                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0056p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                         X
                                                          -
 GERALDINE LIVERMORE, Personal Representative

                                    Plaintiff-Appellee, -
 for the Estate of Roland E. Rohm, deceased,
                                                          -
                                                          -
                                                              No. 06-1465

                                                          ,
             v.                                            >
                                                          -
                                                          -
                               Defendants-Appellants. -
 DANIEL LUBELAN and JERRY ELLSWORTH,

                                                          -
                                                         N
                           Appeal from the United States District Court
                      for the Western District of Michigan at Grand Rapids.
                        No. 04-00552—Richard A. Enslen, District Judge.
                                          Argued: December 8, 2006
                                   Decided and Filed: February 7, 2007
        Before: BATCHELDER and GRIFFIN, Circuit Judges; PHILLIPS, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,
Lansing, Michigan, for Appellants. Herbert A. Brail, KEANE & KEANE, Dearborn, Michigan, for
Appellee. ON BRIEF: Margaret A. Nelson, Mark E. Donnelly, MICHIGAN DEPARTMENT OF
ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Christopher J. Keane, KEANE &
KEANE, Dearborn, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
         GRIFFIN, Circuit Judge. Defendants Daniel Lubelan and Jerry Ellsworth appeal the denial
of their motion for summary judgment brought pursuant to FED. R. CIV. P. 56(c). Defendants argue
that the district court mistakenly concluded that genuine issues of material fact precluded the entry
of summary judgment and that it failed to consider whether defendants were entitled to qualified
immunity from plaintiff Geraldine Livermore’s Fourth Amendment claims. Defendants argue
further that Livermore’s state law claims of gross negligence fail as a matter of Michigan law. For


         *
         The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                          1
No. 06-1465               Livermore v. Lubelan, et al.                                        Page 2


the reasons set forth below, we reverse the district court’s denial of defendants’ motion for summary
judgment.
                                                         I.
        Thomas Crosslin and decedent Roland Rohm operated the Rainbow Farms Campground
(“Rainbow Farms”) in Cass County, Michigan. Crosslin and Rohm advocated the legalization of
marijuana and often sponsored concerts and camp-outs on Rainbow Farms to espouse their views.
After receiving complaints about illegal drug use occurring on Rainbow Farms, the Cass County
Sheriff’s Department initiated an undercover investigation of Crosslin and Rohm. Crosslin, as
owner of Rainbow Farms, was subsequently charged with violating public health laws and forfeiture
proceedings against Crosslin and his property were initiated.
        After a search warrant was issued, investigators discovered a “marijuana grow operation”
in the basement of Crosslin’s and Rohm’s residence on Rainbow Farms. Consequently, more
criminal charges were filed and a Family Independence Agency investigation began, resulting in the
court-ordered removal of Rohm’s young son, Robert, from Crosslin’s and Rohm’s residence on
Rainbow Farms. In August 2001, Crosslin and Rohm violated an injunction prohibiting them from
sponsoring any more events on the farm and were subsequently held in contempt by the Cass County
Circuit Court.
        On August 31, 2001, after failing to appear at a scheduled show cause hearing in connection
with their contempt order, Crosslin and Rohm set fire to the outbuildings on Rainbow Farms and
barricaded themselves in their residence. The Cass County Sheriff’s Department set up observation
points around Rainbow Farms, closed off the perimeter, and requested assistance from the Michigan
State Police’s Emergency Services team (“Emergency Services”) to resolve the standoff at Rainbow
Farms and to arrest Crosslin and Rohm. Crosslin confronted the arriving police officials armed with
a gun and refused them permission to enter his property.
        That evening, Crosslin shot at and struck a news helicopter as it flew over his property,
taking aerial footage of the fires. Emergency Services, commanded by defendant Lieutenant Jerry
Ellsworth, and FBI personnel responded to Cass County’s request for assistance and began arriving
on the morning of September 1. On September 3, Crosslin and an accomplice – later identified as
Bradon Peoples – exited their residence and walked through the woods to a neighboring home,
where they broke in and stole supplies. On their return, Crosslin was shot and killed by an FBI
agent in self-defense. Peoples was arrested.
        During the early morning hours of September 4, Emergency Services began negotiating with
Rohm by phone. Rohm indicated that he would come out of the house and surrender at 7:00 a.m.
if he were allowed to speak with his son. The negotiator agreed, and Rohm was instructed to come
out to the street unarmed with his hands up. The Rainbow Farms residence began burning at 6:00
a.m. that morning, apparently set on fire by Rohm. At approximately 6:30 a.m., Rohm exited the
house armed with a rifle and hid between two trees in the backyard, near the northwest corner of the
house. What happened next is the subject of dispute between the parties.
        After Rohm fled his residence and hid between the trees, Emergency Services members
Sergeant Steven Homrich, Sergeant    David Bower, and Lt. Ellsworth approached Rohm in a Light
Armored Vehicle (“LAV”).1 Because of the LAV’s armor plating, Emergency Services’s radios did
not work inside the vehicle. To allow radio communication, Sgts. Homrich and Bower were placed
in open hatches in the roof of the LAV, exposed from their mid-torsos to the tops of their heads. The
LAV approached Rohm’s residence as Lt. Ellsworth identified himself via a loudspeaker and

