NOT RECOMMENDED FOR PUBLICATION
                                File Name: 25a0095n.06

                                           No. 23-1937


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                       Feb 19, 2025
                                          )                                    KELLY L. STEPHENS, Clerk
 HEATHER HULON,
                                          )
       Plaintiff-Appellee,                )
                                          )
 v.                                       )                      ON APPEAL FROM THE
                                          )                      UNITED STATES DISTRICT
 CITY OF LANSING, MICHIGAN,               )                      COURT FOR THE WESTERN
                                          )                      DISTRICT OF MICHIGAN
       Defendant,
                                          )

OPINION

 EDGAR      GUERRA;        TREVOR ALLMAN; )
 CHARLES WRIGHT; GARY WORDEN,             )
                                          )
       Defendants-Appellants.             )

Before: BATCHELDER, STRANCH, and READLER, Circuit Judges.

       BATCHELDER, J., delivered the opinion of the court in which READLER, J., concurred.
READLER, J. (pp. 9–14), delivered a separate concurring opinion, in which BATCHELDER, J.,
concurred. STRANCH, J. (pp. 15–20), delivered a separate dissenting opinion.

       ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal, four police

officers argue that qualified immunity shields them from suit on Plaintiff’s excessive force and

deliberate indifference claims. The district court denied their motion for summary judgment after

it found that genuine disputes of material fact existed as to whether the officers violated clearly

established law. The officers disagree and challenge that finding on appeal. Because the officers

could succeed on their interlocutory appeal only if we entertained their disputes of fact, we affirm.

                                                 I.

       One afternoon in April 2020, the Lansing Police Department arrested Anthony Hulon for

aggravated assault. At the time of his arrest, Hulon appeared agitated and unable to control his
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


movements, but he denied being under the influence of drugs or alcohol. The officers then took

Hulon to a detention center, at which point his behavior became so erratic that they placed him in

an isolation cell. As the afternoon progressed, Hulon’s condition only continued to deteriorate.

For instance, later that evening, Hulon had placed all his clothes in the toilet and begun to yell

incoherently as he banged on the cell door.

        Given his behavior, the officers determined that Hulon needed medical attention and called

for an ambulance. While on the way to the hospital, Hulon confessed to paramedics that he had

taken what he believed at the time to be “speed”—though he now suspected that the drugs had

been laced with some other harmful substance. Once at the hospital, the doctors confirmed that

Hulon had consumed both methamphetamine and ecstasy.

        Because no treatment for methamphetamine or ecstasy intoxication exists, the doctors

administered “Ativan,” a drug designed to reduce, but not prevent, Hulon’s involuntary

movements. The hospital then observed Hulon for several hours, after which it discharged him in

“stable” condition.

        Back at the detention center, Hulon’s condition had not improved. He still could not control

his movements, nor could he follow directions, so the officers removed his handcuffs and began

to place him in a waist restraint. As they did so, however, Hulon physically resisted, and the

officers eventually wrestled Hulon to the ground and pinned him on his stomach. This struggle

continued for several more minutes before Hulon first complained that he could not breathe and

that he was “passing out.” The officers then reassured Hulon that he could in fact breathe and kept

him pinned. As the struggle continued, Hulon reiterated several more times that he still could not

breathe, but the officers refused to relent. Moments later, Hulon’s body stopped moving, and he

began to make loud noises that sounded like snoring.


                                                       -2-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


        Once the officers finished placing the waist restraint around Hulon’s motionless body, they

dragged him to the back of the cell and placed him against the wall. After they did so, the officers

realized that Hulon had stopped breathing and that he no longer had a pulse. The officers then

called for an emergency medical team, but the medics could not resuscitate Hulon.

        Heather Hulon—the personal representative of Anthony Hulon’s estate—sued the officers

involved, alleging that each had violated Hulon’s constitutional and statutory rights. More

specifically, the complaint alleged that the officers had used excessive force in restraining Hulon,

and that they were deliberately indifferent to his medical needs. The officers then invoked

qualified immunity and moved for summary judgment. The district court denied their motion,

however, because it found that genuine issues of material fact existed. This interlocutory appeal

followed.

                                                       II.

