                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 15a0197p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 EDWARD      GODAWA        and     TINA      GODAWA, ┐
 Administrators of the Estate of Michael Godawa,        │
                                 Plaintiffs-Appellants, │
                                                        │       No. 14-5963
                                                        │
       v.                                               >
                                                        │
                                                        │
 DAVID BYRD,                                            │
                                 Defendant-Appellee. │
                                                        ┘
                         Appeal from the United States District Court
                      for the Eastern District of Kentucky at Covington.
                 No. 2:12-cv-00170—William O. Bertelsman, District Judge.
                                   Argued: April 28, 2015
                             Decided and Filed: August 19, 2015

                Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

                                     _________________

                                         COUNSEL

ARGUED: Christopher D. Roach, THE DETERS FIRM, Cincinnati, Ohio, for Appellants.
Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington,
Kentucky, for Appellee. ON BRIEF: Christopher D. Roach, THE DETERS FIRM, Cincinnati,
Ohio, for Appellants. Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING,
PLLC, Covington, Kentucky, for Appellee.

                                     _________________

                                          OPINION
                                     _________________

       CLAY, Circuit Judge. Plaintiffs Edward and Tina Godawa, as administrators of the
estate of their son Michael Godawa, appeal from the district court’s August 1, 2014 order and
judgment granting in part Defendant David Byrd’s motion for summary judgment, dismissing



                                               1
No. 14-5963                       Godawa, et al. v. Byrd                          Page 2

with prejudice Plaintiffs’ federal claims and state loss of consortium claim, and dismissing
without prejudice Plaintiffs’ other state law claims. Plaintiffs argue that Defendant is not entitled
to qualified immunity on Plaintiffs’ 42 U.S.C. § 1983 excessive force claim.

       For the reasons set forth below, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.

                                        BACKGROUND

A. Procedural Background

       Plaintiffs are the parents of Michael Godawa (“Godawa”), a young man who was fatally
shot by a police officer, Defendant David Byrd, while attempting to flee from an arrest.
Plaintiffs filed an amended complaint in this case on December 27, 2012, raising federal and
state law claims including a 42 U.S.C. § 1983 excessive force claim. Following the completion
of discovery, both Plaintiffs and Defendant filed motions for summary judgment. The district
court heard oral argument on these motions on June 27, 2014. On August 1, 2014, the court
issued a memorandum opinion and order denying Plaintiffs’ motion for summary judgment and
granting Defendant’s motion for summary judgment in part.             The district court dismissed
Plaintiffs’ federal claims and state loss of consortium claim with prejudice and dismissed
Plaintiffs’ other state law claims without prejudice. Plaintiffs timely appealed. This appeal
exclusively addresses Plaintiffs’ § 1983 excessive force claim.

B. Factual Background

       This case is about an incident that occurred at approximately 1:00 a.m. on June 23, 2012,
during which Defendant fatally shot Godawa as he was attempting to flee Defendant in a vehicle.
The evidence regarding this incident is primarily comprised of: (1) video footage from
Defendant’s lapel camera, (2) surveillance video from the Finish Line Bar and Grill (“Finish
Line”), and (3) Defendant’s deposition. On the evening in question, Defendant was serving on
bicycle patrol as a police officer for the city of Elsmere, Kentucky. According to Defendant, at
approximately 1:00 a.m., he was approached by a Finish Line employee who was concerned that
an individual walking around the parking lot was underage and drinking. The individual, who
was later identified as Godawa, got into a vehicle and drove from the back of the parking lot to
No. 14-5963                       Godawa, et al. v. Byrd                        Page 3

the front of the parking lot. Defendant approached the vehicle and asked Godawa if he had been
drinking. Godawa claimed he had not been drinking. Defendant inquired about a bottle of beer
that was visible in the vehicle’s cup holder, and Godawa identified the beer as belonging to his
girlfriend who was inside the bar.