       1
           An LAV is an armored vehicle designed to stop up to a .50 caliber round.
No. 06-1465               Livermore v. Lubelan, et al.                                                             Page 3


directed Rohm to surrender, but Sgts. Homrich and Bower were unable to see him due to the lack
of daylight and the smoke emitting from the house.
        Emergency Services snipers on an observation point approximately 150 yards northwest of
the house, however, were able to see Rohm. Defendant Sgt. Daniel Lubelan, a Michigan State
Police Trooper, observed Rohm in a crouched or kneeling position, holding his rifle at waist level
and turning his torso back and forth as if looking for someone. According to Sgt. Lubelan, Rohm
identified the LAV and aimed his gun in its direction, tracking the LAV as it moved. Sgt. Lubelan
believed that Rohm was   pointing his gun toward an exposed officer in the LAV and fired two shots
at Rohm, killing him.2
        On August 17, 2004, plaintiff Geraldine Livermore, Rohm’s mother and personal
representative, filed a complaint in the Eastern District of Michigan. Livermore alleged that Sgt.
Lubelan used excessive force in shooting Rohm, and that Lt. Ellsworth acted negligently in creating
the circumstances that led to Rohm’s death. On November 29, 2005, defendants moved for
summary judgment, arguing that Sgt. Lubelan’s use of force was reasonable, that defendants were
entitled to qualified immunity, and that Livermore’s gross negligence claims failed as a matter of
Michigan law on the facts of this case. The district court denied  defendants’ motion on February
17, 2006, finding that genuine issues of material fact existed.3
        Defendants filed this interlocutory appeal on March 17, 2006.
                                                          II.
        We first consider whether we have jurisdiction to address defendants’ interlocutory appeal.
Title 28 U.S.C. § 1291 limits this court’s jurisdiction to “final decisions of the district courts of the
United States. . . .” A district court’s denial of qualified immunity is an appealable final decision
pursuant to 28 U.S.C. § 1291, but only “to the extent that it turns on an issue of law.” Estate of
Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1985)). A defendant raising a qualified immunity defense “may not appeal a district
court’s summary judgment order insofar as that order determines whether or not the pretrial record
sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995); see