        Normally, this Court can hear appeals only from a district court’s final decision. Quigley

v. Tuong Vinh Thai, 

 (6th Cir. 2013); see also 

. An exception

to this rule exists, however, and immediate appeal can be brought when a district court denies a

government official qualified immunity. Austin v. Redford Twp. Police Dep’t, 

(6th Cir. 2012). In these interlocutory appeals, we have jurisdiction over the “pure legal issue[s]”

presented in the district court’s decision. Gregory v. City of Louisville, 

 (6th Cir.

2006). That means, in other words, that a defendant who raises a qualified immunity defense on

interlocutory appeal cannot challenge a district court’s determination that “the pretrial record sets

forth a genuine dispute of material fact for trial.” Quigley, 

.




                                                       -3-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


                                                   III.

        We lack jurisdiction to hear much of the officers’ interlocutory appeal because it improperly

challenges the district court’s finding that disputes of material fact exist. The district court

identified several fact disputes—such as the amount of force used and whether that amount was

reasonable (among others)—and we cannot review those findings in this interlocutory appeal.

Harrison v. Ash, 

 (6th Cir. 2008) (“factual dispute[s]” “fall[] outside of the

narrow jurisdiction of this Court”).

        True, this Court can, in “exceptional circumstances,” overrule a district court’s

determination that a fact dispute exists. Austin, 

. But we can take that exceptional

step only if the record establishes that the district court’s finding is “blatantly and demonstrably

false.” Bishop v. Hackel, 

 (6th Cir. 2011). And on this record, we cannot say

that the district court’s decision regarding the dispositive facts is obviously wrong.

        That said, even when a defendant “makes impermissible arguments regarding disputes of

fact,” we can still consider any “purely legal issue[s]” that he properly raises. Quigley, 

. Here, the officers attempt to raise two legal issues. First, the officers argue that their

conduct did not violate clearly established law on excessive force. While that indeed raises a legal

issue, the officers’ argument depends on their preferred version of the facts. In other words, to

agree with the officers, we would first need to resolve in their favor several of the existing fact

disputes that the district court identified. Under the version of the facts most favorable to Hulon,

the officers applied substantial, bodyweight-like downward force onto the back, buttocks, and legs

of her brother Anthony while they held him prone for almost five minutes, despite his repeated

pleas that he could not breathe. Hopper v. Plummer clearly established that this use of “substantial

or significant pressure that create[d] asphyxiating conditions in order to restrain a subject who


                                                       -4-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


d[id] not pose a material danger to the officers or others” constituted excessive force. 

 (6th Cir. 2018). As noted, the officers vigorously contend that the facts were

otherwise. And a jury may well believe them. But we cannot resolve those fact disputes on

interlocutory appeal, even for qualified immunity defenses. Cockrun v. Berrien County, 

, 422 (6th Cir. 2024) (“Our jurisdiction ends once a defendant’s argument drifts from the purely

legal into the factual realm and begins questioning what really happened.”).

        Second, the officers argue that the district court applied the incorrect legal standard to

Hulon’s deliberate indifference claim. They maintain that the district court should have assessed

Hulon’s claim under the legal standard that applied at the time of their conduct in 2020—not under

the standard that applies today in 2024. And in 2020, the officers argue, this Court’s deliberate

indifference precedent still required a plaintiff to prove that an officer consciously disregarded a

substantial risk of harm.

        Before we address this issue, some context is helpful. For many years, this Court had

applied a two-part test to all deliberate indifference claims; that test contained an objective and

subjective component. For the objective component, the plaintiff needed to show that he had a

“sufficiently serious” medical need. Farmer v. Brennan, 

 (1994). And for the

subjective component, the plaintiff needed to show that “an official kn[ew] of and disregard[ed]

an excessive risk to . . . health or safety. 

. But then in 2015, the Supreme Court

eliminated the subjective component from the parallel test applied to excessive force claims.

Kingsley v. Hendrickson, 

 (2015). When the Supreme Court did so, it did not

explain whether its holding extended to other claims brought by pretrial detainees.

        Eventually, this Court considered whether Kingsley applied to deliberate indifference

claims. See Brawner v. Scott County, 

 (6th Cir. 2021). In doing so, we concluded that


                                                       -5-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


Kingsley required us to modify—but not eliminate—the subjective prong for these claims. 

. That is, we decided that Kingsley required plaintiffs to “prove ‘more than negligence but less

than subjective intent—something akin to reckless disregard.’” 

 (quoting Castro v. County of

Los Angeles, 

 (9th Cir. 2016)).

