                       NOT RECOMMENDED FOR PUBLICATION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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


       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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


                                                        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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


(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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


        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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


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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Case No. 18-1282, Nelson v. City of Battle Creek, et al.


       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.


                                                        - 18 -