       After expressing disbelief that the beer belonged to Godawa’s girlfriend, Defendant asked
Godawa for identification. Godawa informed Defendant that he had a driver’s license but that
the license was not in his possession at the time. Defendant asked Godawa if he would be
willing to submit to a field sobriety test. Godawa initially stated that he did not want to take a
field sobriety test because he was nervous and afraid he would fail. At that point, Defendant
asked Godawa to wait in the car while he went to his bicycle to get a notepad and pen. After
walking to his bicycle, Defendant returned to the vehicle and asked for Godawa’s name and
social security number. Godawa answered Defendant’s questions and provided his identifying
information.

       Defendant once again asked Godawa whether he had been drinking, and Godawa replied
that he had consumed one or two drinks. He also admitted that the beer in the car belonged to
him and not to his girlfriend. He claimed to have lied earlier because he was scared. Godawa
then agreed to submit to a field sobriety test. Defendant told Godawa to “hold on” and went to
his bicycle to request backup for the performance of the field sobriety test.

       While Defendant was still at his bicycle, Godawa started his vehicle and began to back
out of the parking spot. In the process of backing out of the parking spot, Godawa appears to hit
or knock over Defendant’s bicycle. Defendant yelled “Hey” and “Stop” multiple times, but
Godawa did not stop. In his deposition, Defendant claims that he then “ran along the driver’s
side of the vehicle to the front of the vehicle and ordered [Godawa] to stop the car.” (R. 26-1,
Byrd Deposition, Page ID # 202-03.) Defendant had his gun drawn as he ran to the front of
Godawa’s car and positioned himself ahead and to the right of the car’s front passenger side
while the car was temporarily stopped. In the moments that followed, Defendant and Godawa’s
car appear to have come into contact—though precisely how is disputed by the parties.

       The moment of impact is not clearly depicted in either video. Plaintiffs contend that
Defendant was moving toward the car just prior to the impact “to block the exit,” whereas
No. 14-5963                       Godawa, et al. v. Byrd                          Page 4

Defendant claims that he was “target[ed]” by Godawa. Appellant’s Br. at 7; Appellee’s Br. at 7.
While the lapel video clearly shows that Defendant and the vehicle came closer to each other, it
is difficult to discern whether the car was driving toward Defendant, whether Defendant was
moving toward the car, or both. In the Finish Line surveillance video, the precise moment of
impact occurs just off-screen. In the seconds leading up to the impact, Defendant can be seen
ahead and to the right of the front passenger side of Godawa’s car. The car appears temporarily
stopped at that point, having just finished backing out of a parking spot. As the car begins to pull
forward, Defendant is seen advancing toward the car. The car then makes a right turn in the
direction of the parking lot exit and, in the middle of the turn, Defendant seems to make contact
with the car just off camera. This contact is suggested by Defendant’s re-emergence on the
video in which he seems to be moving off or pushing off the car and landing unsteadily on his
feet. In his deposition, Defendant claimed that he was hit by Godawa’s car “in the left leg about
the knee” while the car was traveling at a speed of five to ten miles per hour. (R. 26-1, Byrd
Deposition, Page ID # 204-05.) Defendant regains his balance quickly and appears to take three
strides alongside the vehicle before shooting through the rear passenger-side window.

       Photographs taken at the scene also indicate that the bullet that hit Godawa went through
the back passenger-side window. Autopsy photos reveal that the bullet entered Godawa’s body
through the back of his right shoulder and traveled diagonally to the center left side of his chest.

