                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0209p.06

                      UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                            X
                                      Plaintiff-Appellee, -
 CHRISTOPHER SAMPLE,
                                                             -
                                                             -
                                                             -
                                                                 No. 04-4174
             v.
                                                             ,
                                                              >
 JASON BAILEY,                                               -
                                    Defendant-Appellant, -
                                                             -
                                                            N
                             Appeal from the United States District Court
                            for the Northern District of Ohio at Cleveland.
                          No. 04-00344—David D. Dowd, Jr., District Judge.
                                           Argued: April 20, 2005
                                     Decided and Filed: May 9, 2005
                  Before: NELSON and MOORE, Circuit Judges; RESTANI, Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Patricia Ambrose Rubright, CITY OF AKRON DEPARTMENT OF LAW, Akron,
Ohio, for Appellant. David C. Sheldon, JOHN BROOKS CAMERON & ASSOCIATES, Medina,
Ohio, for Appellee. ON BRIEF: Patricia Ambrose Rubright, Bruce H. Christensen, Jr., CITY OF
AKRON DEPARTMENT OF LAW, Akron, Ohio, for Appellant. David C. Sheldon, JOHN
BROOKS CAMERON & ASSOCIATES, Medina, Ohio, Craig T. Weintraub, Beachwood, Ohio,
for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant, Officer Jason Bailey
(“Bailey”), appeals from the district court’s denial of his motion for summary judgment on the
ground that he is entitled to qualified immunity with respect to Plaintiff-Appellee Christopher
Sample’s Fourth Amendment claim of excessive force. The court held that summary judgment was
inappropriate because Christopher Sample (“Sample”) alleged a violation of a clearly established
constitutional right and there was a genuine factual dispute regarding whether Bailey’s actions were
objectively reasonable in light of that right. On appeal, Bailey argues that the constitutional right


       *
        The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.


                                                         1
No. 04-4174           Sample v. Bailey                                                         Page 2


at issue is not clearly established within the factual context of this case and therefore, he should be
entitled to qualified immunity. For the reasons set forth below, we AFFIRM the district court’s
denial of Bailey’s motion for summary judgment.
                                         I. BACKGROUND
        The following facts are undisputed. At approximately 9:20 p.m. on January 15, 2003, an
alarm company alerted the Akron Police Department dispatch center that a rear motion detector had
been activated at B & G Designs International (“B & G”), a commercial business located on
Kenmore Boulevard in Akron, Ohio. After being notified by the dispatcher, Officer Bailey and his
partner, Officer Shawn Prexta (“Prexta”), responded to the alarm. Upon arrival at B & G, the
officers checked that the front door was locked, and then proceeded to the rear of the building.
Because it was night, the officers used flashlights to guide their way. Once they had arrived at the
back of the building, Prexta noticed that a window on the second floor was broken. Prexta also
found footprints in the snow on top of a dumpster, located below the broken window. In the back
of B & G, there was a small staircase leading to a second floor door with a small window. Bailey
climbed the stairs to the door. Looking through the window into the building, Bailey could see a
white male carrying computer equipment. Because he thought the person rightfully belonged there,
Bailey tapped on the window with his flashlight to get the man’s attention. When the man noticed
Bailey’s tapping, “he turned around and took off.” Joint Appendix (“J.A.”) at 103 (Bailey Dep. at
72). Bailey then realized the person was a burglar. Sample admitted in his deposition that he was
the person Bailey saw and that he took off because he had an outstanding misdemeanor warrant for
his arrest.
        After Sample ran, Bailey descended the stairs and informed Prexta that a suspect was in the
building. Prexta called additional units for assistance and returned to the front of B & G, where he
discovered that Officer Mobley (“Mobley”) had arrived. Mobley secured the front of the building
while Prexta returned to the back with Bailey. At approximately the same time, William Huber
(“Huber”), the key holder for B & G, arrived on the scene. Huber informed Bailey that no one was
supposed to be inside the building. Police Sergeant Christopher Brewer (“Brewer”) also arrived on
the scene and took control of the situation. After securing the area outside, Brewer directed Huber
to open the rear entrance of the first floor of the building so that Bailey and Prexta could secure the
immediate area inside. Once they had done so, Huber entered the building to deactivate the alarm,
which had been continuing to sound. After that, Brewer directed Bailey and Prexta to search the
building.
         Bailey and Prexta began searching the first floor. Each officer had his firearm in one hand
and a flashlight in the other. The interior lights of the building were not on, so the flashlights were
the only source of light. As the officers searched, they repeatedly announced that they were
members of the Akron police and requested that the suspect show himself. After securing the entire
first floor, the officers ascended the stairs to the second floor of B & G. On the second floor, there
was a large room which was cluttered with machines and other equipment. The officers noticed a
long table towards the back of the room with a large white sign leaning against it. Because the sign
blocked any view of what was behind the table, the officers carefully approached the table from
either side. As Bailey walked by a black cabinet near the end of the table, he smelled a foul odor,
including what smelled like alcohol. Prexta smelled it as well. Recalling an earlier experience,
Bailey suspected that Sample might be hiding in the black cabinet.
         The black cabinet had two doors which opened from the center and was approximately five
feet wide, two feet deep and two and a half feet high. The front of the cabinet was approximately
three feet from the end of the table. Without informing Prexta, Bailey opened the left cabinet door
with his left hand, while his right hand held his gun. Bailey was careful to open the door from the
left side so as not to stand directly in front of the open cabinet. When the cabinet door was opened,
No. 04-4174               Sample v. Bailey                                                                      Page 3


