DocketNumber: 12-5109
Citation Numbers: 564 F. App'x 783
Judges: Boggs, Donald, Stamp
Filed Date: 4/28/2014
Status: Non-Precedential
Modified Date: 10/19/2024
Plaintiff-appellant, Ruby Sheffey (“Shef-fey”), appeals the opinion and judgment of the United States District Court for the Eastern District of Kentucky (“district court”) granting summary judgment in favor of the defendants/appellees Ron Allen (“Allen”), Robert Bacon (“Bacon”), Eric Higgins (“Higgins”), Steve Bohman (“Boh-
I. Background
This civil action arises from an incident occurring on December 3, 2008, in Coving-ton, Kentucky, which resulted in the death of Leroy Hughes.
Officer Allen was the first responding officer to locate Mr. Hughes. Officer Allen stopped his vehicle, opened his car door, and, standing behind the door for cover, drew his gun and ordered Mr. Hughes to the ground. Mr. Hughes ignored Officer Allen’s orders, and instead shuffled back and forth on his feet and moved his hands around the area of his waistband, repeating the word “dynamite.” Based upon this reaction to his commands, Officer Allen informed the dispatcher that Mr. Hughes was noncompliant, and that he was possibly a “Signal 2,” which means that he was either intoxicated or mentally disturbed.
Officers Bohman and Higgins then arrived at the scene and began to provide backup for Officers Allen and Bacon and clear the crowd of individuals and vehicles that had formed. Officer Allen then lowered his voice and began to approach Mr. Hughes, continuing to command him, verbally and with hand signals, to show his hands and get onto the ground. Officer Bacon offered backup to Officer Allen as he approached Mr. Hughes, who continued to react to the officers’ commands as he originally had, by rocking on his feet, moving his hands around the area of his waistband, and repeating the word “dynamite.” At Officer Allen’s direction, Officer Bacon reholstered his firearm and removed his taser in anticipation of a less-than-lethal-force confrontation. As the officers approached, Mr. Hughes said, “fuck it, I’m out of here” and began to walk toward Officer Bacon. Accounts differ as to whether or not Mr. Hughes had his hands clenched as he approached Officer Bacon, but all accounts agree that he began to move to either approach Officer Bacon or to attempt to flee. Officer Bacon then, at the same time that Officer Allen directed him to do so, deployed his taser in probe mode, striking Mr. Hughes in the upper left shoulder/chest area. Witnesses agree that Mr. Hughes did not react to the deployment of the taser, except to say “ouch” and to reach to remove the probes.
Mr. Hughes next reached into his pocket and threw a box of ammunition at Officer Allen, saying “fuck it, it’s not loaded.” Officer Higgins, at this time, fired his taser in probe mode twice into Mr. Hughes’s back, which action, again, had little effect on Mr. Hughes, aside from causing him to turn to look at Officer Higgins. However, even as Mr. Hughes turned to face Officer Higgins, he continued to reach for his waistband, and Officer Higgins warned the other officers of this. As Mr. Hughes turned to look at Officer Higgins, the other officers present decided to use the opportunity of Mr. Hughes’s diverted attention to take him to the ground by force. After a struggle, the officers successfully forced Mr. Hughes to the ground and ordered him to put his hands behind his back. When Mr. Hughes refused to comply with this command, the officers on the scene began what would prove to be a roughly five-minute struggle to gain control of Mr. Hughes and place him in handcuffs.
After Mr. Hughes was taken to the ground and the struggle to place him in handcuffs commenced, Sergeant Webster arrived on the scene and witnessed the officers’ continued verbal commands, as well as the physical struggle, which included further attempts by Mr. Hughes to reach for his waistband and attempts to push himself up to a standing position. During this struggle, Mr. Hughes also attempted to bite Officer Bacon’s hand, prompting Officer Bacon to warn the other officers, “He’s biting!” Sergeant Webster observed that Mr. Hughes was wearing
At some point, the officers were finally able to bring Mr. Hughes under control and, through the utilization of three pairs of handcuffs to secure his arms behind his back and a pair of shackles to stop him from kicking his legs, fully restrained him on the ground. After this occurred, the officers attempted to clean a laceration on Mr. Hughes’s hand, and Sergeant Webster performed a pat-down. In Mr. Hughes’s pockets, the officers found a handgun with a Uve round in the chamber, a speed loader, three magazines loaded with bullets, three boxes of ammunition, assorted loose bullets, and a knife. Although Mr. Hughes would not respond to the officers’ questions, he was conscious, breathing, and alert as he was rolled over, patted down, and attended to. However, a short time later, Officer Allen noticed that Mr. Hughes began to exhibit signs of medical distress, and the officers called for an ambulance. Despite attempts at cardiopulmonary resuscitation by both the officers and the responding emergency medical technicians, Mr. Hughes stopped breathing in the ambulance and was pronounced dead at 12:17 p.m. at St. Elizabeth Medical Center in Covington. Charles L. Stephens, M.D. of the Northern Kentucky Regional Medical Examiner’s Office, indicated in the autopsy report that Mr. Hughes’s cause of death was “a cardiac event, due to myocardial hypertrophy and coronary atherosclerosis. The pattern of circumstances with contributing morbid obesity and hypertrophic heart disease, and the use of electrical stun devices suggests that this death could be assigned to excited delirium syndrome.”
