Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.

APPEAL FROM THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Author: LegalEase Solutions

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

STATEMENT IN SUPPORT OF ORAL ARGUMENT

The Plaintiff–Appellee concurs with the Defendants–Appellants’ Statement in Support of Oral Argument.

STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION

The Plaintiff–Appellee disagrees with Defendants–Appellants Statement of Subject Matter and Appellate Jurisdiction.
Defendants–Appellants claim they are entitled to review of the District Court’s denial of their claim for qualified immunity. Defendants-Appellants have mischaracterized that nature of the District Court’s ruling in an attempt to invoke the jurisdiction of this Court. The District Court made valid findings that genuine issues of material fact exist regarding Plaintiff-Appellee’s claim of excessive force and whether Defendants were entitled to qualified immunity.
In its May 12, 2005 Opinion and Order, the District Court’s denied the Defendant-Appellants’ Motion for Summary Judgment on the grounds that there were genuine issues of material fact regarding whether the Defendants’ conduct established a clear violation of Plaintiff-Appellee’s established constitutional rights. The holding not only precluded summary judgment on Plaintiff-Appellee’s §1983 claim but also defeated Defendants’ claim that their conduct was protected by qualified immunity.
The Plaintiff–Appellee contends therefore that this Court lacks jurisdiction over this Interlocutory Appeal. The lower court’s decision rests on the court’s finding of a genuine dispute of material facts in the record. Therefore, the denial of the claim by the District Court turns on issues of fact not law and this Court has no jurisdiction over this Interlocutory Appeal. Johnson v. Jones, 515 U.S. 304, 313; 115 S. Ct. 2151; 132 L. Ed. 2d 238 (1995).

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. WHETHER THE DISTRICT COURT PROPERLY DENIED THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UPON FINDING THAT MATERIAL ISSUES OF FACTS REMAIN WITH RESPECT TO PLAINTIFF’S CLAIM THAT DEFENDANTS’ CONDUCT VIOLATED HIS CLEARLY ESTABLISHED RIGHT TO BE FREE FROM EXCESSIVE FORCE DURING AN INVESTIGATORY STOP?
PLAINTIFF-APPELLEE answers “Yes.”

DEFENDANTS-APPELLANTS answer “No.”

II. WHETHER THIS COURT HAS JURISICTION OVER APPELLANTS’ APPEAL FOR DENIAL OF SUMMARY JUDGMENT ON THE ISSUE OF QUALIFIED IMMUNITY WHEN THE DISTRICT COURT’S DENIAL WAS PROPERLY BASED ON THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT?

PLAINTIFF-APPELLEE answers “No.”

DEFENDANTS-APPELLANTS answer “Yes.”

STATEMENT OF THE CASE

On September 18, 2002, Plaintiff-Appellee Brad Anderson, and Co-Plaintiffs Qasim and Abedulah Anderson (hereinafter referred to as “Plaintiff” or the “Plaintiffs”), brought this action under 42 U.S.C. §1983 and 42 U.S.C. §1985 against the Defendants-Appellants (hereinafter referred to as the “Defendants”), alleging various constitutional violations by the Defendants. Plaintiffs’ Complaint alleged the violation of their rights to be free from unreasonable search and seizure including the use of excessive force under the Fourth Amendment and their rights to the equal protection of the law under the Fourteenth Amendment. Plaintiffs also alleged Michigan state law causes of action for ethnic intimidation, false imprisonment, assault and battery, intentional infliction of emotional distress and gross negligence. (R.? Plaintiffs’ First Amended Complaint, Apx ___ )
On July 31, 2003, Defendants filed a Motion for Summary Judgment. (R. 74, Defendant’s Motion for Summary Judgment, Apx ___ ). On May 13, 2004, Plaintiffs filed a response to Defendant’s Motion for Summary Judgment. In the response, Plaintiffs asked the court to not only deny Defendant’s motion, but also asked that the court impose Rule 11 sanctions against Defendants and grant Plaintiffs’ partial motion for summary judgment as to their state law claims of false imprisonment and unreasonable search and seizure and false imprisonment. (R. 91, Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, Apx ___ )
The Honorable District Judge Gerald E. Rosen after reviewing and considering the briefs and evidence of both the parties issued a Memorandum Opinion and Order regarding motions for summary judgment on May 12, 2005. (R. 109 Memorandum Opinion and Order, Apx ___ ) The Court, granted in part, and denied in part, Defendants’ motion for summary judgment. Judge Rosen held that a genuine issue of material fact regarding the degree of force used by the officers with regard to the detention of plaintiff Brad precluded summary judgment. (R. 109, pg. 25, Apx___).
Judge Rosen observed that while Defendants pointed to corroborating witness testimony to support their argument that only reasonable force was used during Plaintiff-Appellee’s arrest, the Plaintiff-Appellee had introduced medical evidence of Plaintiff’s Brad’s injuries after the arrest which supported his claim that excessive force had been used during the arrest. Judge Rosen reasoned that the competing evidence raised a genuine dispute of material fact which precluded a summary judgment motion in favor of the Defendants as to Plaintiff-Appellee Brad. (R. 109, pg. 26, Apx.___).
The District Court held that it was not the role of the Court on a motion for summary judgment to weigh the credibility of the witnesses. In light of the contradictory evidence, summary judgment on Plaintiffs’ § 1983 excessive force claim would clearly be inappropriate as to Plaintiff Brad. The Court further held that, this same contradictory evidence as to the reasonableness of force used by the officers, compels denial of summary judgment on qualified immunity ground as well. (R. 109, pg. 26, Apx.___).
Lastly, the District Court also held that the same issues of fact which precluded summary judgment on the claims of excessive force and governmental immunity also precluded summary judgment on Plaintiff Brad’s assault and battery and negligence claims. The District Court held that viewing the evidence in the light most favorable to Plaintiffs,’ as the court is compelled to do, issues of fact remain as to whether the officers’ contact with regard to Plaintiff Brad was “so reckless as to demonstrate a substantial lack of concern for whether an injury results”. (R. 109, p. 35-36, Apx.___).
Defendants now ask this Court on appeal to reverse the district court’s ruling and find qualified immunity as a matter of law, without properly explaining that the district court’s determination rested on the finding of disputed issues of material fact such that the final outcome of the case should be decided by a trial in the District Court.

