Sean Hart v. City of Grand Rapids, Mich.

RECOMMENDED FOR PUBLICATION

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

File Name: 25a0129p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

SEAN HART; TIFFANY GUZMAN,

│

Plaintiffs-Appellants, │

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v. > No. 23-1382

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CITY OF GRAND RAPIDS, MICHIGAN; PHILLIP REININK, │

BRAD BUSH, and BENJAMIN JOHNSON, Officers, in │

their individual and official capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:20-cv-00899—Jane M. Beckering, District Judge.

Argued: June 13, 2024

Decided and Filed: May 15, 2025

Before: GILMAN, STRANCH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher P. Desmond, JOHNSON LAW, PLC, Detroit, Michigan, for

Appellants. Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C.,

Livonia, Michigan, for Appellees City of Grand Rapids and Officers Bush and Johnson.

Marcelyn A. Stepanski, ROSATI, SCHULTZ JOPPICH & AMTSBUECHLER PC, Farmington

Hills, Michigan, for Officer Reinink. ON BRIEF: Christopher P. Desmond, JOHNSON LAW,

PLC, Detroit, Michigan, for Appellants. Douglas J. Curlew, CUMMINGS, MCCLOREY,

DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellees City of Grand Rapids and Officers

Bush and Johnson. Marcelyn A. Stepanski, ROSATI, SCHULTZ JOPPICH &

AMTSBUECHLER PC, Farmington Hills, Michigan, for Officer Reinink.

STRANCH, J., delivered the opinion of the court in which GILMAN, J., concurred, and

LARSEN, J., concurred in part. LARSEN, J. (pp. 20–23), delivered a separate opinion

dissenting in part.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 2

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Sean Hart and Tiffany Guzman appeal the district

court’s dismissal of their excessive force claims under 42 U.S.C. § 1983 against the City of

Grand Rapids, Sergeant Brad Bush, and Officers Benjamin Johnson and Phillip Reinink. Hart

and Guzman claim that the officers employed excessive force during a 2020 Black Lives Matter

demonstration in Grand Rapids and that the City ratified this unlawful conduct. The officers

moved for summary judgment based on qualified immunity, and the City moved for summary

judgment based on the failure of Hart and Guzman to establish municipal liability. The district

court granted the motions, dismissing the federal claims and declining to exercise jurisdiction

over Hart and Guzman’s state law claims. For the reasons that follow, we AFFIRM the grant of

summary judgment based on qualified immunity as to Officer Johnson and Sergeant Bush and

AFFIRM the grant of summary judgment in favor of the City, but we REVERSE the grant of

summary judgment based on qualified immunity as to Officer Reinink, and REMAND for

further proceedings on that claim.

I. BACKGROUND

The facts of this case are largely undisputed. Around 8:30 p.m., on May 30, 2020, after

fishing near Grand Rapids, Michigan, Sean Hart and Tiffany Guzman heard sirens and began

driving downtown. There, a crowd had gathered for a racial justice demonstration. Based on

reports of violence at similar demonstrations across the country, members of the Grand Rapids

Police Department (GRPD)’s Special Response Team (SRT) were stationed around the crowd.

SRT had prepared “crowd control” packs containing specialty munitions, which included

Muzzle Blast, designed to be fired at individuals at close range, and Spede-Heat, intended for

long-range firing at crowds. Muzzle Blast and Spede-Heat can be fired using the same 40-

millimeter launcher, and their cartridges look similar. But as described in Officer Reinink’s

incident report, “[a] Muzzle Blast 40mm round is a powder dispersion round,” and “is used as a

crowd control management tool for intermediate and close deployment.” In contrast, Spede-Heat

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 3

munitions, which contain cannisters of a chemical “commonly known as tear gas[,] . . . w[ere]

designed to be launched into a target area and not directly at a subject.”

Around 7:45 p.m., some demonstrators began to surround officers and throw items,

including rocks, bricks and bottles containing unknown substances at them; that behavior

continued to escalate, and included property damage and increasing crowd volatility and

violence. Officers issued orders using the public announcement system, notifying listeners that

failure to disperse could result in arrest or other officer intervention, such as the use of chemical

agents or less-than-lethal munitions that could nonetheless result in serious injury. The district

court found that “[t]he hours of video footage provided by the parties confirm that downtown,

initially the site of a peaceful protest, had become complete mayhem.”