       After being shot, Godawa turned left out of the parking lot and drove south on Dixie
Highway. Defendant can be heard on the video calling for backup, saying that shots had been
fired. He can also be heard saying, “He ran over my bike, tried to hit me.” (R. 21-1, Lapel
Video, 1:28:07-08.)     Soon after turning onto Dixie Highway, Godawa turned around in a
different parking lot and drove back toward Finish Line. When the car passed by Defendant,
who was standing in the middle of Dixie Highway with his gun drawn, he observed that Godawa
was “slumped over the steering wheel and appeared to be injured.” (R. 26-1, Byrd Deposition,
Page ID # 209.) Godawa’s vehicle struck a utility pole at the next intersection. Two other police
officers arrived soon after, and Defendant rode his bicycle to where the car had stopped.
No. 14-5963                       Godawa, et al. v. Byrd                          Page 5

         Emergency medical technicians were dispatched to the scene. Despite their efforts,
Godawa subsequently died from “exsanguination due to perforation of the right lung” caused by
the gunshot wound. (R. 54-1, Hamilton County Coroner’s Report, Page ID # 801.)

                                          DISCUSSION

A. Standard of Review

         Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if
the materials in the record “show that there is no genuine issue as to any material fact and that
the movant is entitled to a judgment as a matter of law.” Barker v. Goodrich, 649 F.3d 428, 432
(6th Cir. 2011) (internal quotation marks omitted). “[I]n reviewing a summary judgment motion,
credibility judgments and weighing of the evidence are prohibited.” Schreiber v. Moe, 596 F.3d
323, 333 (6th Cir. 2010) (quoting Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.
2009)). We view all facts and related inferences in the light most favorable to the non-moving
party and review all questions of law de novo. Davenport v. Causey, 521 F.3d 544, 550 (6th Cir.
2008).

B. Analysis

         Public officials are entitled to qualified immunity in cases seeking civil damages if their
conduct does not violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is intended to protect
public officials from unnecessary interference with their duties, while also holding them
accountable “when they exercise power irresponsibly.” Id. The qualified immunity analysis
entails two general steps, which can be considered in any order. Pearson, 555 U.S. at 236. In
one step, the court determines whether “the facts alleged show the officer’s conduct violated a
constitutional right”; in the other, it determines whether the right was “clearly established” at the
time of the events. Cass v. City of Dayton, 770 F.3d 368, 374 (6th Cir. 2014) (citing Saucier v.
Katz, 533 U.S. 194, 201-02 (2001)).
No. 14-5963                       Godawa, et al. v. Byrd                          Page 6

       1. Factual Record Taken in the Light Most Favorable to Plaintiffs

       As was previously noted, we must consider the facts in the light most favorable to
Plaintiffs and make all reasonable inferences in their favor when undertaking the qualified
immunity analysis on summary judgment. Davenport, 521 F.3d at 550. Defendant in the instant
case claims that Plaintiffs’ version of events, particularly with respect to the nature of the impact
between Defendant and Godawa’s car, cannot be credited because the video evidence “blatantly
contradicts” Plaintiffs’ account. Appellee’s Br. at 15. We disagree and find that the video
evidence does not clearly contradict Plaintiffs’ version of events.

       Defendant seeks to support his argument by likening this case to Scott v. Harris, 550 U.S.
372 (2007). In Scott, the Supreme Court found that a police officer was entitled to qualified
immunity in a Fourth Amendment excessive force claim. In so doing, the Court rejected the
plaintiff’s factual account due to the existence of a videotape that captured the relevant events
and “quite clearly contradict[ed]” the plaintiff’s story such that “no reasonable jury could believe
it.” Id. at 378, 380. That is not the case here. Contrary to Defendant’s claim, the video evidence
in this case does not clearly contradict Plaintiffs’ version of events, nor does it necessarily
support Defendant’s assertion that Godawa’s vehicle “target[ed]” him. Appellee’s Br. at 7.
Specifically, both videos can reasonably be interpreted as indicating that Defendant was not
directly in front of the vehicle, but rather was located ahead of the vehicle to the right of the
passenger side during the relevant timeframe, and that the car never “targeted” Defendant.
Moreover, based on the Finish Line surveillance footage and the nature of the movement
depicted in the lapel video, it appears possible—and arguably likely—that Defendant was
moving toward the car with his gun drawn in the moments before the apparent impact. A
reasonable juror observing the video evidence could conclude that Defendant initiated the
contact with Godawa’s car in an apparent attempt to stop Godawa from fleeing the parking lot.

