In the “Twilight” Between Passive and Active Resistance: Sixth Circuit Reaffirms Qualified Immunity for Taser Use During Vehicle Extraction Where Officer Suspects a Weapon

Introduction

This Sixth Circuit decision arises from an encounter between Officer Matthew Cvitkovich of the City of Xenia Police Department and Craig Mills, a driver later discovered to have been suffering a hypoglycemic episode. After multiple reports of erratic driving, Officer Cvitkovich located Mills, who was slumped in his truck and appeared lethargic and intoxicated. The officer knew from the plate check that Mills held a valid concealed-carry permit and, during the encounter, observed Mills repeatedly looking toward and reaching in the direction of the center console—where, in the officer’s experience, concealed weapons are commonly stored. Mills refused multiple commands to exit the vehicle and physically tensed and pulled back when the officer attempted to extract him.

Mills sued under 42 U.S.C. § 1983 for excessive force and under Ohio law for assault and battery, focusing on the officer’s deployment of a taser. The district court denied summary judgment on the taser-based claims (while granting summary judgment on pepper spray and handcuffing claims). Officer Cvitkovich took an interlocutory appeal, asserting qualified immunity on the federal claim and statutory immunity on the state claim.

Writing for a panel that included Judges Kethledge, Larsen, and Bloomekatz, Judge Larsen reversed. The court held that, on these facts, no clearly established law put the officer on notice that deploying a taser was unconstitutional. The court also granted statutory immunity on the parallel Ohio tort claim.

Although the opinion is designated as “Not Recommended for Publication,” its reasoning synthesizes and sharpens several strands of Sixth Circuit qualified-immunity doctrine: the primacy of the plaintiff’s burden to identify on-point precedent; the ability of appellate courts to resolve interlocutory qualified-immunity appeals grounded in bodycam evidence; the “twilight zone” between passive and active resistance in taser cases; and how an officer’s reasonable suspicion that a suspect is armed—here, based on a known concealed-carry permit and movement toward the center console—bears on the threat assessment.

Summary of the Opinion

Jurisdiction: The Sixth Circuit exercised interlocutory jurisdiction because the appeal turned on legal questions—namely, the meaning of the Fourth Amendment and whether the law was clearly established—against a factual backdrop largely fixed by bodycam footage.
Qualified Immunity: The court decided the case on the “clearly established” prong and held that Mills failed to cite binding, closely analogous authority that would have placed the unconstitutionality of the taser use “beyond debate.”
Fact Context: The officer knew Mills had a concealed-carry permit; observed reaching toward the center console; received repeated verbal refusals; and encountered physical resistance (tensing/pulling away) while attempting extraction. These facts placed the case within the “zone of twilight” between passive and active resistance, where qualified immunity typically attaches.
Distinguishing Plaintiff’s Cases: The court distinguished Browning v. Edmonson County (unconscious minor, no threatening movement) and Eldridge v. City of Warren (non-threatening, lethargic, polite noncompliance) as materially different.
Multiple Taser Cycles: Additional taser cycles were not clearly unlawful given that the initial deployment did not subdue Mills and he attempted to remove the probes.
State Law: Because qualified immunity applied to the federal claim, Ohio statutory immunity also applied to the assault-and-battery claim, warranting reversal of the district court’s denial.

Detailed Analysis

I. Appellate Jurisdiction and the Role of Bodycam Evidence

The court began by confirming interlocutory jurisdiction over the denial of qualified immunity insofar as the appeal raised pure issues of law. Citing Heeter v. Bowers (2024) and Moore v. Oakland County (2025), the panel explained that when the material facts are captured on bodycam and not genuinely disputed, appellate courts may treat the “what happened?” inquiry as fixed and proceed to decide qualified immunity as a matter of law. The opinion relies on Feagin v. Mansfield Police Department (2025) for the proposition that appellate courts may use bodycam footage to ensure the district court constructed the factual record correctly and to analyze the legal questions in light of that record.

Importantly, the panel rejected the appellee’s argument that a district court’s reference to a factual dispute (“whether Mills engaged in active resistance”) defeats jurisdiction. Where the facts are constrained by video evidence and the operative questions are legal—the meaning of the Fourth Amendment and the contours of clearly established law—interlocutory review is proper.

