Hussein Naji v. City of Dearborn, Mich.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0243p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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HUSSEIN NAJI, personal representative of the estate of

│

Ali Naji,

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Plaintiff-Appellant, │

> No. 24-1058

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v. │

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CITY OF DEARBORN, MICHIGAN; TIMOTHY CLIVE, │

Corporal, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Flint.

No. 4:23-cv-10521—F. Kay Behm, District Judge.

Decided and Filed: October 28, 2024

Before: SUTTON, Chief Judge; LARSEN and MURPHY, Circuit Judges.

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COUNSEL

ON BRIEF: Amir I. Makled, HALL MAKLED, P.C., Dearborn, Michigan, for Appellant.

Gary K. August, Michel C. Lewis, AUGUST LAW, PLLC, Troy, Michigan, for Appellees.

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OPINION

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LARSEN, Circuit Judge. Ali Naji walked into a Dearborn police station, pulled out a

gun, and tried to shoot Corporal Timothy Clive. But Naji’s gun malfunctioned and would not

fire. While Naji tried to fix his malfunctioning gun, Clive shot and killed Naji. Hussein Naji, as

personal representative of Naji’s estate, sued both Clive and the City of Dearborn, bringing

federal claims under 42 U.S.C. § 1983 and state tort claims. The district court granted summary

judgment to Clive and the City on all claims. For the following reasons, we AFFIRM.

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 2

I.

On December 18, 2022, Ali Naji walked into the City of Dearborn Police Headquarters,

while Corporal Timothy Clive was on duty. The police lobby was accessible by six separate

entrances, including one public entrance, and the incident was captured on five surveillance

cameras. The surveillance footage shows Naji entering the lobby through the public entrance,

wearing a COVID face mask and a winter hat. Clive, who was standing at the lobby’s front desk

behind bulletproof glass, asked Naji how he was doing. Naji did not answer; instead, with his

right hand, he pulled a handgun from his waistband and pointed it at Clive. Clive shouted “gun,

gun, gun!” Naji pulled the trigger, but the gun malfunctioned, and no bullet fired. The gun

“clicked” and Naji pulled out the magazine, seemingly trying to fix the malfunctioning weapon.

Clive retrieved his service revolver, “slid open the front desk window and fired seventeen shots

in a continuous, 4-5 second volley.” Naji v. City of Dearborn, 709 F. Supp. 3d 398, 404 (E.D.

Mich. 2023). When Clive opened fire, Naji was holding the gun about chest-high and pointing it

towards Clive; approximately six seconds had passed since Naji had first attempted to shoot

Clive. Naji fell to the floor, dropping his gun as he fell. On the floor, the video shows Naji

contorting once, appearing to roll onto his side, before he stops moving. No members of the

public were in the lobby during the shooting, but eleven or so people were working at the station

that day.

Hussein Naji, as personal representative of Ali Naji’s estate, sued both Clive and

Dearborn in federal district court. Naji’s representative brought the following claims: (1) a

Fourth Amendment excessive force claim under § 1983; (2) a municipal-liability claim against

Dearborn; (3) assault and battery under Michigan law; and (4) gross negligence under Michigan

law.1 The district court granted summary judgment to Clive and the City on all claims. Naji’s

representative timely appealed. On appeal, both defendants also moved for sanctions under

Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912, 1927.

1

Naji originally brought two more claims under the Michigan Persons with Disabilities Civil Rights Act

and the Freedom of Information Act. The district court held that Naji had abandoned those claims, and he does not

raise them on appeal.

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 3

II.

We review a district court’s grant of summary judgment de novo. Sigley v. City of Parma

Heights, 437 F.3d 527, 532 (6th Cir. 2006). Summary judgment is appropriate when there is no

genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). We construe the evidence and make all reasonable inferences in favor of

the nonmoving party. Raimey v. City of Niles, 77 F.4th 441, 447 (6th Cir. 2023). That said,

“[w]hen the record contains ‘a videotape capturing the events in question,’ we may not adopt a

‘version of the facts for purposes of ruling on a motion for summary judgment’ that ‘blatantly

contradict[s]’ the asserted version of events such that ‘no reasonable jury could believe it.’” Id.

(second alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The video’s

“gaps or uncertainties” should be construed in the nonmovant’s favor. Latits v. Phillips, 878

F.3d 541, 544 (6th Cir. 2017).

III.

A.

Corporal Clive raised the defense of qualified immunity. To overcome that defense,

Naji’s representative must show that (1) Clive violated his constitutional rights; and (2) those

rights were clearly established at the time of the violation. See Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011). The district court held that Clive did not violate the Constitution. We agree.

Naji’s representative claims that Clive used excessive force against Naji, in violation of

the Fourth Amendment. To determine whether an officer’s use of force was excessive, we ask

whether his actions were “‘objectively reasonable’ in light of the facts and circumstances

confronting [him], without regard to [the officer’s] underlying intent or motivation.” Graham v.

