City Schs., 388 F.3d 967, 970 (6th
Cir. 2004).
The defendants adequately preserved the defense here. Their argument summary states
that “no case law exists where the same set of circumstances exist[s] and the officers have been
found to have acted unconstitutionally.” Appellant’s Br. 13. The ensuing argument states the
legal test for clearly established law and then, after citing authority, contends that “[t]o the
contrary, binding precedent suggests that uses of force well beyond those utilized by the Officers
in this case still fall within the range of constitutionally permissible uses of force.” Appellant’s
Br. 22. The brief additionally argues that no case has ever found a constitutional violation in
similar circumstances. Appellant’s Br. 22. At bottom, the officers provided “argumentation”
supporting the claim that their actions did not violate clearly established rights. United States v.

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Huntington Nat’l Bank, 574 F.3d 329, 331 (6th Cir. 2009). That suffices. See Bldg. Serv. Loc.
47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1398–99 (6th Cir.
1995).
We reverse.

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