NOT RECOMMENDED FOR PUBLICATION File Name: 22a0126n.06
Case No. 20-1790
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Mar 21, 2022 ) DEBORAH S. HUNT, Clerk E.W.; RONNITA BRYANT, Guardian of E.W., ) Plaintiffs-Appellees, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN DETROIT PUBLIC SCHOOL DISTRICT, et al., ) DISTRICT OF MICHIGAN Defendants, ) ) BROADUS WILKINS; MYRON MONTGOMERY, ) ) OPINION Defendants-Appellants. ) )
Before: McKEAGUE, BUSH, and READLER, Circuit Judges.
McKEAGUE, Circuit Judge. Defendants Montgomery and Wilkins appeal the denial of
qualified immunity in this § 1983 case. Plaintiff E.W., a high school freshman at the time of the
incident, claims that Assistant Principal Montgomery used excessive force when he forcibly
removed E.W. from the school building, threw E.W. to the ground, and pressed his knee into
E.W.’s chest. He also claims that Detroit Public School Officer Wilkins swung his arm at E.W.’s
face, dislocating and breaking his jaw. The district court found that material questions of fact
precluded summary judgment, analyzing Montgomery’s actions under the Fourteenth Amendment
and Wilkins’s actions under the Fourth Amendment. We agree and AFFIRM. Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
I.
At the summary judgment stage, we review the facts in the light most favorable to the
nonmovant. Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017). When events are captured on
video, “[t]o the extent that videos in the record show facts so clearly that a reasonable jury could
view those facts in only one way, those facts should be viewed in the light depicted by the videos.”
Id. (citing Scott v. Harris, 550 U.S. 372, 380 (2007)). In this case, the incident between E.W. and
Defendant Myron Montgomery was captured by three video cameras. No recording is available
of the incident between E.W. and Defendant Broadus Wilkins.1
When these events took place, E.W. was in the first few months of his freshman year at
West Side Academy high school. He was a skinny 14-year-old, standing 5′3″. Defendant
Montgomery was the assistant principal of the school and Defendant Wilkins was a school police
officer. Montgomery was around 5′10′′ tall, Wilkins, 5′8″; each weighed roughly 230 pounds.
A. Confrontation with Montgomery
On October 9, 2017, E.W. left his wallet with a teacher while he played basketball after
school. After making it to the bus stop to go home, he realized he forgot the wallet. He needed
his money to make it home from school. E.W. walked back to school intending to retrieve his
wallet from either the teacher or the principal. He reentered the school building from the side door
and was confronted by Montgomery. E.W. alleges Montgomery yelled at him to leave. E.W.
didn’t tell Montgomery that he was looking for his wallet because, in his words, Montgomery was
acting “hostile and angry.” R. 53-2, PageID 571. E.W. left the building on Montgomery’s
command but reentered from the rear door.
1 One recording skips forward eleven seconds. E.W. alleges that the incident between E.W. and Wilkins occurred during those missing seconds. Defendants explain this anomaly as the possible result of a lack of movement in front of the motion-sensitive cameras. -2- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
Montgomery met E.W. at the rear door. This portion of events was captured on camera.
E.W. told Montgomery he needed to retrieve his wallet so that he could get home. E.W. alleges
that Montgomery did not listen to him, and instead told him to leave within three seconds and
began counting down. On the video, an increasingly agitated E.W. is shown speaking to
Montgomery. After some dialogue, Montgomery threw down a pile of papers he was holding and
got in E.W.’s face. When E.W. still did not leave, Montgomery grabbed E.W. and pushed him
through the school doors. As the video shows, Montgomery pushed E.W. out of the building,
pushing E.W. back on his heels through two sets of doors. Outdoors, E.W. contends that
Montgomery slammed E.W. to the pavement. Montgomery then held his knee on E.W.’s chest for
around five seconds. Montgomery then got off of E.W. and went back inside.
Montgomery’s account of the events differs somewhat from E.W.’s. Montgomery claims
that he told E.W. specifically upon E.W.’s first entry through the side door that he needed to reenter
through the student entrance at the front door and go through the metal detectors per school policy.
Montgomery claims he told E.W. to leave because he was in the building illegally. When E.W.
didn’t leave, he “escorted” E.W. out of the building. R. 53-3, PageID 642. Montgomery testified
that he did not slam E.W. but that both fell to the ground together “[a]s a result of our tussle.” Id.
at PageID 643. He also claims that he pinned E.W. to the ground with his knee in an effort to
restrain him. Montgomery then walked back into the building to his office, stating a need to
“separate” from the situation.