When Hart and Guzman arrived downtown, they observed “people going crazy,”

“breaking windows” and “[t]hrowing things.” Around 11:40 p.m., Hart and Guzman arrived at

an intersection by a police line, where they lingered, playing the N.W.A. song “F**k tha Police.”

Officers had cleared the intersection earlier. About two minutes after Hart and Guzman’s arrival,

a group of three officers, concerned that the car would drive into the police line, approached the

vehicle. Officer Benjamin Johnson approached the vehicle with his launcher loaded with Muzzle

Blast, poised in the “high ready” position, and pointed toward the passenger side of the vehicle

where Guzman sat. Officer Johnson commanded Hart and Guzman to leave the area, which they

eventually did.

But less than two minutes later, Hart and Guzman returned. Hart parked and exited the

car, leaving his door open, and approached the officer line, placing his left hand in his pocket.

Sergeant Brad Bush and Officer Phillip Reinink, both standing in the officer line, were unsure of

Hart’s intentions and feared that Hart might assault the officers. As Hart approached, officers

yelled at him to get back.

Hart stopped several feet from the officer line, withdrew his left hand from his pocket and

pointed at the police line; he was unarmed. Sergeant Bush then stepped forward to meet Hart

and fired pepper spray at Hart’s head for two to three seconds. On impact, Hart turned and took

a few steps away from the officer line, lifted his head, took a drag from the cigarette he held in

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 4

his right hand, and began to turn back to face the officers again. Bystander video recordings

show Office Reinink left the police line to confront Hart after Sergeant Bush began pepper

spraying him and Hart had started to retreat. As Hart was turning back toward the police line,

Officer Reinink launched a Spede-Heat cannister at Hart, who was then “a few feet away.”

Reinink testified that he believed the canister—which he loaded without a witness, contrary to

GRPD policy—contained Muzzle Blast; however, it was Spede-Heat. The cannister hit Hart’s

left shoulder area. Hart remained on his feet, turned around, flicked his cigarette on the ground,

and “flipped off” the officers before walking back to his car.

Once back in the car, Hart drove slowly toward the officers, stopped, and revved his

engine while the crowd cheered. Hart stuck his left hand out of the car window and raised his

middle finger at the police before driving over the median. “F**k tha Police” continued playing

from the car window; a man got on top of the car, and officers called out additional dispersal

orders, warning that those who remained would be in violation of state law. Less than a minute

later, Hart drove away.

Hart received treatment at the emergency room for left shoulder pain from the Spede-

Heat cannister and eye irritation from the pepper spray. Photos corroborate Hart’s testimony

that the impact from the canister left an abrasion and bruising on his left shoulder. Guzman had

no physical injuries. Officer Reinink was investigated for excessive force and GRPD sustained

that charge. The GRPD’s investigation also concluded that Officer Reinink violated the

department’s procedures by loading his launcher with a specialty munition, Spede-Heat, without

a witness and by turning off and not reactivating his body camera earlier that day. GRPD Chief

Eric Payne disciplined Officer Reinink with two days of unpaid leave.

Plaintiffs filed this lawsuit on September 16, 2020; their operative complaint contains

three counts: (1) excessive force in violation of the Fourth and Fourteenth Amendments against

Officers Reinink, Bush, and Johnson; (2) failure to train, inadequate policies and procedures,

and illegal custom and practices against the City of Grand Rapids (City); and (3) state law

claims against Officers Reinink, Bush, and Johnson. At the close of discovery, the City,

Sergeant Bush, and Officer Johnson filed a joint motion for summary judgment; Officer Reinink

filed a separate motion for summary judgment. On March 31, 2023, the district court granted

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 5

the defendants’ motions as to the federal claims, dismissing them with prejudice, and declined

jurisdiction as to the state claims, dismissing them without prejudice. Plaintiffs timely

appealed.

II. ANALYSIS

We review a district court’s order granting summary judgment de novo. King v. Steward

Trumbull Mem’l Hosp. Inc., 30 F.4th 551, 559 (6th Cir. 2022). Summary judgment is proper

only “if the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)); see Celotex Corp.

v. Catrett, 477 U.S. 317, 322–23 (1986)). We “view the facts and draw reasonable inferences ‘in

the light most favorable to the party opposing the summary judgment motion,’” but insofar as the

events at issue are recorded on video, we will not adopt a version of the facts that is “blatantly

contradicted by the” video evidence, such “that no reasonable jury could believe it.” Scott v.

