Joseph Gaddis, by his next friend and guardian, Erma Gaddis v. Redford Town Ship, a municipal corporation

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0087P (6th Cir.)
File Name: 04a0087p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOSEPH GADDIS, by his next
friend and guardian, Erma
Gaddis,
Plaintiff-Appellant,
v.
REDFORD TOWN SHIP, a
municipal corporation; CITY
OF DEARBORN HEIGHTS, a
municipal corporation;
MATTHEW BAIN, in his
official and individual
capacities; JOHN BURDICK, in
his official and individual
capacities; RICHARD
DUFFANY, in his official and
individual capacities, jointly
and severally,
Defendants-Appellees.
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No. 02-1483
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 00-40375—Paul V. Gadola, District Judge.
Argued: September 17, 2003
2 Gaddis v. Redford Township, et al. No. 02-1483
Decided and Filed: March 26, 2004
Before: BOGGS, Chief Judge; and KRUPANSKY and
CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark R. Bendure, BENDURE & THOMAS,
Detroit, Michigan, for Appellant. Joseph Nimako,
CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia,
Michigan, Eric D. Smith, HOPKINS, CURRAN & SMITH,
Southfield, Michigan, John H. Dise, Jr., DISE &
ASSOCIATES, Southfield, Michigan, for Appellees.
ON BRIEF: Mark R. Bendure, BENDURE & THOMAS,
Detroit, Michigan, Justin C. Ravitz, SOMMERS,
SCHWARTZ, SILVER & SCHWARTZ, Southfield,
Michigan, for Appellant. Joseph Nimako, CUMMINGS,
MCCLOREY, DAVIS & ACHO, Livonia, Michigan, Eric D.
Smith, Christine A. Fischer, HOPKINS, CURRAN &
SMITH, Southfield, Michigan, John H. Dise, Jr., DISE &
ASSOCIATES, Southfield, Michigan, for Appellees.
BOGGS, C. J., delivered the opinion of the court, in which
KRUPANSKY, J., joined. CLAY, J. (pp. 25-40), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
BOGGS, Chief Judge. Joseph Gaddis, a mentally ill man
proceeding by his next friend, appeals from the district court’s
grant of summary judgment to the defendants in his 42 U.S.C.
§ 1983 action. Mr. Gaddis claims that the individual
defendants, members of two Michigan municipal police
departments, violated his Fourth Amendment rights by

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No. 02-1483 Gaddis v. Redford Township, et al. 3
stopping his car without justification, and by using excessive
force in an ensuing confrontation that culminated in two
officers shooting Gaddis. The district court concluded that
Gaddis had failed as a matter of law to show that the
defendants violated his constitutional rights. For the
following reasons, we affirm.
I
Summary judgment is proper when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). In our
de novo review of the district court’s grant of summary
judgment, we must resolve disputes of fact in favor of the
nonmoving party, Gaddis, drawing all reasonable inferences
in his favor. Burchett v. Kiefer, 310 F.3d 937, 941-42, 945
(6th Cir. 2002). The application of this standard is
complicated here by the fact that Gaddis, the only witness to
the events at issue apart from the defendant officers and their
colleagues, has been stipulated incompetent to testify due to
mental illness. As discussed below, the record on appeal
includes a videotape that captured many of the events at issue.
We have carefully examined this tape along with the
witnesses’ testimony in reviewing the district court’s
judgment.
II
Gaddis’s encounter with the police began shortly before
4:00 a.m. on April 12, 1999, in Redford Township, Michigan.
Defendant Matthew Bain, a Redford Township officer,
spotted Gaddis’s car while patrolling alone on Telegraph
Road. (The mounted video camera on Officer Bain’s patrol
car yielded the tape that is the chief visual record of the
encounter. However, because the car’s audio recording
system was not working, the tape is silent.) Bain saw Gaddis
weaving within the right lane: his car edged to the left to
touch the divider line twice in a few hundred feet. Bain
testified that Gaddis was also driving somewhat slowly, and
4 Gaddis v. Redford Township, et al. No. 02-1483
the tape tends to confirm this, as it shows other cars passing
Gaddis to the left on the sparsely trafficked road.
Bain also testified that he saw Gaddis slumping to the right
inside his car as he held the wheel. The videotape neither
reinforces nor throws doubt on this testimony. The interior of
the car is dark on the tape and Gaddis’s posture cannot be
made out, but the resolution of the video image is not high,
and the camera’s point of view is slightly different from the
vehicle driver’s. Bain pulled up alongside Gaddis’s car and
confirmed to his satisfaction that Gaddis was leaning to the
right, toward the passenger’s seat. Bain testified that he
suspected Gaddis was driving while intoxicated, a crime in
Michigan. See Mich. Comp. L. § 257.625.
Bain pulled behind Gaddis’s car and turned on his flashers
and siren. When Gaddis failed to stop, Bain also employed
his air horn. Gaddis kept driving until he reached a red light.
Bain then left his patrol car and approached Gaddis’s stopped
auto on foot. When the light changed to green, Gaddis turned
right and drove away. Bain ran back to his car and pursued
Gaddis again, and finally succeeded in pulling him over after
about a block.
Bain left his car again and walked over to Gaddis’s car.
The officer had his sidearm drawn when he stepped out of the
car, but holstered it as he walked up to Gaddis’s driver side
window. Bain asked Gaddis for his license and registration,
to which Gaddis replied that his license was suspended
(which turned out not to be true), and handed Bain an expired
Michigan driver’s license. By this time a number of other
uniformed police officers had arrived on the scene, including
Dearborn Heights Officers John Burdick and Richard
Duffany, who had been eating at a nearby restaurant and
decided to assist Bain after hearing him drive by in pursuit of
Gaddis.
Bain told Gaddis to get out of the car. Gaddis opened the
door and stepped out with his hands inside his pockets. Bain

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No. 02-1483 Gaddis v. Redford Township, et al. 5
1Officer Champo ux later testified that he believed he could have
blocked Gaddis’s car with his own patrol car if Gaddis had tried to leave.
testified that he ordered Gaddis to remove his hands from his
pockets. The tape shows that shortly after Gaddis emerged,
Bain grabbed him by the collar and pulled him slightly away
from the car. Gaddis then removed his hands from his
pockets, prompting a dramatic reaction: Bain jumped back,
visibly alarmed, and he and the other officers drew their
sidearms, pointing them at Gaddis. Officers Bain and
Burdick later testified that Gaddis had a knife in his hand,
while Duffany saw something shiny but wasn’t sure what it
was. (The videotape image does not permit the viewer to
verify directly whether Gaddis was holding a knife, a point
we will discuss further in Part IV of this opinion.) At about
this time a fourth officer arrived on the scene, Officer
Champoux of the Redford Township department. Champoux
pointed a shotgun at Gaddis, but testified that he could not tell
if Gaddis had anything in his hand.
There ensued a standoff of two to three minutes’ duration.
The officers testified that they told Gaddis repeatedly to drop
his knife, and that Gaddis said something incoherent to Bain
along the lines of: “Why are you doing this to me, Chris, like
you did to me in California?” None of the officers was
named Chris or had ever encountered Gaddis in California.
Bain later testified that the “Chris” remark suggested to him
that Gaddis was not acting rationally. Officer Burdick
testified that he did not hear the remark. On the tape, Gaddis
can be seen apparently speaking to the officers during the
standoff. He gestures with his hands, but keeps them fairly
low at his side.
Gaddis then stated that he wanted to leave.1 Bain stepped
forward and sprayed Gaddis in the face with pepper spray.
Meanwhile, Officer Burdick had been walking around to the
passenger side of Gaddis’s car. Seconds after Bain used the
pepper spray, Burdick clambered over the trunk of Gaddis’s
6 Gaddis v. Redford Township, et al. No. 02-1483
car and tried to grab Gaddis. Gaddis reacted violently: he
wheeled and struck at Burdick with his right, then his left
hand. Gaddis’s right-handed strike was a windmilling motion
arguably suggestive of an attempt to stab with a knife. Bain
and Duffany testified that they saw Gaddis stab at Officer
Burdick with a knife. They both began shooting, firing a total
of 16 shots at Gaddis in a single burst. Burdick first heard the
shots as he was falling backward over the back of Gaddis’s
car. Gaddis was struck in the torso, right arm, buttocks, and
left thigh, and fell to the ground. Champoux did not fire.
Evidence technicians recovered a knife from the street near
Gaddis’s car, but did not fingerprint it.
Gaddis was charged with assault with intent to murder and
with fleeing and eluding police. On June 8, 1999, he was
found guilty in a bench trial of felonious assault (a lesser
included offense), and not guilty on the fleeing count.
Pursuant to a post-trial motion, however, Gaddis was later
adjudged not guilty of the felonious assault charge as well.
Gaddis filed suit under 42 U.S.C. § 1983 against Officers
Bain, Burdick, and Duffaney, alleging that they illegally
detained him and used excessive force against him in
violation of the Fourth Amendment. (He also asserted a
claim of discrimination on the basis of his race and his mental
illness, which he has abandoned on appeal.) He also sued the
municipalities of Redford Township and Dearborn Heights,
claiming that they maintained unlawful policies that caused
the incident.
Plaintiff introduced the affidavit of James Fyfe, Ph.D., a
former police officer and a professor of criminal justice. Prof.
Fyfe opined that the officers unreasonably deviated from
proper police techniques for dealing with emotionally
disturbed persons (“EDPs”). In particular, he testified that
officers using correct police techniques would recognize that
“techniques of intimidation and force” are not likely to work
on EDPs in the way they may work on rational persons. He