Sheffey, as the executor of Mr. Hughes’s estate, thereafter filed this civil action against the responding officers, the City of Covington, and a number of unknown officers. Sheffey’s amended complaint raised federal claims under 42 U.S.C. § 1983 that responding Officers Bacon, Higgins, and
II. Standard of Review
Sheffey has appealed the district court’s decision to grant summary judgment in favor of the responding officers. She has not, however, appealed its decision to dismiss the unidentified unknown officer defendants. This court previously dismissed her appeal of the district court’s grant of summary judgment in favor of the City of Covington. This court reviews the district court’s grant of summary judgment to the responding officers de novo. Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826 (6th Cir.2003).
Summary judgment is only appropriate when the moving party shows that “there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law.” Id. (citing Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir.2000)). “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
III. Discussion
Sheffey argues on appeal that the district court erred in finding that the responding officers are entitled to qualified immunity for their actions with regard to the repeated tasings of Mr. Hughes during the above-described incident on December 3, 2008. The responding officers have been sued in their individual capacities in this case pursuant to 42 U.S.C. § 1983. Accordingly, in order to state a claim, Sheffey must both show that the officers (1) acted under color of state law and (2) that they deprived Mr. Hughes of a federal statutory or constitutional right. See Marvin v. City of Taylor, 509 F.3d 234, 243 (6th Cir.2007) (internal citations omitted). Further, in order for these individual defendants to be held liable under § 1983, it is the plaintiffs burden to show that they are not entitled to the protection of qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006) (citing Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir.2000)). Qualified immunity protects individual government offi
Courts determine the application of qualified immunity in claims of excessive force through the two-step analysis delineated in Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394 (6th Cir.2009). This test requires the plaintiff to prove first, that “the defendant violated a constitutional right,” and second, if the plaintiff proves the first element, that “the right was clearly established” at the time of the alleged violation. Id. at 400.
Claims of excessive force arising out of investigatory stops or arrests are analyzed under the Fourth Amendment’s objective-reasonableness test, which requires courts to analyze the entirety of the circumstances to weigh “the nature and quality” of the force used “against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal citations omitted). In order to effectuate this inquiry, the court should pay special attention to “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. The underlying intent or motivation of the officer is not relevant to the inquiry, but rather only the objective reasonableness of his actions. Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir.2004) (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). All determinations regarding objective reasonableness must be considered from the perspective of the officers at the time of the challenged incident, and cannot be considered “with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The court must also consider the fact that in many circumstances “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, 109 S.Ct. 1865.
Based upon its evaluation of the responding officers’ actions under Graham test, the district court found that no evidence existed on the record to create a genuine issue of material fact with regard to the objective reasonableness of the actions of Officers Bacon, Higgins, and Webster in tasing Mr. Hughes during the incident on December 3, 2008. As such, the district court found that no constitutional violation could be found. On appeal, Shef-fey argues that a reasonable jury could find that the actions of these officers were objectively unreasonable under the circumstances, due to Mr. Hughes’s mental illness, because the illegal activity being investigated in the stop of Mr. Hughes constituted a misdemeanor under Kentucky law, and because Mr. Hughes’s behavior was not violent and did not present a high degree of risk. For the reasons that follow, we find that the district court did not err in concluding that no genuine issue of material fact existed that would allow a reasonable juror to conclude that a constitutional violation occurred.