Harris, 550 U.S. 372, 378, 380 (2007) (brackets omitted) (quoting United States v. Diebold, Inc.,

369 U.S. 654, 655 (1962) (per curiam)).

A. Claims Against the Officers

To prevail on a § 1983 claim, a plaintiff must demonstrate “(1) the deprivation of a right

secured by the Constitution or laws of the United States; (2) caused by a person acting under the

color of state law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015). “Government

officials,” however, “are entitled to qualified immunity from civil suits for damages arising out

of the performance of their official duties as long as their actions could reasonably have been

thought consistent with the rights they are alleged to have violated.” Adams v. Metiva, 31 F.3d

375, 386 (6th Cir. 1994). In the context of excessive-force claims, the qualified immunity

inquiry is “(1) whether the officer violated the plaintiff’s constitutional rights under the Fourth

Amendment; and (2) whether that constitutional right was clearly established at the time of the

incident.” Est. of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017) (quoting Kent v. Oakland

County, 810 F.3d 384, 390 (6th Cir. 2016)). A reviewing court may address these prongs in

either order, determining “in light of the circumstances in the particular case at hand” which step

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 6

in its “sound discretion” it makes sense to address first. Pearson v. Callahan, 555 U.S. 223, 236

(2009).

Under this standard, “[t]he 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). “[G]eneral statements of the law are not inherently

incapable of giving fair and clear warning.” United States v. Lanier, 520 U.S. 259, 271 (1997).

In some cases, “a general constitutional rule already identified in the decisional law may apply

with obvious clarity to the specific conduct in question, even though ‘the very action in question

has [not] previously been held unlawful.’” Id. (quoting Anderson, 483 U.S. at 640). The

touchstone of this analysis is whether the official received “fair warning” that his conduct was

unlawful, such that “existing precedent . . . placed the statutory or constitutional question beyond

debate”; “the specific conduct,” however, “need not have been found unconstitutional.” Baynes,

799 F.3d at 613 (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)). Whether the officer

violated clearly established law and whether the plaintiff offered “evidence sufficient to create a

genuine issue as to whether the defendant in fact committed” the unlawful act are both

“questions of law for the court to decide.” Adams, 31 F.3d at 386. Beyond that, “weighing the

evidence and determining whether an officer should be liable are tasks exclusively for the jury.”

Baynes, 799 F.3d at 615.

“The sole constitutional standard for evaluating excessive force claims is the Fourth

Amendment’s criterion of reasonableness.” Gaddis ex rel. Gaddis v. Redford Township, 364

F.3d 763, 772 (6th Cir. 2004). We apply “an ‘objective reasonableness’ standard” to excessive

force claims. Baynes, 799 F.3d at 607 (quoting Morrison v. Bd. Of Trs. Of Green Twp., 583 F.3d

394, 401 (6th Cir. 2009)). Intent is irrelevant: “[a]n officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s

good intentions make an objectively unreasonable use of force constitutional.” Graham v.

Connor, 490 U.S. 386, 397 (1989).

In reviewing an excessive force claim, a court must “balance the government’s interests

in protecting others (including the police) and curbing crime against a suspect’s right [] not to be

injured.” Puskas v. Delaware County, 56 F.4th 1088, 1093 (6th Cir. 2024). This is a fact-

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 7

intensive inquiry, requiring particular attention to “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

Taking into consideration “that police officers are often forced to make split-second judgments”

under “tense, uncertain, and rapidly evolving” conditions, the “particular use of force must be

judged from the perspective of a reasonable officer on the scene,” not “with the 20/20 vision of

hindsight.” Id. at 396–97.

When reviewing a case involving allegations of multiple instances of excessive force, we

must “analyze the claims separately.” Gaddis, 364 F.3d at 772 (ellipses omitted) (quoting

Dickerson v. McClellan, 101 F.3d 1151, 1162 (6th Cir. 1996)). Under this analysis, we “carve

up the incident into segments and judge each on its own terms to see if the officer was reasonable

at each stage.” Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 119 F.3d 1143, 1150

(7th Cir. 1994)). “When more than one officer is involved, the court must consider each

officer’s entitlement to qualified immunity separately.” Wright v. City of Euclid, 962 F.3d 852,

865 (6th Cir. 2020) (quoting Smith v. City of Troy, 874 F.3d 938, 944 (6th Cir. 2017) (per

curiam)). In keeping with this precedent, and consistent with the approach of the district court,

we analyze each contested use of force by each officer separately below.