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No. 02-1483 Gaddis v. Redford Township, et al. 7
testified that the police should instead have picked a single
officer to talk calmly to the EDP, and should have refrained
from unnecessary displays of force. Fyfe criticized Bain’s
use of pepper spray, and described Burdick’s attempt to tackle
Gaddis by surprise from behind as a “terrible tactic.”
The defendants moved for summary judgment, and the
district court granted summary judgment on all claims on
February 20, 2002. While the individual defendants had all
raised the defense of qualified immunity, the district court did
not reach the qualified immunity issue, but held that the
defendants were entitled to summary judgment on the merits.
Gaddis v. Redford Township, 188 F. Supp. 2d 762 (E.D.
Mich. 2002).
As to Gaddis’s claim that the initial stop of his car was
unlawful, the court held that reasonable suspicion was all that
was required to justify an investigative stop of a car. Id. at
768. It further held that Gaddis’s weaving in the lane and
leaning over the seat provided reasonable suspicion. Indeed,
it stated that the weaving, “simpliciter,” would be enough to
establish reasonable suspicion. Id. at 768-69.
As to the excessive force claim, the district court held that
there was no genuine issue of material fact as to whether the
officers’ use of force was reasonable. Id. at 772. It reasoned
that the threat posed by Gaddis was quite high, as he had
stabbed Officer Burdick. Id. at 770. The court also
concluded that the officers’ “overall handling of the incident”
did not violate the Fourth Amendment. Id. at 770-72. It
noted that the “officers fired only one volley at Plaintiff, and
. . . did so immediately after Plaintiff had stabbed a
policeman.” Id. at 771. The “unconstested evidence” showed
that “when the police shot Plaintiff, he had just stabbed
Defendant Burdick, still appeared to be holding a knife, and
was in close proximity to Defendant Burdick.” Id. at 772.
The court also rejected Gaddis’s equal protection claims.
Ibid.
8 Gaddis v. Redford Township, et al. No. 02-1483
Gaddis timely appealed to this court, appealing only the
grant of summary judgment on his Fourth Amendment
claims.
III
The first issue is whether the initial stop of Gaddis’s car
violated the Fourth Amendment.
A
At the outset, we must determine the legal standard that
governs a brief stop of a car for suspected drunk driving in a
jurisdiction where, as in Michigan, such conduct is a criminal
offense. See Mich. Comp. L. § 257.625(9)(a) (defining
driving while intoxicated as a misdemeanor punishable by
imprisonment). Unfortunately, this proves to be a
complicated question, because different published opinions of
this court have given inconsistent answers at different times.
By contrast, the Supreme Court has not wavered in this
area. It has consistently articulated a clear governing rule:
when officers have reasonable suspicion that occupants of a
vehicle are engaged in criminal activity, they may briefly stop
the vehicle to investigate. E.g., United States v. Arvizu, 534
U.S. 266, 273 (2002); Alabama v. White, 496 U.S. 325, 328-
32 (1990); United States v. Hensley, 469 U.S. 221, 226
(1985).
This court’s earlier case law was consistent with this
teaching. In United States v. Roberts, 986 F.2d 1026 (6th Cir.
1993), we held that police may perform an investigatory stop
of a vehicle when they have reasonable suspicion that the
occupant is committing the crime of drunk driving. Id. at
1029-30.
However, two later cases potentially departed from this
standard. Both arose in Tennessee, where, as in Michigan,
driving while intoxicated is a crime. In United States v.

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No. 02-1483 Gaddis v. Redford Township, et al. 9
2See Tenn. Code Ann. § 55-10-401.
3See Tenn. Co de A nn. § 5 5-8-123.
4Indeed, Whren did not even hold that all stop s prem ised on a civil
traffic violation require probable cause – only that if police do have
probable cause, then any claim of pretext is irrelevant for Fourth
Palomino, 100 F.3d 446 (6th Cir. 1996), the court upheld the
stop of a vehicle where police had grounds to suspect both
drunk driving2 and the traffic violation of failure to stay
within lanes.3 Id. at 448-49. Palomino argued that the stop
was pretextual. He claimed that police had really stopped his
car because he was Mexican and fit certain characteristics of
a drug courier profile. Id. at 448. The court held that even if
true, this was irrelevant, because the police “ha[d] probable
cause to believe that a traffic violation had occurred,”
justifying the stop. Ibid. This reasoning, while otherwise
unexceptionable, could be read to lump criminal drunk
driving together with failure to stay in lanes as a “traffic
violation.” Ibid.
Palomino cited as authority the Supreme Court’s then-
recent decision in Whren v. United States, 517 U.S. 806
(1996). See 100 F.3d at 448. The cautiously worded opinion
in Whren was consistent with the result in Palomino, but it
did not support a general requirement of probable cause for
stops based on suspicion of any offense, criminal or
otherwise, involving a vehicle. Whren simply held that, when
a defendant argued that his vehicle was stopped for improper
reasons on the pretext of violating a traffic regulation, the
officer’s improper motivations would not render the stop a
violation of the Fourth Amendment if “the police ha[d]
probable cause to believe that a traffic violation had
occurred.” 517 U.S. at 810. Whren did not involve a criminal
offense. Rather, the defendants were stopped for speeding
and failing to signal a right turn, in violation of municipal
regulations. Ibid.4
10 Gaddis v. Redford Township, et al. No. 02-1483
Amendment purposes.
However, as the dissent points out, this court’s opinion in United
States v. Ferguson, 8 F.3d 385 (6th Cir. 1993) (en banc), which rejected
a “pretextual stop” challenge like the one in Whren, went on to state that
probab le cause would be necessary for a stop premised on a civil traffic
violation. See id. at 391 (“We hold that so long as the officer has
pro bab le cause to believe that a traffic violation has occurred or was
occurring, the resulting stop is not unlawful and does not violate the
Fourth Amendment. . . . If an officer testifies . . . that he . . . did not have
probab le cause to believe a violation had occurred . . . [s]uch a stop would
be unreaso nable under the Fourth Amendment.”).
5See also United States v. Hu gue nin, 154 F.3d 547 , 557 (6th Cir.
1998) (“[T]he Supreme C ourt emphasized . . . in Whren . . . [that] there
is a significant differenc e betw een a pretextual stop based o n pro bab le
cause that a traffic violation has occurred, and a stop that is not based on
probable cause or even reasonable suspicion”) (emphasis added).
Our published decisions following Palomino contained no
suggestion that Palomino had abrogated the bedrock rule
permitting an investigatory vehicle stop when there is
reasonable suspicion of a crime. See Houston v. Clark
County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813 (6th
Cir. 1999) (“Police may briefly stop an individual for
investigation if they have a reasonable suspicion that the
individual has committed a crime. . . . The same Fourth
Amendment test applies to vehicle stops.”) (punctuation
omitted) (citing, inter alia, Palomino, 100 F.3d at 449).5
However, four years after Palomino, a panel of this court
decided United States v. Freeman, 209 F.3d 464 (6th Cir.
2000), which held that Tennessee police were not justified in
stopping the defendants’ mobile home after watching the
vehicle veer out of its lane on a windy day. 209 F.3d at 465-
66. The court held that this behavior was insufficient to
justify a stop, whether it was viewed as evidence of failure to
stay in lanes, or as evidence of drunk driving, which was a
crime, though the court’s opinion did not discuss the
violation/crime distinction. Ibid. At one point, the court