        2
            Livermore disputes that Rohm was aiming his rifle toward the LAV when he was fired upon.
        3
        Specifically, the Honorable Richard Enslen found that the following issues of fact precluded the grant of
summary judgment:
        While Defendant Lubelan has testified that he shot the decedent in the back when the decedent was
        swinging his rifle toward the approaching armored vehicle, his testimony is contradicted by the
        autopsy (which showed that the bullet entered through the decedent’s chest). Lubelan’s contention
        that the decedent was aiming toward the armored vehicle is contradicted by the affidavit of Plaintiff’s
        ballistics expert John Thornton – which concluded, based on all ballistics calculations – that the angle
        of the entry wound indicated the decedent was not facing the direction of the armored vehicle at the
        time he was shot. Lubelan’s testimony that the decedent was aiming his rifle with his left-hand is
        similarly contradicted by his step-father and fellow hunter who has sworn that the decedent was not
        a left-handed shooter. Lubelan’s premise that the shooting was necessary to protect two officers
        (Steve Homrich and Dave Bower) whose upper torsos were exposed as they were traveling in their
        armored vehicle is contradicted by those officers’ past statements (given to investigators) that their
        vehicle was repositioning, in a covered location while they were inside the vehicle, at the time the
        shots were fired. Likewise, Lubelan admitted in deposition testimony that he did not see officers in
        the armored vehicle exposed when he fired. Plaintiff’s law enforcement practices expert, D.P. Van
        Blaricom, has also provided reliable opinion evidence that the police practices used and ordered by
        Jerry Ellsworth were reckless and contributed to the use of excessive force. His conclusions include
        that the fatal incident was triggered by the unjustified and reckless decision to rush the suspect,
        without warning, at a time when he was trapped and did not pose any imminent threat.
No. 06-1465            Livermore v. Lubelan, et al.                                                Page 4


also Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (“A defendant who is denied qualified
immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract
or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly
established law.”). Nevertheless, that the district court here denied defendants’ motion for summary
judgment on the grounds that genuine issues of material fact exist does not necessarily preclude this
court’s jurisdiction over defendants’ appeal. Rather, as this court has recognized, “regardless of the
district court’s reasons for denying qualified immunity, [this court] may exercise jurisdiction over
the [defendants’] appeal to the extent it raises questions of law.” Williams v. Mehra, 186 F.3d 685,
689-90 (6th Cir. 1999) (en banc); see also Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
         Language in our earlier decisions interpreting Johnson suggests that where, as here, the
appellant fails to concede the facts as alleged by the appellee, this court is completely deprived of
jurisdiction over the appellant’s interlocutory appeal. See Berryman, 150 F.3d at 563 (“If . . . the
defendant disputes the plaintiff’s version of the story, the defendant must nonetheless be willing to
concede the most favorable view of the facts to the plaintiff for purposes of the appeal.”).
Subsequent cases, however, have rejected that approach and clarified that we may consider a pure
question of law, despite the defendants’ failure to concede the plaintiff’s version of the facts for
purposes of the interlocutory appeal: “If . . . aside from the impermissible arguments regarding
disputes of fact, the defendant also raises the purely legal question of whether the facts alleged . .
. support a claim of violation of clearly established law, then there is an issue over which this court
has jurisdiction.” Estate of Carter, 408 F.3d at 310 (internal quotations and citation omitted); see
also Smith v. Cupp, 430 F.3d 766, 772 (6th Cir. 2005); but see McKenna v. City of Royal Oak, et al.,
469 F.3d 559, 561 (6th Cir. 2006) (holding this court lacks jurisdiction to consider interlocutory
appeal where appellant relies solely on disputed facts). We therefore conclude that this court has
jurisdiction over defendants’ interlocutory appeal to consider whether, accepting the facts as alleged
by Livermore, defendants are entitled to qualified immunity from Livermore’s claim of excessive
force. See Mehra, 186 F.3d at 690 (instructing that court has jurisdiction to consider whether facts,
as alleged by plaintiff, entitle defendant to summary judgment); Berryman, 150 F.3d at 562 (same).
                                                   III.
        “Through the use of qualified immunity, the law shields ‘governmental officials performing
discretionary functions . . . from civil damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.’” Solomon v. Auburn
Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635,
638 (1987)). The Supreme Court instructs lower courts to perform a two-tiered inquiry to determine
whether a defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Courts should first determine whether “the facts alleged show the officer’s conduct violated a
constitutional right[.]” Id. If the plaintiff establishes that a constitutional violation occurred, a court
must next consider “whether the right was clearly established.” Id. When a defendant raises a
defense of qualified immunity, the plaintiff bears the burden of demonstrating that the defendant is
not entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
        The Court has emphasized that the qualified immunity analysis “must be undertaken in light
of the specific context of the case, not as a broad general proposition[.]” Saucier, 533 U.S. at 201.
Thus, in the excessive force context, it is not enough that a plaintiff establishes that the defendant’s
use of force was excessive under the Fourth Amendment. To defeat qualified immunity, the plaintiff
must show that the defendant had notice that the manner in which the force was used had been
previously proscribed:
        [T]here is no doubt that [precedent] clearly establishes the general proposition that
        use of force is contrary to the Fourth Amendment if it is excessive under objective
        standards of reasonableness. Yet that is not enough. Rather, we emphasized in
No. 06-1465             Livermore v. Lubelan, et al.                                                      Page 5