1. Officer Johnson

Guzman claims that Officer Johnson engaged in excessive force when he pointed the

launcher, which she believed was a gun, at her, an exchange that was captured on video. We

begin with the second qualified immunity prong: whether the constitutional “right at issue was

‘clearly established’ at the time of [the] defendant’s alleged misconduct.” Pearson, 555 U.S. at

232 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Here, Hart and Guzman stopped at an intersection located near the police line, playing the

song, “F**k tha Police,” loudly with the car windows down. This occurred after GRPD’s initial

dispersal orders, which Guzman and Hart stated they did not hear. Three officers, including

Officer Johnson, then approached the passenger’s side of the vehicle. Officer Johnson held a

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 8

launcher containing Muzzle Blast, which Guzman testified she believed was a gun, and pointed it

at the passenger-side window.

The district court determined that the plaintiffs failed to produce “any existing precedent

on this issue,” and granted qualified immunity because the plaintiffs “ha[d] not shown that

Officer Johnson violated a clearly established right.” Guzman argues on appeal that Officer

Johnson employed excessive force by pointing the launcher, which she believed was a firearm, at

her, which caused Guzman to fear for her life. She relies on the holding in Binay v. Bettendorf,

601 F.3d 640, 650 (6th Cir. 2010), that detaining a suspect at gunpoint can constitute excessive

force under the Fourth Amendment. Guzman also points to a Ninth Circuit decision, Robinson v.

Solano County, 278 F.3d 1007, 1015 (9th Cir. 2002) (en banc), cited with approval in Binay, 601

F.3d at 650, for the proposition that pointing a gun at an unarmed suspect who poses no danger

constitutes excessive force.

We begin with the applicability of Binay’s principles to Guzman’s situation. Binay

concerned an officer holding the plaintiffs—who “had no criminal record, cooperated throughout

the ordeal, posed no immediate threat to the officers, and did not resist arrest or attempt to

flee”—at gunpoint while executing a search warrant for the plaintiffs’ apartment. Binay, 601

F.3d at 644–45, 650. The search took about an hour. Id. at 644. Here, Officer Johnson

approached Hart and Guzman in the context of an ongoing, disorderly demonstration in the

public streets, not in a private home. Hart and Guzman aver that they had not heard the dispersal

orders, but from Officer Johnson’s perspective, the pair appeared to ignore or resist that

command by driving toward the police line. The encounter took place over a couple of minutes,

not an hour. And, as emphasized by the district court, the officers in Binay pointed an actual gun

capable of inflicting lethal force, whereas here, Officer Johnson carried a launcher loaded with

non-lethal chemical spray. The context of Officer Johnson’s interaction with Hart and Guzman,

then, is distinct on several key bases from Binay.

Robinson is also distinguishable. Although the court concluded that “pointing a gun to

the head of an apparently unarmed suspect during an investigation can be a violation of the

Fourth Amendment,” 278 F.3d at 1015, Robinson involved officers pointing a gun at plaintiff’s

head as he exited his home, id. at 1010. Here, Officer Johnson approached Hart and Guzman in

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 9

their car, a context where “the risk of a violent encounter,” Arizona v. Johnson, 555 U.S. 323,

331 (2009), arises “from the fact that evidence of a more serious crime might be uncovered

during the stop,” id. (quoting Maryland v. Wilson, 519 U.S. 408, 414 (1997)). The tense scene

surrounding the car added to the risk that a reasonable officer would perceive. On the facts of

this case, we cannot say that a clearly established constitutional right was violated by the actions

of Officer Johnson. We therefore affirm the district court’s grant of summary judgment to

Officer Johnson based on qualified immunity.

2. Sergeant Bush

Turning to Sergeant Bush’s deployment of pepper spray, an interaction that was also

documented on video, we again begin the analysis with the second qualified immunity prong:

whether the constitutional “right at issue was ‘clearly established’ at the time of [the] defendant’s

alleged misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier, 533 U.S. at 201).

After Hart’s and Guzman’s initial encounter with GRPD officers, Hart drove away from

the officer line. Shortly thereafter, Hart and Guzman drove back to the intersection, where Hart

parked his vehicle around 50 feet from the line of police officers, left the driver’s side door open,

and approached the line of police. Sergeant Bush then sprayed Hart with pepper spray from

eight to ten feet away.

