                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0020p.06

                  UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                     X
                                                      -
 TRACY JEFFERSON,
                                                      -
                               Plaintiff-Appellee,
                                                      -
                                                      -
                                                          No. 08-2116
             v.
                                                      ,
                                                       >
                                                      -
                            Defendant-Appellant. -
 TERRY LEWIS,
                                                      -
                                                     N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                       No. 07-10465—Avern Cohn, District Judge.
                                Argued: October 9, 2009
                          Decided and Filed: February 4, 2010
               Before: MARTIN, GUY, and McKEAGUE, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for
Appellant. Wolfgang Mueller, OLSMAN MUELLER, P.C., Berkley, Michigan, for
Appellee. ON BRIEF: Mary Massaron Ross, PLUNKETT COONEY, Detroit, Michigan,
for Appellant. Wolfgang Mueller, OLSMAN MUELLER, P.C., Berkley, Michigan, for
Appellee.
         MARTIN, J., delivered the opinion of the court. GUY (p. 12) and McKEAGUE
(p. 13), JJ., delivered separate opinions concurring in the result, with Judge McKeague also
joining in Judge Guy’s concurrence.
                                   _________________

                                        OPINION
                                   _________________

        BOYCE F. MARTIN, JR., Circuit Judge. While responding to a situation in which
guns and gunfire were present, Officer Terry Lewis of the Flint, Michigan Police Department
shot Tracy Jefferson while she stood in the doorway of her home. Although Officer Lewis



                                             1
No. 08-2116           Jefferson v. Lewis                                                         Page 2


contends that he believed that she was firing at him, Ms. Jefferson turned out to be unarmed.
She thereafter sued Officer Lewis under 42 U.S.C. § 1983 and state tort law. After
discovery, Officer Lewis sought summary judgment on the basis of qualified immunity, but
the district court denied his motion. Officer Lewis now brings this interlocutory appeal. For
the reasons set forth below, we AFFIRM.

                                                       1
                                                  I.

         On December 31, 2006 at approximately 10:30 p.m., Officer Terry Lewis of the
Flint, Michigan police force responded to a report of “shots fired.” It is apparently a
mainstay of the Flint New Year’s Eve celebration ritual to fire guns in the air and into
a nearby lake. At that time, Officer Lewis had been on shift for what Jefferson contends
was eleven hours because the Flint police force was short on officers.

         When he arrived on location, Officer Lewis found several individuals who
reported that shots had been fired and that bullets had hit near the individuals just before
Officer Lewis arrived. They informed Officer Lewis that the shots were coming from
the Woodhall Drive area and from across a field near West Pierson Road. During this
conversation, Officer Lewis heard approximately six gunshots from what he estimated
to be a heavy-caliber long gun.

         Officer Lewis called for backup and drove to the place from which he believed
the shots to have emanated. While driving, Officer Lewis heard several more gunshots
but described them as being more faint. He parked his car a short distance from West
Pierson Road. Officer Lewis exited his car and took his department-issued pump
shotgun with him. He proceeded on foot to the place from which he believed that the
first round of shots had come. While advancing, Officer Lewis heard several more
gunshots from close-by and, fearing that they were directed at him, hid behind a car
parked at 1313 West Pierson. He heard male voices from across a fence and moved to



         1
           This is an interlocutory appeal of a denial of summary judgment. Therefore, this factual
recitation consists primarily of undisputed material facts drawn from the parties’ pleadings below on the
summary judgment motion. In instances in which material facts are in dispute, we assume that Jefferson’s
version is true.
No. 08-2116        Jefferson v. Lewis                                             Page 3


determine their location. He then saw two males near 1301 West Pierson, at least one
of whom was holding a long gun, either a rifle or a shotgun.

       As Officer Lewis began approaching the two men, a car passed and shined its
lights on Officer Lewis. The two men turned toward Officer Lewis. The man with the
gun, later identified as Thomas Manning, was pointing the gun in Officer Lewis’s
general direction. The other man, Victor Adams, was reaching into the trunk of a car.
Officer Lewis advanced toward the two men with his shotgun pointed at them and
instructed them to “freeze,” drop their weapons, and put their hands against the wall of
the house.