        But with that standard’s being anything but clear, our Court in Trozzi v. Lake County tried

to clarify what Brawner required. 

 (6th Cir. 2022). There, we determined that because

Brawner did not eliminate the subjective inquiry—but only modified it—courts still needed “to

consider the jail official’s personal knowledge when applying the deliberate indifference prong.”

. Trozzi therefore held that a plaintiff must satisfy three elements to prevail on a

deliberate indifference claim: (1) the plaintiff had an objectively serious medical need; (2) a

reasonable officer would have understood that the plaintiff’s medical needs, if untreated, presented

an excessive risk of harm; and (3) the prison official knew that his failure to respond would pose

a serious risk to the plaintiff, yet he ignored that risk. 

.

        One year later, however, this Court refused to follow Trozzi, asserting that its three-part test

could not be reconciled with Brawner. See Helphenstine v. Lewis County, 

(6th Cir. 2023). That was because, according to Helphenstine, Brawner had foreclosed any inquiry

into an officer’s subjective understanding. 

. So Helphenstine settled instead on a test

that, at bottom, requires plaintiffs to prove that each defendant acted “recklessly in the face of an

unjustifiably high risk of harm that is . . . so obvious that it should be known.’” 

 at 317 (quoting

Brawner, 

).

        But then, to make matters more complicated, this Court recently held that Brawner does

not apply to actions taken before it was decided. Lawler v. Hardeman County, 

, 927-

28 (6th Cir. 2024); see also Beck v. Hamblen County, 

 (6th Cir. 2020)


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No. 23-1937, Hulon v. City of Lansing, Mich., et al.


(recognizing pre-Brawner that the circuit split on the issue could not clearly establish an objective-

only inquiry for pretrial deliberate indifference claims). In reaching that conclusion, we explained

that Brawner could not apply any earlier because its new reckless-disregard standard had not yet

been “clearly established.” Lawler, 

. That holding, however, appears to conflict

with Helphenstine, which applied the new reckless disregard standard to a pre-Brawner deliberate

indifference claim. 

. In other words, Helphenstine used the new standard

to deny qualified immunity after it framed the clearly established right as the “right to be free from

deliberate indifference,” 

, while Lawler—much like Trozzi before it—used the old

standard to grant qualified immunity after it focused on whether the contours of the right to be free

from deliberate indifference had been clearly established, 

.

        We need not reconcile these decisions in this interlocutory appeal because the practical

result is the same either way: qualified immunity must be denied in this case because a genuine

dispute of material fact remains. Under the version of the facts most favorable to Hulon, there was

a delay of several minutes between when the officers became subjectively aware of the risk of

asphyxiation and when they did anything to alleviate that risk. And even under the Farmer

standard that Lawler would apply, those facts constitute deliberate indifference, as clearly

established by Hopper, 

, and Lanman v. Hinson, 

 (6th

Cir. 2008). Or put another way, regardless of which standard applies to Hulon’s claims, the

outcome depends on disputed facts that must be resolved by the fact finder. For that reason, we

cannot disturb the district court’s denial of qualified immunity on Hulon’s deliberate indifference

claim, and so we decline to resolve this apparent conflict in the abstract. That said, the officers

have presented an important legal issue that the district court should consider on remand.




                                                       -7-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


        These fact disputes identified above also prevent us from ruling for the officers in their

claim that governmental immunity shields them from suit on Hulon’s state-law claims. Kindl v.

City of Berkley, 

 (6th Cir. 2015); see also Shumate v. City of Adrian, 

 (6th Cir. 2022); Oliver v. Smith, 

 (Mich. Ct. App. 2010).

                                                   IV.

        Because the officers challenge the district court’s finding that a fact dispute exists, we lack

jurisdiction to hear that portion of this interlocutory appeal. And because the officers cannot

succeed on their assertion of qualified or governmental immunity under the version of the facts

most favorable to Hulon, we AFFIRM the district court’s denial of summary judgment.




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No. 23-1937, Hulon v. City of Lansing, Mich., et al.


        CHAD A. READLER, Circuit Judge, concurring. I share the majority opinion’s

puzzlement over the state of our circuit’s deliberate indifference law. And I join its thoughtful

criticisms of the inconsistencies in that case law, which begin with the altered deliberate

indifference standard announced in Brawner v. Scott County, 

 (6th Cir. 2021). Maj.