On appeal, Hart relies on three cases to show that Sergeant Bush violated clearly

established law when deploying pepper spray: Wright v. City of Euclid, 962 F.3d 852 (6th Cir.

2020); Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009); and Ciminillo v. Streicher, 434 F.3d 461

(6th Cir. 2006). Wright concerned plain-clothes officers’ deployment of a taser and pepper spray

on an unarmed man in a parked vehicle. 962 F.3d at 860. We concluded “that the right to be

free from being pepper sprayed when a suspect is not actively resisting arrest was . . . clearly

established” at the time of that incident. Id. at 871. Unlike in Wright, however, here the record

shows that Hart actively disobeyed officers’ orders in advancing toward the police line. Wright

thus does not provide clearly established precedent applicable here.

In Grawey, as the district court emphasized, the plaintiff was passively awaiting police

arrival, not advancing toward officers, when officers assaulted him with pepper spray. Grawey,

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567 F.3d at 307, 311. And unlike Grawey, where officers’ use of pepper spray occurred at such

a “close range,” that the force subjected the plaintiff to “an intense burning” that caused him to

“collaps[e] to the sidewalk, unconscious,” id. at 307, Sergeant Bush did not “spray Hart with

enough pepper spray to cause Hart to lose even the ability to walk or drive away,” which he did.

Given the factual distinctions between the use of pepper spray in Grawey and Sergeant Bush’s

pepper spraying of Hart, Hart cannot rely on Grawey to establish that Sergeant Bush’s conduct

violated clearly established law.

Ciminillo presents a more similar context; the plaintiff’s claims there also stemmed from

police attempting to disperse a crowd during a riot. There, officers had ordered a crowd to

disperse after it “had become rowdy” and some of its members “set fires in the street” and “were

throwing bottles at police officers and civilians.” Ciminillo, 434 F.3d at 463. Unlike Hart, the

plaintiff in Ciminillo was slowly walking toward an officer with his hands above his head when

the officer shot him “allegedly without provocation and at point blank range” with “a beanbag

propellant.” Id. We held that “[t]he use of less-than-deadly force in the context of a riot against

an individual displaying no aggression is not reasonable.” Id. at 468. Here, Hart was not

attempting to leave, but had driven back to the scene, exited his car, and was approaching the

police line to confront the officers when Sergeant Bush pepper sprayed him. Hart’s provocative

advance toward the officer line sufficiently distinguishes his conduct from that in Ciminillo.

In sum, none of the cases that Hart cites establish that it was “beyond debate” at the time

of this incident that Sergeant Bush’s pepper spraying of Hart was unlawful. See District of

Columbia v. Wesby, 583 U.S. 48, 64 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). We therefore affirm the district court’s grant of summary judgment to Sergeant Bush.

3. Officer Reinink

Hart alleges that Officer Reinink used lethal force against him. When Sergeant Bush

pepper sprayed Hart, Hart turned away and retreated from the police line. As Hart began to turn

around again, Officer Reinink fired a Spede-Heat canister, which is intended for long-range

deployment, directly at Hart, who was located several feet away from the officers, striking his

left shoulder area.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 11

We begin with whether Officer Reinink’s use of a Spede-Heat munition constituted

deadly force. Officer Reinink argues that the district court appropriately analyzed his mistaken

discharge of Spede-Heat as the use of “the wrong non-lethal munition” in tumultuous

circumstances. At his deposition, however, Officer Reinink admitted that he was trained that

some uses of Spede-Heat could result in serious injury and even death, and thus, Spede-Heat

could “be considered a deadly weapon.” Deposition testimony by others corroborates this

understanding. For instance, as GRPD Lieutenant Matthew Ungrey—the SRT unit

commander—explained, Spede-Heat cannisters’ “muzzle velocity” requires the munition be shot

into the air at an angle of 45 to 60 degrees and not directly at a person “unless it would be a life

or death situation” because it would “absolutely” constitute lethal force. Likewise, GRPD Chief

Eric Payne acknowledged that firing Spede-Heat at a person “at . . . that distance is considered

potential deadly force.”