       Adams and Manning testified that they immediately complied with Officer
Lewis’s command; Officer Lewis contends that Manning ducked behind a column and
that Adams continued reaching into the trunk of the car. Either way, both men
eventually complied with Officer Lewis’s commands to drop their weapons and to put
their hands against the wall. At some point during the initial confrontation between
Officer Lewis and Adams and Manning, a third man, Taurean Stewart, emerged from
between the car and the house. Officer Lewis instructed Stewart to freeze and to move
against the wall. All three men were, at this time, against the wall, although Officer
Lewis testified that the men continued to duck up and down and to move their hands
toward their waists. Throughout the entire interaction, Officer Lewis saw only Manning
holding a gun.

       After Stewart appeared and Officer Lewis ordered him to place his hands against
a wall, Officer Lewis heard what he describes as a “loud metal sounding” noise to his
left. He looked and saw a fourth individual exiting the front door of the house. He saw
that it was an unarmed woman and commanded her to go back inside the house.

       Officer Lewis then detected movement to his right, where the side door of the
house was located. As Officer Lewis tells it, he turned and saw that the door, a security
door made of black Armor Guard and glass with a brass doorknob, was opening outward
and that a person was standing in the doorframe. He perceived a hand with something
metallic in it extended in his direction beyond the door frame and, at the same time, a
No. 08-2116             Jefferson v. Lewis                                                             Page 4


flash of light. Officer Lewis maintains that he believed that the flash was a muzzle flash
from a gun and that the person in the doorway was firing on him. Officer Lewis never
heard a gunshot, did not identify himself as a police officer, and did nothing further to
ascertain whether the person in the doorway was, indeed, armed.

         Instead, Officer Lewis immediately fired his shotgun at the person in the
doorway. He did not chamber another round into his shotgun after firing the first shot
and did not take cover to protect himself from future gunfire. However, he did yell
“shots fired” into the microphone located on his lapel and immediately began patting his
bullet-proof vest to see if he had been shot. As it turns out, the person in the doorway
was Ms. Jefferson. She was unarmed and did not have anything shiny in her hand,
except perhaps the doorknob. She testified that her right hand never left the door handle
as she opened the door outward. Although Officer Lewis theorizes that the flash he
claims to have seen could have been caused by the headlights of a car flashing off of the
door, no one testified to having actually seen a car passing at the time. Ms. Jefferson
further testified that there were no lights on in the carport area and that there were no
lights on in the room behind her. Ms. Jefferson was injured, but the shot was not fatal.

         Ms. Jefferson thereafter filed suit under 42 U.S.C. § 1983, claiming violation of
her constitutional right to be free from excessive force, as well as a pendant state-law
claim of battery.2 After discovery, Officer Lewis sought summary judgment on the basis
of qualified immunity. The district court denied the motion, stating that:

         For the purposes of this motion, the Court accepts Jefferson’s account
         that she did not step outside of the house before being shot, did not
         extend her arm toward Lewis, and did not have any “shiny object” that
         might have given the appearance of a muzzle flash. Read in this light,
         the record shows that, without warning, Lewis shot an unarmed woman
         who had not threatened him from close range. Under these
         circumstances, Lewis did not have probable cause to believe that
         Jefferson was dangerous.



         2
           The parties and the district court agree that the battery claim rises and falls with the section 1983
claim as far as the application of the qualified immunity defense. VanVorous v. Burmeister, 687 N.W.2d
132, 142 (Mich. Ct. App. 2004).
No. 08-2116          Jefferson v. Lewis                                               Page 5


Jefferson v. City of Flint, No. 07-cv-10465, 2008 U.S. Dist. LEXIS 59162, at *9-10
(E.D. Mich. Aug. 5, 2008). Officer Lewis thereafter timely brought this interlocutory
appeal.

                                              II.

A.        Jurisdiction

          Ms. Jefferson initially contends that we do not have jurisdiction to hear Officer
Lewis’s appeal due to its interlocutory nature—the district court denied Officer Lewis’s
motion for summary judgment but trial has not yet occurred; thus there is no final
judgment. We are not persuaded.

          “The denial of a summary judgment motion usually presents neither a final
appealable order nor an appealable interlocutory order.” Floyd v. City of Detroit, 518
F.3d 398, 404 (6th Cir. 2008). However, a rejection of a defendant’s assertion of the
qualified immunity defense is a well-established exception to this rule to the extent that
the appeal presents a question of law and does not require us to resolve disputes of
material facts. Id. (citing Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir. 2002)).
Thus, to bring an interlocutory appeal of a qualified immunity ruling, the defendant must
be willing to concede the plaintiff’s version of the facts for purposes of the appeal.
Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (citations
omitted); Sheets v. Mullins, 287 F.3d 581, 585 (6th Cir. 2002).