Op. at 5–7. Brawner was misguided as an original matter. 14 F.4th at 601–11 (Readler, J.,

concurring in part and dissenting in part). But even setting that objection aside, all should agree

that the standard articulated there was “anything but clear.” Maj. Op. at 6. So the ensuing decision

in Trozzi v. Lake County, 

 (6th Cir. 2022), “tried to clarify” it. Maj. Op. at 6. In the

end, Trozzi was consistent with Brawner. And so it remains the law of the circuit, subsequent

inconsistent panel opinions notwithstanding. See Stewart v. Trierweiler, 

 (6th

Cir. 2017).

        As others have observed, Brawner’s wake left unanswered questions over the contours of

our deliberate indifference standard for pretrial detainees. See, e.g., Hyman v. Lewis, 

 (6th Cir. 2022) (“Brawner is far from clear[.]”). When that happens, future panels are

left to provide answers. Trozzi honored that task, articulating Brawner’s holding in a judicially

administrable three-part test. Trozzi, 29 F.4th at 757–58. And it did so after engaging in a detailed

exploration of Brawner, the opinion that inspired Brawner, see Kingsley v. Hendrickson, 

 (2015), our Court’s subsequent precedents, and other background principles. In the end,

Trozzi’s analysis of the issue spanned eight double-columned pages of the Federal Reporter. 29

F.4th at 751–58. There, the unanimous Trozzi panel faithfully advanced Brawner’s holding, while

adhering to the understanding that a substantive due process claim cannot be grounded in a

standard of culpability lower than a conscious disregard to the plaintiff’s safety. See 

 at 757–

58; see also Kingsley, 

; County of Sacramento v. Lewis, 

, 848–49


                                                       -9-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


(1998).     Trozzi’s “interpretation of Brawner was not only possible but indeed necessary.”

Helphenstine v. Lewis County (Helphenstine II), 

 (Readler, J., statement

respecting denial of rehearing en banc). Our en banc court, it bears noting, was content to leave

Trozzi’s holding in place, implicitly rejecting any notion that it created an intra-circuit conflict

with Brawner. See Trozzi v. Lake County, No. 21-3685, 

, at *1 (6th Cir. July

12, 2022) (order) (denying petition for rehearing en banc).

          Yet a subsequent panel decision seemingly sought to achieve what the en banc court could

not. Our decision in Helphenstine v. Lewis County purported to invalidate Trozzi. See 

, 316–17 (6th Cir. 2023) (“We hold that [Trozzi’s] framing of the elements is irreconcilable

with Brawner. . . .     Because Brawner was decided before Trozzi, Brawner controls.”).           To

Helphenstine’s mind, Brawner itself spawned no questions, but only answers.

          At the outset, it bears asking how Helphenstine had the power to purport to nullify Trozzi.

Traditionally, our Court applies the prior panel rule when “[b]oth rulings cannot be right,” Stewart,

, because the second case reaches a holding that is “[o]pposite to,” “contrary to,”

or “in conflict with” the first, Davenport v. MacLaren, 

 (6th Cir. 2020) (Griffin,

J., dissenting from denial of rehearing en banc). Most often, this occurs when two lines of

precedent arise oblivious of each other and eventually butt heads. See United States v. Abboud,

 (6th Cir. 2006); United States v. Miller, 

 (6th Cir. 1998). In

such cases, the rule from the first-decided case stands. Abboud, 

. This command

sensibly “promotes consistency and reliability” in our law, Rutherford v. Columbia Gas, 

 (6th Cir. 2009) (Clay, J., concurring in part and dissenting in part), by establishing a

default rule when two lines of precedent cannot both be right—the eldest controls.




                                                   -10-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


        But this practice does not limit a panel’s constitutional and statutory authority to interpret

prior case law in deciding a future case. Cf. 

(b); McMellon v. United States, 

, 355–56 (4th Cir. 2004) (en banc) (Niemeyer, J., concurring in part and dissenting in

part). After all, we interpret our precedents in every case we decide. If a panel could invoke the

prior panel rule to avoid an earlier holding any time it believed a prior decision incorrectly

interpreted a prior case, nothing would remain of horizontal stare decisis. That is likely why

Congress implemented a mechanism for our Court to revisit purportedly incorrect panel

interpretations of precedent in the form of en banc review. 