       With regard to the shooting, the Finish Line surveillance video may be reasonably
interpreted as indicating that Defendant was effectively chasing Godawa’s car before he fired the
shot that killed Godawa and that he was not in harm’s way at that critical moment. Accordingly,
for the purposes of the following analysis, we assume that Defendant was not actively struck by
Godawa’s car, but initiated the impact with the vehicle in his efforts to keep Godawa from
No. 14-5963                         Godawa, et al. v. Byrd                         Page 7

fleeing. Under this factual account, Godawa did not pose an immediate threat at the time
Defendant discharged his weapon.

          2. Constitutional Right

          The Fourth Amendment’s prohibition against unreasonable seizures protects citizens
from excessive use of force by law enforcement officers. Cass, 770 F.3d at 374. Nonetheless,
the government has a “right to use some degree of physical coercion or threat thereof” to
effectuate an arrest. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). Claims alleging the use of excessive force
during an arrest are considered under the Fourth Amendment’s “objective reasonableness”
standard. Graham, 490 U.S. at 388. Under this standard, a court considers whether “the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Id. at 397. This analysis entails a
balancing of the following three factors articulated by the Supreme Court in Graham: “[1] the
severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of
the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest
by flight.” Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (quoting
Graham, 490 U.S. at 396).

          It is well established that courts should consider the reasonableness of an officer’s use of
force from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.”      Graham, 490 U.S. at 396.          In so doing, the objective reasonableness
determination should account for the fact that, when faced with “rapidly evolving” and tense
situations, “police officers are often forced to make split-second judgments” in deciding how
much force is necessary given the circumstances. Plumhoff v. Rickard, 134 S. Ct. 2012, 2020
(2014).

          If an officer “has probable cause to believe that [a] suspect poses a threat of serious
physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent
[the suspect’s] escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). In
contrast, where a suspect “poses no immediate threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”
No. 14-5963                      Godawa, et al. v. Byrd                          Page 8

Id. Where a suspect is attempting to flee in a vehicle, police officers are “justified in using
deadly force against a driver who objectively appears ready to drive into an officer or bystander
with his car. But, as a general matter, an officer may not use deadly force once the car moves
away, leaving the officer and bystanders in a position of safety.” Cass, 770 F.3d at 375 (internal
quotation marks and citations omitted) (affirming a grant of summary judgment on the basis of
qualified immunity where the officer shot a fleeing suspect after the suspect accelerated towards
a police officer and struck two officers). An officer may, however, “continue to fire at a fleeing
vehicle even when no one is in the vehicle’s direct path when the officer’s prior interactions with
the driver suggest that the driver will continue to endanger others with his car.” Id. (internal
quotation marks omitted). Still, where the car no longer “presents an imminent danger,” an
officer is not entitled to use deadly force to stop a fleeing suspect. Smith v. Cupp, 430 F.3d 766,
775 (6th Cir. 2005).

       In evaluating whether Defendant’s conduct was objectively reasonable in the case at
hand, our previous decision in Cupp is directly on point. In Cupp, we considered facts that bear
significant resemblance to key facts in this case and concluded that an officer was not entitled to
qualified immunity for his use of deadly force against a man fleeing in a car. In that case, the
defendant police officer arrested Smith, whom the officer perceived to be intoxicated, for making
harassing phone calls in the officer’s presence. Id. at 769. The officer placed Smith in the back
of a police cruiser while he went to speak with a tow truck driver about removing Smith’s
vehicle. Although he had previously been compliant, Smith crossed from the back seat into the
front seat and began to flee the scene in the police cruiser. Smith maneuvered the cruiser such
that he was driving toward the officer and the tow truck driver. The officer moved out of the
way of the vehicle and, as the car passed him, he fired four shots, killing Smith. The officer
claimed that Smith had directed the cruiser at him and at the tow truck driver, and that he shot
Smith in “self-defense as the cruiser was bearing down on them.” Id. at 770. The tow truck
driver stated that Smith may have redirected the car in order to follow the natural direction of the
roadway, rather than to target the officer and himself. Additionally, the tow truck driver stated
that the officer was actually “running toward the patrol car” when he shot Smith. Id. at 774.
No. 14-5963                      Godawa, et al. v. Byrd                          Page 9