          Ms. Jefferson contends that there are disputed facts and that, because the district
court found that disputes of material facts precluded summary judgment, we cannot
entertain Officer Lewis’s interlocutory appeal. However, the “district court’s assertion
that there were genuine issues of material fact does not, standing alone, destroy the
appealability of a qualified immunity ruling.” Turner v. Scott, 119 F.3d 425, 428 (6th
Cir. 1997). As the Supreme Court stated, “[d]enial of summary judgment often includes
a determination that there are controverted issues of material fact . . . and Johnson surely
does not mean that every such denial of summary judgment is nonappealable.” Behrens
v. Pelletier, 516 U.S. 299, 312-13 (1996); see also Christophel v. Kukulinsky, 61 F.3d
No. 08-2116         Jefferson v. Lewis                                               Page 6


479, 485 (6th Cir. 1995) (stating that a “defendant’s right to appeal the denial of
qualified immunity does not turn on the phrasing of the district court’s order”). Taking
a dim view of the motivations of district judges, the Turner Court observed: “If it were
otherwise a district court could always insulate its qualified immunity rulings from
interlocutory review by mouthing the appropriate shibboleth. Such a result would
jeopardize the immunity from suit that the qualified immunity doctrine is designed to
protect.” Turner, 119 F.3d at 428.

        In this case, we may entertain Officer Lewis’s interlocutory appeal as long as we
accept Ms. Jefferson’s version of those material facts that are actually in dispute. In his
briefs, Officer Lewis states that he is willing to concede Ms. Jefferson’s version of these
facts for purposes of this appeal. Thus, we may exercise jurisdiction and resolve
questions of law. However, if after our review we determine that resolution of the legal
questions turns on which version of disputed facts one believes, we must allow the case
to proceed in the trial court.

B.      Qualified Immunity

        1.      Legal Standard

        Government officials, including 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. Hills v. Kentucky, 457 F.3d 583, 587
(6th Cir. 2006). Stated differently, a “defendant enjoys qualified immunity on summary
judgment unless the facts alleged and evidence produced, when viewed in the light most
favorable to the plaintiff, would permit a reasonable juror to find that: (1) the defendant
violated a constitutional right; and (2) the right was clearly established.” Morrison, 583
F.3d at 400 (citing Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)).

        Until recently, the analysis used to address an assertion of the qualified immunity
defense was the two-step sequential inquiry set forth in Saucier v. Katz, 533 U.S. 194
(2001). Under Katz, a court first had to ask whether, viewed in the light most favorable
to plaintiff, the facts show that the officer’s conduct violated a constitutional right. Id.
No. 08-2116         Jefferson v. Lewis                                                Page 7


at 201. If the answer to this first question was “no,” the analysis proceeded no further
because the plaintiff failed to establish a prima facie case of violation of a constitutional
right and the officer need not even seek the protection of qualified immunity. Id.;
Parsons v. City of Pontiac, 533 F.3d 492, 500 (6th Cir. 2008); Turner, 119 F.3d at 429.

        If, however, the facts established a violation of the plaintiff’s constitutional
rights, Katz mandated that the next step was to determine whether the constitutional right
was “clearly established” at the time of the violation. If not, the officer would be entitled
to qualified immunity. Katz, 533 U.S. at 201. Under the “clearly established” inquiry,
the question is whether the right was “so ‘clearly established’ that a reasonable official
would understand that what he is doing violates that right.” Parsons, 533 F.3d at 500
(quoting Charvat v. E. Ohio Reg’l Wastewater Auth., 246 F.3d 607, 616 (6th Cir. 2001)).
“This inquiry . . . must be undertaken in consideration of the specific context of the case,
not as a broad general proposition . . . .” Katz, 533 U.S. at 201. Previously, this Court
has included a third inquiry to “increase the clarity” of the Katz analysis: “whether the
plaintiff offered sufficient evidence to indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional rights.” Floyd,
518 F.3d at 405 (quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 311 n.2 (6th
Cir. 2005)).