(c); see also Rutherford,

 (“[The] availability of [en banc] review functions as a safety valve that allows for

the vindication of the interests of accuracy and justice.”); McMellon, 

. What is

more, our case law on the prior panel rule explicitly accounts for a subsequent panel’s ability to

interpret precedent. See, e.g., Miller, 

 (refusing to apply the prior panel rule in part

because the earlier case “has been limited by subsequent decisions”); In re Omnicare, Inc. Sec.

Litig., 

 (6th Cir. 2014) (noting that a subsequent case’s “qualifi[cation]” of

“overly broad language” and “clarification of the standard” from a previous case do not violate the

prior panel rule). Judged by these benchmarks, Trozzi’s interpretation and clarification of Brawner

presented no occasion for Helphenstine to deploy the prior panel rule.

        But even if Helphenstine properly employed this practice, it is admittedly rare for a panel

of our Court to purport to nullify an earlier precedent. Before taking that unusual step, one would

expect the later decision to engage in a robust analysis of the earlier case. Yet Helphenstine at best

superficially addressed whether Trozzi could be squared with Brawner. After describing Trozzi’s

holding, Helphenstine dedicated just three paragraphs to reconciling the purportedly conflicting

earlier decisions. 60 F.4th at 316–17. The first paragraph exclaimed “that [Trozzi’s] framing of


                                                   -11-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


the elements is irreconcilable with Brawner.” Id. at 316. Yet instead of explaining why, the

opinion merely noted the varying interpretations of Kingsley among the different circuits—a

correct observation, but one irrelevant to determining whether Brawner and Trozzi can be squared

with each other. Id.

        The second paragraph fared no better. “Whatever the merits of these approaches to

Kingsley,” Helphenstine announced, “we do not think that Brawner leaves the question open.” Id.

Helphenstine’s ensuing critique of Trozzi fell flat. True, as the opinion noted, “Brawner held that

Kingsley required us to lower the subjective component from actual knowledge to recklessness.”

Id. Trozzi acknowledged and accounted for this “lower[ing],” however, by incorporating civil

recklessness into its second element. See 29 F.4th at 757–58; see also Helphenstine II, 

. Helphenstine next proclaimed that “several panels of our court” have adopted Helphenstine’s

approach. Those “several” panels were in fact just two. And neither supports Helphenstine. The

first, in line with Trozzi (and over the objections of a dissenting opinion), expressly rejected a

broad reading of Brawner that would have upended all deliberate indifference law and instead

continued to focus on a defendant’s subjective knowledge. See Britt v. Hamilton County, No. 21-

3424, 

, at *5–6 (6th Cir. Feb. 10, 2022). The other decision is Greene v.

Crawford County, 

 (6th Cir. 2022). Helphenstine found persuasive the following

statement there: “A jury could find that Greene’s need for immediate medical attention was ‘known

or so obvious that it should [have been] known . . . .’” Greene, 22 F.4th at 610 (alteration in

original) (quoting Brawner, 

). But this language merely parroted the civil-

recklessness language from Brawner that Trozzi incorporated into its second element. Trozzi, 

. And Trozzi explicitly accounted for Greene, dedicating almost two full pages of its




                                                   -12-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


analysis to reflecting on the ways in which Greene implemented Brawner—and how both pointed

towards Trozzi’s three-part test. 

 at 756–57.

        With little more, Helphenstine’s concluding paragraph broadly declared that “Brawner

controls.”    

.       That is an unspectacular reality, one that Trozzi likewise

acknowledged. See 

 (“[W]e are bound by Brawner’s views . . . .”). Helphenstine

then anointed as the controlling test for deliberate indifference to pretrial detainees a contextless

quote from Brawner, the upshot of which instructs that an officer faces liability if he merely acts

“recklessly in the face of an unjustifiably high risk of harm that is . . . so obvious that it should be

known,” 

 (cleaned up) (quoting Brawner, 

), or, as the opinion later

summarized more succinctly, that “[r]eckless inaction in the face of [an] obvious need is enough

to proceed to a jury under Brawner,” id. at 320. By stripping Brawner’s language of any context—

the very context Trozzi’s framework applied—Helphenstine gutted any notion of requiring

“deliberate indifference” for these claims going forward. A recent article lauding Helphenstine

unwittingly revealed this reality: “[Helphenstine’s author] made it clear he favored the ‘should

have known’ standard, not the one requiring deliberate indifference.” Ryan Kost, After Jail Deaths

and No Justice, This Kentucky Lawyer Tried to Make a Difference, The Marshall Project (Dec. 4,

2024, 6:00 AM), https://perma.cc/JH9B-CDWT.