Sample was revealed hiding inside. Sample was crouched inside the cabinet with his back towards
the left wall and his legs curled up tight towards his chest. Both of his hands were clearly visible
on the ground near the opening of the cabinet. Upon discovering Sample, Bailey directed his
firearm and flashlight towards Sample and ordered him to make sure his hands were visible at all
times and to come out of the cabinet. The precise sequence of events after this point is disputed
among the parties.
A. The Police Officers’ Version
        Bailey claims that after he ordered Sample out of the cabinet, Sample did not say anything
or immediately respond. Unbeknownst to Bailey, Prexta had approached the cabinet from the right
side of the table and crouched down on his knees. When he was within two feet of the cabinet,
Prexta holstered his weapon and tried to effect an arrest. Prexta claims he did so because he
believed that Bailey was covering him and that Sample no longer posed a danger to the officers.
Prexta stated in his deposition that he attempted to grab Sample’s left arm to pull him out of the
cabinet and handcuff him, but that Sample pulled away, rolled his body, and attempted to pull his
left arm underneath himself. Bailey stated in his deposition that he was aware that Prexta was
somewhere to his right but did not see Prexta either holster his weapon or grab Sample’s left hand.
Bailey did see Sample roll his body towards the inside of the cabinet and move his right hand up
towards his torso. Bailey stated that Sample’s actions concerned him, and he shouted “Show me
your hands” several times. J.A. at 120 (Bailey Dep. at 89). Bailey claims that Sample      did not heed
his commands, but instead Sample reached inside his jacket with his right hand.1 According to
Bailey, “[a]t that point, that’s when [he] feared for [his] life” and he instinctively fired his gun at
Sample. J.A. at 121 (Bailey Dep. at 90). Prexta stated in his deposition that he never saw Sample
reach inside his jacket. Prexta was crouched near the cabinet when the shots were fired and quickly
retreated towards the staircase when the gunfire began because he had holstered his weapon.
        In all, Bailey fired his weapon seven times at Sample, hitting him in several places on his
body. Bailey stated in his deposition that he did not realize the number of times he fired his gun.
He claims that the sound of the shots echoed in the room giving him the impression that Sample was
firing back. As he was firing his gun, Bailey was moving away from the cabinet down the side of
the table. Bailey stated that he stopped firing when Sample and the cabinet were out of his sight
line. Once he stopped firing, he stated that he rounded the table to check on Sample and Prexta, who
by then was on the staircase calling for an ambulance. According to Bailey, Sample was sitting in
the cabinet and said to him, “I don’t even have a gun.” J.A. at 132 (Bailey Dep. at 106). Bailey
claims that at that point Sample fell partially out of the cabinet and Bailey saw blood coming from
the wounds. In his deposition, Bailey stated that he continually asked Sample why he reached into
his jacket, to which Sample responded he wanted a cigarette. Bailey claims that Sample continued
to reach into his pocket while he lay on the floor bleeding, and that Bailey kept knocking Sample’s
hand away from his jacket.
         Sergeant Brewer, who was outside at the time of the incident, heard the shots and ran up the
stairs to the second floor. He stated in his affidavit that Sample kept pulling his hands up to his body
despite the fact that Bailey was ordering him otherwise. Brewer reached into the cabinet and
dragged Sample out onto the floor. Sample was not immediately searched because of the blood.
Brewer stated that “[i]t was a constant struggle to keep him from putting his hands in his coat. He
kept saying how hot he was and wanted his coat off.” J.A. at 187 (Brewer Aff. at 2). Mike Fagan
(“Fagan”), an Akron firefighter-paramedic, arrived on the scene. Fagan stated in his affidavit that