II. Qualified Immunity: Framework, Burden, and the District Court’s Error

Framework: Under Saucier v. Katz, the qualified-immunity inquiry asks (1) whether the facts show a constitutional violation and (2) whether the right was clearly established. The court elected to resolve only the second prong. See also Ashcroft v. al-Kidd and Rivas-Villegas v. Cortesluna on the need for fact-specific, on-point precedent that puts the unconstitutionality “beyond debate.”
Plaintiff’s Burden: The panel emphasized that once an officer raises qualified immunity, the burden shifts to the plaintiff to identify controlling, closely analogous precedent showing the officer’s conduct violated clearly established law. Citing Ohio Civ. Serv. Emps. Ass’n v. Seiter; Barrett v. Steubenville City Schools; and Stoudemire v. Michigan Department of Corrections, the court admonished the district court for effectively faulting the defendant for “cursory” briefing and for failing to hold Mills to his burden.
Unpublished Authority: The court reiterated that unpublished decisions generally cannot clearly establish the law (Bell v. City of Southfield). Although Browning (a published decision) endorsed Eldridge’s articulation of principles, the panel found both distinguishable.

III. The Facts as Viewed by the Court

The bodycam showed that Mills appeared lethargic and intoxicated; had been reported for erratic driving; repeatedly turned toward and reached in the direction of the center console; verbally refused to exit the vehicle; and physically tensed and pulled back when the officer attempted to remove him. The officer knew, from a plate check, that Mills had an up-to-date concealed-carry permit. Training and experience suggested that armed motorists often store firearms in the center console. A later search in fact uncovered a semi-automatic handgun in that console, though the analysis focuses on what the officer reasonably perceived at the time.

IV. Active vs. Passive Resistance and Taser Use

The Sixth Circuit’s taser jurisprudence distinguishes between passive noncompliance and active resistance:

Excessive force can be found when a non-threatening person does nothing to resist or is already restrained (Browning; Feagin), or where resistance is merely passive (e.g., failing to exit a vehicle) absent other threat indicators (Browning; Eldridge).
By contrast, taser use is generally not excessive when the person is actively resisting arrest—even multiple deployments (Rudlaff v. Gillispie). Active resistance includes not only overt physical struggle (kicking, flailing, wriggling away, as in Roell) but also verbal hostility and deliberate bodily defiance (Browning, quoting Eldridge) such as repeatedly pulling an arm away to avoid handcuffing (Bell v. City of Southfield).

The panel framed the present case as falling within the “zone of twilight” (Feagin) between passive and active resistance: Mills verbally refused commands three times, reached toward a suspected weapon location, and physically tensed and pulled back against extraction. On this record, the court concluded that no case clearly establishes that taser use in such circumstances is unconstitutional.

V. Threat Assessment: Suspected Weapon Access and the Center Console

A key pillar of the court’s analysis is the officer’s reasonable suspicion that Mills was armed and was reaching toward a potential weapon:

Knowledge of a concealed-carry permit combined with movements toward the center console supports a reasonable belief that a suspect may be armed (see Browning’s discussion of weapon suspicion, and Watson v. City of Marysville).
Reaching toward the center console can reasonably suggest an attempt to access a weapon (Feagin; United States v. Ledbetter). Likewise, in Moore v. Oakland County, a driver’s shifting hands toward the console and failure to cut the ignition supported a reasonable perception of threat.
Although Mills’ lethargy stemmed from hypoglycemia, not intoxication, the analysis proceeds from a reasonable officer’s perspective at the scene (Graham v. Connor). And as Marvin v. City of Taylor observes, intoxicated persons are often unpredictable—heightening officer caution.
Landis v. Baker (cited by the district court) involved a suspect who was lethargic, unarmed, not verbally resistant, and immobilized by environmental conditions (standing in cold muddy water surrounded by multiple officers). Mills’ repeated refusals and reaching toward a suspected weapon location distinguish this case.

VI. Why Plaintiff’s Authorities Did Not “Clearly Establish” a Violation

Browning v. Edmonson County: There, officers tased an unconscious minor who made no movements deemed hostile, aggressive, or threatening. The officer’s suspicion of a weapon was unaccompanied by any movements that the officer interpreted as resistance. Here, by contrast, Mills (1) appeared intoxicated; (2) repeatedly reached toward the center console; (3) verbally refused commands multiple times; and (4) physically resisted extraction. Browning’s facts are materially narrower and less threatening.
Eldridge v. City of Warren: Eldridge involved lethargy, polite but sometimes non-responsive answers, and clutching a steering wheel—without the additional threat and resistance indicators present here. Eldridge therefore did not clearly establish a rule governing a suspect who reaches toward the console while known to be a lawful carrier, refuses commands, and resists extraction.

VII. Multiple Taser Deployments

The panel reaffirmed that multiple deployments are not clearly unconstitutional if the first deployment fails to subdue and the arrestee continues to resist or attempts to remove probes (Rudlaff; Hagans v. Franklin County Sheriff’s Office). Once Mills was immobilized, the tasing ceased. The record therefore did not show any clearly established violation arising from additional taser cycles.