Connor, 490 U.S. 386, 397 (1989). The use of deadly force is objectively reasonable when an

officer possesses “probable cause to believe a suspect poses an immediate threat of serious

physical harm to the officer or others.” Lee v. Russ, 33 F.4th 860, 863 (6th Cir. 2022). And we

must consider that officers often “make split-second judgments” in dangerous and difficult

circumstances about how much force is necessary. Graham, 490 U.S. at 396–97. Thus, whether

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 4

an officer’s use of force was reasonable must be judged from the officer’s perspective in the

moment “rather than with the 20/20 vision of hindsight.” Id. at 396.

Clive’s use of deadly force was lawful. Clive had probable cause to believe Naji posed

an immediate threat of serious physical harm. Naji walked into the station, pointed his gun at

Clive, and pulled the trigger. Then Clive shot Naji, while Naji held his malfunctioning gun

chest-high, still pointed toward Clive, seemingly trying to fix the weapon. “Time and time

again, we have rejected Fourth Amendment claims in this setting—when the officers used deadly

force only after the suspects had aimed their guns at the officers or others.” Presnall v. Huey,

657 F. App’x 508, 512 (6th Cir. 2016) (citing Boyd v. Baeppler, 215 F.3d 594, 598, 604 (6th Cir.

2000); Est. of Sowards v. City of Trenton, 125 F. App’x 31, 38–39 (6th Cir. 2005); Whitlow v.

City of Louisville, 39 F. App’x 297, 300, 306 (6th Cir. 2002)); see also Jordan v. Howard, 987

F.3d 537, 543–44 (6th Cir. 2021). This case is no different: Clive’s use of deadly force was

objectively reasonable.

Naji’s representative offers several responses. The first is that Naji did not pose an

immediate threat. Naji’s representative claims there was no danger because: (1) when Clive

fired, Naji was fixing his gun rather than pointing it at Clive or anyone else; (2) Clive was

standing behind bulletproof glass; (3) Clive could not remember when he last saw a civilian in

the police station before the shooting; (4) Naji never actually fired a bullet; (5) Naji did not try to

flee; and (6) Clive continued to shoot Naji after Naji fell. Naji’s representative claims that Clive

should have tried to de-escalate the situation or warn Naji before resorting to lethal force.

This argument fails. It was objectively reasonable for Clive to believe that Naji posed an

immediate threat of serious physical harm. Legal doctrine and common sense both recognize

that “[w]hen a person aims a weapon in a police officer’s direction, that officer has an

objectively reasonable basis for believing that the person poses a significant risk of serious injury

or death.” Greathouse v. Couch, 433 F. App’x 370, 373 (6th Cir. 2011).

Naji’s representative claims that “Naji was not pointing the gun at Clive or any other

person while Clive shot him,” Corrected Appellant Br. at 18, but the video evidence directly

contradicts this account. Naji was holding his gun chest-high and fidgeting with the weapon—

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 5

apparently trying to fix it so he could refire. The weapon was pointed toward Clive. The district

court agreed, finding that Naji was pointing his gun “at about a 45-degree upward angle toward

Clive and [wa]s pulling back the weapon’s slide and turning the barrel directly toward Clive.”

Naji, 709 F. Supp. 3d at 409. And it does not matter that Clive was behind bulletproof glass.

Like our sister circuits, we reject the conclusion that “bulletproof” glass dispels all danger. See

United States v. Whitfield, 695 F.3d 288, 304 n.11 (4th Cir. 2012) (“[W]e join the Second and

Eleventh Circuits in rejecting the contention that bank tellers are not jeopardized simply because

they are situated behind ‘bulletproof’ glass.”).

It was also reasonable for Clive to believe that Naji posed an immediate risk of harm to

others. There were six entrances to the lobby, many other officers were present in the station,

and the shooting occurred “on a busy Sunday during a Christmas toy drive.” Naji, 709 F. Supp.

3d at 411. An officer or member of the public could have walked into the lobby at any moment.

It does not matter that Clive, at his deposition, did not remember the last time prior to the

shooting that someone had entered the station. Nor does it matter that Naji did not try to flee,

given the obvious danger he posed to both Clive and the public.

Clive’s response was also reasonable. Naji pointed his gun at Clive and pulled the

trigger; Clive responded immediately by retrieving his own gun and shooting Naji. Just as an

officer “need not wait for a suspect to open fire on him . . . before the officer may fire back[,]”

Greathouse, 433 F. App’x at 373, an officer who has already been fired on (unsuccessfully) need

not pause to give an assailant time to reload or repair his gun. A mere six seconds transpired

between Naji attempting to fire and Clive returning fire. That matters too. Graham reminds us

that officers often “make split-second judgments” in “uncertain[] and rapidly evolving”

situations. 490 U.S. at 396–97. That was certainly the case here.

