[I]t was reasonable for Tpr. Sonstrom to ensure Mr. Cunningham was quickly handcuffed by pushing him to the ground when he did not immediately comply with Tpr. Sonstrom’s orders.
Cunningham v. Michigan State Police
No. 20 – 1619
Sixth Circuit Court of Appeals
April 12, 2021
On Monday December 29, 2014 Michigan State Trooper Benjamin Sonstrom was patrolling near Romulus, Michigan, when he noticed a car with darkly tinted
windows. Some window tints are illegal in Michigan, so Tpr. Sonstrom pulled the car over. The driver was Mr. Frazier Cunningham, a 450-pound adult man.
Michigan State Trooper Benjamin Sonstrom observed long time violent recidivist Mr. Frazier Cunningham driving with tinted windows near Romulus, Michigan. The events that followed led to the arrest of the morbidly obese Mr. Cunningham.
Tpr. Sonstrom ran Mr. Cunningham’s information and discovered that Mr. Cunningham had a long criminal history. Mr. Cunningham’s convictions ranged from armed robbery to assault on a police officer, as well as various firearm charges. But when questioned, Mr. Cunningham claimed he had no “major” convictions. That rang alarm bells for Tpr. Sonstrom. He believed that Mr. Cunningham’s answers were deceptive, and that Mr. Cunningham appeared nervous. So he asked Mr. Cunningham to step out of the car. He then had his canine sniff the car’s exterior. When the canine alerted, Tpr. Sonstrom searched the car’s interior. Inside he found a loaded 9 mm handgun.
Tpr. Sonstrom’s dashboard camera captured what happened next. Tpr. Sonstrom asked Mr. Cunningham to approach the car and drew his Taser. With the Taser trained on Mr. Cunningham, Tpr. Sonstrom ordered Mr. Cunningham to turn around and get on his knees. Mr. Cunningham complied. Mr. Cunningham had been on a phone call, so Tpr. Sonstrom ordered him to drop the phone. When Mr. Cunningham did not immediately comply, Tpr. Sonstrom pushed him to the ground. Tpr. Sonstrom then handcuffed Mr. Cunningham and loaded him into his squad car.
Mr. Cunningham sued. He claimed that Tpr. Sonstrom used excessive force during the arrest in violation of the Fourth Amendment. Specifically, Mr. Cunningham alleged that Tpr. Sonstrom pointed a Taser at him, hit him in the neck with the Taser, and pushed him to the ground. The district court granted summary judgment for Tpr. Sonstrom, holding that his use of force was reasonable under the circumstances. Mr. Cunningham now appeals.
Analysis
Law enforcement officers are entitled to qualified immunity unless two conditions are met:
(1) The officer’s conduct violated a constitutional right, and;
(2) The right that the officer violated was clearly established at the time of the conduct. See Scott v. Harris, 550 U.S. 372, 377 (2007). To prevail, Mr. Cunningham must show that both conditions are satisfied.
The constitutional right at issue here is the right against unreasonable seizures in the Fourth Amendment. Courts have “long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). But not all force is permissible: Officers may only use force that is objectively reasonable under the circumstances. Id. at 396–97.
Mr. Cunningham claims that two of Tpr. Sonstrom’s actions were objectively unreasonable. He alleges that Tpr. Sonstrom:
(1) Hit him in the neck with a Taser, and;
(2) Pointed a Taser at him and pushed him to the ground.
The court will consider each allegation in turn.
Taser Strike
Mr. Cunningham’s first allegation is that Tpr. Sonstrom hit him in the neck with a Taser. He felt like he was hit twice, and he believed it was the Taser because “[I]t was hard.” We usually accept such an allegation as true when reviewing a motion for summary judgment. Scott, 550 U.S. at 378. But here the dashboard camera captured the entire arrest. And when a video of the arrest exists, we “view the facts in the light depicted by the videotape.”