        Anderson [v. Creighton,] “that the right the official is alleged to have violated must
        have been ‘clearly established’ in a more particularized, and hence more relevant,
        sense: The contours of the right must be sufficiently clear that a reasonable official
        would understand that what he is doing violates that right.” 483 U.S. [635,] 640
        . . . [(1987)]. The relevant, dispositive inquiry in determining whether a right is
        clearly established is whether it would be clear to a reasonable officer that his
        conduct was unlawful in the situation he confronted.
Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (quoting Saucier, 533 U.S. at 201-02).
                                           A. Sergeant Lubelan
          As Saucier and Brosseau instruct, we must first determine whether Sgt. Lubelan violated
Rohm’s constitutional rights by shooting him. It is well-established that individuals have a
constitutional right to be free from excessive force during an arrest. See, e.g., Graham v. Conner,
490 U.S. 386, 388 (1989); Solomon, 389 F.3d at 173. “[A]ll claims that law enforcement officers
have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard . . . . ” Graham, 490 U.S. at 395. “[T]he Fourth Amendment prohibits a police officer’s
use of deadly force to seize an unarmed, non-dangerous suspect.” Sample v. Bailey, 409 F.3d 689,
696 (6th Cir. 2005) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)). Rather, the use of 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 . . . .” Garner, 471 U.S. at
11; see also Sample, 409 F.3d at 697 (noting that “only in rare instances may an officer seize a
suspect by use of deadly force”). The Court has identified three factors that lower courts should
consider in determining the reasonableness of force used: (1) the severity of the crime at issue;
(2) whether the suspect posed an immediate threat to the safety of the police officers or others; and
(3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. Graham, 490
U.S. at 396; Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). These factors are not an exhaustive
list, as the ultimate inquiry is “whether the totality of the circumstances justifies a particular sort of
seizure.” St. John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005) (quoting Graham, 490 U.S. at 396).
        Considering the totality of the facts and circumstances as alleged by Livermore, we hold that
Sgt. Lubelan acted reasonably in firing at Rohm. Several factors compel a finding that Rohm posed
a serious threat: Rohm helped cause the standoff that led to Crosslin’s death by (along with
Crosslin) setting fire to the buildings on Rainbow Farms, he was present when Crosslin fired shots
at a news helicopter, and – rather than surrender as agreed upon – he exited his burning residence
armed with a rifle. In addition, Michigan State Police officers were told that Rohm and Crosslin had
wired their residence with explosives. Furthermore, although Livermore contends that Rohm was
not aiming a gun at the LAV when he was shot, the first – and ultimately fatal – bullet fired by Sgt.
Lubelan hit the rifle stock of Rohm’s gun before entering Rohm’s chest. Thus, 4plaintiff’s own
expert, Dr. Thornton, concedes that Rohm was holding his rifle when he was shot.
        Despite these factors, Livermore argues that Sgt. Lubelan acted unreasonably in firing at
Rohm. Livermore relies on Dr. Thornton’s affidavit to argue that Rohm was not pointing his rifle
at the LAV when he was shot, and on statements made by Sgts. Homrich and Bower that they were
inside the LAV at the time of the shooting. Thus, Livermore argues, Rohm did not pose an
immediate threat when he was fired upon. We disagree.