STATEMENT OF FACTS
On September 18, 2002, Plaintiffs filed the present action, under 42 USC §1983 and 42 USC §1985. The Plaintiff’s nine count complaint alleged 1) Fourteenth Amendment violations 2) Fourth Amendment violations 3) Violation of Plaintiff constitutional rights by Waterford Township 4) Violations of 42 USC 1985 5) Ethnic Intimidation under MCLA 750.147 b 6) False imprisonment 7) Assault and battery 8) Intentional infliction of emotional distress 9) Gross negligence by Waterford Township police officers, on June 20, 2002 (Plaintiff’s 1st Amended Complaint, filed December 2, 2002, Apx. ___).
It is undisputed that the Plaintiffs were just operating an ice cream truck on a summer day and not in violation in any law. No charges were brought against the Plaintiffs, though the Defendants allege that citizens “complained to police that plaintiffs were engaged in illegal activity, possible abductions or drug trafficking” (R. 74, Defendant’s Motion for Summary Judgment, pg 1, Apx.__). This is without any factual basis what so ever. Plaintiffs were illegally apprehended and searched for over 45 minutes. (R. 91, Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, pg 7, Apx.__). Their ice cream truck was ransacked and their personal property confiscated with no search warrant or consent. (R. 91, Exhibit Q, pgs 27-28, Apx.___). Then the plaintiffs were released. Plaintiffs sustained physical and emotional injuries as a result of this incident. (R. 91, Exhibit A, Apx.___).
Plaintiffs (Brad, Qasim and Abedulah Anderson) are brothers of Arabic descent. Abedulah Anderson obtained his doctorate in engineering and is currently employed at Chrysler Corporation as an engineer. Brad Anderson who was a Major in the Jordanian Army arrived in the United States to pursue his doctorate. Brad, who is close to obtaining his doctorate, has recently been named International Student of the Year at Oakland University. Brad is also an engineer at Chrysler, and a Professor. He has recently filed a patent (R. 91, Exhibit B, Brad Affidavit, Apx.___). Qasim Anderson arrived in the United States in May of 2002 and is currently in a graduate program (R. 91, Exhibit B Qasim Affidavit, Apx.___). It is undisputed that none of the plaintiffs has a criminal record. With the aspirations to operate a small business for additional income, Abedulah purchased and operated an ice cream truck with his brother-in-law in Waterford Township neighborhoods. They began their operation in May of 2002 with good success and without incident (R. 91, Exhibit B, Abedulah Affidavit, Apx.___).
All the plaintiffs lived together. Plaintiff Abedulah’s brother-in-law went on a vacation in the second week of June, 2002. The other plaintiffs, Brad and Qasim offered to assist their brother Abedulah in his ice cream business while his partner was out of town. Thus for at least 3 days before the incident, Plaintiffs coordinated their work and school schedules and agreed to the following arrangement: Plaintiff Brad would drive the ice-cream truck from their home in Rochester and sell ice cream during the early morning shift. Brad would then meet his two brothers at the entrance of a Waterford sub-division to change drivers for the afternoon shift. Brad would take the car along with his bag pack full of college books (sometimes he also had a plastic bag containing his dinner), and attended classes at Oakland University. The other two brothers would then drive the ice cream truck for the afternoon shift in the neighborhood (R. 91, Exhibit B, Apx.___).
The neighborhood where plaintiffs sold ice cream was known to be very safe. A resident of the Waterford Township neighborhood for approximately 30 years, Marcia Bovee, testified that there has never been any instance of drug activity or other criminal conduct in that neighborhood. In fact, Defendant Officer Good lived on the same street (R. 91, Exhibit 2, pg 13, Apx___). Apparently, defendant Officer Ross and his family also lived in the neighborhood (R. 91, Exhibit 1, pg 22-23, Apx.___).
However, a shift change by the brothers in front of resident Marcia Bovee’s home raised her suspicion. On June 17, 2002, three days before the incident in question in this case, plaintiffs met in front of her home to exchange vehicles. At that time Ms. Bovee, who was babysitting her grandchildren, Thomas and Eric, warned them to stay away from the men and vehicles. However, the children’s friend Brent Mortimer, who too was with them, was not warned to stay away and so when the ice cream truck stopped on the street, he ran up to it and ordered an ice cream. Thomas stood by his friend ‘to protect him’. Thomas saw a bag being passed from one driver to another, and strange looking foil packets on the floor of the truck. When Thomas’ mother, Jill Michaels, returned from work, Mrs. Bovee told her of what had happened. She, immediately, took her son, Thomas, 14, to the Waterford Township police to report the suspicious activity. At the Waterford Township police station, Sergeant Palombo made a written statement of the report. (R. 91, Exhibit E, Apx___). This was the only report or any type of record produced by Defendants regarding Plaintiffs before the June 20, 2002 incident. There is no reference to child abduction or drug activity in the report. Further, Ms. Michaels was disturbed with the June 17 police report authored by Defendants when she reviewed it at her deposition, and stated, “…I believe these are my son’s statements. They made it look like my statements and they are not my statements.” (R. 91, Exhibit D, pg 25, Apx.___).
It is undisputed that Ms. Michaels never saw plaintiffs. Further, her son, Thomas, testified that he never said the word “Arab” as stated on page 5 of the report (R. 91, Exhibit E, Apx.___). Instead, he stated that they had dark hair and tan skin (R. 91, Exhibit D, pg 14-16, Apx.___). On the basis of the statement, Officer Ritter was dispatched to the site and found no suspicious activities (R. 91, Exhibit F, pg 8-10, Apx.___).
The reference in Defendants’ brief to “foil packets being found on the floor of the ice cream truck”, allegedly stated by resident Ms. Bovee (R. 74, Defendant’s Motion for Summary Judgment, pg 3) is totally false. Ms. Bovee denied that claim in its entirety in her deposition (R. 91, Exhibit 2, pg 98, 116, Apx.___), and police were never told about alleged “foil packets’ before apprehending plaintiffs.
On June 20, 2002, Ms. Bovee again saw two of the plaintiffs in a car waiting for the ice cream truck and notified a neighbor, Ms. Boik of plaintiffs’ presence. Ms.Boik then called the police and spoke with dispatcher Debbie Mathewson. There was no reference to plaintiff’s ethnicity, drug trafficking or child abduction, in a copy of the transcript of the phone conversation between Ms. Boik and the dispatcher (R. 91, Exhibit I., Apx___). According to Mathewson, serious crimes are coded “Red” I, meaning high priority and non serious ones are coded “Blue”. (R. 91, Exhibit G, Apx___). For suspicion of drug trafficking, an incident would be coded with number “1800” _meaning “narcotics complaint” (R. 91, Exhibit G, pg 46-47, Apx___). In this case, dispatcher Mathewson coded the citizen call as a blue with code number 9027, meaning simply ‘surveillance detail” (R. 91, Exhibit G, pg 41, Apx___). Further dispatcher Mathewson ran a criminal history and LEIN check on plaintiffs and found no criminal records (R. 91, Exhibit G, pg 31, Apx___). In fact, Dispatcher Mathewson testified that based on the LEIN check, she had no concern for the officer’s safety (R. 91, Exhibit G, pg. 33, Apx___).
On the basis of the citizen phone call, Dispatcher Mathewson initially radioed uniformed officer Kirk Simpson. However, he did not answer. Dispatcher Mathewson then radioed defendant undercover officer Rick Lemos. Defendant Lemos advised he was near the area and would investigate it, and requested backup. Exhibit I is a copy of the transcript of Ms. Mathewson’s phone activity and conversation with defendant Lemos. (R. 91, Exhibit I, Apx___). This phone conversation and the statement of a 14 year old boy made three days earlier (R. 91, Exhibit E, Apx___) are the only information reported to the police department regarding plaintiffs produced by defendants. As such, there is no substantive admissible evidence, whatsoever, to suggest that Lemos knew or could have reason to know that plaintiffs may have been armed or involved in drugs, child abductions or any sort of illegal activity when he arrived on the scene.
Plaintiff Brad concluded the morning shift and met his other brothers at the subdivision entrance as previously agreed. The two brothers got out of their car and entered the ice cream truck (R. 91, Exhibit M pg 66, Apx___). Plaintiff Brad then left the ice cream truck, and walked towards the car with his lunch bag, which had an apple, a sandwich and a review paper for an exam he was going to take at the University (R. 91, Exhibit J pg 169, Apx___). Brad, did not have his customary book bag because it was an exam day (R. 91, Exhibit J, pg 168-169, Apx___). As Plaintiff Brad was about to enter the car, undercover officer Defendant Rick Lemos, muscularly built, tattooed, and wearing cut-off shorts, earrings, sunglasses, cap, and a tank top, suddenly drove up and parked his truck diagonally in front of Brad’s car (R. 91, Exhibit B, Apx___).
Lemos then drew his .38 Wesson hair trigger gun (no safety lock) (R. 91, Exhibit Y, Apx___), pointed it towards Brad’s head and shouted at Brad to put his hands on the car. Brad fully complied. (At that time Brad thought he was being robbed) (R. 91, Exhibit J pg 51, Apx___). Lemos ordered Brad to kneel on the ground with his hands behind his neck, which he did (R. 91, Exhibit J, pg 154-155, Apx___). Lemos then stepped behind Brad and kicked him in the back, causing him to fall and strike his head on the ground (R. 91, Exhibit J, pg 156, Apx___). Then, Lemos asked if he was Arabic, to which Brad responded in the affirmative (R. 91, Exhibit J, pg 158 Apx___). Lemos then engaged in a tirade of repeatedly kicking Brad’s leg, shouting, “Damn you, I am a Police Officer, admit it, admit it, admit it, what are you hiding, at least 10-15 times (R. 91, Exhibit J pg 156-160, Apx___). Brad replied, “nothing” (R. 91, Exhibit J, pg 159, Apx___). Lemos then crouched low and pointed his hair-trigger gun at Brad’s head, pressing the gun to his temple (R. 91, Exhibit J, pg 160 Apx___). Brad feared for his life. (R. 91, Exhibit B, Apx___).