        In reality, Helphenstine’s conclusion is the one that cannot be squared with Brawner,

which, recall, commanded that the “action (or lack of action)” must be “intentional” and promised

that “[m]ere negligence” would never suffice.             Brawner, 

; see also

Helphenstine II, 

 (“A year and a half into the experience, Brawner’s promise

. . . appears to be an empty one.”). Nor can the ensuing cases that have blindly accepted

Helphenstine without further analysis. See Howell v. NaphCare, Inc., 

, 311 n.3 (6th


                                                   -13-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


Cir. 2023); Mercer v. Athens County, 

 (6th Cir. 2023); Grote v. Kenton County,

, 405–06 (6th Cir. 2023).

        All things considered, Helphenstine’s inconsistencies with Trozzi (and, indeed, with

Brawner itself) render it non-binding. For the author of Trozzi, this saga has been understandably

frustrating. Future panels can take up Helphenstine’s attempted overruling of Trozzi. The district

courts have already begun to do so, with foreseeable confusion. See O’Neill v. Adams Cnty. Jail,

No. 23-CV-200, 

, at *11 (S.D. Ohio Aug. 12, 2024) (“Absent clarification, the

safest course is perhaps to analyze such claims under both standards, with fingers crossed that they

agree.”). For today’s purposes, however, this is all academic. Even under the pre-Brawner

standard, the officers cannot prevail on their assertion of qualified immunity.




                                                   -14-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


        JANE B. STRANCH, Circuit Judge, dissenting. This is a straightforward interlocutory

appeal that turns entirely on disputed facts. Our precedent provides a straightforward resolution—

dismissal for lack of jurisdiction. But the majority, in a confusing deviation, resolves to hear the

case while readily acknowledging that the appeal boils down to disputes of fact. Equally troubling

is the majority’s use of this case to cast doubt on our governing and settled caselaw by offering

unwarranted commentary on an issue that neither party raised. The concurrence goes even further

and explicitly seeks to relitigate that governing caselaw. I therefore respectfully dissent.

        As the majority repeatedly acknowledges, the only way the defendants can succeed in

obtaining qualified immunity here is if we resolve certain factual disputes in their favor. See, e.g.,

Maj. Op. at 4 (recognizing that “the officers’ argument depends on their preferred version of the

facts” and “to agree with the officers, we would first need to resolve in their favor several of the

existing fact disputes”); 

 (“[Q]ualified immunity must be denied in this case because a

genuine dispute of material fact remains.”). Our precedent makes clear that when a defendant’s

“argument[s] rel[y] on disagreements with the district court’s weighing of facts and factual

inferences—and not questions of law—we have no jurisdiction and must dismiss the appeal.”

Barry v. O’Grady, 

 (6th Cir. 2018). This holds true even where the defendants

make ostensibly legal arguments. As long as those legal arguments “boil[] down to disputing the

facts underlying [the plaintiff’s] claims,” we lack jurisdiction to hear the appeal. Cockrun v.

Berrien County, 

, 421-22 (6th Cir. 2024).

        That is plainly the case here. Each argument raised by the defendants turns on disputes of

material fact. The majority suggests that dismissal is nonetheless improper because “the officers

attempt to raise two legal issues”—namely, whether they violated clearly established law on

excessive force and deliberate indifference. Maj. Op. at 4–5. It is true that we may consider


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No. 23-1937, Hulon v. City of Lansing, Mich., et al.


“purely legal issues” in an interlocutory appeal over the denial of qualified immunity. Cockrun,

101 F.4th at 419-22. But, as the majority itself recognizes, neither of these issues is “purely legal.”

Maj. Op at 4–5, 7. Resolution of either issue requires us to veer into the factual realm. See id.

