Background
Travis Kotke called 911 and reported that his wife had assaulted him. After interviewing the couple separately, three Michigan state troopers credited his wife’s account that Kotke had injured her foot and decided to arrest him for domestic violence. Kotke was seated with his four-year-old son in his lap when the troopers told him he was under arrest.
Kotke verbally refused commands to release the child but, under the facts viewed in his favor, did not physically resist or threaten the troopers. Trooper Andrew Ager used a straight-arm-bar takedown and pressed a knee into Kotke’s upper back or shoulder area while securing him. Kotke later sued the troopers, and the district court granted summary judgment on every claim except his excessive-force claim against Ager, as to which it denied qualified immunity. Ager brought an interlocutory appeal.
The Court’s Holding
A divided Sixth Circuit affirmed the denial of qualified immunity. The majority held that, viewing the evidence in Kotke’s favor, a reasonable factfinder could conclude that Ager used objectively unreasonable force. Although the suspected domestic-violence offense was serious and violent in nature, Kotke posed no immediate threat, was seated with his child, had made no physical or direct verbal threats, and had not actively resisted arrest. His forceful objections and refusal to release his son amounted to noncompliance, not necessarily active resistance.
The majority also held that the asserted constitutional violation was clearly established when the arrest occurred in 2021. Sixth Circuit precedent had placed officers on notice that they could not use injurious physical force, including a forceful takedown, against a person who posed no safety risk and was not actively resisting. The court affirmed the denial of summary judgment on the excessive-force count and remanded for further proceedings. Judge Nalbandian dissented, reasoning that Ager’s conduct was likely constitutional and, at minimum, that existing precedent did not clearly establish a violation on these facts.
Key Takeaways
- A suspected domestic-violence offense may support some use of force, but its seriousness does not independently justify significant or injurious force.
- Verbal objections and refusal to comply do not necessarily constitute active resistance without physical resistance, threatening language, or comparable conduct.
- Under clearly established Sixth Circuit law, officers may not use injurious physical force against an arrestee who poses no immediate safety risk and is not actively resisting.
Why It Matters
The decision reinforces that excessive-force analysis turns on the totality of the circumstances at the time force is used. Even when officers have probable cause to arrest someone for a violent offense, courts must separately assess the person’s immediate threat and level of resistance.
The ruling also illustrates the limited scope of an interlocutory qualified-immunity appeal: the court accepted the undisputed facts and viewed contested evidence in Kotke’s favor, then decided whether those facts could establish a violation of clearly established law.