Subsequently, another officer, Defendant Ross, approached Brad and placed his knees on Brad’s neck (R. 91, Exhibit J pg 256, Apx___). Defendant officers then searched plaintiff’s pockets and confiscated plaintiff’s personal possessions (R. 91, Exhibit J pg 254, Apx___), including his identification card, telephone book, bank statements, university notes and his password for his Oakland University e-mail account (R. 91, Exhibit P-document, Apx___). It is undisputed that plaintiff Brad, never gave his consent to his pockets being searched. Further, Brad was fully compliant (R. 91, Exhibit B, Apx___), did not pose any risk, and did not attempt to resist or flee. This was confirmed by defendant officer Ross (R. 91, Exhibit K, pg 41-44, and Exhibit R, pg 52, Apx___). Brad was then handcuffed. Ross testified that, to effectuate the handcuffing, he put his knees on plaintiff’s back and shoulder (R. 91, Exhibit K pg 44, Apx___). Brad was then pulled to his feet and placed in the back of the car by defendant Ross (R. 91, Exhibit K pg 44, Apx___).
According to Lemos’ deposition, it was he who led the investigation (R. 91, Exhibit R pg 32, Apx___). Further, he asserts he was allegedly “50 feet away”, behind the front end of his truck, for protection, when he ordered Brad to the ground (R. 91, Exhibit R pg 43, 45-46, Apx___). Within 10 seconds, defendant officers Ross and Warner arrived, and Ross handcuffed Brad on the ground (R. 91, Exhibit R pg 48, Apx___). Lemos then searched the car and saw the lunch bag that plaintiff was carrying. He recalls seeing food in it. (R. 91, Exhibit R pg 61, Apx___). Defendant Lemos then testified that the main thing that made him suspicious to justify a stop was that he saw Brad put another bag in the truck of the car (Bag# 2) (R. 91, Exhibit R pg 41, Apx___). Plaintiff did not do so (R. 91, Exhibit B, Apx___). He also believed plaintiffs “were up to not good” (R. 91, Exhibit R pg 86, Apx___). When Lemos was asked at his deposition whether he inquired further about this alleged Bag#2, his response was incredibly ‘No, my screw up… I actually forgot” (R. 91, Exhibit R pg 63, 85-86, Apx___). Lemos further testified that he never once even attempted to communicate to or ask any of the plaintiffs about the reason for their presence or this alleged Bag#2 that allegedly caused him to be suspicious, because “people lie” (R. 91, Exhibit R pg 81, 85-86, Apx___). Lemos could not even describe the color, size or type of Bag#2 (R. 91, Exhibit R pg 38, 39, Apx___). To date, there is no evidence whatsoever, that plaintiff, had any bag other than his lunch bag.
During that time, the other two brothers, who had just started to drive the ice cream truck, stopped when they saw their brother, Brad , being accosted by a large man at gunpoint (R. 91, Exhibit N pg 199, Apx___). Qasim, thinking it was a robbery, told Abedulah, “your brother is gone’, thinking he would be killed (R. 91, Exhibit M pg 93, Apx___).
Plaintiff Qasim saw Defendant Lemos hold Brad at gunpoint aimed at his head, while Brad was on his knees. (R. 91, Exhibit M pg 93, Apx___). They parked the ice cream truck next to a curb (R. 91, Exhibit B, Apx___). At that point another undercover officer, defendant Scott Good, was also at the scene. Officer Good ordered plaintiffs, Abedulah and Qasim, to get out of the ice cream truck and lay on the ground, which they did without resistance (R. 91, Exhibit 3 pg 25, Apx___). Another officer, defendant Warner, then handcuffed the two brothers while they were lying on their stomachs face down in a ditch near the right side of the ice cream truck (R. 91, Exhibit O pg 36, Apx___). One officer (either Warner or Good) then placed his knees on Abedulah’s back and another put his knees on his legs (R. 91, Exhibit N pg 210, Apx___). Without plaintiffs’ consent, they confiscated plaintiffs’ personal possessions from their pockets (R. 91, Exhibit N pg 210, Apx___), including plaintiff Abedulah’s phone book for his colleagues at Chrysler “Corporation, the original Bill of Sale for the ice cream truck, personal notes and his bank statements (R. 91, Exhibit B and Exhibit M-Abedulah’s documents, Apx___).
After a period of time, the two brothers were then led, handcuffed, in front of residents and their ice cream customers, and placed in the back of the police car (R. 91, Exhibit O pg 43, Apx___). At that time, plaintiff Abedulah heard a uniformed officer tell a plain clothed officer, “we can’t do that,” (R. 91, Exhibit N pg 281, Apx___). During that time, two more officers arrived at the scene, Officers Simpson and Bartle (R. 91, Exhibit 6, 6/20 police report, Apx___). Defendant Officer Lemos then ordered a K–9 unit to come to the scene. Officer Quaittato then arrived with the K-9 dog and searched the vehicle and ice cream truck (R. 91, Exhibit Q pg 27-28, Apx___). It is undisputed that the officer never obtained consent from plaintiffs or obtained a warrant to search their person, the car or truck (R. 91, Exhibit B, Apx___).
Because of the search, much of the ice cream contents became inedible and / or destroyed (R. 91, Exhibit N pg 222, Apx___). After nearly 45 minutes, the plaintiffs were released, without explanation. Their personal documents were confiscated and Brad missed his university examination (R. 91, Exhibit B, Apx___). No charges were ever filed. No drugs were found. It is undisputed that during this whole ordeal, plaintiffs were compliant. In fact, according to Officer Ross who arrived immediately at the scene to assist Lemos and remained during the whole incident, all three brothers were fully cooperative and complied with all of the officers’ orders. Officer Ross saw no signs of improper conduct on the part of plaintiffs (R. 91, Exhibit K pg 52-54, Apx___) .
Accompanying Plaintiff’s Response to Motion for Summary Judgment, the Plaintiffs produced a videotape obtained from another squad car that arrived on the scene . Initially the officer parked his vehicle in such a manner in a residential driveway when he arrived to the scene at approximately 17:37:06, so as not to show the apprehension of the plaintiffs. At approximately 17:53:04 on the tape , the officer then moved the vehicle to tape the scene, which depicts the officers eventually raising the two handcuffed brothers from the ditch and placing them in the back of the squad car. The tape also shows Defendants’ police dog arriving at the scene and entering the ice cream truck, with officers exiting, and conducting a search without a warrant or Plaintiffs’ consent.
For the next two months, the brothers repeatedly asked defendants for their personal belongings, upon which they heavily depended, as well as a police report to try to understand why this event happened. They were ignored and even told, at one time, that there was no such record of the incident (R. 91, Exhibit N pg 276, Apx___). Defendant Good later testified that he did not prepare a report right after the incident but, instead, prepared one only after his supervisor told him to do so because of litigation which was filed three months later (R. 91, Exhibit 3 pg 9, Apx___). After suit was filed, plaintiffs’ personal possessions were finally returned in May of 2003, eleven months after they were confiscated.
Defendants did not question plaintiffs about their presence because according to Defendant Officer Lemos, “people lie” (R. 91, Exhibit R pg 81, Apx___). Nor did they even check for an alleged bag#2 that supposedly justified the stop, which would have dispelled any alleged suspicions that Defendants had. Defendant Lemos excuses himself with the following pathetic excuses: “my screw up” and “I actually forgot’ (R. 91, Exhibit R pg 63, 85, 86, Apx___). Instead, Defendants conducted a full blown investigation, searching plaintiffs their documents, vehicle and ice cream truck, in addition to confiscating their personal documents.
On July 31, 2003, Defendants filed a Motion for Summary Judgment. (R. 74, Defendant’s Motion for Summary Judgment, Apx ___ ). On May 13, 2004, Plaintiffs filed a response to Defendant’s Motion for Summary Judgment. In the response, Plaintiffs asked the court to not only deny Defendant’s motion, but also asked that the court impose Rule 11 sanctions against Defendants and grant Plaintiffs’ partial motion for summary judgment as to their state law claims of false imprisonment and unreasonable search and seizure and false imprisonment. (R. 91 Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, Apx ___ ).
The Honorable District Judge Gerald E. Rosen after reviewing and considering the briefs and evidence of both the parties issued a Memorandum Opinion and Order regarding motions for summary judgment on May 12, 2005. (R. 109 Memorandum Opinion and Order, Apx ___ ) The Court, granted in part, and denied in part, Defendants’ motion for summary judgment. Judge Rosen held that a genuine issue of material fact regarding the degree of force used by the officers with regard to the detention of plaintiff Brad precluded summary judgment. (R. 109, pg. 25, Apx___).
Judge Rosen observed that while Defendants pointed to corroborating witness testimony to support their argument that only reasonable force was used during Plaintiff-Appellee’s arrest, the Plaintiff-Appellee had introduced medical evidence of Plaintiff’s Brad’s injuries after the arrest which supported his claim that excessive force had been used during the arrest. Judge Rosen reasoned that the competing evidence raised a genuine dispute of material fact which precluded a summary judgment motion in favor of the Defendants as to Plaintiff-Appellee Brad. (R. 109, pg. 26, Apx.___).
The District Court held that it was not the role of the Court on a motion for summary judgment to weigh the credibility of the witnesses. In light of the contradictory evidence, summary judgment on Plaintiffs’ § 1983 excessive force claim would clearly be inappropriate as to Plaintiff Brad. The Court further held that, this same contradictory evidence as to the reasonableness of force used by the officers, compels denial of summary judgment on qualified immunity grounds as well. (R. 109, pg. 26 fn 10, Apx.___).
Lastly, the District Court also held that the same issues of fact which precluded summary judgment on the claims of excessive force and governmental immunity also precluded summary judgment on Plaintiff Brad’s assault and battery and negligence claims. The District Court held that viewing the evidence in the light most favorable to Plaintiffs,’ genuine issues of material fact remain as to whether the officers’ contact with regard to Plaintiff Brad was “so reckless as to demonstrate a substantial lack of concern for whether an injury results”. (R. 109, p. 35-36, Apx.___).
This appeal followed.