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No. 02-1483 Gaddis v. Redford Township, et al. 11
specifically stated that the police were not justified in
stopping Freeman for drunk driving because his weaving path
“did not give [the officers] . . . probable cause to stop the
motor home.” 209 F.3d at 467 (emphasis added). Gaddis
argues that Freeman is now the law of the circuit, and
requires probable cause to stop a car for suspicion of criminal
drunk driving. Freeman appears to conflict with our earlier
decision in Roberts, as well as our many decisions, such as
Houston, which affirm the bedrock rule that reasonable
suspicion of a crime justifies a brief stop.
We have a settled procedure for resolving cases of intra-
circuit conflict. “[A] panel of this [c]ourt cannot overrule the
decision of another panel. The prior decision remains
controlling authority unless an inconsistent decision of the
United States Supreme Court requires modification of the
decision or this Court sitting en banc overrules the prior
decision.” Darrah v. City of Oak Park, 255 F.3d 301, 309
(6th Cir. 2001).
Roberts squarely held that a stop for criminal drunk driving
requires only reasonable suspicion. As the earliest decision
on point, it must control, unless the intervening Supreme
Court decision in Whren “require[d] modification” of its
holding by a later panel. We do not read Palomino as so
holding. At most, Palomino held that probable cause was
sufficient to justify a stop for drunk driving, not that probable
cause was necessary for such a stop. See 100 F.3d at 448-49.
Nor did Freeman purport to modify past precedent in light of
Whren; indeed, Freeman did not even cite Whren or
Palomino. See 209 F.3d at 466-67.
Thus, at a minimum, applying the Darrah rule to our
precedents yields grave doubt about the current authority of
Freeman. Any lingering questions are resolved by the
Supreme Court’s intevening decision in Arvizu, which
explicitly reaffirmed the traditional rule that police may make
“brief investigatory stops of . . . vehicles . . . if the officer’s
action is supported by reasonable suspicion to believe that
12 Gaddis v. Redford Township, et al. No. 02-1483
6In the hope of providing guidance to the district courts in this
circuit, we summarize the state of our Fourth Amendment jurisprudence
on vehicle stops.
Police may make an investigative stop of a vehicle when they have
reaso nable suspicion of an ongoing crime, whether it be a felony or
misdemeanor, including drunk driving in jurisdictions where that is a
criminal offense. Arvizu, 534 U.S. at 273 ; Shadoan, 340 F.3d at 407;
Roberts, 986 F.2d at 1029-30. Police may also make a stop when they
have reasonable suspicion of a completed felony, though not of a mere
completed misdemeanor. Hensley, 469 U.S. at 229 ; Roberts, 986 F.2d at
103 0.
Next, police may make a stop when they have p robable cause to
believe a civil traffic violation has occurred, even if the defendant raises
a claim that the stop was pretextual. Whren, 517 U.S. at 810 ; Palomino,
100 F.3d at 448; Ferguson, 8 F.3d at 391. Whether they may also stop a
vehicle based on mere reasonable suspicion o f a traffic violation is the
subject of another co nflict in our case law. Compare Shadoan, 340 F.3d
at 407-08 (upholding stop where police had “reaso nable suspicion” of a
violation of vehicle registration and window tinting regulations) with
Freeman, 209 F.3d at 466 (invalidating stop where police lacked
“probab le cause” to stop vehicle for failure to stay in lane); and Ferguson,
8 F.3d at 391 (stating in dictum that probable cause is required for a stop
prem ised on traffic violation).
Gaddis’s case does no t require us to resolve this last issue. We note,
though, that the issue appears to be co ntrolled by Freeman, the earlier
criminal activity may be afoot.” 534 U.S. at 273 (punctuation
omitted); accord Weaver v. Shadoan, 340 F.3d 398, 407 (6th
Cir. 2003).
We therefore hold that a standard of reasonable suspicion
governs the stop of Gaddis’s vehicle for suspicion of driving
while intoxicated. This conclusion is also consistent with
extensive authority from other circuits. E.g., United States v.
Sanchez-Pena, 336 F.3d 431, 436 & n.2 (5th Cir. 2003);
United States v. Colin, 314 F.3d 439, 442, 444 (9th Cir.
2002); United States v. Wheat, 278 F.3d 722, 727-29 (8th Cir.
2001); see also United States v. Chanthasouxat, 342 F.3d
1271, 1275 (11th Cir. 2003) (“a [vehicle] stop is a
constitutional detention if it is justified by reasonable
suspicion under Terry or probable cause to believe a traffic
violation has occurred”).6

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No. 02-1483 Gaddis v. Redford Township, et al. 13
panel holding on point, a conclusion reinforced by this court’s embrace
of the probable cause requirement for traffic violations in dictum its en
banc opinion in Ferguson. See Darrah, 255 F.3d at 309.
7It is also mo destly relevant tha t Gad dis was driving slowly
compared to the other traffic. W hile this fact is obviously capable of
many innocent explanations, it nevertheless co ntributes to the overall
picture created by the other evidence of drunk driving. See A rvizu, 534
U.S. at 277.
B
Measured by the standard of reasonable suspicion, the stop
was constitutional. Reasonable suspicion to stop a vehicle
depends on a contextual inquiry that considers, in the well-
known phrase, “the totality of the circumstances – the whole
picture.” United States v. Cortez, 449 U.S. 411, 417 (1981).
Here, Gaddis weaved twice to the left to touch the dividing
line in a fairly short span. Bain’s testimony that Gaddis was
leaning over to the right inside his car must also be accepted
for summary judgment purposes, because it was
uncontradicted by other testimony and the videotape does not
tend to contradict it.7
These facts establish reasonable suspicion of drunk driving.
Indeed, the Tenth Circuit held an investigatory stop for drunk
driving justified on comparable facts in United States v.
Ozbirn, 189 F.3d 1194 (10th Cir. 1999), where an officer saw
the defendant’s motor home “drift onto the shoulder twice
within a quarter mile without any adverse circumstances like
road or weather conditions to excuse . . . the deviation.” Id.
at 1199. Gaddis argues that our analysis should be controlled
by Freeman, discussed above, and United States v. Gregory,
79 F.3d 973 (10th Cir. 1996), which held that officers did not
obtain a reasonable suspicion of drunk driving when they
witnessed the defendant’s truck veer once in to the right
emergency lane of the interstate. Id. at 975-76, 978-79.
However, both cases are readily distinguished. In both
Freeman and Gregory, the suspect vehicle swerved only
14 Gaddis v. Redford Township, et al. No. 02-1483
once, and there were no other significant facts to suggest
drunk driving.
Thus, summary judgment for all defendants was proper as
to the legality of the initial vehicle stop.
IV
The more difficult issue in this case is the legality of the
various officers’ uses of force in their confrontation with
Gaddis. The sole constitutional standard for evaluating
excessive force claims is the Fourth Amendment’s criterion
of reasonableness. Graham v. Connor, 490 U.S. 386, 395
(1989). Courts must apply an objective standard, looking to
“the facts and circumstances of each particular case, including
[1] the severity of the crime at issue, [2] whether the suspect
pose[d] an immediate threat to the safety of the officers or
others, and [3] whether he was actively resisting arrest or
attempting to evade arrest by flight.” Russo v. City of
Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992) (quoting
Graham, 490 U.S. at 396) (brackets added). At the same
time, they must bear in mind that the Fourth Amendment
“prohibits unreasonable seizures, not unreasonable or ill-
advised conduct in general.” Dickerson v. McClellan, 101
F.3d 1151, 1162 (6th Cir. 1996) (quoting Cole v. Bone, 993
F.2d 1328, 1333 (8th Cir. 1993)).
In this circuit, courts faced with an excessive force case that
involves several uses of force must generally “analyze the . . .
claims separately.” Ibid. They should “identif[y] the seizure
and procee[d] to examine whether the force used to effect that
seizure was reasonable in the totality of the circumstances,
not whether it was reasonable for the police to create those
circumstances.” Id. at 1161 (quotation marks omitted)
(emphasis added). However, they may consider “the
moments preceding [a] shooting” as part of the context of that
shooting. Id. at 1162.

