Patricia Nelson v. City of Battle Creek, Mich. ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0122n.06
No. 18-1282
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PATRICIA NELSON, )
FILED
Feb 26, 2020
)
Plaintiff-Appellee, DEBORAH S. HUNT, Clerk
)
)
v.
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CITY OF BATTLE CREEK, MICHIGAN,
) COURT FOR THE WESTERN
Defendant, ) DISTRICT OF MICHIGAN
)
ESTEBAN RIVERA, )
Defendant-Appellant. )
BEFORE: MOORE, GIBBONS, and COOK, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. In November 2013, City of Battle Creek
police officer Esteban Rivera responded to reports of an armed man outside the Drive-Thru Party
Store. In the parking lot, Rivera encountered a teenage boy, N.K., who fit the report’s description.
Rivera got out of his patrol car and shouted, “let me see your hands.” Rivera drew his firearm. In
a span of two seconds, three undisputed things happened: (1) N.K. pulled a black BB handgun—
altered to resemble a real handgun—out of his waistband; (2) N.K. tossed it aside and raised his
hands; and (3) Rivera shot N.K. in the shoulder.
N.K., by and through his mother Patricia Nelson, sued Rivera under § 1983, claiming that
Rivera violated his Fourth Amendment rights by using excessive force. In defense, Rivera raised
qualified immunity. The district court denied qualified immunity, finding that factual disputes
Case No. 18-1282, Nelson v. City of Battle Creek, et al.
precluded summary judgment. Conceding the facts in a light most favorable to N.K., Rivera
appealed. We reverse.
I.
On November 16, 2013, N.K. and his friends were playing “cops and robbers” around his
neighborhood. N.K. carried around his Airsoft BB gun to make their game feel “more real.” DE
60-3, N.K. Dep., Page ID 226. This toy handgun was all black and missing its blaze-orange barrel
tip which typically characterizes these types of toy guns. N.K. and his friends took a break from
their cops-and-robbers game in the parking lot of the Drive-Thru Party Store. In front of the party
store, N.K. crouched down behind a sign, with the BB gun tucked into his waistband.
Meanwhile, a Battle Creek dispatcher reported that a white male was carrying a black
handgun near the party store. At 11:58 a.m., Rivera responded to the dispatch call and drove to
the party store. As Rivera approached in his patrol car, N.K. emerged from behind the sign and
walked toward his friends by the storefront. Rivera stopped in front of N.K. and his friends,
immediately exited his patrol car, and shouted “let me see your hands, let me see your hands.” DE
60-10, Dash Cam, at 02:13–02:15.
Several things happened within the next two seconds. N.K. pulled the gun out of his
waistband and tossed it away before raising his hands. While N.K. was doing this, Rivera fired
his weapon at N.K. The dash cam video does not depict Rivera in-frame, nor does it completely
show N.K. It does, however, capture the audio and timing of this exchange. While Rivera utters
his second “let me see your hands” order, one of N.K.’s friends moves away from the patrol car.
N.K. becomes partially visible. N.K.’s right hand appears near his right shoulder. Rivera fires his
weapon. N.K. then turns slightly and crouches down, and his left hand appears near his left ear.
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While both parties agree that is what occurred within that two-second time span, they
disagree about the exact sequence of each independent act. N.K.’s view of the facts is that he
dropped the gun before Rivera shot him. In Rivera’s view, he “made the decision” to shoot while
N.K. was still gripping and raising the gun. DE 60-1, Rivera Dep., Page ID 220. According to
Rivera, it was only after he decided to shoot and started pulling the trigger that he realized N.K.
was tossing the gun away. Importantly, for purposes of this appeal, Rivera has conceded that “at
the moment the bullet actually hit N.K., N.K. had thrown away the gun and had begun to raise his
hands ‘sort of halfway or whatever.’” CA6 R. 27, Appellant Reply Br., at 7.