Our precedent is clear that, in such circumstances, dismissal for lack of jurisdiction is the proper

disposition. See Cockrun, 101 F.4th at 422; see also Berryman v. Rieger, 

(6th Cir. 1998) (holding that “our jurisdiction ends” when the “defendant’s argument drifts from

the purely legal into the factual realm and begins contesting what really happened”). Whether an

interlocutory challenge to a qualified immunity denial turns on law or fact can sometimes be a

tricky question and a close call. See Heeter v. Bowers, 

 (6th Cir. 2024). But this

case is not a close call. As conceded, the “outcome depends on disputed facts that must be resolved

by the fact finder.” Maj. Op. at 7.

        To be sure, we “may consider an interlocutory appeal of qualified immunity that contains

some dispute of fact in ‘two narrow circumstances.’” Ramsey v. Rivard, 

 (6th

Cir. 2024) (quoting Adams v. Blount County, 

 (6th Cir. 2020)). We may overlook

a factual disagreement if the defendant is “willing to concede the most favorable view of the facts

to the plaintiff for purposes of the appeal.” 

 (quoting Adams, 

). In exceptional

cases, we “may overrule a district court’s determination that a factual dispute exists where

evidence in the record establishes that the determination is ‘blatantly and demonstrably false.’”

Barry, 

 (quoting Austin v. Redford Twp. Police Dep’t, 

 (6th Cir.

2012)). Neither circumstance is present here. The defendants repeatedly seek to resolve factual

disputes in their favor. And as the majority correctly notes, on this record, we cannot say that the

district court’s decision regarding the dispositive facts is “blatantly and demonstrably false.” 

At bottom, the majority’s confusing approach simply runs afoul of our circuit’s precedent.


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No. 23-1937, Hulon v. City of Lansing, Mich., et al.


         I also cannot sign on to the majority’s (and concurrence’s) commentary regarding our

recent caselaw on deliberate indifference. See Maj. Op. at 5–7; see generally Concurring Op. Both

proffer a discussion of our precedent that is, by their own admission, unnecessary to resolve this

appeal. Maj. Op. at 7 (recognizing that, regardless of our post-Brawner decisions, “the practical

result” is that “qualified immunity must be denied in this case because a genuine dispute of material

fact remains”); Concurring Op. at 14 (“For today’s purposes . . . this is all academic.”). The graver

concern, however, is that their commentary effectively invites the district court to adopt a legal

test that our circuit has repeatedly rejected.

         All our writings in this case agree that this appeal turns on disputes of material fact, which

is all that is needed to dispose of it. But the majority and concurrence go further, using this case

as an opportunity to air grievances with Brawner v. Scott County, 

 (6th Cir. 2021),

and Helphenstine v. Lewis County, 

 (6th Cir. 2023). See, e.g., Maj. Op. at 6 (describing

Brawner as “anything but clear”); Concurring Op. at 9, 11–14 (deeming Brawner “misguided as

an original matter” and criticizing Helphenstine). The majority suggests, and the concurrence

explicitly asserts, that Trozzi v. Lake County, 

 (6th Cir. 2022), provides the correct

test for evaluating a pretrial detainee’s deliberate indifference claim pursuant to Brawner.1 Maj.

Op. at 6–7; Concurring Op. at 9–10, 14. This commentary is unsolicited—neither party argued on

appeal that Trozzi, and not Helphenstine, should apply in assessing whether the defendants were

deliberately indifferent. And even if they had, that issue would have been immaterial to the

resolution of this appeal.



1
  This threshold inquiry into whether a pretrial detainee has raised a viable deliberate indifference claim is distinct
from the analysis of whether a defendant violated clearly established law for purposes of qualified immunity. When
assessing the substance of a pretrial detainee’s claim, we apply Brawner regardless of when the incident occurred.
But, to resolve whether a defendant violated clearly established law, we apply the Brawner standard only to incidents
that occurred after its issuance in 2021. Lawler v. Hardeman County, 

 (6th Cir. 2024).

                                                         -17-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


         The majority and concurrence essentially urge district courts to embrace a legal test that is

not good law in this circuit. There is no dispute that, prior to Brawner, we required pretrial

detainees to prove not only that the detainee had a sufficiently serious medical need, but also that

the official subjectively “kn[ew] of and disregard[ed] an excessive risk to [the detainee’s] health

or safety.” Winkler v. Madison County, 

 (6th Cir. 2018) (quoting Farmer v.