         1
          Sample was dressed entirely in black. Though Sample stated in his deposition he was wearing a black
sweatshirt, J.A. at 160 (Sample Dep. at 54), the police officer who tagged the clothing as evidence stated that he tagged
a black velour lightweight jacket with pockets on the left side and the right side cut off. J.A. at 181 (Dorsey Aff.).
No. 04-4174               Sample v. Bailey                                                                     Page 4


Sample was attempting to place his hand inside his jacket pocket as well. Using rubber gloves,
Fagan searched Sample and did not find anything in his jacket pockets.
B. Sample’s Version
        Sample stated in his deposition that on the night of January 15, 2003, he had consumed a
beer and a half at a bar and some more alcohol later at his home. After the shooting, his blood serum
alcohol level was revealed to be 0.185%, well above the legal limit for driving in Ohio. Sample
claims that he went to2 B & G that night to help a friend, John, retrieve keys thrown into the building
by John’s girlfriend. According to Sample, both John and his girlfriend went with him to B & G.
Sample claims that he and John pushed the dumpster towards the window in the rear of B & G and
that Sample lifted John into the window. John then reached down and pulled Sample into the
building. Sample stated that after John had found his keys, they were returning to the window when
they saw the flashlights of the police outside. According to Sample, after seeing the police, the two
parted company and Sample hid in the black cabinet.
        In his deposition, Sample stated that from inside the cabinet he could hear Bailey and Prexta
talking. According to Sample, eventually the cabinet door opened and an officer told him to “[c]ome
out with your hands out.” J.A. at 161 (Sample Dep. at 60). At that point, Sample stated that he
moved his leg out in an attempt to exit the cabinet. He claims that his legs were outside of the
cabinet, while his torso and arms were still inside. According to Sample, the officer again instructed
him to put his hands in the air, which he did. Sample stated that when he reached out with his right
hand to grab the edge of the top of the cabinet to pull himself out, he was shot several times. He
stated that his right “hand [came] from down to out, that’s when [Bailey] started firing.” J.A. at 163
(Sample Dep. at 65). He claims that he never reached inside his jacket.
        Sample’s recollections of the events which occurred after he was shot are understandably
sketchy. He stated at his deposition that he remembers someone saying “Stop it, he’s down.” J.A.
at 164 (Sample Dep. at 69). His next recollection is of an older officer standing over him reassuring
him that an ambulance was on the way. He does not recall speaking to any of the officers at the
scene or later at the hospital. In his affidavit, Akron Police Detective Bill Laughlin (“Laughlin”)
stated that he spoke to Sample at the hospital after the shooting. In his investigation report, he stated
that Sample claimed he was at the B & G with John to retrieve John’s keys. Laughlin claims that
Sample admitted that he was reaching for his cigarettes when he was shot. He also quotes Sample
as saying “I’m going to sue, man. He shot me and I was just grabbing for my cigarettes. The guy
didn’t tell me not to stop or nothing.” J.A. at 188 (Laughlin Aff.).
       On February 4, 2003, Sample pleaded guilty to breaking and entering, Ohio Rev. Code Ann.
§ 2911.13(A), and possessing criminal tools, Ohio Rev. Code Ann. § 2923.24(A), as a result of his
presence at B & G that night. The state trial court sentenced Sample to six months in prison for the
crimes. He was released on July 21, 2003.
                                       II. PROCEDURAL HISTORY
        On January 15, 2004, Sample brought suit against Bailey, Police Chief Michael Matulavich,
and the City of Akron in the Court of Common Pleas in Summit County, Ohio. The complaint
alleged various state-law claims as well as a violation of Sample’s Fourth Amendment right to be
free from the use of excessive force to effect a seizure. Pursuant to 28 U.S.C. § 1441(b), the
defendants removed the case to the United States District Court for the Northern District of Ohio.


