United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT VOGLER'S
MOTION FOR SUMMARY JUDGMENT  AND DENYING DEFENDANT
DUPUIS'S MOTION FOR SUMMARY JUDGMENT 
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.
civil rights lawsuit arises out of Plaintiff's arrest on
January 12, 2015. On May 27, 2015 the Court dismissed
Plaintiff's claims but allowed him to replead his
excessive force claim with greater specificity. (Dkt. # 22,
Pg ID 280). Plaintiff filed a Second Amended Complaint on May
28, 2015. (Dkt. # 23). Currently before the Court are
Defendant James M. Vogler's Motion for Summary Judgment
(Dkt. # 39) and Defendant Ronald J. Dupuis's Motion for
Summary Judgment (Dkt. # 41). Defendant officers argue that
they are entitled to qualified immunity, and that their use
of force was objectively reasonable because Plaintiff was
actively resisting arrest and refusing to move his arms to be
handcuffed. Plaintiff maintains that he was not resisting
arrest, and that Defendants severely kicked and beat him
after he was handcuffed, face down on the ground. For the
reasons stated below, this Court DENIES Defendants'
Grosse Pointe Park Public Safety Department Officer James M.
Vogler ("Vogler") and Highland Park Officer Ronald
J. Dupuis ("Dupuis") were assigned to the ACTION
Auto Theft Task Force, a multi-jurisdictional task force.
(Dkt. # 39-2, Pg ID 405, 408). On January 12, 2015, Vogler
received a phone call from a vehicle GPS tracking service,
which reported the location of a stolen vehicle in the City
of Detroit. Id. at 408. Vogler conducted a LEIN
check, which indicated that the vehicle was registered to
Phyllis Knox and had been reported stolen to the Detroit
Police Department ("DPD") on that date.
Id. Vogler received information from DPD that the
vehicle was taken in an armed robbery by a black male
approximately 50 years old with a salt and pepper beard,
wearing a black security guard coat and armed with a
semiautomatic handgun. Id. Vogler notified the
ACTION officers and began driving to the location of the
stolen vehicle. Id.
en route, Vogler received a second call from the GPS tracking
service reporting that the stolen vehicle had moved to a
different location. Id. Vogler and other ACTION
officers responded to that area and began surveillance of the
vehicle. Id. At approximately 1:30 p.m., one of the
officers notified all team members that a subject matching
the description of the carjacking suspect, and later
identified as Plaintiff Andrew Jackson, Jr.
("Plaintiff" or "Jackson"), had entered
the stolen vehicle. Id. Jackson drove the stolen
vehicle to another location, and the ACTION officers
followed. Id. Jackson parked in a driveway, and
three officers, including Dupuis, exited their vehicles and
approached Jackson as he exited the vehicle. Id.
Jackson fled on foot and, according to Vogler, he grabbed his
right side near his hip. Id. Dupuis pursued him on
foot, as the other ACTION officers attempted to drive to a
position to intercept Jackson. Id. Dupuis then
notified the ACTION officers that he had Jackson, and
additional officers arrived on the scene within minutes.
Id. Vogler was the first officer to reach Dupuis and
to Vogler, he arrived to find Dupuis on the ground attempting
to place Jackson in handcuffs, and Jackson resisting arrest
by pulling his arms away and under his body. Id.
Vogler saw Jackson pull his right arm under his body with his
right hand reaching toward the pocket on the right side of
his overalls. Id. Dupuis then yelled, "Give me
your arm!" Id. Fearing that Jackson was
reaching for a weapon, Vogler kicked Jackson twice in his
right thigh, in the area of the common peroneal. Id.
at 409. In his affidavit, Vogler attests that this is a
common law enforcement tactic used to gain control of a
non-compliant arrestee. Id. at 405. Dupuis was then
able to put the handcuffs on Jackson. Id. at 409.
Vogler conducted a search and discovered a semiautomatic
handgun in the right pocket of Jackson's overalls.
deposition, Jackson denied any carjacking and denied having a
gun on his person. (Dkt. # 44-1, Pg ID 739, 748). He
testified that, on January 12, 2015, he had a flat tire and
that his cousin paid a friend for the use of the vehicle,
which happened to be the stolen vehicle, so that Jackson
could go get another tire. Id. at 739-40. Jackson
testified that he does not know his cousin's friend's
name. Id. at 739. About an hour and a half after
obtaining this vehicle, Jackson was approached by the
officers. Id. at 739, 741. According to Jackson, he
ran from the police because he was in violation of his
parole. Id. at 741. He knew he was running from the
police because he saw their badges, which the officers were
wearing around their necks, while he was fleeing.