Brennan, 

 (1994)). In 2021, Brawner “modifi[ed] . . . the subjective prong of

the deliberate-indifference test for pretrial detainees” from actual knowledge to “reckless

disregard.” Brawner, 

. One year later, despite Brawner’s modification of the

subjective prong, the Trozzi panel held that courts were still required to consider “an official’s

actual knowledge of the relevant circumstances.” Trozzi, 

 (requiring the

plaintiff to prove that “the prison official knew that his failure to respond would pose a serious risk

to the pretrial detainee and ignored that risk”).

         Helphenstine subsequently rejected the deliberate indifference test articulated in Trozzi as

“irreconcilable with Brawner.” Helphenstine, 

. As Helphenstine recognized,

Trozzi’s attempt to reimpose an actual-knowledge requirement directly contradicted Brawner,

which had framed the subjective inquiry as follows:

         What then is required to establish deliberate indifference in [the pretrial detainee]
         context? Mere negligence is insufficient. A defendant must have not only acted
         deliberately (not accidentally), but also recklessly “in the face of an unjustifiably
         high risk of harm that is either known or so obvious that it should be known.”

Brawner, 

 (emphasis added) (quoting Farmer, 

).2 Instead of

applying Brawner, Trozzi sought to substantively alter the controlling legal standard that Brawner


2
  The concurrence attempts to disregard this clearcut language by labeling it as nothing more than “a contextless quote
from Brawner.” Concurring Op. at 13. But this language was the Brawner court’s direct answer to the pivotal
question, “What . . . is required to establish deliberate indifference in [the pretrial detainee] context?” Brawner,

. Helphenstine correctly recognized what is obvious from the case’s plain language—in answering the
question, Brawner was articulating the governing legal standard.

                                                         -18-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


set forth. Faced with a clear conflict between Brawner and Trozzi, the Helphenstine court hewed

to the well-established principle that when two cases “look in opposite directions,” we must “look

to the oldest decision on point.” Stewart v. Trierweiler, 

 (6th Cir. 2017). Finding

the matter settled, Helphenstine applied Brawner and assessed whether the defendants acted

recklessly, without requiring a showing of actual knowledge. Helphenstine, 

.

        Since Helphenstine, our circuit’s view of the matter has remained unchanged. We have

repeatedly and consistently adhered to Helphenstine’s rejection of Trozzi. Most recently, in Lawler

v. Hardeman County, we reaffirmed that Helphenstine—not Trozzi—provides the correct legal

framework for analyzing a pretrial detainee’s deliberate indifference claim under Brawner.

 (6th Cir. 2024) (noting that, “[a]fter initial disagreement over what Brawner

required, we settled on” the test articulated in Helphenstine, which “reduced [the] subjective

element from ‘actual knowledge to recklessness’” (quoting Helphenstine, 

)).

Lawler adhered to an ever-growing list of published cases in which our court agreed with

Helphenstine and expressly rejected Trozzi’s attempt to alter Brawner. See, e.g., Howell v.

NaphCare, Inc., 

, 311 n.3 (6th Cir. 2023) (agreeing with Helphenstine and rejecting

Trozzi because its deliberate indifference test was “nearly identical in substance” to the pre-

Brawner standard); Mercer v. Athens County, 

 (6th Cir. 2023) (rejecting Trozzi

as incompatible with Brawner); Grote v. Kenton County, 

, 405-06 (6th Cir. 2023)

(holding that, “[c]ontrary to Brawner, Trozzi, with its focus on what an official actually knew and

whether the official ignored known risks, attempted to resurrect the pre-Brawner . . . treatment of

pretrial detainees’ deliberate-indifference claims,” resulting in its “rightful[] reject[ion]”). Indeed,

since Helphenstine, every published case to address the issue has followed Helphenstine’s




                                                   -19-
No. 23-1937, Hulon v. City of Lansing, Mich., et al.


rejection of Trozzi.3 Given this overwhelming authority, I agree with Lawler that our law on this

matter is “settled.” 

.

         Because I believe the proper disposition of this appeal was dismissal for lack of

jurisdiction—without relitigating our now-settled caselaw—I respectfully dissent.




3
  My concurring colleague dismisses this line of cases on the ground that their acceptance of Helphenstine’s Brawner
test is, in his view, overly cursory. See Concurring Op. at 13–14 (accusing our post-Helphenstine caselaw of “blindly
accept[ing] Helphenstine without further analysis”). But the fact remains that, since Helphenstine, each and every
one of our published cases to address this issue has agreed with Helphenstine and rejected Trozzi.


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