SUMMARY OF ARGUMENT
The Plaintiff’s excessive force claim is based on allegations that he was kicked and punched and threatened with a gun held to his head during an investigatory stop. Plaintiff presented evidence in support of his claims, which included affidavits from his brothers and himself, his own deposition testimony, and medical evidence showing that he sustained physical injury. The Defendants denied all this and produced witnesses to support their claim. Thus, the question before the District Court was whether a question of material fact remained as to whether excessive force was used in light of material evidence produced by both the parties. The District Court properly denied the motion for summary judgment and held that the case required examination of witnesses and weighing of their credibility by the fact finder. Such evidence can only be developed and assessed at the trial stage.
A grant of summary judgment cannot be successfully appealed when there remain genuine issues of material fact. The District Court properly rejected the defendants’ motion for summary judgment on the Use of Excessive Force (Count II), Assault and Battery (Count VIII) and Gross Negligence (Count IX).
Qualified immunity is not a defense to a factually supported charge that a police officer used excessive force resulting in the violation of a constitutional right. Defendants have challenged the summary judgment on an issue of law which the District Court rejected because there remains a genuine issue of material fact. Whether the force used was excessive or not is an issue of fact which can only be decided at trial. Hence the District Court was correct in finding the existence of material facts yet to be resolved with respect to the Plaintiff-Appellee’s claims of excessive force, assault and battery and gross negligence. Therefore, since there remained genuine issues of material fact, the District Court’s denial of the Defendants’ motion for summary judgment is not immediately appealable to this Court.