       Considering these circumstances, we concluded that, under the plaintiffs’ version of the
facts, the officer’s actions violated Smith’s constitutional rights. We explained:

       According to the plaintiffs’ evidence, [the officer] shot Smith after the police
       cruiser was past [the officer] and there was no immediate danger to anyone in the
       vicinity. [The officer’s] use of force was made even more unreasonable by the
       fact that Smith had been cooperative up to this point, and was arrested for the
       nonviolent offence of making harassing phone calls. Although there was some
       danger to the public from Smith’s driving off in a stolen police car, the danger
       presented by Smith was not so grave as to justify the use of deadly force.

Id. at 773. Of particular concern to us in Cupp was the fact that, under the plaintiffs’ version of
events, neither the officer nor any bystanders were in danger at the time that the officer shot
Smith. We therefore determined that, while the officer “[was] constitutionally permitted to put
himself in a dangerous position in order to effectuate an arrest,” a reasonable officer in his
position “would not have perceived danger to anyone at the scene,” including himself, under the
plaintiffs’ interpretation of the evidence. Id. at 774. The plaintiffs presented witness testimony
that the officer had taken “four or five steps” toward the side of the patrol car before firing his
gun, and that he was in fact running toward the car. That evidence suggested that the officer was
not in danger and did not need to “use deadly force to protect himself or others.” Id.

       In reaching our holding, we recognized that, “[a]lthough this circuit’s previous cases give
substantial deference to an officer’s decision to shoot an unarmed suspect in a car chase, the
officer must have reason to believe that the car presents an imminent danger.” Id. at 775. The
situation presented in Cupp “d[id] not present ‘a perceived serious threat of physical harm to the
officer or others in the area from the perspective of a reasonable officer.’” Id. (quoting Sample v.
Bailey, 409 F.3d 689, 697 (6th Cir. 2005)).

       The same reasoning applies equally in the present case. As in Cupp, viewing the facts in
the light most favorable to Plaintiffs, Godawa never attempted to hit Defendant with his car and
did not drive in a manner that endangered Defendant’s life. Cf. Cass, 770 F.3d at 375 (holding
that a police officer may be justified in firing at a fleeing vehicle even where there is no one in
the vehicle’s path if the “officer’s prior interactions with the driver suggest that the driver will
continue to endanger others with his car”).       Rather, Defendant actively “put himself in a
dangerous position in order to effectuate an arrest” by running alongside the car and using his
No. 14-5963                      Godawa, et al. v. Byrd                         Page 10

body to try to block the exit. Cupp, 430 F.3d at 774. Likewise, Defendant was not in front of the
car, but instead was positioned near the rear passenger side, at the time that he fired his weapon.
From that position, Defendant would have had no reason to fear being struck by the car as it
continued to advance. Defendant emphasizes how fast the events transpired, noting that he had
“less than two seconds to process being physically assaulted by a vehicle.” Appellee’s Br. at 26.
Under Plaintiffs’ version of the facts, however, Defendant was not in danger. And critically, the
fact that a situation is rapidly evolving “does not, by itself, permit [an officer] to use deadly
force.” Cupp, 430 F.3d at 775.