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No. 02-1483 Gaddis v. Redford Township, et al. 15
Here, Gaddis challenges four different events as
constituting unreasonable force: Bain’s initial shoving or
handling of Gaddis as Gaddis emerged from his car; Bain’s
spraying of Gaddis as he stood in his car doorway; Burdick’s
almost simultaneous grappling of Gaddis; and the ultimate
volley of 16 shots fired at Gaddis after he struck at Burdick.
We consider these uses of force in turn.
A
The district court did not examine Officer Bain’s brief
initial grab of Gaddis as the latter emerged from his car.
However, we hold that this act was not unconstitutionally
excessive force. Bain was dealing with a suspect who had
previously refused to stop for police, suggesting that he might
be disoriented or intent on avoiding arrest. Bain testified that
he grabbed Gaddis because he wanted to keep him from
fleeing and to perform a pat-down search on Gaddis, who had
his hands in his pockets. The record cannot be construed to
cast doubt on this claim. The Supreme Court has instructed
that “the right to make an arrest or investigatory stop carries
with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham, 490 U.S. at 396. “Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge’s chambers . . . violates the Fourth
Amendment.” Ibid. We acknowledge that even minor uses
of force are unconstitutionally excessive if they are “totally
gratuitous.” McDowell v. Rogers, 863 F.2d 1302, 1307 (6th
Cir. 1988). Here, however, Bain’s reasonable need to prevent
Gaddis from fleeing and to discern whether he was armed
justified his action.
B
Before we consider the officers’ later actions, we must
decide whether the district court rightly held that there was no
material dispute of fact on the critical question of whether
Gaddis drew a knife from his pocket. If a reasonable jury
could find that Gaddis did not have a knife, then it could
16 Gaddis v. Redford Township, et al. No. 02-1483
8As the Fourth Circuit ob served about a similar evidentiary conflict:
In a rapidly evolving scenario such as this one, a witness’s
account of the event will rarely, if ever, coincide perfectly with
the officers’ perceptions b ecause the witness is typically viewing
the event from a different angle than that of the officer. For that
reason, minor discrepancies in testimony do not create a material
issue of fact in an excessive force claim, particularly when, as
here, the witness views the event from a worse vantage point that
of the officers. . . . Thus, the discrepancies between the officers’
testimony and Williams’s testimony about the positioning and
speed at which Anderson was lowering his hands do not raise an
issue of triable fact.
Anderso n v. Russell, 247 F.3d 12 5, 130-31 (4th Cir. 2001).
unquestionably go on to find that shooting him was
unconstitutionally excessive force, see Tennessee v. Garner,
471 U.S. 1, 11 (1985) (holding that “[a] police officer may
not seize an unarmed, nondangerous suspect by shooting him
dead”), and the grant of summary judgment would have to be
reversed. The presence or absence of a knife also affects our
analysis of the officers’ uses of nonlethal force – Bain’s
decision to mace Gaddis and Burdick’s attempt to grapple
Gaddis from behind. We review de novo the district court’s
holding that no factual dispute existed. Burchett v. Kiefer,
310 F.3d 937, 941-42 (6th Cir. 2002).
Since Gaddis could not testify, the only relevant evidence
is the videotape and the testimony of the four officers. Bain
and Burdick both testified that they saw a knife in Gaddis’s
hand; Officer Duffany testified that he saw something shiny
in Gaddis’s hand; and Officer Champoux, who was further
from the scene, could not tell whether or not Gaddis had a
knife. Bain saw a fairly small knife in Gaddis’s hand;
Burdick described it as a “large” knife. Only Bain’s and
Burdick’s testimony could be said to conflict. This sort of
minor conflict of perception is common, and is not sufficient
by itself to create a material dispute of fact as to the officers’
credibility.8

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No. 02-1483 Gaddis v. Redford Township, et al. 17
Gaddis argues, however, that the inability to see a knife on
the videotape does create such a material dispute of fact.
Because this argument has some force, we will explain our
reasons for rejecting it in some detail. The videotape image
is of low quality. It readily discloses the movements and
postures of Gaddis and the officers, but not the details of their
appearances. Gaddis’s hand is a vague blur. While the tape
would not enable a juror to verify the presence of a knife by
direct observation of Gaddis’s hand, it equally would not
permit the juror to conclude that there was no knife there. (If
it did, summary judgment would obviously be inappropriate.)
Instead, the viewer’s sole clue is the body language of the
actors during the encounter. And in this respect, the officers’
reactions powerfully corroborate their testimony that Gaddis
produced a knife. On the tape, when Gaddis removes his
hands from his pockets, Bain jumps back in obvious alarm.
He pulls out his service pistol and covers Gaddis with it, and
the other officers follow suit. The reaction is inexplicable
unless something threatening was in Gaddis’s hands. In
addition, Gaddis later uses a windmilling motion to strike at
Burdick, which is suggestive of a knife stab. Thus the tape as
a whole tends to reinforce the officers’ testimony that there
was a knife, not to contradict it.
All admissible evidence in the case points to the conclusion
that the knife was present. At most, the poor quality of the
tape might be said to raise a “scintilla of evidence” in support
of Gaddis’s position, but that is not enough to withstand
summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). We conclude that there was no
material dispute as to whether Gaddis had a knife.
C
We turn next to Bain’s decision to use pepper spray to try
to incapacitate Gaddis. As noted before, after Gaddis drew
his knife, there followed a standoff of about two minutes,
during which Gaddis stood in the doorway of his car and the
officers repeatedly ordered him to drop his weapon. During
18 Gaddis v. Redford Township, et al. No. 02-1483
9See also Russo , 953 F.2d at 1044-45 (holding officer entitled to
qualified immunity desp ite his using T aser gun multiple times on knife-
wielding suspect who was no longer an immediate threat; noting that
officer’s “actions were intended to avoid having to resort to lethal force”);
Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 315 (S.D.N.Y. 1998)
(dismissing excessive force claim against officer who used a single stream
of pepper spray to prevent unarmed suspect from destroying evidence of
a crime).
this time Gaddis made an incoherent remark to Bain, calling
him “Chris” and referring to a nonexistent prior confrontation
with him in California. Gaddis then announced that he
wanted to leave. It was at this point that Bain stepped
forward and sprayed him. Gaddis argues that on the facts of
this encounter, the use of pepper spray was unconstitutionally
excessive.
One of the main purposes of nonlethal, temporarily
incapacitating devices such as pepper spray is to give police
effective options short of lethal force that can be used to take
custody of an armed suspect who refuses to be lawfully
arrested or detained. As a general matter, this court has
expressed doubt “that the use of non-lethal force against an
armed and volatile suspect constitutes excessive force.”
Ewolski v. City of Brunswick, 287 F.3d 492, 508 (6th Cir.
2002).9 Gaddis’s case falls in or near this category: he was
armed with a knife and his conduct was at least somewhat
“volatile,” as he was refusing to submit to arrest. Moreover,
we have also held that in sufficiently pressing circumstances,
officers may use pepper spray to take custody of unarmed
suspects. In Monday v. Oullette, 118 F.3d 1099 (6th Cir.
1997), we upheld judgment as a matter of law for police
officers who used spray to subdue an unarmed individual they
feared would injure himself or commit suicide by overdosing
on pills if not taken into custody. Id. at 1104-05. Of course,
there must exist an objective justification for the use of
pepper spray. In Adams v. Metiva, 31 F.3d 375 (6th Cir.
1994), we held that police who repeatedly sprayed mace in
the face of an unarmed plaintiff who was not resisting and

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No. 02-1483 Gaddis v. Redford Township, et al. 19
10The officers also knew that Gaddis was driving with an expired
license.
was not subject to lawful arrest would be liable for excessive
force as a matter of law. Id. at 384-87.
Measured by this case law and the three factors outlined by
the Supreme Court in Graham, we cannot say that Officer
Bain’s decision to use pepper spray could be found to be
objectively unreasonable. The amount of force Bain used,
though not trivial, was moderate. At the time he acted, the
officers had probable cause to suspect Gaddis of two crimes
that were also moderate in severity: driving while intoxicated,
a misdemeanor for first offenders under Michigan law, and
fleeing an officer.10 While Gaddis arguably did not pose an
immediate threat to the officers’ safety as he stood next to his
car brandishing a knife (since the officers were able to keep
their distance), Bain could have reasonably concluded from
Gaddis’s erratic driving and behavior that he would pose a
danger to other motorists if allowed to flee. Gaddis had
announced his desire to leave the scene, and this statement
prompted Bain to spray him. That fact is also relevant to the
final Graham factor, namely whether the suspect was
resisting arrest. Gaddis’s remarks indicated an intent to
continue evading arrest, and his brandishing of a knife was
reasonably interpreted as a sign of intent to resist, perhaps
violently.
In sum, Bain used an intermediate degree of nonlethal force
to subdue a suspect who had previously attempted to evade
arrest, was brandishing a knife, showed signs of intoxication
or other impairment, and posed a clear risk of leaving the
scene behind the wheel of a car. It cannot be said that this
action was unconstitutionally excessive.
Gaddis disputes this reasoning, arguing that his incoherent
remark about “Chris” put Bain on notice that Gaddis was
disturbed, and that this made special tactics appropriate.
20 Gaddis v. Redford Township, et al. No. 02-1483
11However, we note that the weight of such expert testimony is
diminished to the extent that the expert draws near to op ining on the
ultimate legal question of whether the officers’ challenged conduct was
reasonable. See Samples v. City of Atlanta , 916 F.2d 154 8, 15 51 (11th
Cir. 19 90); Burger v. Mays, 176 F.R.D. 153 , 157 (E.D. Pa. 19 97).
Gaddis argues that a reasonable officer, suspecting Gaddis’s
disability, would not have responded to the brandishing of a
knife by pointing a gun at Gaddis. Nor would he have
“provoked” Gaddis by using an irritating and disorienting
device such as pepper spray against him, as Bain did. Instead,
a reasonable officer would have used a nonconfrontational
manner that would ensure that Gaddis was not provoked to
violence. To support this argument, Gaddis offered the
affidavit of Prof. James Fyfe, a law enforcement expert. Fyfe
testified that in his opinion, the officers’ tactics in the
encounter with Gaddis were “terrible” and were not in
keeping with optimal police procedures for dealing with
mentally or emotionally disturbed persons.
We acknowledge that a suspect’s apparent mental state is
one of the “facts and circumstances of [the] particular case,”
Graham, 490 U.S. at 396, that should be considered in
weighing an excessive force claim. Moreover, the opinions
of properly qualified experts such as Mr. Fyfe are often
entitled “to be given . . . weight” in this determination.
Russo, 953 F.2d at 1047.11 In Russo, we drew partially upon
such testimony in concluding that the inadequate training
procedures of the Cincinnati police department may have
contributed to the shooting death of the plaintiff’s suicidal,
mentally ill decedent. See id. at 1046-47.
However, Gaddis’s arguments here are weakened by the
fact that Bain had only fragmentary evidence that Gaddis was
mentally disturbed. This distinguishes the case from Russo,
where officers knew from the outset that the suspect was
mentally disturbed because the initial call to the police came
from the mental institution the suspect had left. Id. at 1039.
Here, Gaddis’s incoherent conduct was arguably as consistent