ARGUMENT
STANDARD OF REVIEW
This Court reviews a decision to grant summary judgment on the substantive claims de novo. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001). Summary judgment is only appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp v Catrett, 477 U.S. 317, 333; 106 S.Ct. 2548; 91 L. Ed. 2d 265 (1986). In reviewing a summary judgment motion, credibility judgments and weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)(holding that “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment”). Thus, the facts and any inferences that can be drawn from those facts, must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bennett v. City Of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005).
I. THE DISTRICT COURT PROPERLY DENIED THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UPON FINDING THAT GENUINE ISSUES OF MATERIAL FACT REMAIN WITH RESPECT TO PLAINTIFF’S CLAIM THAT DEFENDANTS’ CONDUCT VIOLATED HIS CLEARLY ESTABLISHED RIGHT TO BE FREE FROM EXCESSIVE FORCE DURING AN INVESTIGATORY STOP.

Defendants have argued that District Court’s denial of their Summary Judgment Motion as to Plaintiff Brad was not grounded in the applicable law regarding defenses of qualified immunity. Defendants have relied on the holding of Saucier v. Katz, 533 U.S. 194, 201; 121 S. Ct. 2151; 150 L. Ed. 2d 272 (2001) to support their argument that Plaintiff’s claim fails, as a matter of law, and assert that Plaintiff has failed to demonstrate that the conduct of Defendants violated a clearly established constitutional right. Defendants not only mischaracterize the nature of the District Court’s holding, but further, they ignore the District Court’s rationale in denying the Defendants’ claim of qualified immunity.
The District Court’s analysis follows the process set forth in Saucier and properly applied the principles established by this Circuit when reviewing a motion for summary judgment. (R. 109, Memorandum Opinion and Order, pg. 17, Apx ___). Judge Gerald E. Rosen applied the “objective reasonableness” inquiry standard articulated by the Supreme Court in Graham v Connor, 490 U.S. 368, 109 S. Ct. 1865 (1989). Significantly, the Saucier majority held that the “objective reasonableness standard” was indeed the first step in the analysis of an excessive force claim, Saucier, 533 U.S. at 201.
The Saucier Court stated:
In Graham, we held that claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment’s “objective reasonableness standard,” not under substantive due process principles. 490 U. S., at 388, 394. Because “police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation,” id., at 397, the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective. Id., at 396. We set out a test that cautioned against the “20/20 vision of hindsight” in favor of deference to the judgment of reasonable officers on the scene. Id., at 393, 396. Graham sets forth a list of factors relevant to the merits of the constitutional excessive force claim, “requir[ing] careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id., at 396. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed. [Id.]