Second, Naji’s representative argues that the district court erred by paying insufficient

attention to Naji’s alleged mental illness. But regardless of whether Naji was mentally ill, Clive

did not act unreasonably by resorting to lethal force. Our precedent makes that clear. In Palma

v. Johns, this court held that a defendant’s “diminished capacity” from mental illness can factor

into the totality of the circumstances in an excessive-force claim. 27 F.4th 419, 436–37 (6th Cir.

2022). But we explained that this factor is relevant only if the officer knew, or had reason to

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 6

know, of the suspect’s mental illness. Id. For example, in Palma, the dispatcher told the

responding officer that Palma was a “Code 76,” meaning a person with mental illness. Id.

Here, Naji’s alleged mental illness fails to create any genuine dispute regarding a material

fact. There is no genuine dispute as to whether Clive knew Naji at all, let alone that he was

mentally ill. Clive testified that he did not recognize Naji, who wore a mask and did not say a

word during the encounter. Naji’s representative suggests that the Dearborn police had “every

possibility . . . to know Naji and his mental health,” noting that Naji once received police

assistance after a mental-health episode. Corrected Appellant Br. at 15. But he never asserts,

much less supplies evidence, that Clive recognized Naji or knew of his mental illness. And, in

any event, officers can use lethal force “against a mentally ill person who,” like Naji, “was

armed and threatening.” Palma, 27 F.4th at 437 (emphasis omitted). Naji’s mental illness does

not render Clive’s actions unreasonable.

In sum, no constitutional violation occurred because Clive’s actions were objectively

reasonable. Therefore, Clive is entitled to qualified immunity. And while Naji’s representative

also brought a § 1983 claim against the City of Dearborn alleging municipal liability, the City

cannot be held liable because there was no underlying constitutional violation. See, e.g., Gaddis

ex rel Gaddis v. Redford Township, 364 F.3d 763, 777 (6th Cir. 2004).

B.

Naji also brought claims for assault and battery and gross negligence under Michigan

law. To qualify for immunity under Michigan law, an officer must show that (1) he acted during

the course of employment and within the scope of his authority; (2) he acted in good faith; and

(3) his actions were discretionary, not ministerial. Odom v. Wayne County, 760 N.W.2d 217,

218 (Mich. 2008). Unlike under federal law, the standard is subjective. Shumate v. City of

Adrian, 44 F.4th 427, 451 (6th Cir. 2022). So an officer who believed in good faith that the force

used was necessary is protected from liability for an assault and battery claim; whereas, an

officer who acted with malicious intent is not. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir.

2011).

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 7

Naji’s representative disputes only whether Clive acted in good faith. But the facts do

not give rise to any genuine dispute. Under Michigan law, an officer may use lethal force to

defend himself or another, and an officer’s use of such force is in good faith when he fires after

seeing the assailant aim either at himself or another. Ealey v. City of Detroit, 375 N.W.2d 435,

439 (Mich. Ct. App. 1985); see also Presnall, 657 F. App’x at 513. No reasonable juror could

find that Clive acted with malice. Clive fired only after Naji tried to shoot him, while Naji was

actively trying to fix his weapon. Clive is immune from assault and battery claims under

Michigan law.

Now gross negligence.2 Michigan law “has 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), overruled in part on other grounds by

Odom, 760 N.W.2d 217. Gross negligence is cognizable under Michigan law only when not

“fully premised on” an intentional-tort claim. Id. We have repeatedly applied that principle to

bar excessive-force claims disguised as gross-negligence claims. See Bletz, 641 F.3d at 756;

Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007); Presnall, 657 F. App’x at

513.

Naji’s representative contends that his gross-negligence claim is independent from his

assault and battery claims. Dearborn Police Department policy, he says, requires an officer to

give a verbal warning before resorting to lethal force, which Clive failed to do. Thus, Naji says

his gross-negligence claim is premised not on the assault and battery, but on Clive’s failure to

follow department policy.

Even assuming this is a viable theory, Naji’s claim still fails. In Brent v. Wayne County

Department of Human Services, we dismissed a gross-negligence claim against Detroit and its

officers because the plaintiffs failed to identify any legal rule “impos[ing] a duty running from

Detroit police officers to private citizens requiring the officers to abide by internal departmental

policies.” 901 F.3d 656, 701 (6th Cir. 2018). So too here: Naji’s representative does not

explain how Clive owed Naji a duty to follow departmental policy. He asserts that “law

2

Michigan law does not immunize officers for grossly negligent conduct. Mich. Comp. Laws

§ 691.1407(2)(c).

No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 8

enforcement officers should follow procedures or statutory obligations of the Police

Department.” Corrected Appellant Br. at 33. But he identifies no legal authority for the

proposition that failure to do so makes an officer liable in tort. Thus, even assuming that Naji’s

gross-negligence claim is not fully premised on underlying intentional conduct, it raises no

genuine issue of material fact.

***

We AFFIRM.