Wilkins also testified to Montgomery’s interactions and the immediate aftermath. He had
witnessed Montgomery confront E.W. when E.W. first entered the building, and heard E.W. swear
at Montgomery. Later, Wilkins heard Montgomery yelling and counting down from three, and
witnessed Montgomery push E.W. out of the building. Wilkins testified that he did not see E.W.
-3- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
try to assault or injure Montgomery. Wilkins testified that he walked towards the rear door and
saw a Securitas private security officer picking up E.W. and trying to calm E.W. down. E.W. was,
at this point, cursing and ranting, while Montgomery walked back inside.
B. Confrontation with Wilkins
E.W. got himself off the ground as Wilkins and other people approached. The video shows
several individuals walking outside to speak with E.W., who from one angle can be seen to be
agitated. The video shows Wilkins walk out of the school to speak with E.W.
E.W. testified that Wilkins walked over to him and said “get away from the school.” R.
53-2, PageID 548. E.W. testified that Wilkins then swung his left arm, held straight, at E.W.,
hitting him in the face with his forearm.
Wilkins, for his part, claims that he turned to walk inside when he saw E.W. start to run at
the door. At that point, Wilkins turned and put his left arm straight out, and E.W. ran into his arm.
Wilkins did not testify that E.W. was trying to threaten or attack him but was instead trying to run
past him.
C. E.W.’s Injuries
E.W. was picked up by his mother and taken to the emergency room. The contact between
Wilkins’s forearm and E.W.’s face left him with a broken and dislocated jaw. E.W. testified that
he also experienced severe pain in his shoulder that prevented him from raising his arm for several
months following the incident. He also testified that he has suffered psychological harm, including
difficulty trusting police officers and men in general, bad dreams, trouble sleeping, and a loss of
dignity.
-4- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
D. Procedural History
Ronnita Bryant, E.W.’s guardian, filed this suit on behalf of E.W. against Montgomery;
Wilkins; the Detroit Public School District; and Securitas, the private security company. The suit
was originally filed in state court and removed by Defendants. The claims against Securitas were
settled and the claim for Monell liability against the Detroit Public School District was dropped
voluntarily. E.W. brought 42 U.S.C. § 1983 claims alleging violations of his Fourth and
Fourteenth Amendment rights against Wilkins and Montgomery, in addition to assault and battery
and gross negligence claims under state law against both. Defendants moved for summary
judgment. The district court held a hearing on Defendants’ motion. At the hearing, the court
granted the motion as to the state law claims and dismissed those claims without prejudice but
denied Defendants’ motion as to E.W.’s § 1983 claims. Defendants filed this interlocutory appeal
challenging the denial of qualified immunity. E.W. moved to dismiss Defendants’ appeal, arguing
that we lack jurisdiction over the appeal. A panel of this court denied E.W.’s motion to dismiss,
determining that this panel should consider jurisdiction at the conclusion of briefing. See E.W. v.
Detroit Public Sch., No. 20-1790 (6th Cir. Aug. 9, 2021) (order).
II.
We have jurisdiction to hear an interlocutory appeal to review a district court’s denial of
qualified immunity at summary judgment. 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). This review is limited to the extent that such a denial turns on an issue of law. Gillispie
v. Mia. Twp., 18 F.4th 909, 915 (6th Cir. 2021) (quoting Mitchell, 472 U.S. at 530). Because
Defendants’ appeal considers “the legal question of whether the law was clearly established,” we
have jurisdiction. Gordon v. Bierenga, 20 F.4th 1077, 1081 (6th Cir. 2021).
-5- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
This court reviews a district court’s denial of summary judgment de novo, reviewing facts
in the light most favorable to the nonmovant. Foster v. Patrick, 806 F.3d 883, 886 (6th Cir. 2015)
(citation omitted). Summary judgment is only appropriate if the record shows that “there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
III.
Both Montgomery and Wilkins appeal the denial of qualified immunity. Public officials,
like Defendants here, are immune from liability under 42 U.S.C. § 1983 unless the plaintiff
establishes both (1) a violation of a constitutional right, and (2) that “the right at issue was ‘clearly
established’ when the event occurred such that a reasonable officer would have known that his
conduct violated it.” Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013)
(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). We may decide the prongs in either order.
Pearson, 555 U.S. at 236. Qualified immunity is analyzed separately for each defendant. Wright
v. City of Euclid, 962 F.3d 852, 865 (6th Cir. 2020).
A. Officer Wilkins
We begin with E.W.’s claim against Officer Wilkins for excessive force in violation of the
Fourth Amendment.
The Fourth Amendment’s prohibition against unreasonable seizures protects citizens from
excessive force by law enforcement officers. Latits, 878 F.3d at 547 (citing Godawa, 798 F.3d at
463). The Fourth Amendment requires that the amount of force used to effectuate a seizure be
“objectively reasonable” under the totality of the circumstances. Graham v. Connor, 490 U.S.