In addressing the reasonableness of the responding officers’ actions as to each of the factors delineated in Graham, the district court first considered the entire backdrop of the relevant situation. It then, as is required under Dickerson v. McClellan, 101 F.3d 1151, 1161-62 (6th Cir.1996), considered the reasonableness of each of the officer’s conduct at each point in the encounter. First, the district court considered the severity of the crime being investigated. As to this consideration, the district court stated that the responding officers were called to investigate whether Mr. Hughes was in violation of K.R.S. § 527.020, Kentucky’s concealed-carry law, which makes it a misdemeanor to carry a concealed firearm without a permit.
However, Sheffey’s argument in this regard ignores the specific facts of this case, noted by the district court, which created a risk significantly more severe than usual in an investigation of a violation of K.R.S. § 527.020. When the officers located Mr. Hughes, he was in a school zone within a neighborhood containing many residential homes and local businesses. The investigatory stop occurred at roughly 11:00 a.m. on a Wednesday, when the school children at the two surrounding elementary schools were present in the schools. While the officers were informed that Mr. Hughes had removed the clip from the handgun in his possession, they were unaware of whether or not the firearm was loaded. Accordingly, it is clear that, even if violations of K.R.S. § 527.020 cannot reasonably be described as severe criminal activity, the surrounding location, coupled with the information received by the responding officers regarding Mr. Hughes’s suspicious behavior and the very fact that he possessed both a firearm and ammunition, created at least the strong possibility of a serious and immediate safety concern from the time that the officers first located Mr. Hughes.
The district court also noted additional considerations regarding the background of the situation in question. Adding to the circumstances creating a reasonable concern regarding an immediate and serious threat was the fact that, upon first contact with Mr. Hughes, it became clear that he, an objectively large man at six feet six inches tall and roughly 410 pounds, was responding to the police interaction in an abnormal way, and that he was not compliant with officer commands. Additionally, in response to the officers’ commands, Mr. Hughes continually reached for his waistband, where officers believed a firearm to be located, eventually attempted to flee, and also violently resisted arrest.
1. The conduct of Officers Bacon, Higgins, and Webster
The district court then analyzed the conduct of each of the individual offi
So, too, did the district court properly find that Officer Higgins acted reasonably when he twice deployed his taser in probe mode into Mr. Hughes’s back following the failure of Officer Bacon’s attempts to successfully tase Mr. Hughes. After viewing what, based upon his training, appeared to be the failure of Officer Bacon’s taser, Officer Higgins observed Mr. Hughes continue to ignore the other officers’ commands, move his hands around his waistband, and attempt to flee. He also witnessed Mr. Hughes reach into his pocket, where the officer believed a weapon to be located, and throw a white object toward Officer Allen. Only after observing all of these things, and unaware at that point that Officer Bacon was cycling his taser in a second attempt to subdue Mr. Hughes, did Officer Higgins fire his taser at Mr. Hughes. Then, again reasonably believing his taser to have malfunctioned due to Mr. Hughes’s continued resistance and failure to exhibit signs of neuromuscular paralysis, Officer Higgins attempted a second time to deploy his taser. As a result of Mr. Hughes’s continued threatening behavior and the reasonable belief that the tasers had all failed to connect properly, we find that the district court was correct in concluding that Officer Higgins had acted in an objectively reasonable manner as to his two attempts to utilize his taser in probe mode.
The district court then turned to the reasonableness of Officer Higgins’s use of his taser in drive-stun mode a total of four times after Officers Allen, Bacon, and Bohman took Mr. Hughes to the ground and as they struggled to subdue him. After Mr. Hughes had been forced to the ground in an attempt by Officers Allen, Bacon, and Bohman to avoid what appeared to be escalating into a lethal force situation, Officer Higgins witnessed Mr. Hughes physically and violently resist the officers’ attempts to get his hands behind his back. Mr. Hughes even attempted to bite Officer Bacon’s hand during the struggle. During the first forty-five seconds of this struggle, Officer Higgins utilized his taser in drive-stun mode twice on top of Mr. Hughes’s clothing and twice below the clothing. Again, the district court properly found that, based upon his taser training, Officer Higgins reasonably believed that Mr. Hughes’s thick clothing was preventing the taser from making contact with the skin when he used the device twice above the clothing. Then, seeing a
Finally, the district court considered Sergeant Webster’s deployment of his taser in drive-stun mode a total of four times. Like the drive-stun tasings employed by Officer Higgins, Sergeant Webster’s four attempts to tase Mr. Hughes took place in quick succession and were the result of Sergeant Webster’s reasonable belief that his taser was failing to make a good connection with Mr. Hughes’s body. Unlike Officer Higgins, Sergeant Webster immediately observed that the previous attempts to tase Mr. Hughes were likely unsuccessful due to Mr. Hughes’s thick clothing. Accordingly, he immediately lifted Mr. Hughes’s shirt and attempted to tase his lower back directly. After that failed, he attempted a second time to tase Mr. Hughes in the hip, but lost connection when Mr. Hughes grabbed Sergeant Webster’s hand. The third attempt to tase Mr. Hughes also lost connection due to the movement during the struggle, and the final attempt succeeded at making a connection with Mr. Hughes’s skin, but failed to elicit a response. At that time, Sergeant Webster abandoned the use of his taser. Based upon these circumstances, and the ongoing violent resistance of Mr. Hughes throughout all four of Sergeant Webster’s attempts to subdue him through the use of the taser, it is clear that Sergeant Webster’s actions were also objectively reasonable.