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No. 02-1483 Gaddis v. Redford Township, et al. 21
with Bain’s initial hypothesis that Gaddis was driving while
intoxicated as it was with mental disturbance. The Supreme
Court has instructed that we are to judge officers’ conduct
from the “perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396. There may be more than one reasonable
response to a given situation, and when this is so, the Fourth
Amendment does not require officers to use “the most prudent
course of action” to handle it. See Cole, 993 F.2d at 1334. In
light of the circumstances and our reasoning above, we
conclude Fyfe’s affidavit is not sufficient to create a material
issue of fact as to the reasonableness of Bain’s use of pepper
spray.
D
Similar reasoning leads us to conclude that Officer
Burdick’s decision to grapple with Gaddis in order to subdue
him was not unconstitutionally excessive force. Burdick did
not strike Gaddis or employ any weapons; his actions
involved a degree of force comparable to Bain’s use of pepper
spray. Moreover, Gaddis’s argument that a different response
was required because of his emotional disturbance does not
apply to Burdick. It was uncontroverted that Burdick did not
hear the “Chris” remark that most strongly tended to suggest
Gaddis’s incoherence or emotional disturbance. As we have
noted, the reasonableness of his response must be gauged in
terms of the information available to him, not with hindsight.
And “reasonableness” does not require that an action be
“prudent” or the “best suited” to the situation, only that it not
be unconstitutionally disproportionate in degree to the
circumstances. Given that Bain’s use of nonlethal force
against Gaddis was reasonable, as we held at pp. 17-21,
supra, it follows that Burdick’s decision to grapple with
Gaddis was reasonable as well.
22 Gaddis v. Redford Township, et al. No. 02-1483
12That conclusion does not change when we take into consideration
the “moments preced ing the shooting,” as pre cedent req uires. Dickerson,
101 F.3d at 1162. We have previously held that Bain’s and Burdick’s
uses of nonlethal force to apprehend Gaddis did not raise a jury issue as
to excessiveness und er the Fourth Amendment.
E
Gaddis reacted to Burdick’s attempt to grapple with him by
stabbing at Burdick with his knife. Our last issue for
consideration is the constitutionality of Officers Bain and
Duffany’s decision to respond to this attack with lethal force,
by shooting Gaddis several times.
Lethal force is justified in order to protect a fellow officer
or a civilian from a threat of serious physical harm.
Brandenburg v. Cureton, 882 F.2d 211, 215 (6th Cir. 1989).
An attack with a knife certainly meets this criterion.12 See
Pirsein v. Village of Berrien Springs, No. 92-1258, 1992 WL
348944 (6th Cir. Nov. 24, 1992) (unpublished opinion). Bain
and Duffany saw Gaddis strike at Burdick with a knife in his
right hand. It was reasonable for them to respond with lethal
force.
Gaddis relies upon Samples v. City of Atlanta, cited supra,
and Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993),
to argue that his use of a knife did not necessarily render the
officers’ actions justified. In Samples, the Eleventh Circuit
denied qualified immunity to an officer who fatally shot
Samples as Samples approached him with a three-inch folding
knife. 846 F.2d at 1331-33. Zuchel involved a suspect who
was believed to have a knife, and who was fatally shot by an
officer shortly after he turned to face the officer. 997 F.2d at
735-36. The Tenth Circuit held that these facts were
sufficient to support a verdict for the plaintiff against the
officer’s municipal employer. Ibid.
Both cases are distinguishable from Gaddis’s. In Samples,
the officer shot a suspect who was, at most, merely opening

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No. 02-1483 Gaddis v. Redford Township, et al. 23
a knife, and had not yet attacked anyone with it. 846 F.2d at
1332. Moreover, Samples was shot once in the back – a
detail that was highly salient to his case, because there was
only one officer confronting Samples. The back wound
suggested that the officer might have used lethal force against
Samples at a time when he clearly did not pose a threat to the
officer. Ibid. Here, Gaddis had not only extended the blade
of his knife but had attacked Officer Burdick with it.
Moreover, while Gaddis, like Samples, also received a wound
from the back from the shots fired at him, the fact was that
multiple officers were firing at Gaddis from different vantage
points after his attempt to stab Burdick. Thus Gaddis’s back
wound does not tend to undercut the officers’ testimony
(corroborated by the videotape) that they fired only in
response to the knife attack.
In Zuchel, the facts suggested that Zuchel was not
threatening anyone or brandishing a weapon aggressively
when police shot him. Indeed, the only evidence that Zuchel
even had a knife came from one bystander’s shouted warning
to the police. 997 F.3d at 735-36. Here, again, Gaddis had a
knife and used it.
Gaddis finally suggests that even if his actions justified a
lethal response, the officers crossed the constitutional line by
firing sixteen shots at him. We disagree. While the two
officers fired a total of sixteen shots at him, it was a single
volley. That distinguishes Gaddis’s case from precedents
such as Russo, where police went on to fire a second and third
volley at the suspect even though there was a factual dispute
as to whether he still posed a serious threat. See 953 F.2d at
1045. Bain’s and Duffany’s decisions to use their weapons to
respond to Gaddis’s attack were individually justifiable, and
the fact that there were two of them responding
simultaneously, thereby producing a larger volley, does not
change the reasonableness of their conduct.
24 Gaddis v. Redford Township, et al. No. 02-1483
V
For the foregoing reasons, the district court’s grant of
summary judgment to the officers is AFFIRMED. Because
there was no underlying constitutional violation by the
officers, the municipal defendants cannot be held liable to
Gaddis. Monday, 118 F.3d at 1105. The grant of summary
judgment to the municipal defendants is therefore also
AFFIRMED.

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No. 02-1483 Gaddis v. Redford Township, et al. 25
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. Because the majority,
like the district court below, usurps the role of the jury and
violates the plain dictates of Federal Rule of Civil
Procedure 56, I dissent.
I.
My disagreement begins with the majority’s holding that
Officer Matthew Bain’s initial traffic stop of Joseph Gaddis
complied with the Fourth Amendment as a matter of law.
Most appellate review of a district court’s determination
about the propriety of a traffic stop arises on direct criminal
appeal after a district court has denied a motion to suppress
evidence discovered after the stop. In that procedural posture,
the Court upholds the district court’s findings of fact
regarding the existence of probable cause “unless clearly
erroneous,” and the district court’s legal conclusion as to the
existence of probable cause is reviewed de novo. United
States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999); see also
Ornelas v. United States, 517 U.S. 690, 699 (1996). By
contrast, in a § 1983 action on appeal from the grant of a
summary judgment against the plaintiff, the Court reviews
both the district court’s factual assessments (i.e., whether
there are genuine issues of material fact) and the legal
conclusions under a de novo standard. See Pyles v. Raisor, 60
F.3d 1211, 1215 (6th Cir. 1995) (“In general, the existence of
probable cause in a § 1983 action presents a jury question,
unless there is only one reasonable determination possible.”)
(citing Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th
Cir.1989)). Although the majority opinion states that “we
must resolve disputes of fact in favor of the nonmoving party,
Gaddis, drawing all inferences in his favor,” Op. at 3 (citing
Burchett v. Kiefer, 310 F.2d 937, 941-42, 945 (6th Cir.
2002)), the remainder of the opinion reveals that the majority
26 Gaddis v. Redford Township, et al. No. 02-1483
has simply paid lip service to this bedrock principle of
summary judgment law.
The failings of the majority opinion begin with its
description of the allegedly undisputed facts that preceded
Officer Bain’s initial traffic stop of Gaddis. This much is
undisputed: Gaddis was driving his car shortly before 4:00
a.m. on April 12, 1999, in Redford Township, when Officer
Bain spotted Gaddis’ car while patrolling alone on Telegraph
Road. It is also undisputed that Officer Bain’s patrol car
created a video, but not an audio, record of Bain’s counter
with Gaddis. It is not undisputed, however, that Bain saw
Gaddis “weaving” within his traffic lane. Op. at 3.
According to the Oxford English Dictionary, “weave” means
to “move repeatedly from side to side; to toss to and fro; to
sway the body alternately to one side and the other; to pursue
a devious course, thread one’s way amid obstructions.”
Oxford English Dictionary Online Edition (taken from second
print edition 1989) (emphasis in original). Webster’s
Dictionary defines “weave” to mean “to direct (as the body)
in a winding or zigzag course esp. to avoid obstacles.”
Webster’s Third New Int’l Dictionary 2591 (1993). The
videotape evidence does not show – or at least a reasonable
jury would not be compelled to conclude – that Gaddis moved
repeatedly side to side or that he was driving his car on a
zigzag course. Rather, the tape shows Gaddis gradually
veering within his lane on two occasions, barely touching (but
not crossing) the white line separating his lane from the lane
traveling in the same direction. Thus, there is a significant
dissonance between Bain’s characterization of Gaddis’
driving (weaving) and what the videotape actually reveals (a
gradual drifting to the lane marker on two occasions).
Bain’s credibility regarding Gaddis’ alleged weaving is
undermined not only by the videotape, but also by his 1999
conviction for third degree criminal sexual conduct for which
Bain currently is serving a prison term of 42 months to 15
years. See Fed. R. Evid. 609(a)(1) (providing that evidence
that a witness has been convicted of a crime punishable by