It is true that the record contains some support for the inference that Officer Reinink had

intended to deploy Muzzle Blast and mistakenly fired the Spede-Heat canister. But, under

governing law, officer intent is irrelevant. Graham, 490 U.S. at 397; see also Henry v. Purnell,

652 F.3d 524, 532 (4th Cir. 2011) (ignoring the officer’s intent when he alleged that he

mistakenly fired his gun instead of his Taser at a fleeing suspect). Viewing the record evidence

in the light most favorable to Hart, as we must, Officer Reinink did deploy Spede-Heat at close

range, such that it could have exerted lethal force. Though deadly force precedent centers on

firearms, the reasoning of these cases clarifies that it is the nature of the force, not the weapon,

that matters. See, e.g., Walker v. Davis, 649 F.3d 502, 503-04 (6th Cir. 2011) (recognizing that

“ramming a motorcycle with a police cruiser involves the application of potentially deadly

force”); see also Tennessee v. Garner, 471 U.S. 1, 9 (1985) (“The intrusiveness of a seizure by

means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not

be elaborated upon.”). Thus, we evaluate Officer Reinink’s firing of the Spede-Heat under the

deadly force rubric.

“Qualified immunity in cases involving claims of deadly force is difficult to determine on

summary judgment because liability turns upon the Fourth Amendment’s reasonableness test.”

Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998). “When an officer uses deadly

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 12

force, that force is unreasonable unless ‘the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to others.’” Puskas, 56 F.4th at

1095 (quoting Palma v. Johns, 27 F.4th 419, 432 (6th Cir. 2022)). This “threat of serious bodily

harm” must also be “imminent.” Palma, 27 F.4th at 432. Factors that weigh on “whether an

officer reasonably believed that a person posed an imminent threat of serious bodily harm”

include: “(1) why the officer was called to the scene; (2) whether the officer knew or reasonably

believed that the person was armed; (3) whether the person verbally or physically threatened the

officer or disobeyed the officer; (4) how far the officer was from the person; (5) the duration of

the entire encounter; (6) whether the officer knew of any ongoing mental or physical health

conditions that may have affected the person’s response to the officer; and (7) whether the

officer could have diffused the situation with less forceful tactics.” Palma, 27 F.4th at 432

(internal citations omitted).

We begin with the context of Officer Reinink’s actions. First, in anticipation of the

potential need for emergency intervention at the demonstration, GRPD officers had received an

email on April 3, 2020, “which directed personnel to ensure their body cameras are appropriately

charged.” Yet Officer Reinink admits that, in violation of GRPD policy, his body camera was

not on during the incident. Though he asserts that his body camera was off because “the battery

died,” likely “early in the night,” GRPD’s investigation concluded that Reinink turned it off “due

to a privileged conversation that he engaged in, which is permitted[,]” but failed to reactivate it.

Officer Reinink also admits that he knew, based on his training, that he needed a witness to

observe him loading the munition, but nevertheless failed to enlist one prior to loading and firing

the Spede-Heat. Sergeant Bush, moreover, testified that he had never heard of an officer, not at

GRPD nor anywhere else in the nation, mistaking a Spede-Heat canister for a Muzzle Blast.

Though these violations of departmental policy do not, on their own, deprive an officer of

qualified immunity, they are “relevant to the first prong of the qualified immunity analysis.”

Latits v. Phillips, 878 F.3d 541, 553 (6th Cir. 2017). On this record, a jury could find that

Officer Reinink’s failure to follow police department required protocol and his deployment of

potentially deadly force evidences “plainly incompetent” behavior that falls outside the ambit of

qualified immunity’s protection, see Stanton v. Sims, 571 U.S. 3, 6 (2013) (quoting al–Kidd, 563

U.S. at 744), rather than the type of reasonable “split-second judgment[]” under “tense,

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 13

uncertain, and rapidly evolving” conditions that supports qualified immunity, see Graham,

490 U.S. at 396.

With this context in mind, we assess the reasonableness of the use of deadly force, guided

by the Palma factors.1 First, Officer Reinink “was called to the scene,” Palma, 27 F.4th at 432,

to deal with tumultuous crowd conditions, which included individuals throwing objects at

officers. These facts support a finding that Officer Reinink faced an imminent risk of serious

physical harm.

Second, the video shows that Hart possessed a cigarette, not any weapons, an observation

corroborated by testimony of both parties. Palma noted that “even if the person’s hands are not

visible—and even if he appears to be suspiciously reaching for something in his clothing—these

facts would not lead a reasonable officer to believe that the person posed an immediate threat of

serious harm.” 27 F.4th at 434; see also id. (collecting authorities). Video footage shows Hart

placing his left hand in his pocket as he approached the officers, but, before Officer Reinink fired

the Spede-Heat cannister at him, Hart had withdrawn his hand from the pocket, and no weapons

could be seen. We cannot say that the evidence supports Officer Reinink’s contention that he

“reasonably believed” that Hart “posed an imminent threat of serious bodily harm.” See id. at

432.