VIII. State Statutory Immunity

On the Ohio assault-and-battery claim, the court treated statutory immunity as coterminous with the federal qualified-immunity analysis. Citing Chappell v. City of Cleveland and Hopper v. Plummer, the panel held that because federal qualified immunity applied on the taser issue, Ohio statutory immunity applied as well, warranting summary judgment for the officer on the state claim.

Precedents Cited and Their Influence

Graham v. Connor, 490 U.S. 386: Objective reasonableness governs; threat level and resistance matter.
Saucier v. Katz, 533 U.S. 194: Two-pronged qualified-immunity framework; court decided only the clearly-established prong here.
Ashcroft v. al-Kidd, 563 U.S. 731; Rivas-Villegas v. Cortesluna, 595 U.S. 1: Clearly established law must be particularized and beyond debate.
Heeter v. Bowers, 99 F.4th 900 (6th Cir. 2024): Interlocutory review of qualified immunity where appeal turns on legal issues; use of bodycam to fix facts.
Feagin v. Mansfield Police Dep’t, 2025 WL 2621665 (6th Cir. 2025): Appellate courts may use video to ensure proper factual framing; introduces the “zone of twilight” concept between passive and active resistance and instructs courts to view events comprehensively.
Moore v. Oakland County, 126 F.4th 1163 (6th Cir. 2025): Clarifies jurisdiction over legal questions and threat assessment when hands move toward console and ignition remains on.
Rudlaff v. Gillispie, 791 F.3d 638 (6th Cir. 2015): Taser use against active resistance is typically not excessive; multiple cycles may be permissible; qualified immunity applies in the “hazy border.”
Bell v. City of Southfield, 37 F.4th 362 (6th Cir. 2022): Need closely analogous precedent; active resistance includes pulling an arm away after a warning.
Browning v. Edmonson County, 18 F.4th 516 (6th Cir. 2021): Excessive force where officer tased an unconscious, non-threatening minor; recognizes Eldridge’s articulation but limited to its facts.
Eldridge v. City of Warren, 533 F. App’x 529 (6th Cir. 2013): Excessive force to tase polite, lethargic, non-threatening driver; generally, unpublished opinions do not clearly establish law.
Roell v. Hamilton County, 870 F.3d 471 (6th Cir. 2017): Examples of active resistance (kicking, flailing, wriggling).
Marvin v. City of Taylor, 509 F.3d 234 (6th Cir. 2007): Drunk persons are unpredictable—relevant to threat assessment.
Landis v. Baker, 297 F. App’x 453 (6th Cir. 2008): No threat where suspect lethargic, unarmed, not verbally resistant, physically constrained.
Watson v. City of Marysville, 518 F. App’x 390 (6th Cir. 2013): Weapon-access concerns justify heightened caution.
United States v. Ledbetter, 929 F.3d 338 (6th Cir. 2019): Reaching toward center console can suggest accessing a weapon.
Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505 (6th Cir. 2012): Additional taser use can be reasonable if initial deployment fails.
Barnes v. Felix, 605 U.S. 73 (2025): Courts should look comprehensively at “any relevant events,” not isolate the precise moment of force.
Ohio Civ. Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171 (6th Cir. 1988); Barrett v. Steubenville City Schools, 388 F.3d 967 (6th Cir. 2004); Stoudemire v. Michigan Dep’t of Corrs., 705 F.3d 560 (6th Cir. 2013): Plaintiff’s burden to identify clearly established law; no requirement that the defendant prove a negative.
Chappell v. City of Cleveland, 585 F.3d 901 (6th Cir. 2009); Hopper v. Plummer, 887 F.3d 744 (6th Cir. 2018): State statutory immunity analysis may track federal qualified-immunity analysis.

Legal Reasoning

The panel’s reasoning proceeds in two moves. First, it locates the legal question in the “clearly established” prong and enforces the rigor of that inquiry: in the excessive-force context especially, the plaintiff must point to closely analogous precedent. Second, it classifies the officer’s encounter with Mills as involving more than passive noncompliance (reaching for the console, verbal refusals, bodily tensing/pulling), combined with a reasonable suspicion of a firearm. These conditions place the case “in the hazy border” where qualified immunity typically attaches because no binding case puts the unconstitutionality of taser use “beyond debate.”

The court also clarified that multiple taser cycles may be reasonable if the suspect continues to resist or attempts to defeat the probes. And it rejected reliance on Eldridge and Browning, explaining that those cases involved non-threatening or unconscious suspects and lacked the combination of weapon-suspicion and resistance present here.