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No. 02-1483 Gaddis v. Redford Township, et al. 27
imprisonment in excess of one year shall be admitted if its
probative value outweighs its prejudicial effect). Although
ultimately it is within the district court’s discretion to admit
evidence of a prior criminal conviction for impeachment
purposes, Bain’s conviction arguably tends to undermine the
testimony of the most significant defense witness in this case
as to all material issues.
The majority next accepts as undisputed fact Bain’s
testimony that Gaddis had been “driving somewhat slowly,”
a fact the majority declares to be supported by the cars
passing Gaddis in the other lane. Op. at 3-4. There is no
evidence, however, that Gaddis was traveling under the speed
limit, nor is it undisputed that his speed was so slow as to
suggest that he may have been under the influence of alcohol.
Cf. United States v. Little, No. 97-6200, 1999 WL 196515, at
*1 (6th Cir. Mar. 24, 1999) (noting that trooper suspected
defendant was a drunk driver “[b]ecause intoxicated drivers
commonly travel at excessively high or low speeds”)
(emphasis added). In fact, Bain testified that he has no
recollection of what the other cars were doing on the night in
question, suggesting that the relative speed of Gaddis’ car did
not inform Bain’s decision to stop Gaddis at all. See United
States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc)
(“We note that this probable cause determination, like all
probable cause determinations, is fact-dependent and will turn
on what the officer knew at the time he made the stop.”)
(emphasis in original). Further, it reasonably could be
inferred from the videotape that cars were passing Gaddis
because he was traveling at or near the speed limit and the
other drivers were exceeding the speed limit. Consistent with
this inference, Officer Bain admits that he never saw Gaddis
violate any provision of the Michigan Motor Vehicle Code.
Thus, there is a genuine issue of material fact as to whether
Gaddis was traveling at an excessively slow speed that
reasonably would have suggested drunk and/or careless
driving.
28 Gaddis v. Redford Township, et al. No. 02-1483
The majority next states that Bain testified that he “saw
Gaddis slumping to the right inside his car as he held the
wheel.” Op. at 4. The Oxford English Dictionary defines
“slump” to mean to “slide off heavily; to plump down; to fall
or collapse clumsily or heavily.” Oxford English Dictionary
Online Ed. (emphasis in original). However, Bain did not
testify that Gaddis was slumping or that he appeared to be in
a state of fall or collapse. He actually testified that he saw
Gaddis “leaning over to the right,” but that he “couldn’t see
into the car to see what he was doing.” (J.A. 567.) Although
“leaning” and “slumping” arguably fall along the same
continuum, there is a world of difference between the two
physical states. Drivers frequently lean in their cars when
adjusting the radio or reaching for a cigarette lighter or a
cellular telephone. Some drivers are just more comfortable or
may even enjoy driving with a leaning posture. Although
such leaning is not inconsistent with intoxication, it also is not
inconsistent with a host of other innocent causes. By
transforming Gaddis’ lean into a “slump,” the majority
continues its incremental stacking of the “undisputed” facts
against Gaddis. Moreover, as acknowledged by the majority
and the district court below, the tape does not show Gaddis’
posture at all, another fact that bears directly on the credibility
of Bain, who testified not only that he saw Gaddis leaning,
but that the tape “could pick that up.” It is inexplicable, then,
why the majority not only ignores the absence of “leaning”
evidence on the videotape but also embellishes Bain’s
testimony. The far more judicious tact would be to
acknowledge that a reasonable inference from the absence of
“leaning” evidence is that Gaddis was not leaning at all.
According to the majority, Bain’s purported observation of
Gaddis’ “weaving,” slow driving speed and “slumping” led
Bain to suspect that Gaddis had been driving drunk. Op. at 3-
4. This is only partially true. Bain testified that he thought
Gaddis “was driving carelessly, and [he] thought [Gaddis]
might be intoxicated.” (J.A. 568.) (emphasis added). Thus,
Bain suspected that Gaddis might be violating two provisions
of the Michigan Motor Vehicle Code – Mich. Comp. Laws

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No. 02-1483 Gaddis v. Redford Township, et al. 29
§ 257.625 (prohibiting operation of vehicle while under the
influence of alcoholic liquor) and § 257.626b (prohibiting
careless or negligent driving).
In Whren v. United States, 517 U.S. 806 (1996), the
Supreme Court held, “As a general matter, the decision to
stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has
occurred.” Id. at 810 (citations omitted). The Court further
characterized the probable cause standard for suspected traffic
law violations as “the normal one,” the “traditional
justification” and “the usual rule.” Id. at 810, 817 (emphasis
omitted), 818. Our Court, sitting en banc, similarly held that
“so long as the officer has probable cause to believe that a
traffic violation has occurred or was occurring, the resulting
stop is not unlawful.” Ferguson, 8 F.3d at 391; accord
United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000)
(following Ferguson); Hill, 195 F.3d at 264 (“[A]n officer
may stop a vehicle for a traffic violation …as long as the
officer had probable cause to initially stop the vehicle.”)
(citing Whren). Despite these clear statements by the
Supreme Court and our own en banc Court, the majority
opines that it is unsettled in this circuit as to whether the
police need probable cause to stop a vehicle for a suspected
traffic law violation. Op. at 12 n.6. The majority appears to
base its reasoning on the ground that the Whren opinion fails
to state explicitly that the decision to stop an automobile is
reasonable only when the police have probable cause to
believe that a traffic violation has occurred. See Op. at 9 n.4
(“Indeed, Whren did not even hold that all stops premised on
a civil traffic violation require probable cause ….”). This
reading of Whren, however, ignores the context of the
Supreme Court’s above-quoted statement, which was a
response to the petitioner’s argument that “‘in the unique
context of civil traffic regulations’ probable cause is not
enough.” Whren, 517 U.S. at 810. Although the Court
refused to adopt a more stringent constitutional standard than
probable cause for suspected traffic law violations, the Court
gave no indication that in fact a lesser constitutional standard
30 Gaddis v. Redford Township, et al. No. 02-1483
applies. To the contrary, at the conclusion of its opinion, the
Court stated:
For the run-of-the-mine case, which this surely is, we
think there is no realistic alternative to the traditional
common-law rule that probable cause justifies a search
and seizure. Here the District Court found that the
officers had probable cause to believe that petitioners had
violated the traffic code. That rendered the stop
reasonable under the Fourth Amendment….
Id. at 818-19. Because it is settled that probable cause is
required for suspected civil violations of the traffic laws,
Officer Bain clearly needed probable cause to stop Gaddis on
suspicion of careless driving. Cf. United States v. Ervin, 59
Fed. Appx. 631, 635 (6th Cir. 2003) (holding that officer
needed probable cause to stop driver for violating Florida’s
careless driving statute).
Ignoring Officer Bain’s careless driving justification for the
stop, the majority holds that Bain needed only a reasonable
suspicion that criminal activity was afoot before he could stop
Gaddis on suspicion of drunk driving because drunk driving
is a criminal offense in Michigan. Op. at 8-9. See also Mich.
Comp. Laws § 257.625(9)(a) (providing that a person who
operates a vehicle while intoxicated “is guilty of a
misdemeanor”). As support, the majority opinion cites
United States v. Arvizu, 534 U.S. 266 (2002), Alabama v.
White, 496 U.S. 325 (1990) and United States v. Hensley, 469
U.S. 221, (1985). Op. at 8. None of these cases is relevant,
however, because none of the suspected crimes in those cases
bore an inherent connection to the operation of a motor
vehicle, and none involved a suspected violation of the traffic
laws. See Arvizu, 534 U.S. at 272, 273 (minivan stopped on
suspicion that narcotics were being smuggled); White, 496
U.S. at 327 (vehicle stopped due to anonymous tip that driver
had been transporting drugs); Hensley, 469 U.S. at 677-78
(vehicle stopped on suspicion that the driver was wanted for
armed robbery). By contrast, drunk driving necessarily