       In reaching our holding in Cupp, we distinguished Brosseau v. Haugen, 543 U.S. 194
(2004). The present case is similarly distinguishable from Brosseau. In Brosseau, the Supreme
Court reversed a denial of qualified immunity for a police officer who had shot a suspected felon
while he was attempting to evade arrest and flee in a vehicle. Id. at 195-96. The Court found
that the suspect posed “a major threat” to others, including officers located at the end of the
street. Id. at 200. Whereas Godawa was suspected of nothing more than drinking underage and
having an open container in his car, the fleeing driver in Brosseau “was a suspected felon with a
no-bail warrant out for his arrest, with whom [the officer] had experienced a violent physical
encounter prior to the shooting.” Cupp, 430 F.3d at 776. Additionally, the “undisputed facts [in
Brosseau] showed that the shooting officer believed the suspect had a gun and was fearful for
officers in the immediate area.” Id. In contrast, Godawa never displayed any violence in his
interactions with Defendant and never engaged Defendant in a physical struggle. Critically,
unlike the fleeing suspect in Brosseau, Godawa posed no discernable threat to the officers or to
any other individuals at the time he was shot.

       Prior to Godawa’s flight, Defendant only suspected him of having an open container in
his car and underage drinking. Even so, the district court in this case determined that, in addition
to the alcohol offenses, “at the time the fatal shot was fired, the officer had probable cause to
believe Godawa committed a number of violent and serious offenses, including attempted
murder, first degree assault, wanton endangerment in the first degree, and fleeing and evading in
the first degree.” (R. 66, Memorandum Opinion and Order, Page ID # 885-86.) Police officers
are entitled to consider felonies committed by a fleeing suspect after the flight has commenced in
No. 14-5963                      Godawa, et al. v. Byrd                        Page 11

determining the appropriateness of using deadly force. See Hocker v. Pikeville City Police
Dep’t, 738 F.3d 150, 156 (6th Cir. 2013). The district court, however, did not view the facts in
the light most favorable to Plaintiffs in reaching its conclusion, and instead based its
determination on a factual account that assumed Godawa had actively struck Defendant with his
car. With the exception of fleeing and evading arrest, none of the offenses listed by the district
court are applicable once the facts are viewed in the light most favorable to Plaintiffs, as we are
required to do.

       Defendant cites to the Supreme Court’s decisions in Scott and Plumhoff to support the
argument that his behavior was objectively reasonable.        Neither case supports Defendant’s
position. Both Scott and Plumhoff addressed police officers’ use of deadly force to stop fleeing
suspects who were engaged in high speed chases and whose recklessness had endangered police
and bystanders. In Scott, the officer rammed a fleeing suspect’s car from behind to end a chase
after the suspect had driven at high speeds, collided with a police cruiser during the chase, and
generally had driven “so recklessly” that he was “placing police officers and innocent bystanders
alike at great risk of serious injury.” Scott, 550 U.S. at 380, 385. Similarly, in Plumhoff, the
fleeing suspect sustained a high speed chase in which he attained speeds exceeding 100 miles per
hour, collided with police cruisers, and nearly hit a police officer in attempting to continue his
flight. Throughout that chase, the fleeing suspect’s “outrageously reckless driving posed a grave
public safety risk.” Plumhoff, 134 S. Ct. at 2021. The Court concluded that, “[u]nder the
circumstances at the moment when the shots were fired, all that a reasonable police officer could
have concluded was that [the suspect] was intent on resuming his flight and that, if he was
allowed to do so, he would once again pose a deadly threat for others on the road.” Id. at 2022.