On appeal, Sheffey argues that the tas-ings that occurred when Mr. Hughes was on the ground could be found to be unreasonable because, once all of the officers had arrived and Mr. Hughes was on the ground, the threat, and thus the governmental interest at stake, lessened significantly. She asserts that the officers should have then considered less intrusive alternatives to tasing Mr. Hughes. Sheffey cites Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir.2010), and Bryan v. MacPherson, 630 F.3d 805 (9th Cir.2010), in support of this argument. However, Sheffey’s argument in this regard ignores the unique facts of this case and is based upon general statements of law made in factually dissimilar cases.
In Cyrus, the United States Court of Appeals for the Seventh Circuit found that, while the subject arrestee would not allow his hands to be handcuffed when officers attempted to arrest him, he had not violently resisted and that “once Cyrus was on the ground, unarmed, and apparently unable to stand up on his own, the risk calculus changed.” 624 F.3d at 862-63. This is not the case here, where Mr. Hughes violently resisted arrest, and continually attempted to stand up after being taken to the ground. Mr. Hughes also
In Bryan, the United States Court of Appeals for the Ninth Circuit indicated that arresting officers have a duty to consider all less intrusive alternatives prior to utilizing more intrusive ones. 630 F.3d 805. While Sheffey cites this case and argues generally that the officers failed to consider such less intrusive alternatives, it seems that the officers did just that in choosing to take Mr. Hughes to the ground and to tase him, rather than allowing the situation to reach a level that would have required obviously lethal force. At oral argument, Sheffey argued that the officers could have simply wrestled with Mr. Hughes until they brought him into compliance rather than tasing him after he was brought to the ground. However, Sheffey does not offer any evidence or argument regarding the effectiveness of this option, nor does she respond to the aggravating circumstances present here, including the level of Mr. Hughes’s resistance after he was taken to the ground, and the fact that he was reasonably considered to be in possession of, and actively reaching for, a firearm.
2. The conduct of Officers Allen and Bohman
With regard to the failure of Officers Allen and Bohman to intervene, the district court noted that, in order to make a claim for excessive force in failure to intervene, Sheffey must show that the officers both (1) “observed or had reason to know that excessive force would be or was being used, and (2) ... had both the opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997). The district court did not consider Officer Bacon’s deployment of his taser in its analysis as to the non-intervention of Officers Allen and Bohman because Officer Bacon’s use of his taser at a time when Mr. Hughes was entirely unsecured, noncom-pliant, and attempting to flee, was “certainly justified.” However, for purposes of its analysis of the actions of Officers Allen and Bohman, the court assumed, for the sake of argument, that Officer Higgins and Sergeant Webster’s actions constituted excessive force.