        4
           Although Livermore’s brief contests defendants’ claim that Rohm was holding a weapon at the time he was
killed, Livermore conceded at oral argument that Rohm was in fact holding a rifle when he was shot.
No. 06-1465           Livermore v. Lubelan, et al.                                              Page 6


         First, we note our disagreement with the district court that Sgts. Homrich’s and Bower’s
statements create a genuine issue of material fact concerning their whereabouts at the time Rohm
was shot. In the statements at issue – derived from a Michigan State Police Incident Report filed
immediately after the shooting at Rainbow Farms – both Sgt. Bower and Sgt. Homrich state that
after they left their hatches and went down into the LAV, “they were informed by the perimeter
personnel that the suspect had been shot.” These statements, however, only suggest that Sgts.
Homrich and Bower were inside the LAV when they learned that Rohm had been shot; they are
silent as to whether the officers had been exposed at the time Sgt. Lubelan fired at Rohm. In our
view, these statements do not contradict Sgt. Homrich’s deposition testimony that he was exposed
at the time Rohm was shot.
       Moreover, in determining whether Rohm posed a threat of serious harm at the time he was
shot, we must focus on Sgt. Lubelan’s perspective:
       The “reasonableness” of a particular use of force must be judged from the
       perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
       hindsight. . . . 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.
Smith v. Freland, 954 F.2d 343, 346-47 (6th Cir. 1992) (quoting Graham, 490 U.S. at 396-97). Sgt.
Lubelan testified that he saw an officer exposed through the hatch of the LAV before he fired at
Rohm, and that he fired at Rohm in order to prevent Rohm from firing at the LAV. Even assuming
that Rohm was not aiming his rifle at the LAV when he was shot, we nonetheless conclude that Sgt.
Lubelan had probable cause to believe that Rohm posed a serious threat to the officers in the LAV
– particularly Sgt. Homrich – due to his proximity to the LAV while armed with a rifle, his prior
violent behavior, and his continued refusal to surrender and face arrest. Garner, 471 U.S. at 11
(holding the use of deadly force is constitutionally permissible only 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[.]”).
        Because Livermore has not shown that Sgt. Lubelan used excessive force in shooting at
Rohm, we need not address whether Rohm had a “clearly established” right to be free from being
fired upon. Saucier, 533 U.S. at 201. Sgt. Lubelan’s request for qualified immunity should have
been granted, and the district court’s denial of defendants’ motion for summary judgment with
respect to Livermore’s claim of excessive force against Sgt. Lubelan is reversed.
                                      B. Lieutenant Ellsworth
       Livermore also asserts that Lt. Ellsworth, who commanded the Emergency Services team
and attempted to confront Rohm in the LAV, intentionally or recklessly created the circumstances
leading to Rohm’s death. With respect to this claim, the district court stated that:
       Plaintiff’s law enforcement practices expert, D.P. Van Blaricom, has also provided
       reliable opinion evidence that the police practices used and ordered by Jerry
       Ellsworth were reckless and contributed to the use of excessive force. His
       conclusions include that the fatal incident was triggered by the unjustified and
       reckless decision to rush the suspect, without warning, at a time when he was trapped
       and did not pose any imminent threat. Although this record could be interpreted
       otherwise, the interpretation required by Rule 56 establishes that there are genuine
       issues of material fact requiring the denial of summary judgment as to whether
       Defendants recklessly used excessive force in violation of federal and state law.
No. 06-1465           Livermore v. Lubelan, et al.                                                  Page 7