Rivera’s single shot struck N.K. in his shoulder. N.K. then ran away as Rivera shouted
“Get on the ground. Get on the ground.” DE 60-10, Dash Cam, at 02:16–02:18. Rivera stayed in
the parking lot and reported the incident over his radio. Officers found N.K. nearby and took him
to the hospital for treatment.
In May 2016, Nelson sued Rivera and the City of Battle Creek for damages under 42 U.S.C.
§ 1983. Nelson alleged that Rivera violated N.K.’s Fourth Amendment right to be free from
excessive force. Nelson later dismissed the claims against the City. Rivera raised a qualified
immunity defense and moved for summary judgment. Finding that the “facts in this case rest
somewhere between [Rivera]’s version and [N.K.]’s version,” DE 76, Op., Page ID 630, the district
court denied Rivera’s motion. The district court specifically noted three major factual disputes
that precluded summary judgment: (1) whether N.K. was “brandishing a gun” or “unarmed”;
(2) whether N.K. complied with Rivera’s orders; and (3) the timing of the shooting relative to
N.K.’s compliance and handling of the gun. DE 76, Op., Page ID 630–33. Rivera appealed.
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II.
We review de novo a district court’s denial of a summary judgment motion based on
qualified immunity. Sample v. Bailey, 409 F.3d 689, 695 (6th Cir. 2005). Summary judgment is
appropriate where there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (citing Fed.
R. Civ. P. 56(c)). We must “view the facts and draw reasonable inferences in the light most
favorable” to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Indeed, for
purposes of appeal, “a defendant seeking qualified immunity must be willing to concede to the
facts as alleged by the plaintiff and discuss only the legal issues raised by the case.” Sheets v.
Mullins, 287 F.3d 581, 585 (6th Cir. 2002) (citing Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.
1999)).1 At the same time, however, we must consider “only the facts that were knowable to the
defendant officer[]” when a case concerns the defense of qualified immunity. White v. Pauly, 137
S. Ct. 548, 550 (2017).
When there is a video record of the incident, we take the facts as they appear in the video,
which may not necessarily be in the light most favorable to the nonmoving party. Scott, 550 U.S.
at 378–80; Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017). Any remaining gaps or ambiguities
in the facts as recorded in the video, however, are to be viewed in the light most favorable to the
nonmoving party.” Latits, 878 F.3d at 544.
III.
“Police officers are immune from civil liability, unless, in the course of performing their
discretionary functions, they violate the plaintiff’s clearly established constitutional rights.”
1
While the parties debated below the exact factual circumstances of those two seconds surrounding Rivera’s
shooting N.K., Rivera has conceded the facts in N.K.’s favor—those not contradicted by the dash cam video—for
purposes of this appeal.
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Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (citing Messerschmidt v. Millender,
565 U.S. 535, 546 (2012)). Qualified immunity allows police officers “breathing room to make
reasonable but mistaken judgments and protects all but the plainly incompetent or those who
knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam) (citations and
internal quotation marks omitted). Our court has long recognized that the purpose of this doctrine
is to protect officers “from undue interference with their duties and from potentially disabling
threats of liability.” Bailey, 409 F.3d at 695 (quoting Elder v. Holloway, 510 U.S. 510, 514
(1994)). Once the defending officer raises qualified immunity, the plaintiff bears the burden of
showing that the officer is not entitled to qualified immunity. Burgess v. Fischer, 735 F.3d 462,
472 (6th Cir. 2013); Coble v. City of White House, 634 F.3d 865, 870–71 (6th Cir. 2011).
There need not be “a case directly on point” for the law to be clearly established, “but
existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011) (emphasis added). To violate a plaintiff’s clearly
established right, an officer’s conduct must be such that, at the time of the allegedly-violative
conduct, the contours of that right were sufficiently defined that every “reasonable official would
have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). Whether an asserted constitutional right was “clearly established” at such time
“presents a question of law,” not fact. Elder, 510 U.S. at 516 (quoting Mitchell, 472 U.S. at 528).
