In plaintiff's 42 U.S.C. section 1983 action against an officer who arrested her for domestic disturbance, district court's partial denial of defendant-officer's motion for summary judgment on the ground of qualified immunity is affirmed where: 1) plaintiff offered sufficient evidence to create a genuine issue of material fact regarding each element of the handcuffing test, including the injury requirement; and 2) a reasonable juror could find that no threat to the officer existed, and in the absence of a threat to officer safety, defendant cannot argue that he acted reasonably under the Fourth Amendment when he pushed plaintiff's face into the ground while she was incapacitated because use of force after a suspect has been incapacitated or neutralized is excessive as a matter of law.
Argued: June 19, 2009
Decided and Filed: October 8, 2009
Opinion by Circuit Judge Keith
For Appellant: Andrew E. Rudloff, Subashi, Wildermuth & Dinkler, Dayton, Ohio
For Appellee: Norman J. Frankowski II, Flagel & Papakirk, Cincinnati, Ohio