         2
          Sample did not provide the last names of either John or his girlfriend, and neither were found when the police
searched the building.
No. 04-4174           Sample v. Bailey                                                          Page 5


After limited discovery, Bailey moved for summary judgment claiming he is entitled to qualified
immunity with respect to the shooting of Sample.
        On August 24, 2004, the district court denied Bailey’s motion for summary judgment on the
ground of qualified immunity. The court found that when the facts were taken in the light most
favorable to Sample, he had alleged a violation of a clearly established constitutional right.
Moreover, the court held that there was a genuine factual dispute related to whether Bailey’s actions
violated that clearly established right. Accordingly, the court denied the summary judgment motion.
Bailey filed this interlocutory appeal shortly thereafter.
                                          III. ANALYSIS
A. Jurisdiction
         As a threshold matter, we must first determine whether we have jurisdiction to consider
Bailey’s interlocutory appeal. In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), the United States
Supreme Court held that “a district court’s denial of a claim of qualified immunity, to the extent that
it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment.” In these cases, “the appealable issue is purely a
legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a
claim of violation of clearly established law.” Id. at 528 n.9. By contrast, in Johnson v. Jones, 515
U.S. 304, 319-20 (1995), the Court held that “a defendant, entitled to invoke 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.” The Court noted that
“an interlocutory appeal concerning this kind of issue in a sense makes unwise use of appellate
courts’ time, by forcing them to decide in the context of a less developed record, an issue very
similar to one they may well decide anyway later, on a record that will permit a better decision.”
Id. at 317. Therefore, put clearly, “[a] denial of qualified immunity on purely legal grounds is
immediately appealable. A denial of qualified immunity that turns on evidentiary issues is not.”
Turner v. Scott, 119 F.3d 425, 427 (6th Cir. 1997) (internal citation omitted).
        In this case, the district court denied Bailey’s motion for summary judgment because of a
factual dispute between the parties. Specifically, there is a dispute about where Sample’s right hand
was at the time that Bailey fired his weapon. Sample stated that he was reaching out to grab the
edge of the top of the cabinet to pull himself out, while Bailey claims that Sample put his hand in
his jacket pocket. The district court concluded that the factual dispute was critical in determining
whether Bailey’s use of deadly force violated Sample’s clearly established constitutional right.
        On appeal however, Bailey does not raise the issue of the location of Sample’s hand, but
instead argues that even under Sample’s version of the facts, he is entitled to qualified immunity.
Therefore, the issue before this court is a “neat abstract issue of law,” id. at 428, whether the facts
as alleged by Sample demonstrate a violation of a clearly established constitutional right.
Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1291 over Bailey’s appeal of the district
court’s denial of summary judgment based on qualified immunity.
B. Denial of Qualified Immunity
        Sample brought suit against Bailey pursuant to 42 U.S.C. § 1983, which “by its terms does
not create any substantive rights but rather merely provides remedies for deprivations of rights
established elsewhere.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005)
(internal quotation omitted). To prevail on his § 1983 claim, Sample “must establish that a person
acting under color of state law deprived [him] of a right secured by the Constitution or laws of the
United States.” Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001). The Supreme
Court has held, however, that “government officials performing discretionary functions generally
No. 04-4174                Sample v. Bailey                                                                          Page 6