We follow a two-prong analysis to determine whether qualified immunity applies in a given
case: (1) whether the facts, viewed in the light most favorable to the plaintiff, show that the
officer’s conduct violated a constitutional right; and (2) whether that right was clearly established
at the time of the challenged conduct. Burgess, 735 F.3d at 472 (citing Campbell v. City of
Springboro, 700 F.3d 779, 786 (6th Cir. 2012)). See also Saucier v. Katz, 533 U.S. 194, 201
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(2001). The order in which we address these questions is a matter of discretion. Pearson v.
Callahan, 555 U.S. 223, 226 (2009).
In cases involving the use of excessive force, the qualified immunity question “should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor,
490 U.S. 386, 395 (1989); Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). This
court has said that an officer’s seizure by use of deadly force is permissible “only in rare instances.”
Bailey, 409 F.3d at 697. Qualified immunity should nonetheless apply “if officers of reasonable
competence could disagree on the issue.” Mullins, 805 F.3d at 765 (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).
The district court denied Rivera’s motion for summary judgment because it found the legal
question—whether Rivera violated N.K.’s clearly established constitutional rights—turns on
disputed facts and depends on which view of the facts the jury might accept. The material facts,
however, can be gleaned from the parties’ joint statement and the dash cam video. N.K.’s own
deposition testimony fills any gaps, and Rivera has conceded to N.K.’s version of the facts to the
extent they do not contradict those captured by video. The “key disputed issues,” according to the
district court, are “N.K.’s compliance vis-á-vis the timing of the shooting” and what movement
N.K. made with his hands when Rivera ordered him to show his hands. DE 76, Op., Page ID 634.
But these are not genuinely disputed. N.K. acknowledged that, when given an order to raise his
hands, he pulled the BB gun out of his pants and then raised his hands. Rivera, in turn, has
conceded that, by the time he shot N.K., N.K. had released the gun and begun raising his hands.
As explained below, the law was not so clearly established that every reasonable officer
would know that shooting N.K. under these specific circumstances would constitute an excessive
and unconstitutional use of force. Qualified immunity, therefore, applies.
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To determine whether a constitutional right is clearly established, we “first look to
decisions of the Supreme Court, then decisions of the Sixth Circuit . . . , and finally to decisions in
other circuits.” Landis v. Baker, 297 F. App’x 453, 462 (6th Cir. 2008) (citing Chappel v.
Montgomery Cnty. Fire Protection Dist. No. 1, 131 F.3d 564, 579 (6th Cir. 1997)).
We have previously held that a suspect “ha[s] a right not to be shot unless he [is] perceived
to pose a threat to the pursuing officers or to others during flight,” and that such rule “has been
clearly established in this circuit” for decades. Bailey, 409 F.3d at 699 (quoting Robinson v. Bibb,
840 F.2d 349, 351 (6th Cir. 1988)). See also Mullins, 805 F.3d at 765 (noting that it is “axiomatic”
that suspects have a clearly established right not to be shot absent a reasonable belief that they
pose a threat of serious physical harm). In Bailey, we explained the “Robinson principle” as
follows:
[R]egardless of whether the incident took place at day or night, in a building or
outside, whether the suspect is fleeing or found, armed or unarmed, intoxicated or
sober, mentally unbalanced or sane, it is clearly established that a reasonable police
officer may not shoot the suspect unless the suspect poses a perceived threat of
serious physical harm to the officer or others.
Bailey, 409 F.3d at 699.
Our Robinson rule is effectively a restatement of the rules from Graham and Garner. See
Graham, 490 U.S. at 388 (establishing the general proposition that use of force contravenes the
Fourth Amendment if it is excessive under objective standards of reasonableness); Tennessee v.
Garner, 471 U.S. 1, 11 (1985) (holding that deadly force is only constitutionally permissible if
“the officer has probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others”).