The district court then found that, due to the confusion, speed, and stress of the situation in question, Sheffey had failed to present evidence to suggest that Officer Allen or Officer Bohman had seen or had reason to know of the actions of Officer Higgins and Sergeant Webster, or that either of the officers had an opportunity or the means to prevent the same. First, as to Officer Higgins’s initial two probe tas-ings, the record shows that both Officers Allen and Bohman were in the process of attempting to take Mr. Hughes to the ground at the time, and that Officer Higgins was located behind Mr. Hughes when he shot his taser, while the other officers were in front of Mr. Hughes. Even if Officers Allen and Bohman had seen Officer Higgins shoot his taser, they would not have been able to stop him due to their location on the other side of Mr. Hughes. Sheffey has also failed to show that Officers Allen and Bohman were aware of, or in the position to prevent, the tasings that occurred while Mr. Hughes was on the ground. The record evidence clearly shows that both officers were actively involved in the struggle to bring Mr. Hughes
On appeal, Sheffey argues generally that the officers were present for the tasings and that they were located close to each of the tasing officers at the time that the tasings occurred. However, she does not take into account the struggle taking place between the officers and Mr. Hughes at the time, nor does she consider how quickly the tasings occurred. Accordingly, we will affirm the district court as to the liability of Officers Allen and Bohman as well.
B. Mr. Hughes’s mental illness
Rather than addressing the district court’s analysis of the Graham factors, Sheffey focuses a substantial portion of her argument on appeal discussing her position that the reasonableness of the responding officers’ actions in this case must be considered with an eye to Mr. Hughes’s mental disability. She argues that, based upon the behavior of Mr. Hughes at the arrival of Officer Allen, the testimony of the officers regarding their perception of Mr. Hughes’s behavior, and Officer Allen’s radioing that Mr. Hughes may be mentally disturbed, “the record establishes that the officers who came upon Leroy knew, prior to any use of force, that Leroy was experiencing some sort of mental or emotional illness.” Appellant’s Br. *20. Sheffey maintains that, as a result of Mr. Hughes’s mental disability, the responding officers handled the situation inappropriately.
Sheffey asserts that because Mr. Hughes was mentally disturbed, and because he was only passively resisting, the officers erred in their commands to him. Sheffey claims that the officers issued conflicting commands, both when Officers Bacon and Allen approached Mr. Hughes initially, and again after Mr. Hughes was taken to the ground. Accordingly, she argues, the officers misperceived Mr. Hughes’s level of resistance, when proper handling of the situation would have allowed Mr. Hughes a better chance to comply. Sheffey presents two cases that suggest that officers who use force to arrest mentally ill individuals who are only passively resisting arrest can be found to have utilized excessive force. See Bryan, 630 F.3d 805; and Cyrus, 624 F.3d at 862-63.
However, Sheffey’s argument in this regard is without merit. Initially, while Sheffey argues that the officers were issuing conflicting commands, the record belies this assertion. It is clear that throughout the initial confrontation with Mr. Hughes, Officers Allen and Bacon commanded him to (1) raise his hands and (2) get onto the ground. R. 46, Allen Dep. *33-34 and R. 47, Bacon Dep. *51, *54-55. Then, after Mr. Hughes had been taken to the ground, he was given commands to (1) stop resisting and (2) give me your hands. R. 47, Bacon Dep. *64. While Sheffey states that these commands are conflicting, she provides no support for this argument,
It is also important to note that, while it is true that the officers perceived Mr. Hughes as having an abnormal reaction to their commands, and that Officer Allen believed him to possibly be mentally disturbed, Sheffey neglects to explain how any of the officers present could have been aware of Mr. Hughes’s actual mental disability. It is undisputed that they received no report positively identifying Mr. Hughes, or warning them of his mental disability. Further, while it was perceived that Mr. Hughes may have been mentally disturbed based upon his behavior, the officers testified that it was equally possible that he was intoxicated or, according to Officer Bacon, deaf. As the reasonableness considerations mandated by Graham which require this court to determine reasonableness from the perspective of the officers at the time of the arrest, it appears that the actual mental illness of Mr. Hughes cannot be considered except to the extent that it seemed that he could have been mentally disturbed. Sheffey does not address this, and does not provide any citation to cases which would aid this court in determining how Mr. Hughes’s possibly being mentally disturbed should have affected the officers’ behavior.