are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity “is an affirmative defense that
must be pleaded by a defendant official.” Id. at 815. “The central purpose of affording public
officials qualified immunity from suit is to protect them ‘from undue interference with their duties
and from potentially disabling threats of liability.’” Elder v. Holloway, 510 U.S. 510, 514 (1994)
(quoting Harlow, 457 U.S. at 806).
       “Because review of a denial of qualified immunity is an issue of law, our review is de novo.”
Yates v. City of Cleveland, 941 F.2d 444, 446 (6th Cir. 1991). In reviewing a claim for qualified
immunity, we employ a three-step inquiry:
         First, we determine whether, based upon the applicable law, the facts viewed in the
         light most favorable to the plaintiff[] show that a constitutional violation has
         occurred. Second, we consider whether the violation involved a clearly established
         constitutional right of which a reasonable person would have known. Third, we
         determine whether the plaintiff has offered sufficient evidence to indicate that what
         the official allegedly did was objectively unreasonable in light of the clearly
         established constitutional rights.
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal quotation omitted).3 “Qualified
immunity must be granted if the plaintiff cannot establish each of these elements.” Radvansky, 395
F.3d at 302.
         1. Constitutional Violation
        The first step in the qualified immunity analysis is to determine whether based on the facts
as alleged by Sample, a constitutional violation has occurred. “[A]ll claims that law enforcement
officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop,

         3
           One panel of this court has recently suggested that our three-step approach for evaluating qualified immunity
claims outlined in Feathers v. Aey, 319 F.3d 843 (6th Cir. 2003), is inconsistent with the Supreme Court’s two-step
inquiry outlined in Saucier v. Katz, 533 U.S. 194 (2001). Dunigan v. Noble, 390 F.3d 486, 491 n.6 (6th Cir. 2004). We
disagree and take a brief moment to explain our reasoning.
          The Supreme Court in Saucier stated that when reviewing claims of qualified immunity, the initial inquiry must
be “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” 533 U.S. at 201. If a constitutional violation has been established, the Court stated that
“the next, sequential step is to ask whether the right was clearly established.” Id. These two inquiries form the
preliminary two steps in the Feathers approach.
          If we find the first two requirements have been met, the final inquiry is “whether the plaintiff has offered
sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights.” Feathers, 319 F.3d at 848. This final requirement directly flows from the Court’s
recognition that “[t]he qualified immunity inquiry . . . has a further dimension.” Saucier, 533 U.S. at 205. Specifically,
the Court noted that “[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as
to the legal constraints on particular police conduct.” Id. “Somewhat more concretely, whether an official protected by
qualified immunity may be held personally liable for an allegedly unlawful action generally turns on the ‘objective legal
reasonableness’ of the action, assessed in light of legal rules that were ‘clearly established’ at the time it was taken.”
Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal citation omitted). Thus, the Court explained that “even if a
court were to hold that [an] officer violated the Fourth Amendment by conducting an unreasonable, warrantless search,
Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions.” Saucier,
533 U.S. at 206. In Saucier, the Court reaffirmed the principle laid out in Anderson, and stated that “[i]f the officer’s
mistake as to what the law requires is reasonable . . . the officer is entitled to the immunity defense.” Id. at 205; see also
Malley v. Briggs, 475 U.S. 335, 341 (1986) (noting that qualified immunity “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law”).
          Thus, we conclude that the Feathers three-step approach correctly encompasses the Supreme Court’s approach
to qualified immunity claims and serves to ensure government officials the proper protection from civil suit under the
law.
No. 04-4174           Sample v. Bailey                                                        Page 7