But clearly established law must be defined with more specificity. “Use of excessive force
is an area of the law ‘in which the result depends very much on the facts of each case,’ and thus
police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the
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specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna,
136 S. Ct. 305, 309 (2015)); see also White, 137 S. Ct. at 552 (“The [lower court] misunderstood
the ‘clearly established’ analysis: it failed to identify a case where an officer acting under similar
circumstances as [the officer] was held to have violated the Fourth Amendment.”). Therefore,
outside of “an obvious case,” the general principles of Graham and Garner—and thus the Sixth
Circuit’s Robinson rule—cannot clearly establish the law applicable to various sets of facts,
including the facts in this case. See Brosseau, 543 U.S. at 199; see also Mullenix, 136 S. Ct. at
308–09 (noting that defining clearly established law in the Fourth Amendment context requires a
high “degree of specificity”); Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (instructing courts
not to define clearly established law at a “high level of generality” because doing so ignores the
crucial inquiry of whether the officer acted reasonably under the circumstances faced); Brosseau
v. Haugen, 543 U.S. 194, 198–99 (2004) (noting that Garner and Graham are cast at a “high level
of generality” and will not suffice outside of an “obvious case”).
We must therefore inquire whether, as of November 16, 2013, it was clearly established
that it was unconstitutional for an officer to shoot when, over the span of two seconds, someone
pulls what appears to be a gun, drops it, and raises his hands after being given a warning. We hold
it was not. Rivera reasonably perceived a threat of serious physical harm when he saw N.K. reach
for and grab what looked like a real gun. It was not objectively unreasonable for Rivera to decide
to shoot N.K. as he saw N.K. grip and raise his gun, even if the bullet ultimately struck N.K. after
he had dropped the gun.
Neither the district court nor Nelson identified any case law where an officer under
sufficiently similar circumstances was held to have violated the Fourth Amendment. The district
court instead relied on what it perceived as “sufficient factual disputes” as to the reasonableness
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of Rivera’s conduct. DE 76, Op., Page ID 634. The dissent similarly says the evidence is
“equivocal” as to whether Rivera shot N.K. while N.K threw away his gun or after doing so.
Dissent at 2. To the extent any facts are disputed, however, these disputes do not deprive Rivera
of qualified immunity. The dissent highlights testimony from N.K. and his friend suggesting that
Rivera shot N.K. after he had already thrown away his gun. But these observations about when
N.K. was struck—which Rivera concedes was after N.K. threw his gun away—do not create a
dispute of fact as to when Rivera decided to shoot. Rivera claims he decided to shoot when he
saw N.K. grab and raise the gun. Nelson fails to dispute this fact because N.K. and other witnesses
cannot speak to Rivera’s decision-making or his perception of harm in the two-second span the
events unfolded
Even assuming that N.K. dropped the gun—and was raising his hands—before Rivera shot
him, this does not alter our analysis. “What matters is the reasonableness of the officers’ belief,”
and “[t]he fact that [N.K.] was actually unarmed when he was shot is irrelevant to the
reasonableness inquiry in this case.” Mullins, 805 F.3d at 767. Although “hindsight reveals that
[N.K.] was no longer a threat when he was shot, we do not think it is prudent to deny police officers
qualified immunity in situations where they are faced with a threat of severe physical injury or
death and must make split-second decisions.” Id. at 768. Indeed, the Supreme Court and Sixth
Circuit have repeatedly said that an officer’s employment of deadly force in split-second decisions
when faced with a threat of serious injury or death should not be questioned. See Kisela, 138 S.
Ct. at 1153 (holding that an officer’s use of deadly force did not violate clearly established law
when the suspect was wielding a kitchen knife and the officer “had mere seconds to assess the
potential danger”); Graham, 490 U.S. at 396–97 (“The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments—in
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circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.”); Simmonds v. Genesee Cnty., 682 F.3d 438, 445 (6th Cir.
2012) (“This objective reasonableness analysis ‘contains a built-in measure of deference to the
officer's on-the-spot judgment about the level of force necessary in light of the circumstances . . .