Viewing the evidence in the light most favorable to Plaintiff Brad, it is clear that summary judgment was not warranted. On June 20, 2002, Plaintiff Brad ended his shift on the ice cream truck, and after handing the truck over to his brothers, he was about to enter his car and go take his exam at Oakland University. Suddenly, undercover officer Defendant Rick Lemos, muscularly built, tattooed, and wearing cut-off shorts, earrings, sunglasses, cap, and a tank top, suddenly drove up and parked his truck diagonally in front of Brad’s car (R. 91, Exhibit B, Apx___).
Lemos then drew his .38 Wesson hair trigger gun (no safety lock) (R. 91, Exhibit Y, Apx___), pointed it towards Brad’s head and shouted at Brad to put his hands on the car. Brad fully complied. (At that time Brad thought he was being robbed) (R. 91, Exhibit J pg 51, Apx___). Lemos ordered Brad to kneel on the ground with his hands behind his neck, which he did (R. 91, Exhibit J, pg 154-155, Apx___). Lemos then stepped behind Brad and kicked him in the back, causing him to fall and strike his head on the ground (R. 91, Exhibit J, pg 156, Apx___). Then, Lemos asked if he was Arabic, to which Brad responded in the affirmative (R. 91, Exhibit J, pg 158 Apx___). Lemos then engaged in a tirade of repeatedly kicking Brad’s leg, shouting, “Damn you, I am a Police Officer, admit it, admit it, admit it, what are you hiding, at least 10-15 times (R. 91, Exhibit J pg 156-160, Apx___). Brad replied, “nothing” (R. 91, Exhibit J, pg 159, Apx___). Lemos then crouched low and pointed his hair-trigger gun at Brad’s head, pressing the gun to his temple (R. 91, Exhibit J, pg 160 Apx___). Brad feared for his life. (R. 91, Exhibit B, Apx___).
Subsequently, another officer, Defendant Ross, approached Brad and placed his knees on Brad’s neck (R. 91, Exhibit J pg 256, Apx___). Defendant officers then searched plaintiff’s pockets and confiscated plaintiff’s personal possessions (R. 91, Exhibit J pg 254, Apx___), including his identification card, telephone book, bank statements, university notes and his password for his Oakland University e-mail account (R. 91, Exhibit P-document, Apx___). It is undisputed that Plaintiff Brad never gave his consent to his pockets being searched. Further, Brad was fully compliant (R. 91, Exhibit B, Apx___), did not pose any risk, and did not attempt to resist or flee. This was confirmed by defendant officer Ross (R. 91, Exhibit K, pg 41-44, and Exhibit R, pg 52, Apx___). Brad was then handcuffed. Ross testified that, to effectuate the handcuffing, he put his knees on plaintiff’s back and shoulder (R. 91, Exhibit K pg 44, Apx___). Brad was then pulled to his feet and placed in the back of the car by defendant Ross (R. 91, Exhibit K pg 44, Apx___).
According to Lemos’ deposition, it was he who led the investigation (R. 91, Exhibit R pg 32, Apx___). Further, he asserts he was allegedly “50 feet away”, behind the front end of his truck, for protection, when he ordered Brad to the ground (R. 91, Exhibit R pg 43, 45-46, Apx___). Within 10 seconds, defendant officers Ross and Warner arrived, and Ross handcuffed Brad on the ground (R. 91, Exhibit R pg 48, Apx___). Lemos then searched the car and saw the lunch bag that plaintiff was carrying. He recalls seeing food in it. (R. 91, Exhibit R pg 61, Apx___). Defendant Lemos then testified that the main thing that made him suspicious to justify a stop was that he saw Brad put another bag in the truck of the car (Bag# 2) (R. 91, Exhibit R pg 41, Apx___). Plaintiff did not do so (R. 91, Exhibit B, Apx___). He also believed plaintiffs “were up to not good” (R. 91, Exhibit R pg 86, Apx___).
When Lemos was asked at his deposition whether he inquired further about this alleged Bag#2, his response was incredibly ‘No, my screw up… I actually forgot” (R. 91, Exhibit R pg 63, 85-86, Apx___). Lemos further testified that he never once even attempted to communicate to or ask any of the plaintiffs about the reason for their presence or this alleged Bag#2 that allegedly caused him to be suspicious, because “people lie” (R. 91, Exhibit R pg 81, 85-86, Apx___). Lemos could not even describe the color, size or type of Bag#2 (R. 91, Exhibit R pg 38, 39, Apx___). To date, there is no evidence whatsoever, that plaintiff, had any bag other than his lunch bag.
During that time, the other two brothers, who had just started to drive the ice cream truck, stopped when they saw their brother, Brad , being accosted by a large man at gunpoint (R. 91, Exhibit N pg 199, Apx___). Qasim, thinking it was a robbery, told Abedulah, “your brother is gone’, thinking he would be killed (R. 91, Exhibit M pg 93, Apx___).
Plaintiff Qasim saw Defendant Lemos hold Brad at gunpoint aimed at his head, while Brad was on his knees. (R. 91, Exhibit M pg 93, Apx___). They parked the ice cream truck next to a curb (R. 91, Exhibit B, Apx___). At that point another undercover officer, defendant Scott Good, was also at the scene. Officer Good ordered plaintiffs, Abedulah and Qasim, to get out of the ice cream truck and lay on the ground, which they did without resistance (R. 91, Exhibit 3 pg 25, Apx___). Another officer, defendant Warner, then handcuffed the two brothers while they were lying on their stomachs face down in a ditch near the right side of the ice cream truck (R. 91, Exhibit O pg 36, Apx___). One officer (either Warner or Good) then placed his knees on Abedulah’s back and another put his knees on his legs (R. 91, Exhibit N pg 210, Apx___). Without plaintiffs’ consent, they confiscated plaintiffs’ personal possessions from their pockets (R. 91, Exhibit N pg 210, Apx___), including plaintiff Abedulah’s phone book for his colleagues at Chrysler “Corporation, the original Bill of Sale for the ice cream truck, personal notes and his bank statements (R. 91, Exhibit B and Exhibit M-Abedulah’s documents, Apx___).
After a period of time, the two brothers were then led, handcuffed, in front of residents and their ice cream customers, and placed in the back of the police car (R. 91, Exhibit O pg 43, Apx___). At that time, plaintiff Abedulah heard a uniformed officer tell a plain clothed officer, “we can’t do that,” (R. 91, Exhibit N pg 281, Apx___). During that time, two more officers arrived at the scene, Officers Simpson and Bartle (R. 91, Exhibit 6, 6/20 police report, Apx___). Defendant Officer Lemos then ordered a K–9 unit to come to the scene. Officer Quaittato then arrived with the K-9 dog and searched the vehicle and ice cream truck (R. 91, Exhibit Q pg 27-28, Apx___). It is undisputed that the officer never obtained consent from plaintiffs or obtained a warrant to search their person, the car or truck (R. 91, Exhibit B, Apx___).
Because of the search, much of the ice cream contents became inedible and / or destroyed (R. 91, Exhibit N pg 222, Apx___). After nearly 45 minutes, the plaintiffs were released, without explanation. Their personal documents were confiscated and Brad missed his university examination (R. 91, Exhibit B, Apx___). No charges were ever filed. No drugs were found. It is undisputed that during this whole ordeal, plaintiffs were compliant. In fact, according to Officer Ross who arrived immediately at the scene to assist Lemos and remained during the whole incident, all three brothers were fully cooperative and complied with all of the officers’ orders. Officer Ross saw no signs of improper conduct on the part of plaintiffs (R. 91, Exhibit K pg 52-54, Apx___) .
Accompanying Plaintiff’s Response to Motion for Summary Judgment, the Plaintiffs produced a videotape obtained from another squad car that arrived on the scene . Initially the officer parked his vehicle in such a manner in a residential driveway when he arrived to the scene at approximately 17:37:06, so as not to show the apprehension of the plaintiffs. At approximately 17:53:04 on the tape , the officer then moved the vehicle to tape the scene, which depicts the officers eventually raising the two handcuffed brothers from the ditch and placing them in the back of the squad car. The tape also shows Defendants’ police dog arriving at the scene and entering the ice cream truck, with officers exiting, and conducting a search without a warrant or Plaintiffs’ consent.
After reviewing this evidence, Judge Rosen, applied the Graham “objective reasonableness” analysis and held:
“While the foregoing standards make clear that, depending on the circumstances, some limited force may be reasonable, the record evidence of the case establishes that there exists a genuine issue of material fact regarding the degree of force used by the officers with regard to the detention of the Plaintiff Brad Anderson. Defendants all deny any kicking or punching, deny putting a gun to anyone’s head, and deny using anything more than the reasonable force in handcuffing and placing the Plaintiff in the patrol cars. The defendant’s testimony is corroborated by that of a number of witnesses. Plaintiff Brad Anderson, however, testified in his deposition to being kicked and punched and threatened with a gun to his head, and there is medical evidence that Plaintiff sustained some injuries. It is not the role of the Court at summary judgment to weigh the credibility of the witnesses. In light of this contradictory evidence, summary judgment on Plaintiffs § 1983 excessive force claim would be inappropriate as to Plaintiff Brad Anderson”