or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). Twenty years ago, in
Tennessee v. Garner, 471 U.S. 1, 11 (1985), the United States Supreme Court held that the Fourth
Amendment prohibits a police officer’s use of deadly force to seize an unarmed, non-dangerous
suspect. The Court stated that the use of deadly force is only constitutionally reasonable 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.” Id. In evaluating an excessive force claim, “[t]he ‘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.” Graham, 490 U.S. at 396. Moreover, “[t]he 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.” Id. at 396-97.
        In applying these principles, we have stated that “only in rare instances may an officer seize
a suspect by use of deadly force.” Whitlow v. City of Louisville, No. 00-6557, 2002 WL 1455317,
at *5 (6th Cir. Jul. 1, 2002). We have upheld the use of deadly force by a police officer when the
factual situation revealed a perceived serious threat of physical harm to the officer or others in the
area from the perspective of a reasonable officer. See Boyd v. Baeppler, 215 F.3d 594, 604 (6th Cir.
2000) (upholding qualified immunity for police officers who used deadly force against a suspect
who had a gun in his hand and who pointed it at officers and others); Bell v. City of East Cleveland,
No. 96-3801, 1997 WL 640116, at *3 (6th Cir. Oct. 14, 1997) (upholding qualified immunity for a
police officer who shot and killed a boy who pointed a toy gun at the officer); Rhodes v. McDannel,
945 F.2d 117, 120 (6th Cir. 1991) (upholding qualified immunity for police officer who shot and
killed a homeowner who approached police officers with a raised machete in his hand and ignored
repeated warnings to drop the weapon), cert. denied, 502 U.S. 1032 (1992).
        By contrast, in this case, under the facts alleged by Sample, Bailey was not faced with a
serious threat of physical harm to himself or his partner which would necessitate the use of deadly
force. After Bailey ordered Sample to exit the cabinet, Sample stated that he moved his right hand
“from down to out” to grab onto the edge of the top of the cabinet. J.A. at 163 (Sample Dep. at 65).
Nothing about the movement of Sample’s right arm would be threatening to a reasonable officer.
Sample was attempting to comply with Bailey’s command to exit the cabinet. His hand was at all
times visible and, according to Sample, never entered into his jacket pocket. Bailey argues in his
brief that the movement must be considered in light of the overall context of the incident, including:
the dark commercial building, the triggering of the alarm, the smell of alcohol, Sample’s non-
responsiveness. Appellant’s Br. at 21-22. We agree that the action must be viewed in light of the
surrounding circumstances, but even within this context, Bailey was not justified in using deadly
force. Sample was found in a cabinet. His movement was therefore limited and he could not
quickly charge the officers. He was not verbally threatening, but rather merely silent. His hands
were visible and empty. He was ordered by the police to exit the cabinet, and therefore some
movement was to be expected. Prexta, the other officer on the scene, stated in his deposition that
he had holstered his weapon at this point because he did not believe that Sample posed a threat to
him or Bailey. Without considering Bailey’s claim that Sample placed his hand in his pocket, we
conclude that Sample’s mere action of moving his arm to grab the top of the cabinet would not cause
a reasonable officer to perceive a serious threat of physical harm to himself or others. Therefore,
Bailey’s use of deadly force to seize Sample was constitutionally impermissible, when we view the
facts in a light favorable to Sample, as we must.
No. 04-4174            Sample v. Bailey                                                            Page 8