.’”); Williams v. City of Grosse Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007) (“[A]n officer may
use deadly force whenever he or she, in the face of a rapidly evolving situation, has probable cause
to believe that a suspect poses a serious physical threat either to the police or members of the
public.”).
Nelson argues that “at the time of the subject shooting it was clearly established that [N.K.]
had the right to be free from deadly force.” CA6 R. 26, Appellee Br., at 23 (citing Bailey, 409 F.3d
at 697). As explained above, however, this generalized restatement of the principles of Graham
and Garner does not suffice to “define clearly established law.” See, e.g., Wesby, 138 S. Ct. at
590; White, 137 S. Ct. at 552; Plumhoff, 572 U.S. at 779; Brosseau, 543 U.S. at 198–99. And
Nelson’s reliance on Bailey as factually analogous is misplaced. The case in Bailey arose from an
officer’s decision to shoot an unarmed suspect hiding inside a cabinet in a building that he had
attempted to burglarize. 409 F.3d at 691–92. Law enforcement had ordered the suspect to come
out of the cabinet with his hands visible. Id. at 693–94. The suspect used one of his hands to pull
himself out of the cabinet, and an officer shot him. Id. at 692–95. First, this court held that the
officer’s conduct violated the suspect’s rights because the officer lacked probable cause to believe
that the suspect’s movement posed a threat to the officers’ safety. Id. at 697–98. Second, the panel
held that the rights violated were “clearly established,” reasoning that our previous precedents
provided the officer with adequate notice that shooting a criminal suspect is unreasonable “unless
the suspect poses a perceived threat of serious physical harm to the officer.” Id. at 699. The facts
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in the instant case are distinguishable. Unlike the suspect in Bailey who was attempting to comply
with the officer’s command to come out of the cabinet, N.K. initially pulled the gun from his
waistband after Rivera’s command to show his hands. An officer in Rivera’s shoes could
reasonably have perceived N.K. as a threat to his safety and/or to the safety of the other children
in the party store parking lot. Accordingly, Bailey’s rule against the application of force when a
suspect does not pose a threat to an officer’s safety was insufficient to put Rivera on notice of the
constitutionality of his actions when N.K. did pose a threat.
N.K.’s reliance on Sova is similarly unpersuasive. In Sova, two police officers shot a man
while standing in the doorway of his parents’ kitchen and holding two butcher knives. 142 F.3d
at 900–01. The man’s father had called 911 after seeing blood on his kitchen floor and receiving
a call from a friend concerned about the man’s mental state. Id. at 900. When police arrived, they
found the man holding two knives, breaking kitchen windows, and cutting himself. Id. at 900–01.
At one point, the officers shot and killed the man. Id. at 901. The district court in Sova granted
qualified immunity to the officers, finding as a matter of law that the officers acted reasonably. Id.
On appeal, this court reversed because the record “demonstrate[d] clearly that the two sides [did]
not agree on the facts” and the district court “overlooked contentious factual disputes concerning
the officers’ actions.” Id. at 902–03. The panel did not resolve the qualified immunity question
because the parties had “irreconcilable versions of what happened the night [the man] was killed.”
at 900. Relying on Sova, Nelson contends that we must affirm the district court because Rivera’s
“request for qualified immunity [is] based upon the hotly contested disputed facts in this case.”
CA6 R. 26, Appellee Br., at 24. According to Nelson, the parties dispute the timing of the shooting
vis-à-vis N.K.’s handling of the gun. But as explained above, the materials facts can be gleaned
from the parties’ joint statement and the dash cam video, and these are not in dispute.
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Finally, the dissent relies heavily on this court’s holding in Bletz v. Gribble that armed
individuals have a clearly established right “to be free from deadly police force while complying
with police commands to disarm.” 641 F.3d 743, 754 (6th Cir. 2011). In Bletz, we denied qualified
immunity to a police officer who shot an armed man because we found a factual dispute existed
as to whether the man began lowering his gun—in compliance the officer’s commands—before
the officer shot him. Id. at 752. But the dissent fails to account for a key difference between the
circumstances in Bletz and those here: While police in Bletz commanded the armed man to lower
his gun and the man allegedly began to do so, Rivera commanded N.K. to show his hands and
N.K. undisputedly first reached for the gun in his waistband. Only after grabbing and throwing
the gun did N.K. begin to comply with Rivera’s command to raise his hands. Bletz therefore hardly
supports the dissent’s view.