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No. 02-1483 Gaddis v. Redford Township, et al. 31
involves the operation of a motor vehicle and constitutes a
violation of the traffic laws. Under Michigan law, the drunk
driving prohibition, like the civil prohibition against speeding,
is located within Chapter VI of the Michigan Motor Vehicle
Code, entitled in conspicuous type, “OBEDIENCE TO AND
EFFECT OF TRAFFIC LAWS.”
Subjecting careless driving and drunk driving to different
constitutional standards makes no sense legally and
practically. Stops for both types of violations generally are
premised on an officer’s observations, “which afford the
‘quantum of individualized suspicion’ necessary to ensure
that police discretion is sufficiently constrained.” Whren, 517
U.S. at 817-18 (quoting Delaware v. Prouse, 440 U.S. 648,
654-55 (1979); internal quotation marks and citation omitted).
The mere fact that the respective penalties for careless driving
versus drunk driving deem the former a civil violation and the
latter a crime has no bearing whatsoever on the manner in
which police officers detect these violations. Moreover,
different standards for these two traffic violations might
encourage police officers to avoid the higher constitutional
standard applicable to stops for careless driving, speeding,
failing to signal, etc. by “tacking on” a drunk driving
suspicion. In many instances, the majority’s reasonable
suspicion standard for drunk driving could swallow the
probable cause standard applicable to all other traffic law
violations.
Because the Supreme Court (in Whren) and this Court (en
banc decision in Ferguson) clearly have held that a stop for
suspected traffic violations must be premised on probable
cause and because there is no legal or practical basis to
subject drunk driving to a different constitutional standard
than other suspected traffic violations, this Court should
follow the panel decisions of our Court that relied on Whren
and/or Ferguson in applying a probable cause standard to
suspected drunk driving. See Freeman, 209 F.3d at 467
(applying Ferguson’s probable cause standard in holding that
officer lacked probable cause to stop vehicle for suspected
32 Gaddis v. Redford Township, et al. No. 02-1483
drunk driving); United States v. Palomino, 100 F.3d 446, 448
n.1 (6th Cir. 1996) (applying Whren’s probable cause
standard to challenge to traffic stop for suspected drunk
driving; affirming district court’s holding that the officer had
probable cause to believe that the traffic violation of driving
while intoxicated had occurred); accord United States v.
Carlton, 44 Fed. Appx. 720, 722 (6th Cir. 2002) (holding that
officer had probable cause to suspect drunk driving based on
“erratic driving”); United States v. Little, No. 97-6200, 1999
WL 196515, at *4 (6th Cir. Mar. 24. 1999) (holding that the
totality of the circumstances created probable cause to believe
that the defendant had been driving drunk). To the extent
United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir. 1993)
adopted a reasonable suspicion standard for drunk driving
stops, Whren and Ferguson have abrogated that case.
As previously discussed, there is a genuine issue of material
fact as to whether Gaddis had been leaning in his car and, if
so, to what extent. There also is a genuine issue of material
fact as to whether Gaddis had been driving at a speed so
excessively slow as to be indicative of impaired driving.
Thus, the only undisputed fact is that Gaddis’ car gradually
drifted toward and eventually touched the painted hashes on
two occasions. This fact alone does not create probable cause
to suspect, or even a reasonable suspicion of, drunk driving as
a matter of law. Cf. Freeman, 209 F.3d at 466 (“If failure to
follow a perfect vector down the highway or keeping one’s
eye on the road were sufficient reasons to suspect a person of
driving while impaired, a substantial portion of the public
would be subject each day to an invasion of their privacy.”)
(internal quotation marks and citations omitted). Cases
finding probable cause to arrest for drunk driving have
required more indicia of impaired driving than two instances
of a gradual drifting onto a lane marker. See, e.g., Palomino,
100 F.3d at 448 (holding drunk driving stop to be
constitutional where driver had been traveling significantly
under the speed limit, had crossed two lanes of traffic at once,
had straddled the right lane, and had been weaving back and
forth between the right lane and the emergency lane);

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No. 02-1483 Gaddis v. Redford Township, et al. 33
Carlton, 44 Fed. Appx. at 722 (holding drunk driving stop to
be constitutional where driver had “weaved from side to side
at least three times on” two different streets); Little, 1999 WL
196515, at *4 (holding drunk driving stop to be constitutional
where driver had been traveling at “an unusually slow speed,”
had allowed her speed to fluctuate, and had weaved on the
highway’s shoulder). I do not foreclose the possibility that a
jury might find probable cause if it were to find that Gaddis
was not in control of his vehicle, as evidenced by leaning,
slouching and/or an excessively slow speed. It simply is my
position that this Court lacks the authority to usurp the jury’s
role in finding the facts that may support such a legal
conclusion.
II.
Gaddis’ excessive force claim centers around the batteries
he suffered after Officer Bain had pulled him over for
suspected traffic violations, most significantly the 16 bullets
that Officers Bain and Duffany fired at Gaddis. The key
circumstance that precipitated the shooting was the alleged
belief of at least two of the officers that Gaddis had had a
knife in his hand. As the majority opinion notes, “If a
reasonable jury could find that Gaddis did not have a knife,
then it could unquestionably go on to find that shooting him
was unconstitutionally excessive force … and the grant of
summary judgment would have to be reversed.” Op. at 15-16
(citation omitted; emphasis in original). As discussed below,
a reasonable jury should be permitted to make just such a
finding and, therefore, the summary judgment should be
reversed.
After Gaddis finally stopped his car, Officer Bain drew his
gun and approached. Bain then re-holstered his gun and
pulled out his flashlight. After a delay, Gaddis passed a piece
of paper to Bain who looked at it and stuffed it in his pocket.
Soon, Officers Burdick and Duffany arrived in their car.
Gaddis then exited his car and put his hands in his pockets.
Bain briefly grabbed Gaddis by the collar and pulled Gaddis
34 Gaddis v. Redford Township, et al. No. 02-1483
1Champo ux is no longer a police officer. He resigned allegedly for
personal reasons after pleading guilty to impaired driving.
toward him. Shortly thereafter, Gaddis removed his hands
from his pockets. According to Bain and Burdick, they saw
a knife in Gaddis’ hand. Burdick described the knife as
“large,” “long,” and “the biggest knife [he] had ever seen.”
Bain’s testimony conflicts with Burdick’s in that Bain saw
only a small knife. Duffany saw something shine, but he did
not know what it was. Bain then pulled his gun on Gaddis, as
did Burdick. Duffany pulled his gun in response to Bain’s
reaction in pulling his gun. Officer Paul Champoux, who had
arrived on the scene around this time, testified that he could
not tell if Gaddis had anything in his hand. Nevertheless, he
“racked” a shell into the chamber of his shotgun and leveled
it at Gaddis in order to “startle” Gaddis.1 The knife that
Defendants claimed to have recovered from Gaddis was less
than three inches long.
If all of the officers had seen Gaddis with a knife, but
happened to disagree about the knife’s length, there would be
no genuine dispute as to whether Gaddis had been
brandishing a knife. Here, however, two of the officers could
not determine what Gaddis had been holding, even though
another officer testified that Gaddis had wielded a large and
long knife. Thus, the officers’ credibility is open to question,
particularly that of Bain, a convicted criminal. Moreover, as
discussed below, there are several additional pieces of
evidence that further undermine the officers’ claim that
Gaddis had been holding a knife.
First, there is no physical evidence of the stab wound
Gaddis allegedly inflicted on Officer Burdick. Officer
Burdick testified that Gaddis had stabbed him in the back
while Burdick had been attempting to place Gaddis in a
headlock. Burdick, who had been wearing a flak jacket at the
time, claims to have suffered a cut on his back that resulted
in a circle of blood soiling his white t-shirt. The bloody t-