       Defendants argue that the district court erred in denying their motion for summary judgment
with respect to Livermore’s Fourth Amendment claim against Lt. Ellsworth. They contend that
Livermore’s theory of recovery as to Lt. Ellsworth is not cognizable under a Fourth Amendment
excessive force claim.
        In support of her claim against Lt. Ellsworth, Livermore points to Billington v. Smith, 292
F.3d 1177 (9th Cir. 2002), in which the Ninth Circuit held that a plaintiff’s Fourth Amendment claim
against police officers who used deadly force may survive summary judgment, even where the
particular seizure is reasonable, if the defendant police officers acted recklessly in creating the
circumstances which required the use of deadly force. Id. at 1189 (stating that “even though the
officers reasonably fired back in self-defense, they could still be held liable for using excessive force
because their reckless and unconstitutional provocation created the need to use force.”). Although
this circuit has not addressed Billington directly, we have rejected such an analysis. The proper
approach under Sixth Circuit precedent is to view excessive force claims in segments. Gaddis v.
Redford Twp., 364 F.3d 763, 772 (6th Cir. 2004); Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th
Cir. 1996). That is, the court should first identify the “seizure” at issue here and then examine
“whether the force used to effect that seizure was reasonable in the totality of the circumstances, not
whether it was reasonable for the police to create the circumstances.” Dickerson, 101 F.3d at 1161
(quoting Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992)). The Dickerson court reasoned:
        The time-frame is a crucial aspect of excessive force cases. Other than random
        attacks, all such cases begin with the decision of a police officer to do something, to
        help, to arrest, to inquire. If the officer had decided to do nothing, then no force
        would have been used. In this sense, the police officer always causes the trouble.
        But it is trouble which the police officer is sworn to cause, which society pays him
        to cause and which, if kept within constitutional limits, society praises the officer for
        causing.
Id. (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994)); see also id. at 1161-62 (citing
with approval Drewitt v. Pratt, 999 F.2d 774, 778-80 (4th Cir. 1993) (rejecting a claim that an
officer who resorts to deadly force in self-defense violates the Fourth Amendment if he unreasonably
provokes the shooting by failing to identify himself as a police officer)); id. at 1162 (citing with
approval Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (scrutinizing “only the seizure itself,
not the events leading to the seizure, for reasonableness under the Fourth Amendment” because the
“Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in
general.”)).
        Applying the segmented analysis here that Dickerson requires, we conclude that Lt.
Ellsworth is entitled to summary judgment on Livermore’s excessive force claim. Livermore,
through her expert, asserts that Lt. Ellsworth acted recklessly by creating circumstances to justify
shooting Rohm, by ordering snipers to shoot Rohm if he raised a weapon at the LAV, by failing to
warn Rohm that he would be fired upon, and by “rushing” the assault on Rohm. Because Livermore
argues that Lt. Ellsworth acted negligently by increasing the likelihood that Rohm would be shot,
the seizure at issue is the shooting of Rohm. All of the actions concerning Lt. Ellsworth, however,
occurred in the hours and minutes leading up to Rohm’s killing; Dickerson instructs us to disregard
these events and to focus on the “split-second judgments” made immediately before the officer used
allegedly excessive force. See Dickerson, 101 F.3d at 1162 (citing Greenidge v. Ruffin, 927 F.2d
789, 792 (4th Cir. 1991) and Sherrod v. Berry, 856 F.2d 802, 805-06 (7th Cir. 1988) (en banc)). The
only force used against Rohm during the standoff was the two shots that killed him, and it is
undisputed that the only officer to shoot Rohm was Sgt. Lubelan. Under Dickerson, the preceding
decisions made by Lt. Ellsworth are immaterial and not a sufficient basis for a claim under the
Fourth Amendment. We therefore reverse the district court’s denial of defendants’ motion for
summary judgment with respect to Livermore’s excessive force claim against Lt. Ellsworth.
No. 06-1465           Livermore v. Lubelan, et al.                                            Page 8