        However, in Pearson v. Callahan, __ U.S __, 129 S. Ct. 808 (2009), the Supreme
Court recently abandoned Katz’s requirement that courts must address the qualified
immunity inquiries sequentially. Id. at 813. The Court recognized that lower courts had
complained that the sequential mandate was cumbersome and often forced courts to
decide constitutional questions unnecessarily, and also recognized that the sequential
mandate was impossible to force on any given judge’s thought process. On the other
hand, the Court found that the Katz inquiry was still appropriate and a correct statement
of the test for qualified immunity. Thus, the Court held that,

        while the sequence set forth [in Katz] is often appropriate, it should no
        longer be regarded as mandatory. The judges of the district courts and
        the courts of appeals should be permitted to exercise their sound
        discretion in deciding which of the two prongs of the qualified immunity
No. 08-2116        Jefferson v. Lewis                                              Page 8


       analysis should be addressed first in light of the circumstances in the
       particular case at hand.

Id. at 818. This means that “we are free to consider those questions in whatever order
is appropriate in light of the issues before us,” Moldowan v. City of Warren, 570 F.3d
698, 720 (6th Cir. 2009), such that we need not decide whether a constitutional violation
has occurred if we find that the officer’s actions were nevertheless reasonable. However,
because Pearson left in place Katz’s core analysis, all pre-Pearson case law remains
good law.

       “All claims that law enforcement officers have used excessive force—deadly or
not . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard.” Floyd, 518 F.3d at 405 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). We apply “the objective reasonableness standard, which depends on the facts
and circumstances of each case viewed from the perspective of a reasonable officer on
the scene and not with 20/20 hindsight.” Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir.
2008) (citing Graham). “The calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Further, we
conduct the reasonableness inquiry objectively, based on the “information possessed”
by the officer, without regard to the officer’s subjective beliefs and without regard to
facts not known by the officer at the time of the incident. Anderson v. Creighton, 483
U.S. 635, 641 (1987). In an excessive force claim involving an officer’s use of deadly
force, the Supreme Court has instructed that the test is whether the officer “has probable
cause to believe that the suspect poses a threat of serious physical harm, either to the
officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).
No. 08-2116            Jefferson v. Lewis                                                         Page 9


         2.       Analysis

                  a.       Has Jefferson Established a Constitutional Violation?

         As to the first Katz inquiry, whether, viewing the facts in the light most favorable
to Jefferson and accepting her version of material factual disputes, her constitutional
rights were violated, we believe the answer is “yes.” “[O]nly in rare instances may an
officer seize a suspect by use of deadly force.” Sample v. Bailey, 409 F.3d 689, 697 (6th
Cir. 2005) (quoting Whitlow v. City of Louisville, 39 F. App’x 297 (6th Cir. 2002)).
These rare circumstances arise when the facts known to the officer at the time of the
incident objectively give rise to probable cause to believe that the suspect poses a threat
of serious physical harm to the officer or third persons. Garner, 471 U.S. at 11. Thus,
while it is true that “[a]s a matter of law, an unarmed and nondangerous suspect has a
constitutional right not to be shot by police officers,” Floyd, 518 F.3d at 407, whether
a suspect is “nondangerous” is based on the facts known to the officer at the time of the
incident, not on hindsight.3

         In this case, Officer Lewis asserts that he saw a person standing in the doorway
with a hand holding something shiny outstretched toward him and, at the same time, saw
a flash that he believed to be a muzzle flash from a gun. Jefferson, however, asserts that
her hand never left the doorknob, that there is no evidence of a car passing that could
have produced the flash, and that there was no ambient light source that could have
produced the flash. We believe that whether Officer Lewis had probable cause to
believe that he was in danger of serious harm turns, in large part, on the resolution of this
factual dispute. Because Jefferson has produced adequate evidentiary support for her
version of events and because we must accept her version of events as true for purposes




         3
           Jefferson would have us read Floyd’s pronouncement that “[a]s a matter of law, an unarmed and
nondangerous suspect has a constitutional right not to be shot by police officers” as holding that if an
individual turns out to have been unarmed and nondangerous it would be per se excessive to use deadly
force against that person, regardless of the facts known to the officer at the time. We disagree that Floyd
makes any such categorical holding for two reasons. First, the opinion itself does not support Jefferson’s
reading. And second, Jefferson’s reading would directly contradict firmly established precedent holding
that the reasonableness of an officer’s use of force is not based on hindsight, but rather is based on what
the officer knew at the time. Dunn, 549 F.3d at 353.
No. 08-2116          Jefferson v. Lewis                                            Page 10


of this interlocutory appeal, we agree with the district court that the jury must decide
whether Jefferson’s Fourth Amendment rights were violated.