The dashboard camera footage does not support Mr. Cunningham’s claim that Tpr. Sonstrom hit him with a Taser. As discussed above, the footage shows Tpr. Sonstrom tell Mr. Cunningham to approach him. While Mr. Cunningham approaches, Tpr. Sonstrom unholsters the Taser with his right hand and points it at Mr. Cunningham. He then tells Mr. Cunningham to turn around and get on his knees. After that, he tells Mr. Cunningham to put his phone on the ground. When Mr. Cunningham does not immediately comply with that command, Tpr. Sonstrom uses his left hand to push Mr. Cunningham down. At no point does the footage show Mr. Sonstrom strike Mr. Cunningham with the Taser.
In the lawsuit complaint, Mr. Cunningham’s attorneys, Mr. Cyril Hall and Ms. Diana McClain state in paragraph #24 “Plaintiff, a 450 pound man, proceeded to start to get down on his knees, when Defendant Sonstrom proceeded to take his taser and strike Plaintiff in his head causing him fall abruptly to his knees.”. [emphasis added].
If an Tpr. Sonstrom was THIS untruthful in his statement where it conflicted with the video, he would likely be administratively charged with untruthfulness and face discipline up to termination.
Push to the Ground
Mr. Cunningham’s second allegation is that Tpr. Sonstrom pushed him to the ground and pointed a Taser at him. So, the question is whether Tpr. Sonstrom’s use of force was reasonable under the circumstances. It was.
To see why, consider the arrest in context. One of the most dangerous moments for a police officer is just before a suspect is handcuffed. Usually, the officer and suspect are in close quarters. The suspect is unrestrained, and the officer has just told the suspect that he is under arrest—which sometimes prompts the suspect to attack the arresting officer or try to escape.
In Mr. Cunningham’s case, Tpr. Sonstrom knew the stakes were higher than usual. Mr. Cunningham has a history of violent crime, including assaulting police officers. He also has a history of illegal firearm possession. And Tpr. Sonstrom had just found a handgun in Mr. Cunningham’s car. What’s more, at 450 pounds Mr. Cunningham would be difficult to restrain. Given these circumstances, it was reasonable for Tpr. Sonstrom to take additional precautions by pointing his Taser at Mr. Cunningham. And it was reasonable for Tpr. Sonstrom to ensure Mr. Cunningham was quickly handcuffed by pushing him to the ground when he did not immediately comply with Tpr. Sonstrom’s orders. Under the circumstances, the pointing of the Taser and push to the ground were reasonable.
Holding
Because Tpr. Sonstrom’s actions were objectively reasonable, he did not violate the Fourth Amendment. Tpr. Sonstrom is thus entitled to qualified immunity. We affirm.
Information for this article was obtained from Cunningham v. Michigan State Police, No. 20 – 1619 (2021) and the plaintiff’s complaint.
This case was issued by the Sixth Circuit Appellate Court, which is binding in Kentucky, Michigan, Ohio and Tennessee.
Lessons Learned:
- All law enforcement use of force will be evaluated under Graham v. Connor, 490 U.S. 386 (1989). For more on the use of force test under Graham see Graham v. Connor, Orange Juice, Homicide Bombers and the Objectively Reasonable Doctrine.
- The Sixth Circuit Appellate Court Judge Amal Thapar cited Graham as applied to Tpr. Sonstrom’s aggressive arrest of Mr. Cunningham “Courts have “long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”” Graham v. Connor, 490 U.S. 386, 396 (1989). In this case Tpr. Sonstrom directed Mr. Cunningham to his knees and then pushed him over to handcuff him based on Mr. Cunningham’s violent felonious history. Additionally, Mr. Cunningham’s morbid obesity at 450 pounds is also a significant safety concern. At that size, a suspect could easily push over and lay on a normal size person. Because of these factors the excerpt cited by Judge Thapar was directly on point as some degree of physical coercion is objectively reasonable.
- Though not mentioned in this case, the U.S. Supreme Court held in Saucier v. Katz, 533 U.S. 194 (2001) “We have approved the observation that “[N]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”. Here, the push of Mr. Cunningham to the ground may seem ‘unnecessary’ to some but to an officer facing a violent recidivist the moments from detention to handcuffing are very critical. Ultimately the push of Mr. Cunningham was determined to be objectively reasonable.
- Sonstrom should be commended for investigating a tinted window violation that developed in to arresting a convicted felon for possession of a loaded handgun.
Does your agency train on Use of Force?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!