Thus, Nelson has not met her burden to demonstrate that the contours of N.K.’s right were
sufficiently defined such that “every reasonable official” in Rivera’s shoes would understand that
using deadly force would violate N.K.’s constitutional rights. See Reichle v. Howards, 566 U.S.
658, 664 (2012) (internal quotation marks and citation omitted); see also Anderson, 482 U.S. at
640. This court’s previous holdings tend to indicate the opposite. See, e.g., Boyd v. Baeppler, 215
F.3d 594 (6th Cir. 2000) (reversing the denial of qualified immunity for police officers who used
deadly force after an individual pulled a gun after they commanded him to stop); Bell v. City of
East Cleveland, 125 F.3d 855 (Table), No. 96-3801, 1997 WL 640116 (6th Cir. Oct. 14, 1997)
(upholding qualified immunity for police officer who used deadly force after a minor pulled a toy
gun following the officer’s command to stop).
The case before us is not an “obvious case” such that, under the general principles of
Garner, Graham, and Robinson, a reasonable officer would be aware that shooting N.K. violated
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his clearly established constitutional rights. See Bailey, 409 F.3d at 699 (holding that it was an
“obvious case” that a police officer may not shoot an unarmed, intoxicated, and unresponsive
suspect who moved his hand when ordered to exit the cabinet where he was hiding). General
prohibitions do not suffice as clearly established law in this case. Nor has Nelson identified a
sufficiently analogous case in which an officer was held to have violated the Fourth Amendment.
We find, then, that N.K.’s right to be free from excessive force under these circumstances was not
clearly established. Therefore, we reverse the district court’s denial of qualified immunity and
remand for the entry of summary judgment on the basis of qualified immunity.
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KAREN NELSON MOORE, Circuit Judge, dissenting. It should go without saying
that reasonable police officers do not shoot disarmed young boys with upraised hands. But because
the majority misconstrues both the factual record and our circuit precedent to condone that result
here, I must respectfully dissent. I would affirm the district court and allow this case to proceed
to trial.
As the majority recognizes, “when undertaking the qualified immunity analysis on
summary judgment” “we must consider the facts in the light most favorable to [the plaintiff] and
make all reasonable inferences in [his] favor.” Godawa v. Byrd, 798 F.3d 457, 463 (6th Cir. 2015);
accord Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). Indeed, even to bring an interlocutory
appeal like this one, the officer-defendant “must be willing to concede the most favorable view of
the facts to the plaintiff.” Jacobs v. Alam, 915 F.3d 1028, 1039 (6th Cir. 2019) (citations omitted).
Relatedly, although we must accept facts shown on video as true when “a reasonable jury could
view those facts only one way,” “[t]o the extent that facts shown [on] video[] can be interpreted in
multiple ways,” or are otherwise unclear, that video, too, must “be viewed in the light most
favorable to [the plaintiff].” Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017).
Yet, contrary to this law, the majority repeatedly accepts Rivera’s framing of the evidence
over N.K.’s. More specifically, in its recitation of the facts, the majority states that “[w]hile N.K.
was [pulling the gun out of his waistband and tossing it away], Rivera fired his weapon at N.K.”
Maj. Op. at 2 (emphasis added). Then, in its discussion of the law, the majority builds upon this
assertion, insisting that, although there may be a triable dispute as to whether N.K. had a gun in
his hand at the moment Rivera’s bullet “struck” him, that dispute does not matter because there is
(supposedly) no dispute that N.K. was still armed “when Rivera decided to shoot.” Id. at 9.
