Frazier Cunningham v. State of Mich. Dep't of State Police

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0181n.06
Case No. 20-1619
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 12, 2021
FRAZIER CUNNINGHAM, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
STATE OF MICHIGAN DEPARTMENT OF
) MICHIGAN
STATE POLICE; TROOPER BENJAMIN
)
SONSTROM,
)
Defendants-Appellees, )
)
TROOPER LISA LUCIO, )
Defendant. )
BEFORE: SILER, THAPAR, and MURPHY, Circuit Judges.
THAPAR, Circuit Judge. Sometimes when police officers make a traffic stop, they get
more than they bargained for. And that was definitely true here. Michigan State Trooper Benjamin
Sonstrom pulled over Frazier Cunningham for excessively tinted windows. But this routine stop
turned sideways when Sonstrom discovered a handgun in Cunningham’s car. Armed with a Taser,
Sonstrom forced Cunningham to the ground and arrested him. Cunningham claims that
Sonstrom’s use of force was excessive and violated the Fourth Amendment. The district court
granted Sonstrom’s motion for summary judgment. We affirm.
Case No. 20-1619, Cunningham v. State of Mich. Dep’t of State Police et al.
I.
Sonstrom was patrolling near Romulus, Michigan, when he noticed a car with darkly tinted
windows. Some window tints are illegal in Michigan, so Sonstrom pulled the car over. The driver
was Frazier Cunningham, a 450-pound adult man.
Sonstrom ran Cunningham’s information and discovered that Cunningham had a long
criminal history. Cunningham’s convictions ranged from armed robbery to assault on a police
officer, as well as various firearm charges. But when questioned, Cunningham claimed he had no
“major” convictions. That rang alarm bells for Sonstrom—he believed that Cunningham’s
answers were deceptive, and that Cunningham appeared nervous. So he asked Cunningham to
step out of the car. He then had a K-9 sniff the car’s exterior. When the K-9 alerted, Sonstrom
searched the car’s interior. Inside he found a loaded 9mm handgun.
Sonstrom’s dashboard camera captured what happened next. Sonstrom asked Cunningham
to approach the car and drew his Taser. With the Taser trained on Cunningham, Sonstrom ordered
Cunningham to turn around and get on his knees. Cunningham complied. Cunningham had been
on a phone call, so Sonstrom ordered him to drop the phone. When Cunningham did not
immediately comply, Sonstrom pushed him to the ground. Sonstrom then handcuffed
Cunningham and loaded him into his squad car.
Cunningham sued. He claimed that Sonstrom used excessive force during the arrest in
violation of the Fourth Amendment. Specifically, Cunningham alleged that 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 Sonstrom, holding that his use of force was reasonable under the
circumstances. Cunningham now appeals.
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Case No. 20-1619, Cunningham v. State of Mich. Dep’t of State Police et al.
II.
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, Cunningham must show that both conditions are satisfied. See Maben v. Thelen, 887
F.3d 252, 269 (6th Cir. 2018).
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.
Cunningham claims that two of Sonstrom’s actions were objectively unreasonable. He
alleges that Sonstrom: (1) hit him in the neck with a Taser, and (2) pointed a Taser at him and
pushed him to the ground. We consider each allegation in turn.
Taser Strike. Cunningham’s first allegation is that 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.” R.
26-2, Pg. ID 298–99 (Cunningham Deposition). 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.” Id. at 381.
The dashboard camera footage does not support Cunningham’s claim that Sonstrom hit
him with a Taser. As discussed above, the footage shows Sonstrom tell Cunningham to approach
him. While Cunningham approaches, Sonstrom unholsters the Taser with his right hand and points
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Case No. 20-1619, Cunningham v. State of Mich. Dep’t of State Police et al.
it at Cunningham. He then tells Cunningham to turn around and get on his knees. After that, he
tells Cunningham to put his phone on the ground. When Cunningham does not immediately
comply with that command, Sonstrom uses his left hand to push Cunningham down. At no point
does the footage show Sonstrom strike Cunningham with the Taser.
To be sure, Sonstrom had his back to the dashboard camera during the arrest. So
Sonstrom’s right hand is obstructed from view. But the dashboard camera captures Sonstrom’s
left hand and arm, most of his right arm, and his shoulders. Any significant movement by
Sonstrom’s right hand (which held the Taser) would be reflected, at minimum, in his right arm and
shoulder. The dashboard camera footage shows no movement consistent with Sonstrom’s striking
Cunningham with the Taser.
Given the video, no reasonable jury would find that Sonstrom hit Cunningham with the
Taser. So there is no genuine dispute of material fact. See Pennington v. Terry, 644 F. App’x 533,
539–40 (6th Cir. 2016) (video showed officer did not deploy Taser, so summary judgment was
appropriate).
Push to the Ground. Cunningham’s second allegation is that Sonstrom pushed him to the
ground and pointed a Taser at him. So the question is whether Sonstrom’s use of force was
reasonable under the circumstances. Ashford v. Raby, 951 F.3d 798, 801–03 (6th Cir. 2020). 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.
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Case No. 20-1619, Cunningham v. State of Mich. Dep’t of State Police et al.
In Cunningham’s case, Sonstrom knew the stakes were higher than usual. Cunningham
has a history of violent crime, including assaulting police officers. He also has a history of illegal
firearm possession. And Sonstrom had just found a handgun in Cunningham’s car. What’s more,
at 450 pounds Cunningham would be difficult to restrain. Given these circumstances, it was
reasonable for Sonstrom to take additional precautions by pointing his Taser at Cunningham. See
Graham, 490 U.S. at 396–97. And it was reasonable for Sonstrom to ensure Cunningham was
quickly handcuffed by pushing him to the ground when he did not immediately comply with
Sonstrom’s orders. See Ashford, 951 F.3d at 801–03. Under the circumstances, the pointing of
the Taser and push to the ground were reasonable.
III.
Because Sonstrom’s actions were objectively reasonable, he did not violate the Fourth
Amendment. Sonstrom is thus entitled to qualified immunity. We affirm.
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