386, 396 (1989). The court considers the situation at the moment force is used, “judged from the
-6- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Id.
While this inquiry into the totality of the circumstances is wide-ranging, three factors are
particularly important: “[1] the severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officers or others, and [3] whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. We have held that these standards govern the
use of force by a police officer in the school setting. See, e.g., Williams v. Morgan, 652 F. App'x
365, 374 (6th Cir. 2016) (applying Graham factors to conclude a school resource officer used
excessive force by breaking a student’s arm in response to the student’s misbehavior).
Taking the facts in the light most favorable to E.W. as we must, all of those factors suggest
that Wilkins’s use of force against E.W. was unreasonable. Wilkins had witnessed E.W. twice
violate a school rule regarding which door to enter. He did not suspect E.W. of any crime. The
first factor “thus cuts against a finding of justified use of force because there was no probable cause
that [E.W.] had committed any crime at all” before Wilkins applied force. Wright, 962 F.3d at
867.
Second, on E.W.’s version of the facts, he posed no threat to Wilkins or others. There were
multiple security officers present, and Wilkins was an adult man significantly larger than E.W.
Wilkins himself testified that he never saw E.W. strike or threaten Montgomery. Neither E.W.’s
nor Wilkins’s version of events suggests that E.W. took any action to indicate that he wanted to
strike or threaten Wilkins. Thus, on E.W.’s version of the facts, he posed no threat.
Third, material disputes of fact exist as to whether E.W. was resisting at the time of
Wilkins’s use of force. On E.W.’s account, he was standing still and was outside the school doors
when Wilkins confronted him. Wilkins contends that E.W. verbally resisted Wilkins and that E.W.
-7- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
was running at the school doors when he was struck. But because we must take the facts in the
light most favorable to E.W., we must conclude that E.W. was not resisting when Wilkins struck
E.W.
Taken together, on E.W.’s version of the facts, Wilkins’s use of force was unreasonable in
violation of the Fourth Amendment. E.W. was not suspected of any serious crime, was not posing
a threat at the time he was struck and was not resisting arrest. On those facts, Wilkins’s striking
E.W. with such force as to break his jaw is gratuitous violence amounting to unreasonably
excessive force under the Fourth Amendment. See Grawey v. Drury, 567 F.3d 302, 311 (6th Cir.
2009) (use of force was unreasonable as applied to nonresistant arrestee suspected of a minor
crime).
E.W.’s right to be free from such violence was also clearly established at the time of
Wilkins’s actions. A defendant is entitled to qualified immunity “so long as their conduct ‘does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (citing Pearson v. Callahan,
555 U.S. 223, 232 (2009)). “[E]xisting precedent must have placed the statutory or constitutional
question beyond debate,” though there does not need to be “a case directly on point.” Rivas-
Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021) (quoting White v. Pauly, 137 S. Ct. 548, 551
(2017)).
On E.W.’s facts, he was not resisting (or indeed under) arrest, did not pose a threat to
Wilkins or anyone else, and was not suspected of a crime when Wilkins swung at E.W. and broke
his jaw. Thus, a reasonable officer in Wilkins’s position would have been on notice that he was
violating E.W.’s Fourth Amendment rights. We very recently held that “[w]ell before [June 2016],
our precedent had ‘clearly establish[ed] the right of people who pose no safety risk to the police to
-8- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
be free from gratuitous violence during arrest.’” Gambrel v. Knox Cnty., 25 F.4th 391, 403 (6th
Cir. Feb. 8, 2022) (quoting Shreve v. Jessamine Cnty. Fiscal Ct., 452 F.3d 681, 688 (6th Cir.
2006)).
Wilkins urges us to weigh the facts differently. He asks us to consider E.W.’s purported
verbal resistance as the sort of active resistance to arrest that might justify his use of force. He
also quibbles with the district court’s characterization of his straight-armed forearm strike as a
“punch,” and disputes the accusation that he swung at E.W. But this account is disputed by E.W.’s
version of the facts, and we must view these facts in the light most favorable to E.W. These factual
disputes are for a jury to resolve, not for us to consider on interlocutory appeal.
B. Assistant Principal Montgomery
E.W. also claims that Montgomery’s use of force violated his clearly established
constitutional rights. The district court determined that material questions of fact precluded
summary judgment as to whether Montgomery violated E.W.’s substantive due process rights
under the Fourteenth Amendment. See E.W. v. Detroit Public Sch., No. 18-12964, 2021 WL
3089380 at *5 (E.D. Mich. July 22, 2021). We agree.
We have held that the Fourteenth Amendment’s due process rights provide public school
students with the right “to be free of state intrusions into realms of personal privacy and bodily
security through means so brutal, demeaning, and harmful as literally to shock the conscience.”
Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987) (quoting Hall v. Tawney, 621 F.2d 607,
613 (4th Cir. 1980)). In evaluating claims that a teacher or school administrator’s actions violated
that right, we apply a test “asking four guiding questions: (1) ‘Was there a pedagogical justification
for the use of force?’ (2) ‘Was the force utilized excessive to meet the legitimate objective in this
situation?’ (3) ‘Was the force applied in a good-faith effort to maintain or restore discipline or
-9- Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
maliciously and sadistically for the very purpose of causing harm?’ And (4) ‘Was there a serious
injury?’” Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 678–79 (6th Cir. 2016) (quoting Domingo
v. Kowalski, 810 F.3d 403, 411 (6th Cir. 2016)).
In this case, material questions of fact preclude summary judgment as to each question. A
reasonable jury could conclude that Montgomery had little pedagogical justification for his actions.
Montgomery himself stated that he sought to “restrain” E.W. and remove him from the school
building because he was there “illegally.” R. 53-3, PageID 629, 644.
To be sure, school “administrators” have a “substantial interest . . . in maintaining
discipline in the classroom and on school grounds,” and such an interest does not fully abate after
the school day has concluded. New Jersey v. T.L.O., 469 U.S. 325, 339 (1985). And such an
interest may have justified removing E.W. from the school building. But E.W. alleged that
Montgomery not only removed E.W. from the building but proceeded to slam him to the ground
and press his knee into E.W.’s chest. Taking the facts in the light most favorable to E.W.,
Montgomery used an excessive amount of force to accomplish his interest.
A reasonable jury could also conclude that Montgomery did not act in good faith. In
addition to allegedly throwing E.W. to the ground and pressing his knee into E.W.’s chest, E.W.
testified that Montgomery was angry and hostile. A jury could conclude that Montgomery acted
principally out of anger or malice, rather than through any good-faith desire to secure the school
building. See Webb, 828 F.2d at 1158.
Finally, material questions of fact pervade as to serious injury. We have suggested that a
claim of malicious force by a school administrator, delivered without pedagogical purpose, can
survive summary judgment without a showing of injury. Domingo, 81 F.3d at 416 (citing Webb,
828 F.2d at 1154). But E.W. has also put forward evidence of injury to his shoulders, potentially
- 10 - Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
attributable to Montgomery’s actions. E.W. has also shown evidence of lasting psychological
harm. Together, a reasonable jury could find that E.W. suffered a serious injury.
Of course, a reasonable jury could decide these facts differently. The parties dispute
whether E.W. was thrown to the ground. E.W. maintains he was slammed; Montgomery says that
as a “result of [their] tussle” they “both went to the ground.” R. 53-3, PID 643. The video does
not definitively rule out either possibility. Cf. Scott, 550 U.S. at 378 (“Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have believed him.”).
If E.W. was not slammed to the ground and Montgomery had not used gratuitous force in removing
E.W. from the school, Montgomery’s actions would not be violative of E.W.’s Fourteenth
Amendment rights. But because the record is disputed as to this fact, this question is for the jury
to decide.
Webb v. McCollough clearly establishes the law in this case. 828 F.2d at 1158–59. In
Webb, we held that a school principal violated a student’s constitutional rights when he grabbed a
student, threw her against the wall and slapped her during a school field trip. Id. at 1158. In that
case, we found that the principal’s use of force, undertaken outside “the school context,” could not
be interpreted as disciplinary but rather “arose . . . in anger or from malice.” Id. at 1158–59. On
E.W.’s version of the facts, a reasonable official in Montgomery’s position would have been on
notice that his actions were constitutionally violative.
IV.
Defendants also contend that the district court erred in granting their motion for summary
judgment as to E.W.’s state law claims. The district court dismissed E.W.’s state law claims
without prejudice, declining supplemental jurisdiction under 28 U.S.C. § 1367(a). E.W., 2021 WL
3089380, at *1. On interlocutory appeal, in addition to considering federal law qualified
- 11 - Case No. 20-1790, E.W., et al. v. Detroit Public School District, et al.
immunity, we have jurisdiction to review the determination of governmental immunity on
Michigan state law claims. Rudolph v. Babinec, 939 F.3d 742, 753 (6th Cir. 2020). But such
jurisdiction is limited to exactly that: we may only consider the appeal of “an order granting or
denying governmental immunity under M.C.L. § 691.1407.” Smith v. City of Lenawee, 600 F.3d
686, 689 (6th Cir. 2010). The district court’s order is neither. We thus lack jurisdiction to consider
this portion of Defendants’ appeal.
V.
Because material factual disputes preclude summary judgment in Defendants’ favor, we
AFFIRM the district court’s denial of summary judgment.
- 12 -