(R. 109, Memorandum Opinion and Order, pgs. 25-26, Apx ___).

As Judge Rosen indicated, a determination of the degree of force used by Defendants against Plaintiff Brad would require weighing the credibility of the parties’ witnesses. “The matter before the magistrate judge was a motion for summary judgment, not a trial, where credibility determinations are not appropriate.” Phillips v. Cohen, 400 F.3d 388, 400 (6th Cir. 2005); see Anderson, 477 U.S. at 255 (1986) (holding that “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment”). As such, Judge Rosen properly ruled that Plaintiff Brad’s claim for excessive force survived the summary judgment motion. Only a factfinder at trial could determine whether the force used by Defendants was objectively reasonable against Plaintiff Brad, when the record shows that Plaintiff sustained physical injuries during the investigatory stop even though he did not pose threat to the officers’ safety.
Contrary to Defendants’ argument in this Appeal, the District Court did not simply deny the motion upon finding a mere factual dispute between the parties. Rather, Judge Rosen’s analysis further considered whether dispute concerned material facts that affected the determination of not only the use of excessive force but also defendant’s claim of qualified immunity. This is clear from his rationale in denying the claims of Apples’ Co-Plaintiffs’ Qasim and Abedullah Anderson.
Judge Rosen stated:
However, with regard to Plaintiffs Abedulah and Qasim Anderson, their complaint is only that someone held their arms “too firmly” or “too roughly.” See Abedulah Anderson Dep., Defendants’ Ex. D, pp. 210-211, 215; Qasim Anderson Dep., Defendants’ Ex. F., pp. 73-74). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers violates the Fourth Amendment.” Graham v. Conner, supra, 109 S.Ct. at 1872.

………..Applying the above authorities in this case, the Court finds that the record evidence does not support Plaintiffs Abedulah and Qasim Anderson’s claims of excessive force. Being held “too firmly” or handled “too roughly” do not establish a Section 1983 excessive force claim.