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No. 02-1483 Gaddis v. Redford Township, et al. 35
2It is unclear whether the shirt bears any evidence of having been
pierced or cut. The parties have not discussed the issue.
3At deposition, Burdick testified that he had been trained to preserve
evidence o f blood-soiled clothing.
shirt, however, was not preserved as evidence at the crime
scene, and its whereabouts are unknown. The police shirt that
Burdick wore over the t-shirt was preserved in evidence, but
had no blood on it.2 The back of the flak jacket, where
Burdick allegedly had been stabbed bore only a “speck”-sized
hole, and Burdick has no scar from the alleged knife attack.
This utter lack of physical evidence of a stab wound,
particularly when combined with the fact that no officer
preserved Burdick’s purported blood-soaked t-shirt, in
derogation of proper investigative practice,3 tends to
undermine Burdick’s testimony that he had suffered a stab
wound from Gaddis. A reasonable inference from the lack of
a stab wound is that Gaddis had not been holding a knife
when he struck Burdick.
Second, there is no reliable physical evidence linking
Gaddis to the knife that Defendants attribute to Gaddis.
Jeffrey Wanbaugh, the evidence technician who arrived on
the scene after Gaddis had been shot, was apprised by an
officer that Gaddis allegedly had been wielding a knife and
had stabbed Burdick. Wanbaugh testified that he discovered
a set of car keys and a leather sheath lying on the front
driver’s seat of Gaddis’ car, but that he did not know when
either of those items had been placed on the seat, nor by
whom. He also testified that he had wanted to see what was
inside of the sheath and discovered a knife inside. Although
Wanbaugh photographed this knife, he did not take it into
evidence. Wanbaugh further testified that he collected a
second knife on the ground and about four feet from Gaddis’
car. An officer on the scene told Wanbaugh that Gaddis had
used this knife to strike Burdick.
36 Gaddis v. Redford Township, et al. No. 02-1483
Despite the manifest importance of this second knife,
Wanbaugh did not collect it until he had been on the scene for
a half an hour. And although Wanbaugh took the second
knife into evidence, he made no attempt to determine whether
it bore the fingerprints of Gaddis or the police officers. He
simply took the word of an officer on the scene that Gaddis
had used the knife to strike Burdick. Wanbaugh’s failure to
fingerprint and establish a reliable chain of custody for this
second knife, combined with the fact that he never took the
first knife into evidence, can support the reasonable
inferences that (1) Gaddis actually had possessed only one
knife, the one recovered from inside of his car, and (2) the
second knife, which was neither fingerprinted nor tested for
blood, may have been planted at the scene by one of the
officers.
Third, a reasonable jury could conclude that the videotape
does not show Gaddis holding a knife. The majority opinion
concedes that, when viewing the videotape, a knife cannot be
discerned in Gaddis’ hand. Op. at 17 (“While the tape would
not enable a juror directly to verify the presence of a knife, it
equally would not permit him or her to conclude that there
was no knife.”). Combined with the other evidence that
undermines the officers’ credibility, one reasonable inference
is that Gaddis did not have a knife in his hand at the time.
The majority explains away this inference as well.
Employing colorful descriptions that could be more
appropriately presented in Defendants’ closing argument to
the jury, the majority zeroes in on “the body language of the
actors during the encounter,” concluding that “the officers’
reactions powerfully corroborate” the conclusion that Gaddis
had a knife. Id. The majority first points to the fact that Bain
jumped back “in obvious alarm” after Gaddis had removed
his hands from his pocket and argues that this reaction is
“inexplicable unless something threatening was in Gaddis’
hands.” Id. I agree that the tape arguably supports such an
inference, but it is not the only inference that explains Bain’s
body language. The tape also supports the inference that Bain
was concerned that Gaddis was going to strike him with his

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No. 02-1483 Gaddis v. Redford Township, et al. 37
empty fist or with his car keys or with a stick of foil-wrapped
chewing gum or any other harmless object that might glisten
in the dark. Bain’s movements also would support the
inference that Bain was not alarmed at all, but that he had
become angry or frustrated with Gaddis and wanted to
escalate the confrontation by drawing his gun.
As additional “body language” evidence, the majority
opinion points to the “windmilling motion” that Gaddis used
to strike at Burdick after Burdick had attempted to jump
Gaddis from behind. Op. at 17. Without citation and without
the benefit of any expert testimony, the majority concludes as
a matter of law that this motion is “suggestive of a knife
stab.” Id. This windmilling motion, however, also is
suggestive of striking someone with a fist or of an
involuntary, reflexive attempt to protect oneself from a
surprise attack. It is wholly inconsistent with Rule 56 for my
colleagues to adjudicate this issue against Gaddis simply
because he did not swing his arm in a manner consistent with
their imaginations. The inference that Gaddis had threatened
the officers with a knife is not the only reasonable inference
from the officers’ body language depicted on the videotape.
Cf. Headwaters Forest Def. v. County of Humboldt, 211 F.3d
1121, 1132 n.5 (9th Cir. 2000) (“The videotape evidence here
appears to raise more questions than it answers, which in the
context of a motion for judgment as a matter of law must be
resolved in favor of the plaintiffs as the nonmoving parties.”),
vacated on other grounds, 534 U.S. 801 (2002).
III.
Even assuming, arguendo, that Gaddis had been wielding
a knife, there is a genuine issue of material fact as to the
reasonableness of the officers’ use of force. Gaddis’ expert
witness on law enforcement matters, Dr. James Fyfe, points
out several deviations from accepted police practice that
resulted in the officers’ unnecessary escalation of the
confrontation with Gaddis. For example, Bain testified that
he blasted Gaddis with pepper spray because he was
38 Gaddis v. Redford Township, et al. No. 02-1483
concerned that Gaddis would try to get in his car and drive
away. The videotape, however, does not evidence any “body
language” on Gaddis’ part that is consistent with a desire to
leave the scene. Moreover, as Dr. Fyfe notes, the tactically
more appropriate decision would have been to position the
police vehicles around Gaddis’ car so that it would have been
impossible for him to escape. Officer Champoux testified
that he could have blocked Gaddis’ car with his patrol car if
Gaddis had tried to leave.
The pepper spray blast was only the prelude to the most
egregious examples of improper police tactics. According to
Dr. Fyfe, the confrontation with Gaddis “unfolded as a series
of surprises” because “nobody was in charge, there was no
central plan, and there was no attempt to assure that officers
knew what each other was doing and what it was expected to
accomplish.” (J.A. 745.) Most notably, without any warning
to his colleagues, Officer Burdick scrambled over the back of
Gaddis’ car in an attempt to ambush Gaddis. Dr. Fyfe points
out that officers are instructed to keep their distance from
people who are armed with knives, unless there is absolutely
no way to protect an individual from an imminent threat to
life. It is clear that, prior to Burdick engaging in his ill-
advised tactic, no one’s life was in danger. As the tape
shows, Gaddis became aware of Burdick’s presence on his car
and reacted predictably by swinging his hand at Burdick,
allegedly stabbing Burdick with a knife. Thus, Burdick
unreasonably created a foreseeable circumstance in which the
other officers were forced to take action to protect him from
Gaddis.
According to Defendants, the officers had no choice but to
open fire on Gaddis. Burdick’s testimony and the videotape,
however, strongly indicate that the officers shot Gaddis after
he no longer posed a danger to Burdick. Burdick testified that
he was on the ground at the back of Gaddis’ car at the time
the other officers began shooting Gaddis. Based on this
evidence, Dr. Fyfe opines that Burdick was well out of
Gaddis’ range at the time Gaddis was being shot, and,

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No. 02-1483 Gaddis v. Redford Township, et al. 39
therefore, Gaddis presented no danger to Burdick or anybody
else at that time. Indeed, it would have been extremely
reckless for the officers to have shot at Gaddis while Burdick
was near Gaddis. Accordingly, even assuming that Gaddis
had been wielding a knife and that it was reasonable for
Burdick to jump him from behind, there is a genuine issue of
material fact as to whether it was reasonable for Officers Bain
and Duffany to have shot at Gaddis 16 times.
IV.
It appears that at every turn my colleagues have taken great
pains to construe each factual dispute as immaterial and/or
draw inferences from the evidence that favor only
Defendants. This approach is inconsistent with both the letter
and the spirit of Rule 56. It is disputed whether Bain had
probable cause, or even reasonable suspicion, to stop Gaddis
for careless driving or drunk driving, since all that is
undisputed is that Gaddis’ car gradually veered and touched
the painted hashes on the road on two occasions. It is
disputed whether Officers Bain and Duffany acted reasonably
in firing 16 gun shots at Gaddis because it cannot be
concluded as a matter of law that Gaddis had been
brandishing a knife or any other dangerous object. The
officers’ testimony is inconsistent as to the presence and size
of the purported knife; there remain serious questions about
the authenticity of the knife the officers’ attribute to Gaddis;
the officers failed to preserve any physical evidence that
would have proven that Gaddis had wounded Officer Burdick
with the knife; and the videotape is consistent with the
inference that Gaddis had not wielded a knife. Moreover,
even assuming that Gaddis had been holding a knife, the
purported need to shoot him was precipitated by Officer
Burdick’s bumbling attempt to subdue him. And although the
officers justified their shooting as necessary to protect
Burdick, the evidence strongly indicates that Burdick was out
of harm’s way at the time the shooting had begun. From these
facts, it reasonably could be inferred that the officers who
fired at Gaddis did not intend to protect Burdick, but to kill
40 Gaddis v. Redford Township, et al. No. 02-1483
Gaddis. The responsible thing to do would be to reverse the
district court’s grant of summary judgment.

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