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This kind of metaphysical line drawing is confusing, for one; I struggle to see the
distinction between Rivera “deciding” to shoot N.K. and Rivera actually “shooting” N.K. But
more importantly, this framing fails to view the record in the light most favorable to N.K., as we
must at this stage. Fairly read, the parties’ deposition testimony is equivocal as to whether Rivera
shot N.K. while N.K. was throwing down his gun and raising his hands or after N.K. had taken
those two actions. Compare, e.g., R.60-1 (Rivera Dep. at 79) (Page ID #205) (“[T]he decision to
shoot was made when [N.K.] was pulling the weapon on me.”) with R.60-3 (N.K. Dep. at 231–32)
(Page ID #234-35) (“I go to put my hands up [after I dropped my gun and kicked it away] and then
he shoots.”) (emphasis added) and R.60-6 (S.C.1 Dep. at 73) (Page ID #250) (“All I remember is
seeing the cop saying put his hands up and I see in the corner of my eye [N.K.] puts his hands up
halfway and then the cop shot him.”) (emphasis added). And although we would be dutybound to
reject N.K.’s and S.C.’s testimony if clear video evidence contradicted it, the dash-cam evidence
submitted by Rivera is inconclusive. Accord Maj. Op. at 2 (“The dash cam video does not depict
Rivera in-frame, nor does it completely show N.K.”). Indeed, if anything, the dash-cam video
supports N.K. For example, at the 2:15 mark in the video—an instant before Rivera shoots N.K.
and an instant after Rivera orders N.K. to show him his hands—N.K.’s right hand is visibly raised,
and empty. R.60-10 (Dash Cam). This seemingly minor detail matters because both N.K. and
Rivera testified that, when N.K. discarded his firearm, he used his right hand. See R.60-3 (N.K.
Dep. at 231) (Page ID #235); R. 60-1 (Rivera Dep. at 80) (Page ID #205).
All told, although a reasonable jury could accept Rivera’s narrative (that he shot N.K. while
N.K. was pulling a realistic-looking toy gun out of his pants), it could alternatively accept N.K.’s
narrative (that Rivera shot him after he had thrown his gun to the ground and begun raising his
1
S.C. was one of the young adolescent girls accompanying N.K. at the party store.
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Case No. 18-1282, Nelson v. City of Battle Creek, et al.
hands). And so, for purposes of this appeal, we must accept N.K.’s narrative as true and assume
that Rivera shot N.K. under the latter circumstances.
Given these facts, the relevant legal question is whether, as of November 16, 2013, our
case law put Rivera on fair notice that it is unconstitutional for a police officer to shoot an armed
individual after that individual has thrown their weapon to the ground and begun raising their
hands, in compliance with officer commands. It did. Indeed, not only is this principle arguably
obvious, but also two years before this incident we specifically held in Bletz v. Gribble that armed
individuals have a “clearly established” “right to be free from deadly police force while complying
with police commands to disarm.” 641 F.3d 743, 754 (6th Cir. 2011). This was enough to put
Rivera on “notice” that his “specific use of force [was] unlawful.” Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018).
The majority makes three points in response, none of which are convincing.
First, the majority attempts to sidestep Bletz’s general holding by adjusting the “clearly
established law” lens to a microscopic level. See Maj Op. at 8 (“We must . . . inquire whether . . .
it was clearly established that it was unconstitutional for an officer to shoot when, over the span
of two seconds, someone pulls what appears to be a gun, drops it, and raises his hands after being
given a warning.”). But this mode of analysis runs afoul of our precedent cautioning panels against
being too particular in defining “clearly established” law. See Hagans v. Franklin County Sheriff’s
Office, 695 F.3d 505, 508–09 (6th Cir. 2012) (“If it defeats the qualified-immunity analysis to
define the right too broadly . . ., it defeats the purpose of § 1983 to define the right too
narrowly[.]”). To survive qualified immunity a plaintiff need only point to a “reasonably
particularized” constitutional right that the government allegedly violated. Id. at 509. The Fourth
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Case No. 18-1282, Nelson v. City of Battle Creek, et al.