                                                 IV.
        Livermore also asserts claims of gross negligence arising under Michigan state law against
Sgt. Lubelan and Lt. Ellsworth. Defendants argue that they are entitled to immunity from
Livermore’s state law claims under MICH. COMP. LAWS § 691.1407 unless Livermore can establish
that their conduct amounted to gross negligence. Because Livermore’s claims are predicated on
intentional – rather than negligent – conduct, defendants contend that Livermore’s state law claims
fail as a matter of law. We agree with defendants and reverse the district court’s denial of
defendants’ motion for summary judgment on Livermore’s state law claims of gross negligence.
                                                 A.
         In a diversity case or a federal question action involving pendent state claims, we must look
to state immunity law to determine whether a denial of immunity based on state law is appealable.
Walton v. City of Southfield, 995 F.2d 1331, 1343 (6th Cir. 1993) (citing Mitchell v. Forsyth, 472
U.S. 511 (1985), and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). In Walton, we held that a
defendant could not appeal a district court’s denial of governmental immunity pursuant to MICH.
COMP. LAWS § 691.1407 because it was not a “final decision” under 28 U.S.C. § 1291. Id. at 1344.
On June 4, 2002, however, Michigan Court Rule 7.202 was amended to include as a “final order”
an “order denying governmental immunity to a governmental party, including a governmental
agency, official, or employee . . . .” M.C.R. 7.202(6)(a)(v). Since the 2002 amendment, we have
held repeatedly that, because the denial of governmental immunity is now a “final order” providing
defendants with an appeal of right to the Michigan Court of Appeals, this court has jurisdiction over
interlocutory appeals concerning pendent state law claims of governmental immunity. See Schack
v. City of Taylor, 177 F. App’x 469, 473-74 (6th Cir. 2006) (unpublished); Bradley v. City of
Ferndale, 148 F. App’x 499, 511-12 (6th Cir. 2005) (unpublished). We therefore conclude that this
court has jurisdiction to consider defendants’ interlocutory appeal concerning the denial of qualified
immunity to Sgt. Lubelan and Lt. Ellsworth with respect to Livermore’s state law claims.
                                                 B.
         Michigan’s governmental tort liability act, MICH. COMP. LAWS §§ 691.1401 et seq., provides
governmental employees with immunity from tort liability for injuries they cause during the course
of their employment so long as the employee’s conduct “does not amount to gross negligence that
is the proximate cause of the injury or damage.” MICH. COMP. LAWS § 691.1407(2)(c); see also id.
at § 691.1407(7)(a) (defining “gross negligence” as “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results”). In her complaint, Livermore alleges a
claim of gross negligence against Sgt. Lubelan, contending that Sgt. Lubelan breached a duty owed
to Rohm by shooting and killing him, and by failing to understand “activity which constituted an
imminent threat of harm to him and others.” Although her complaint is articulated in terms
appropriate for a negligence claim (e.g., “failing to understand”), Livermore’s gross negligence
claim against Sgt. Lubelan is undoubtedly premised on the intentional tort of battery. The Michigan
courts have consistently “rejected attempts to transform claims involving elements of intentional
torts into claims of gross negligence.” VanVorous v. Burmeister, 687 N.W.2d 132, 143 (Mich. Ct.
App. 2004); see also Smith v. Stolberg, 586 N.W.2d 103, 104-05 (Mich. Ct. App. 1998); Sudul v.
Hamtramck, 562 N.W.2d 478, 479, 487-88 (Mich. Ct. App. 1997). Livermore’s claim of gross
negligence against Sgt. Lubelan is therefore not cognizable under Michigan law, and the district
court’s denial of defendant’s motion for summary judgment with respect to this claim is reversed.
        Livermore also alleges a claim of gross negligence against Lt. Ellsworth. As discussed
above, governmental employees are immune from tort liability for injuries they cause during the
course of their employment, if the employee’s conduct “does not amount to gross negligence that
is the proximate cause of the injury or damage.” MICH. COMP. LAWS § 691.1407(2)(c) (emphasis
No. 06-1465           Livermore v. Lubelan, et al.                                             Page 9


added). In Robinson v. City of Detroit, 613 N.W.2d 307, 311 (Mich. 2000), the Michigan Supreme
Court defined “the proximate cause” under § 691.1407(2)(c) to mean “the one most immediate,
efficient, and direct cause preceding an injury . . . .” Id. at 317-18. The Robinson court then applied
its definition of “the proximate cause” to conclude that police officers in pursuit of an underage
driver who was operating a car recklessly were immune from liability for injuries caused to the
driver’s innocent passengers. Id. at 319. The court reasoned that the proximate cause of the injuries
sustained by the plaintiffs was not the officers’ decision to chase after the driver, but rather the
reckless conduct of the fleeing driver. Id. Similarly, we conclude that the proximate cause of
Rohm’s death was not Lt. Ellsworth’s conduct, but rather Rohm’s decision to disregard his promise
to surrender unarmed and to set fire to his residence. Because Lt. Ellsworth’s conduct was not the
proximate cause of Rohm’s death, he is immune from Livermore’s claim of gross negligence
pursuant to MICH. COMP. LAWS § 691.1407(2)(c). See also Dean v. Childs, 705 N.W.2d 344 (Mich.
2005) (reversing denial of summary judgment for defendants, for reasons stated by dissenting
opinion in Dean v. Childs, 684 N.W.2d 894, 901-03 (Mich. Ct. App. 2004)).
       The district court’s denial of defendants’ motion for summary judgment is reversed.