       Scott and Plumhoff establish that, where a fleeing driver is imperiling the lives of officers
or the public, it will generally be objectively reasonable for a police officer to employ deadly
force to end the flight. However, these cases simply do not stand for the proposition that an
officer may reasonably use deadly force against a fleeing motorist where no such peril or risk
exists. Applying the Graham factors to the Plaintiffs’ facts, we conclude that Defendant’s use of
force in this case was objectively unreasonable; although he was fleeing from police, Godawa
was suspected of only minor offenses and posed no “immediate threat” to Defendant or any
No. 14-5963                      Godawa, et al. v. Byrd                         Page 12

member of the public.      See Martin, 712 F.3d at 958 (quoting Graham, 490 U.S. at 396)
(identifying Graham factors as “[1] the severity of the crime at issue, [2] whether the suspect
poses an immediate threat to the safety of the officers or others, and [3] whether he is actively
resisting arrest or attempting to evade arrest by flight”). In light of this Circuit’s on-point
precedent and critical differences between the facts of this case and the facts of the cases relied
upon by Defendant, we conclude that a reasonable jury could find that Defendant’s use of force
violated Godawa’s Fourth Amendment rights.

        3. Clearly Established Right

        The qualified immunity analysis does not end with the determination that, under the facts
alleged, Defendant’s use of force was objectively unreasonable.          We must also determine
whether the constitutional right being violated was clearly established at the time of the incident.
Pearson, 555 U.S. at 231. The Supreme Court has “repeatedly told courts not to define clearly
established law at a high level of generality.” Plumhoff, 134 S. Ct. at 2023. An officer “cannot
be said to have violated a clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes would have understood that he was
violating it.” Id.

        It is clearly established law that the “[u]se of deadly force to prevent the escape of all
felony suspects, whatever the circumstances, is constitutionally unreasonable.”            Garner,
471 U.S. at 11. Relying on Brosseau, the Plumhoff Court concluded that, as of 2004, “it was not
clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his
flight might endanger.” Plumhoff, 134 S. Ct. at 2023 (emphasis added). Accordingly, the
Plumhoff Court determined that in order to defeat the defendant’s qualified immunity and
demonstrate a clearly established right, the plaintiff in Plumhoff would need to show either
(1) that the officer’s conduct was “materially different from the conduct in Brosseau,” or (2) that
between February 21, 1999, when the events in Brosseau took place, and the date of the events at
issue in Plumhoff, “there emerged either ‘controlling authority’ or a ‘robust consensus of cases of
persuasive authority,’ that would alter [the] analysis of the qualified immunity question.” Id. at
2024 (internal quotation marks and citations omitted). The Court ultimately determined that the
No. 14-5963                       Godawa, et al. v. Byrd                         Page 13

plaintiff could not meet either requirement and thus failed to demonstrate a relevant clearly
established right. Id.

       Applying the same requirements in this case leads to the opposite outcome. First, as was
addressed above, this case relates to “materially different” conduct than was at issue in Brosseau
and subsequent cases including Scott. Namely, under Plaintiffs’ factual account, Defendant had
no reason to believe that Godawa presented “an actual and imminent threat to the lives of [any
officers or civilians]” at the time of the shooting. Scott, 550 U.S. at 384. Second, this Court’s
decision in Cupp established controlling authority that affects the relevant qualified immunity
analysis in this case. The Court in Brosseau explicitly recognized that determining whether a
right is clearly established requires a “particularized” analysis, and that “this area is one in which
the result depends very much on the facts of each case.” Brosseau, 543 U.S. at 200-01. Cupp
addressed materially similar facts to the case at hand and established clear and controlling
precedent that in a comparable situation to the circumstances facing Defendant, the use of deadly
force violates the Fourth Amendment. No subsequent controlling precedent has diminished the
clarity of Cupp’s holding or its applicability to the present case.

       In sum, a genuine dispute of material fact exists regarding the circumstances of
Defendant’s impact with Godawa’s vehicle. Under Plaintiffs’ version of the facts, a reasonable
juror could conclude that Defendant’s use of deadly force violated Godawa’s clearly established
constitutional rights under the Fourth Amendment. Consequently, Defendant is not entitled to
summary judgment, and the district court erred in granting qualified immunity to Defendant.

                                          CONCLUSION

       For the foregoing reasons, we REVERSE the order and judgment of the district court
and REMAND this case for further proceedings consistent with this opinion.