Amendment rule laid out in Bletz meets that “middle ground” standard. Id.; accord Kent v.
Oakland County, 810 F.3d 384, 396 (6th Cir. 2016) (analogous reasoning).
Second, the majority contends that, even if Bletz could provide clearly established law in
some other case, its distinguishable facts render it inapplicable here. See Maj. Op. at 12. But
comparing Bletz’s facts to this case’s facts show that, if anything, the victim in Bletz presented a
greater threat to the police than 14-year-old N.K. did here—and yet we still denied the officers
qualified immunity and allowed the case to proceed to trial. More specifically, in Bletz, police
officers entered a home late at night to effectuate an arrest warrant, only to find themselves
unexpectedly confronted by a man wielding a shotgun. The officers then shot and killed the man
on the spot. However, because a fact dispute existed as to whether the man “was lowering his gun
in response to [the officers’] command[s]” the moment before he was shot, we ruled that the
shooting officer was not entitled to qualified immunity as a matter of law. Id. at 752. “If [the
officer] shot [the plaintiff] while the latter was complying with the officer’s command [to disarm],”
we held, “then [the officer] violated [the plaintiff’s] clearly established Fourth Amendment right
to be free from deadly force.” Id.
Here, by contrast, not only did N.K. not confront Rivera in a dark, close-quarters
environment—as the video shows, their entire interaction took place in an uncrowded location in
the bright of day—but also Rivera (allegedly) shot N.K. after the young boy had discarded his
weapon and begun raising his hands, per Rivera’s commands. That is far worse than Bletz, where
the officer shot the armed decedent at a moment when the decedent was merely lowering his
weapon in response to the officers’ commands to disarm. As a result, I struggle to understand the
majority’s contention that Bletz cannot provide clearly established law here.
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Case No. 18-1282, Nelson v. City of Battle Creek, et al.
Finally, the majority emphasizes that, even assuming Rivera shot N.K. in the manner N.K.
contends he did (which, of course, it should’ve been doing all along), the fact that N.K. was
disarmed does not matter because this case involved a “split-second decision,” where Rivera had
mere moments to determine if N.K. intended to harm him or not. Maj. Op. at 9. But as we have
noted before, “the fact that a situation unfolds relatively quickly does not, by itself, permit [an
officer] to use deadly force.” Kirby v. Duva, 530 F.3d 475, 483 (6th Cir. 2008) (citation and
quotation marks omitted); accord Bouggess v. Mattingly, 482 F.3d 886, 894 (6th Cir. 2007) (“Even
a split-second decision, if sufficiently wrong, may not be protected by qualified immunity.”). This
principle applies with particular force here because again, if the jury agrees with N.K.’s version of
events, Rivera shot 14-year-old N.K. after he put down his weapon and raised his hands, which
would suggest that Rivera did not face a life-or-death decision at the moment he pulled the trigger.
See, e.g., Withers v. City of Cleveland, 640 F. App’x 416, 420–21 (6th Cir. 2016) (analogous
reasoning).2
For these reasons, I respectfully dissent. This case belongs in front of a jury.
2
Mullins v. Cyranek, 805 F.3d 760 (6th Cir. 2015), cited repeatedly by the majority, is not to the contrary.
In that case, a police officer shot and killed a young man in a crowded public place because the young man resisted
arrest for nearly two minutes and then unexpectedly pulled a firearm out of his pants and threw it over the officer’s
head. We granted the officer qualified immunity, despite evidence that the officer had shot the young man a second
or two after he hurled the firearm, because the officer “was faced with a rapidly escalating situation” and “a severe
threat to himself and the public.” Id. at 767.
This case is nothing like Mullins, as even a cursory comparison of this case’s facts and Mullins’s facts shows.
And, in any event, N.K. has submitted non-speculative evidence that a police officer shot him while he was raising
his hands in compliance with the officer’s order to disarm, thus bringing his case far closer to Bletz than to Mullins.
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