                b.      Were Officer Lewis’s Actions Unreasonable in Light of a
                        Clearly Established Constitutional Right?
        The second Katz inquiry is whether the right was clearly established and whether
Officer Lewis’s actions were objectively unreasonable in light of that clearly established
right. In other words, in light of the undisputed facts and viewing any factual disputes
in the light most favorable to Jefferson, was Officer Lewis’s decision to fire at the
individual standing in the doorway objectively unreasonable in light of a clearly
established right to be free from deadly force? In this case, this turns on whether
(a) Officer Lewis actually did see a flash in the doorway that he believed to be a muzzle
flash from a gun and, (b) if so, whether that belief and his response were reasonable. If
the answer to those two questions is an unequivocal “yes” even under Jefferson’s version
of events, then Officer Lewis is entitled to qualified immunity regardless of whether
there was a constitutional violation. However, absent an unequivocal affirmative, the
question of qualified immunity must be submitted to the jury.

        As to the first question—whether Officer Lewis actually saw a flash of light in
the doorway that he believed to be a muzzle flash—we have discussed above the factual
dispute on this issue. Although Officer Lewis theorizes that the flash might have
resulted from a passing car’s headlights reflecting off the door, there is no evidence that
a car actually did pass by at the time. Moreover, Ms. Jefferson contends that there were
no lights on in the carport area and no lights on inside the relevant portion of the house,
suggesting that it was highly unlikely that there actually was a flash. Though we are
hesitant to doubt Officer Lewis’s testimony that he saw a flash, “the court may not
simply accept what may be a self-serving account by the police officer. It must look at
the circumstantial evidence that, if believed, would tend to discredit the police officer’s
story . . . .” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). In this case, Ms.
Jefferson’s testimony regarding the lack of ambient light is sufficient to support an
inference that could discredit Officer Lewis’s testimony. At this stage, it is not our place
to resolve these factual disputes.
No. 08-2116        Jefferson v. Lewis                                             Page 11


       The second question is whether (1) Officer Lewis’s belief that the flash of light
was a muzzle flash coming from the individual in the doorway shooting at him and
(2) his reaction to that stimulus were objectively reasonable. The fact that most strongly
cuts against the reasonableness of Officer Lewis’s decision to “return” fire is that, even
accepting Officer Lewis’s testimony on its face, Officer Lewis only saw a flash; he heard
no corresponding gunshot before he “returned” fire. Additionally, Officer Lewis did not
chamber another round in his shotgun or seek cover, which one might expect an officer
to do if he reasonably believed that he was being fired upon. But, on the other hand, it
is uncontested that Officer Lewis immediately began checking his bullet-proof vest to
see if he had been shot, a fact which certainly cuts strongly in Officer Lewis’s direction.
In light of the competing inferences one might draw from these facts and their effect on
the question of whether Officer Lewis’s actions were objectively unreasonable, we agree
with the district court that the jury should find the facts that determine whether Officer
Lewis is entitled to qualified immunity.

                                           III.

       Based on the record as it currently stands, we find that the district court did not
err in denying Officer Lewis qualified immunity at the summary judgment stage. My
colleagues concur in this conclusion but not necessarily in the full opinion. We therefore
AFFIRM the district court’s decision and REMAND this case for trial.
No. 08-2116        Jefferson v. Lewis                                           Page 12


                      _________________________________

                        CONCURRING IN THE RESULT
                      _________________________________

       GUY, Circuit Judge, concurring in the result. I concur in the affirmance of the
district judge’s decision to deny defendant’s motion based upon a claim of qualified
immunity. It cannot be said at this stage that defendant’s conduct was objectively
reasonable as a matter of law.

       I would leave it at that, however, and not parse the parties various contentions
as to what actually occurred. We have only the record that was before the court at the
summary judgment stage, which might differ from what the parties present at a trial. I
do not join in those parts of Judge Martin’s opinion that might be read to suggest what
the outcome would be if one party or the other prevailed on their pre-trial contentions.
No. 08-2116       Jefferson v. Lewis                                    Page 13


                     _________________________________

                       CONCURRING IN THE RESULT
                     _________________________________

       McKEAGUE, Circuit Judge, concurring in the result. I concur in the result
reached by Judge Martin. I also join Judge Guy’s concurring opinion.