Further, Sheffey offers no argument as to how the officers should have acted differently given Mr. Hughes’s mental illness, or what a reasonable amount of force would have been as a result of the same. Sheffey presents a number of case citations which represent situations where officers have been found to have used excessive force against people with mental illness, but each of these cases are factually dissimilar to this case, and are thus unpersuasive. Initially, in nearly all of the cases cited, the arresting officer or officers knew of the arrestee’s mental disabilities with certainty prior to the incident. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.2004) (“It cannot be forgotten that the police were confronting an individual whom they knew to be mentally ill or retarded, even though the Officers may not have known the full extent of [his] autism and his unresponsiveness.”); Drummond v. City of Anaheim, 343 F.3d 1052, 1054 (9th Cir.2003) (Detainee’s fiancé requested that police take detainee into custody for his own safety because he had run out of medication for his bipolar disorder and schizophrenia “and was hallucinating and paranoid.”); Deorle v. Rutherford, 272 F.3d 1272, 1276 (9th Cir.2001) (Detainee’s wife called police for help after suicidal husband had mixed medication, vodka, and Interferon, and was behaving erratically, “screaming and banging on the walls” of his home.). Additionally, in most of these cases, the courts stressed that the arrestee was known to be unarmed and, in each of the cases, the ar-restee had not physically resisted or attacked officers or others. Champion, 380 F.3d at 904 (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of
Essentially, in each of the cited cases, while the reviewing court took the mental illness of the arrestee into account, the totality of the circumstances was considered with regard to the reasonableness of the force utilized by the arresting officers. We acknowledge that, pursuant to Champion, the mental illness of Mr. Hughes should be considered to some extent, but it also appears clear that the district court did consider this from the viewpoint of what the officers knew and could perceive at that time of the incident. The officers’ actions cannot be said to be unreasonable based upon the mental illness or perceived mental disturbance of Mr. Hughes, due to the fact that Mr. Hughes was known to be armed in a school zone with children present, that he consistently acted as if he was reaching for his waistband, that he attempted to flee the area, and also that he violently physically resisted arrest.
IY. Conclusion
For the foregoing reasons, the district court’s grant of summary judgment in favor of the responding officers is AFFIRMED.
. The facts surrounding this case have been taken from, and are explained in more detail in, the district court’s description of the same in its memorandum opinion and order granting summary judgment. Sheffey has not challenged the district court’s determination of the facts below.
. The witness had described Mr. Hughes as an "African American male man with gray jogging pants with a brown jacket with a hoodie on it.”
. Mr. Hughes was diagnosed with paranoid schizophrenia in 1979, but lived alone at the City Heights housing complex in Covington for 25 years. The firearm in Mr. Hughes's possession on the day in question had been given to him by his sister Cynthia in anticipation of a friend retrieving it. When no one came to pick up the firearm, Sheffey, the appellant and Mr. Hughes’s mother, claims that she requested that Mr. Hughes return it to her, as she did not feel comfortable with Mr. Hughes continuing to possess the firearm given his mental health condition. However, Sheffey further claims that, despite several requests to return the firearm, Mr. Hughes failed to do so. She has stated that she believes he was walking to her house to return it on the day of his death.
. Successful deployment of a taser in probe mode results in temporary neuromuscular incapacitation. As none of the probe deployments attempted on Mr. Hughes resulted in such incapacitation, the officers all indicated that they did not believe the taser had successfully deployed. Witnesses at the scene also testified that Mr. Hughes had no perceptible reaction to the tasers.
. Unlike the intended result of utilizing a ta-ser in probe mode, in drive stunning a suspect, the intended result is pain compliance. Accordingly, rather than looking for neuro-muscular incapacitation to gauge success, success of a drive stun is gauged simply upon whether the suspect complies with officer commands following the use of the taser due to the pain.
. The appellees also argue that Mr. Hughes was in violation of 18 U.S.C. § 922(q)(2)(A), which makes illegal the possession of a firearm in a school zone. However, the district court found that no facts were presented to support this assertion, and thus did not consider it.
. As with the actions of Officer Bacon, Shef-fey fails to offer any particularized objections to these findings.
. On appeal, Sheffey argues that Sergeant Webster can also be held liable here under supervisor liability because he failed to instruct Officer Higgins to stop using his taser. However, the district court did not address this argument, and liability under this theory could only attach if Officer Higgins is found to have violated Mr. Hughes’s rights.
. During the struggle on the ground, Officer Bacon was tased either in the arm or in the hand.
. It is also helpful to note that the court in Drummond considered the fact that the arres-tee weighed 160 pounds at the time of the incident in question, and the arresting officer weighed roughly 220 pounds. In this case, as discussed above, Mr. Hughes was a six-foot-six-inch, 410-pound man on the day of the incident in question.
. Sheffey recognizes that, in this case, the officers believed Mr. Hughes to be armed. However, she argues that they had only received reports to this end, and had not actually seen the weapon. The district court found this argument to be unpersuasive because reports of an armed individual create a reasonable circumstance for officers to treat that individual as armed and dangerous.