        2. Clearly Established Right
         Having established that there was a constitutional violation, we turn to the second step of the
qualified immunity analysis — whether the constitutional right at issue was clearly established. “If
the law at that time was not clearly established, an official could not . . . fairly be said to ‘know’ that
the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818. The
constitutional right cannot simply be a general prohibition, but rather “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.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). The Court noted that “[t]his is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful, but it is to say that
in the light of pre-existing law the unlawfulness must be apparent.” Id. (internal citation omitted).
“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.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “In inquiring whether a constitutional right
is clearly established, we must look first to decisions of the Supreme Court, then to decisions of this
court and other courts within our circuit, and finally to decisions of other circuits.” Walton v. City
of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993).
        In denying qualified immunity, the district court held that since the Garner decision in 1985,
it has been clearly established that the use of deadly force is only constitutionally reasonable 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. Bailey argues in his brief that this generalized
statement is not particular enough to put a reasonable officer on notice in the specific factual context
of this case. Instead, Bailey argues that the absence of a factually similar precedent case requires
this court to find that the constitutional right is not clearly established. Put another way, Bailey
claims that a reasonable officer would be unaware that he could not use deadly force to seize a
burglary suspect, who was unarmed but found hiding in a building at night. We disagree.
         In Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004), the United States Supreme Court recently
stated that “Graham and Garner, following the lead of the Fourth Amendment’s text, are cast at a
high level of generality” and therefore may be insufficient to give a police officer fair warning of
the constitutional parameters regarding the use of deadly force in a specific factual context. In
Brosseau, the police officer was faced with the situation of “whether to shoot a disturbed felon, set
on avoiding capture through vehicular flight, when persons in the immediate area are at risk from
that flight.” Id. at 600. The Court cited three cases, including one from this court, which reached
different conclusions on whether a police officer in such a situation would be justified in using
deadly force. As a result, the Court held that a reasonable officer who fully understood Garner’s
general constitutional command nevertheless would not know whether the use of deadly force was
permissible in that situation. Because a reasonable officer at that time would not have had fair
warning that his conduct violated the Fourth Amendment, the Court held that the law was not clearly
established and therefore, the officer was entitled to qualified immunity. Id.
        By contrast, the Court recognized that “in an obvious case, [general] standards can ‘clearly
establish’ the answer, even without a body of relevant case law.” Id. at 599. As the Supreme Court
has noted, “officials can still be on notice that their conduct violates established law even in novel
factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). When a general constitutional
principle “is not tied to particularized facts,” the principle “can clearly establish law applicable in
the future to different sets of detailed facts.” Harris v. Coweta County, _ F.3d _, No. 03-15094,
2005 WL 901889, at *8 (11th Cir. Apr. 20, 2005) (internal quotation omitted). The determinative
issue is whether the officer had “fair warning that his conduct deprived [the plaintiff] of a
constitutional right.” Hope, 536 U.S. at 740 (internal quotation omitted). See, e.g., Harris, 2005
No. 04-4174           Sample v. Bailey                                                           Page 9