Id. at 743. Jackson eventually got tired and could
not run anymore. Id. at 741. Dupuis caught up to
him, ordered him on his knees, and shot him with a taser.
Id. Jackson testified that the taser did not work
because he was wearing a heavy Carhart suit. Id.
Dupuis then pulled out his service revolver and ordered
Jackson to lie face down on the ground and put his hands on
his head. Id. Jackson testified that he complied and
that Dupuis handcuffed him. Id. Dupuis then began
beating him. Id. According to Jackson, Dupuis hit
him between ten and twenty times in the face, eyes, head, and
neck with an object or his fist after handcuffing him.
Id. at 742.
testified that, after this initial beating, Dupuis contacted
the other officers. Id. Vogler arrived within a
minute and kicked him. Id. Dupuis and Vogler kicked
him and punched him after he was handcuffed, and the beating
lasted approximately three minutes. Id. at 742, 744,
749. Jackson knows that Vogler kicked him on his right side,
but he does not remember how many times Vogler kicked and
punched him or exactly where on his body. Id. at
749. Jackson testified that he knows Vogler also punched him
because he saw this in a video of the incident on the news,
but he has no independent recollection of this. Id.
Jackson further testified that he was in a daze by the time
that Vogler arrived on the scene. Id. at 750.
taken by a third-party witness differs in part from both the
officers' and Jackson's accounts of the incident.
(Dkt. # 39-3). The Livonia Police Department Computer
Forensics Unit extracted this video from the witness's
phone. (Dkt. # 39-4). The video begins with Jackson face down
on the ground and Dupuis on top of him (straddling Jackson
with his back to the camera). (Dkt. # 39-3). Vogler is
standing to the right of them. It is not possible to tell
from the camera angle where Jackson's arms are in that
moment. They could be behind his head, as he claims, or they
could be under his body, as the officers claim. The video
shows Dupuis punching Jackson four times in a row. He
delivers the first two punches and then says, "Give me
your f***ing arm, give me your arm!, " as he delivers
the following two punches. Vogler delivers two kicks to
Jackson's right thigh area, as Dupuis is yelling for
Jackson's arm. Part of Jackson's right arm then
becomes visible for a brief moment, but it is not possible to
tell where the arm came from. One can hear the locking of the
handcuff as Dupuis finishes the handcuffing. Dupuis then
smacks Jackson with an open hand, gets up, and calls him a
"f***er." He walks away, and Jackson is heard
mumbling face down on the ground. Vogler then places a knee
on Jackson's back and left arm and leans his body weight
into his knee several times, pressing it down on
Jackson's left side. Vogler states, "What did you
say? Jesus? You're calling Jesus? Don't you dare!
Don't you f***ing dare!, " as he smacks Jackson with
an open hand in the area around his face. Vogler then backs
away from Jackson. Dupuis walks toward Jackson again and
turns him around on his back with some force while saying,
"You think you can outrun me, b****? You think you can
outrun me, b****?" The camera begins to shake, and a
third officer walks into the frame, so it is difficult to
tell whether Dupuis kicks Jackson or not while turning him
around. A fourth officer arrives, and the officers help
Jackson to his feet and search him. One of the officers
states, "That was a justified a** whopping." Vogler
eventually pulls a gun out of Jackson's right pocket. The
officers then escort Jackson into a patrol vehicle.
Photographs taken on January 14, 2015 at the Grosse Pointe
Park Police Department holding cells show Jackson's right
eye swollen shut. (Dkt. # 41-2, Pg ID 566, 658-59).
January 13, 2015, the day after Jackson's arrest, Phyllis
Knox, the carjacking victim, identified Jackson as the
individual who pulled a gun on her and took her vehicle the
day before. (Dkt. # 39-2, Pg ID 409-10). Although Jackson
maintains his innocence, he was convicted of several
felonies, including armed robbery, carjacking, felon in
possession of a firearm, carrying a concealed weapon,
felonious assault, felony firearms, and
assaulting/obstructing/resisting police officers, following a
bench trial. Jackson is currently serving a 47-year
State Police investigated the incident and turned the
investigation over to the Wayne County Prosecutor. (Dkt. #
39-5). The Wayne County Prosecutor determined that no charges
would be brought against the officers, adding as follows:
There is no question that some of the actions of Dupuis and
Vogler were inappropriate and, as an office, we obviously do
not condone the striking of any persons in police custody,
regardless of how minor that contact may be. Neither Dupuis
nor Vogler should have smacked Jackson once he was
handcuffed; however, it is my opinion that those actions do
not rise to the level of criminal charges.
(Dkt. # 41-2, Pg ID 690).
DUPUIS'S REQUEST FOR ...