(R. 109, Memorandum Opinion and Order, pgs. 25-26, Apx ___)
The rationale applied by the District Court is also consistent with the second step in reviewing a question of qualified immunity under § 1983, i.e., whether there is a violation of a clearly established right. See Saucier, 533 U.S. at 201. The Graham Court established that the right to be free from excessive force during an arrest or investigatory stop is provided by the Fourth Amendment’s prohibition against unreasonable seizures. 490 U.S. at 394. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202 (citing Wilson v. Layne, 526 U.S. 603, 615, 143 L. Ed. 2d 818, 119 S. Ct. 1692 (1999)).
For this step, the Saucier Court again refers to Graham’s rationale that the reasonableness of the officers’ actions depended on the information available to the officer at the time that the incident occurred. Indeed the Graham three-step inquiry addresses these factors. According to Graham, the Fourth Amendment’s reasonableness standard “requires careful attention to the facts and circumstances of each particular case, including: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to evade arrest by flight” Graham, 490 U.S. at 396.
First, in this case, no crime was committed, or even reported. Police Dispatcher Mathewson coded the complaint “Blue” rather than “Red” for more serious crimes. The nature of the complaint was simply characterized as “surveillance detail” and not a “narcotics complaint” (R. 91, Exhibit G, pg 41, 46 TC Mathewson, Apx ___). There is simply no evidence through witness statements or citizen complaints that Plaintiffs had engaged in criminal activity. The only information possessed at the time by officers at the time was that a citizen reported seeing a car, an ice cream truck, and the exchange of a school backpack in the entrance of a subdivision.
Second, Plaintiff presented no danger to the Defendants. Officer Ross, who first arrived at the scene testified that he had no fear for his safety (R. 91, Exhibit K, p 49 TC-Ross, Apx ____). Third, Ross also stated that Plaintiffs did not try to flee (R. 91, Exhibit K, pg 53, Apx ___), were fully compliant (Exhibit K, pg 52), he saw no improper conduct (Exhibit K, pg 54), and plaintiffs heeded all of the officers’ instructions (Exhibit K, pg 44, 52). There was no evidence that Plaintiffs were actively resisting arrest or attempting to flee or that the officers had a reason to fear for their safety or for the safety of others.
Viewing the evidence in the light most favorable to the Plaintiff, the use of a .38 Smith and Wesson hair-trigger revolver at Plaintiff Brad’s head, followed by being kicked and manhandled could be found to be excessive and an unreasonable use of force during the Defendants’ investigation since the information possessed by those officers provided no basis to fear for their safety or effectuate the arrest or detention of Plaintiff Brad. As noted by the district court, Defendants’ put forth testimony contradicting these allegations.
However, the seriousness of the allegations against Defendants coupled with the medical evidence of Plaintiff Brad’s injuries create a genuine dispute of material facts regarding the degree of force used by Defendants under these circumstances. Resolving the dispute would necessitate a determination of whose witnesses, Plaintiff’s or Defendants’, should be believed. This inquiry, as Judge Rosen, observed was not to determine in a summary judgment motion and as such, reserved this question for trial. (R.109, Memorandum Opinion and Order, pg. 26, Apx ___). See Anderson 477 U.S. at 255 (holding that “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment”).
The decision of the District Court was based on established legal principles that have been applied and upheld by the Sixth Circuit. The Plaintiff had presented testimony and medical evidence to show that he had been subjected to force and sustained injuries as a result of Defendants’ conduct. Although the defendant produced witnesses to deny that excessive force was used, Judge Rosen properly recognized that record contained contradictory evidence and declined to judge the evidence and weigh the credibility of witnesses. Therefore, Judge Rosen was justified in rejecting the defendant’s motion for summary judgment. “The matter before the magistrate judge was a motion for summary judgment, not a trial, where credibility determinations are not appropriate.” Phillips v. Cohen, 400 F.3d 388, 400 (6th Cir. 2005).
Plaintiff Brad respectfully request that this Honorable Court affirm the District Court’s holding and order of May 12, 2005 that denied the Defendants’ motion for summary judgment on Plaintiff Brad’s Counts II, VIII and IX..

II. WHETHER THIS COURT HAS JURISICTION OVER APPELLANTS’ APPEAL FOR DENIAL OF SUMMARY JUDGMENT ON THE ISSUE OF QUALIFIED IMMUNITY WHEN THE DISTRICT COURT’S DENIAL WAS PROPERLY BASED ON THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT

A district court’s denial of a claim of qualified immunity, to the extent it turns on an issue of law, is an immediately appealable “final decision” within the meaning of 18 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). However, where a district court denies a defendant’s motion for summary judgment based on its determination that a genuine factual dispute exists as to the merits of the constitutional claim presented, the defendant may not bring an immediate appeal. Johnson v. Jones, 515 U.S. 304, 313; 115 S. Ct. 2151; 132 L. Ed. 2d 238 (1995).
The Defendants’ argument that they are entitled to qualified immunity necessarily fails. Though the Defendant has stated that for the purposes of the appeal they do not dispute the facts alleged by the Plaintiff, they have concealed facts and hotly contested certain material facts with regard to the treatment meted out to the Plaintiff Brad. The defendants have merely made this statement that they are conceding facts to invoke the jurisdiction of this Honorable Court.
Defendants have made a conscious effort to distract attention from the material facts supported by the testimonial evidence and medical evidence, which clearly would indicate that Plaintiff suffered injuries. Defendants had also produced witnesses to show that no excessive force was used. None of these facts have been referred to by the defendants. Since contradictory evidence is produced by both sides, there remain material facts in issue which require the determination by a jury. As set forth in Issue I, supra, Judge Rosen properly denied summary judgment upon recognizing this genuine dispute of material facts.
In Johnson, the Court held:
A defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a “genuine” issue of fact for trial.
Id at 320.
In Sova v. City of Mt. Pleasant, 142 F.3d 898. 902 (6th Cir. 1998), this Court held: “When ‘the legal question … is completely dependent upon which view of the facts is accepted by the jury,’ the District Court cannot grant a defendant police officer immunity from a deadly force claim. Id. (quoting Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. 1989)). Where, as in this case, the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability. Id at 902-903.
In the instant case, there is a factual dispute as to whether the defendants used excessive force, much greater than what the circumstances warranted. Whether the force used by the defendants was in excess of reasonable force is a factual aspect which requires weighing the evidence of both sides and the relative credibility of the witnesses. This is possible only at trial. Violations of the constitutional rights of the Plaintiff will pierce the shield of qualified immunity of the defendants. The Defendants have raised the issue of qualified immunity as a question of law to be determined. The issue of qualified immunity cannot be raised as a question of law at this stage, as there is a genuine factual dispute about whether constitutional rights were violated.
Therefore, Plaintiff respectfully requests that this Honorable Court find that it does not have jurisdiction to undertake de novo review of the District Court’s May 12, 2005 order and dismiss the Defendants’ appeal on the legal issue of the applicability of qualified immunity, as it is wholly unsustainable.
CONCLUSION
The District Court properly held that the existence of genuine issues of material fact with respect to Plaintiff Brad’s claims precluded a motion for summary judgment in favor of the Defendants. The District Court correctly held that the same contradictory evidence as to the reasonableness of force used by the Defendants compelled denial of summary judgment on qualified immunity grounds as well. Therefore, the Defendant-Appellants’ arguments requesting reversal of the District Court’s rulings on these issues must fail. Moreover, because a genuine factual dispute exists, Defendants could not immediately appeal the District Court’s ruling and have improperly brought this appeal.