WL 901889, at *9 (holding that it was an obvious case that a police officer may not ram his cruiser
into a suspect’s vehicle during a high speed chase where the suspect did not pose an immediate
threat of harm to the police officers or others); Craighead v. Lee, 399 F.3d 954, 962 (8th Cir. 2005)
(holding that it was an obvious case that a police officer may not fire a shotgun at a suspect wrestling
with a victim while the victim was holding the suspect’s gun over his head and pointing it upward).
         We hold that this case is “an obvious case” because it does not present a novel factual
circumstance such that a police officer would be unaware of the constitutional parameters of his
actions. We have held that it has been clearly established in this circuit for the last twenty years that
a criminal 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.” Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988).
This articulation of the Garner rule is clearly established even in situations with diverse factual
distinctions. See, e.g., Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998) (holding that
it is clearly established that an officer could not use deadly force to effectuate an arrest of an
intoxicated suspect at night in an unfamiliar place without a reasonable belief that the suspect posed
a significant danger to the officer or others); Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir.
1996) (noting that an officer may not use deadly force to seize a suspect walking towards the police
in an enclosed unfamiliar area at night with his hands at his side); Russo v. City of Cincinnati, 953
F.2d 1036, 1045 (6th Cir. 1992) (holding that the law was clearly established that the police could
not shoot a paranoid schizophrenic suspect, who was armed with knives but had already been shot
several times). Though a factually similar precedent case may not have existed at the time these
cases were decided, we held that the rule established in Robinson was particular enough to give a
reasonable officer fair notice of his unconstitutional conduct. Thus, regardless 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. These factual distinctions between the cases do not
alter the certainty about the law itself. Similarly, we conclude that the factual context of this case
— the darkness, the unfamiliar building, Sample’s intoxication and unresponsiveness — is
sufficiently similar to our body of case law applying the Robinson rule so as to give Bailey fair
warning that shooting a suspect who was not perceived as posing a serious threat to the officers or
to others is unconstitutional.
        In support of his argument, Bailey cites our opinion in Robinette v. Barnes, 854 F.2d 909,
914 (6th Cir. 1988), in which we stated in dicta that when a police officer was searching for a
burglary suspect hiding in an unfamiliar area at night, the officer “was justified in using whatever
force was necessary, even deadly force, to protect himself and the other officers and to apprehend
the suspect.” The Robinette dicta cannot be read as an open invitation for law enforcement to shoot
any burglary suspect hiding in an enclosed, unfamiliar area at night regardless of the threat posed
to the officers. See id. (suggesting that officers use trained police dogs to apprehend such suspects
because they do not have “the risks attendant [with] the use of firearms in the darkness, thus,
frequently enhancing the safety of the officers, bystanders and the suspect”). Instead, the language
in Robinette linked the use of deadly force directly to the safety of the officers. See id. (explaining
that “this is a case where an officer was forced to explore an enclosed unfamiliar area in which he
knew a man was hiding”). Our dicta in Robinette recognized the inherent dangers facing police
officers searching for a suspect who is hiding from them. In such a situation, officers have an
unquestionable right to protect themselves from a possible ambush. Once a suspect has been found,
however, and the police have weapons directed at him, as in this case, the inherent danger to the
officers resulting from a hidden suspect in an enclosed, unfamiliar area at night is diminished. See
Dickerson, 101 F.3d at 1163 (holding that a suspect walking towards the police in an unfamiliar area
at night with his hands at his side does not justify the use of deadly force). No reasonable police
officer would think that once the suspect has been found, it is still constitutionally permissible to
shoot the suspect absent a serious threat to the officers or others. Indeed, once Bailey had both his
No. 04-4174           Sample v. Bailey                                                       Page 10


gun and flashlight trained on Sample, there is no factual distinction between this case and any other
one in which the police officers confront a suspect to effect an arrest. Therefore, there is nothing
about the factual context of this case which would justify a reasonable officer in believing that the
well-established Robinson rule did not apply. Thus, we conclude that the contours of the
constitutional right were sufficiently clear in this situation so that a reasonable officer would have
known that Sample had a right not be shot unless he was perceived as a threat to the officers or to
others.
       3. Objectively Unreasonable
        The final step of the qualified immunity analysis is “whether the plaintiff has offered
sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in
light of the clearly established constitutional right[].” Feathers, 319 F.3d at 848. In the excessive
force context, the Supreme Court explained that “[a]n officer might correctly perceive all of the
relevant facts but have a mistaken understanding as to whether a particular amount of force is legal
in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however,
the officer is entitled to the immunity defense.” Saucier, 533 U.S. at 205. In this case, we conclude
that Bailey’s mistake was not reasonable.
        Similar to our discussion above, we conclude that under the facts as alleged by Sample, it
was objectively unreasonable for Bailey to order Sample to remove himself from the cabinet and
then to perceive Sample’s movement of his right arm outward as a threat that necessitated the use
of deadly force. Sample was simply attempting to comply with Bailey’s command to exit the
cabinet. His hand was at all times visible and, according to Sample, never entered into his jacket
pocket. Therefore, we hold that Sample has offered sufficient evidence to demonstrate that Bailey
acted objectively unreasonably.
                                       IV. CONCLUSION
        In conclusion, we hold that under the facts alleged by Sample in this case, Bailey is not
entitled to qualified immunity as a matter of law. Therefore, the district court’s denial of Bailey’s
motion for summary judgment is hereby AFFIRMED.