Impact and Implications

1. Taser Use During Vehicle Extractions

Weapon-suspicion matters: Knowledge of a concealed-carry permit and reaching toward the center console can materially elevate the perceived threat level, affecting what force is reasonable.
Resistance taxonomy: Repeated verbal refusals and bodily tensing/pulling shift a case away from purely passive noncompliance. Where facts lie in the “twilight” between passive and active resistance, officers are likely to receive qualified immunity absent a tightly on-point case to the contrary.
Multiple cycles: If initial tasing fails to subdue and the suspect attempts to remove probes, additional cycles are not clearly unconstitutional under Sixth Circuit precedent.

2. Bodycam-Centered Interlocutory Appeals

Appellate courts will engage the video to fix the factual landscape and decide qualified immunity as a legal matter.
District courts should avoid characterizing disputes as “factual” when bodycam footage resolves the historical record; they should proceed to the legal analysis.

3. Plaintiff’s Burden on “Clearly Established” Law

Doctrinal rigor: Plaintiffs must identify published, closely analogous decisions from the Supreme Court or the Sixth Circuit. Unpublished decisions generally will not suffice unless their principles have been explicitly adopted in published decisions and the facts align.
Briefing discipline: The panel underscored that courts should not deny qualified immunity because defense briefing is “cursory” if the plaintiff has not carried the burden to produce on-point authority.

4. Medical Episodes Mistaken for Intoxication

Objective lens: Even where a medical emergency explains a suspect’s behavior, the reasonableness inquiry remains tethered to what the officer reasonably perceived at the time. This opinion illustrates that “unpredictability” associated with apparent intoxication can justify heightened caution absent obvious medical indicia and disclosures.
Training implications: Departments may consider augmenting protocols for assessing medical emergencies, while also reinforcing commands to avoid hand movements toward suspected weapon locations.

5. Concealed-Carry Context

Practical guidance: For lawful carriers, immediate disclosure (where required) and scrupulous avoidance of reaching toward storage compartments during a stop are critical. For officers, knowledge of a permit is a factor in threat assessment but does not authorize force per se; it must be considered with conduct cues and noncompliance.

Complex Concepts Simplified

Qualified Immunity: A shield from civil liability for officials unless they violate a constitutional right that was clearly established at the time. It often turns on whether prior cases with similar facts would have informed a reasonable officer that the conduct was unlawful.
Clearly Established Law: Requires fact-specific precedent—typically from the Supreme Court or the governing circuit—placing the illegality of the conduct “beyond debate.” Broad, general statements of law are insufficient in excessive-force cases.
Active vs. Passive Resistance: Passive resistance includes non-movement or mere failure to comply absent hostility. Active resistance includes verbal hostility, deliberate defiance using one’s body, and physical struggle (e.g., kicking, flailing, tensing to prevent extraction).
Drive Stun: A taser mode where the device is pressed directly against the body to cause localized pain compliance, as distinct from probe deployment designed to cause neuromuscular incapacitation.
Interlocutory Appeal: An appeal taken before final judgment. Denials of qualified immunity are immediately appealable to the extent they present purely legal questions, especially where bodycam evidence fixes the facts.
Ohio Statutory Immunity: State-law protection for officers that often tracks the federal qualified-immunity analysis in practice; when federal qualified immunity applies, Ohio statutory immunity frequently follows.

Conclusion

The Sixth Circuit reversed the district court and held that Officer Cvitkovich was entitled to qualified immunity on the § 1983 excessive-force claim and statutory immunity on the Ohio assault-and-battery claim, as to the taser use. The court’s reasoning underscores four central themes: (1) plaintiffs must shoulder the burden to identify closely analogous, published authority to overcome qualified immunity; (2) appellate courts will rely on bodycam evidence to resolve interlocutory qualified-immunity appeals; (3) in the “twilight” between passive and active resistance—especially where the officer reasonably suspects a weapon—taser use is not clearly unconstitutional; and (4) multiple taser cycles are not clearly unlawful if initial efforts fail and resistance persists.

For practitioners, Mills v. Cvitkovich is a pointed reminder that excessive-force challenges to taser deployments during vehicle extractions will hinge on specific, video-captured details—hand movements toward suspected weapon areas, verbal and bodily refusal to comply, and the immediacy of threat—against a demanding “clearly established” standard. For law enforcement, the decision validates measured taser use where weapon-access concerns are reasonably perceived and resistance is more than passive, while also encouraging robust training on medical-assessment cues and de-escalation when feasible. Although unpublished and non-precedential, the opinion coheres with the Sixth Circuit’s trajectory and will likely prove persuasive in similar fact patterns.