The third factor is “whether [Hart] verbally or physically threatened the officer or

disobeyed the officer.” Id. “When a person does not act ‘aggressively’ towards an officer, that

fact undermines the officer’s claim that the person presented an immediate threat of bodily

harm.” Id. at 434. Hart initially approached the police line at a walking pace and stopped

several feet away before Sergeant Bush stepped out of the line to pepper spray him. When he

was pepper sprayed, Hart turned away from Sergeant Bush, retreated a number of steps, and then

began turning back. At that point, he was unarmed, had not verbally or physically threatened the

1

Although Palma was decided in 2022, with one exception, the factors identified in its deadly force

analysis come from cases decided before 2020. See Palma, 27 F.4th at 432. The one exception is Wright, decided

in June 2020, which Palma cites for the third factor—whether the plaintiff engaged in threatening or disobedient

behavior toward the officer. See Palma, 27 F.4th at 432. Wright, however, relies on a 2017 case, Smith v. City of

Troy, 874 F.3d 938 (6th Cir. 2017), for this proposition. See Wright, 962 F.3d at 867–68. Palma, therefore, did not

create new law; it merely consolidated existing clearly established law.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 14

officers, and had stopped advancing toward the police line. Construing the evidence in Hart’s

favor and focusing on the moment that Officer Reinink shot Hart with a Spede-Heat cannister,

we cannot say that Hart presented an immediate threat of serious bodily harm to the officers.

The fourth factor is “how far the officer was from the person.” Palma, 27 F.4th at 432.

Although a few feet of distance may be meaningless when a firearm is involved, the distance is

highly relevant when an officer fears a hand-to-hand confrontation. Id. at 435. Hart’s unarmed

status—affirmed by Hart’s holding of a cigarette in his right hand and removal of his left hand,

unarmed, from his pocket—might indicate a reasonable fear of “a hand-to-hand confrontation.”

Id. at 435. But critically, Officer Reinink approached Hart only after Hart had turned his back to

the police line and stepped away from pepper spray. Sergeant Bush had also backed away from

Hart. The facts that Hart was approximately eight to ten feet away when Officer Reinink shot

him with Spede-Heat, that the officers on the scene did not observe Hart with any weapons, and

that Hart’s progress toward the officers had already been halted by the deployment of pepper

spray weigh in favor of finding that Hart “did not pose an imminent threat of harm.” Id. at 435-

36.

Turning to the fifth consideration—the duration of the encounter, Palma, 27 F.4th at

432—Hart began turning around only seconds after being pepper sprayed. This “very brief

moment” between Hart’s turn and Officer Reinink’s split-second decision to deploy Spede-Heat

weighs in favor of Officer Reinink. See Untalan v. City of Lorain, 430 F.3d 312, 317 (6th Cir.

2005); Graham, 490 U.S. at 397.

Because the sixth Palma factor, “whether the officer knew of any ongoing mental or

physical health conditions that may have affected the person’s response to the officer,” Palma,

27 F.4th at 432, is not at issue, we need not address it.

As to the final factor, “whether the officer could have diffused the situation with less

forceful tactics,” Palma, 27 F.4th at 432, Officer Reinink’s testified that he intended to deploy

Muzzle Blast, “a powder dispersion round” suitable for “crowd control management” at

“intermediate and close deployment,” not Spede-Heat. This indicates that less forceful tactics

were available and, accordingly, that Officer Reinink did not face an imminent threat of harm.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 15

All the facts, viewed at this stage in the light most favorable to Hart, demonstrate that

Officer Reinink faced a split-second decision during a potentially dangerous demonstration-

turned-riot. But “[t]he fact that a situation ‘unfolds quickly’ is not . . . sufficient to justify the

application of deadly force,” Palma, 27 F.4th at 432, when it is not accompanied by a credible

threat to the safety of an officer or the public. Id. In the moments before Officer Reinink

deployed deadly force, Hart did not present such a threat. And the tumultuous scene is the only

other factor weighing in Officer Reinink’s favor. As a result, “a reasonable jury could find that

[Officer Reinink] used excessive force” when he fired Spede-Heat at Hart at point-blank range.

See Palma, 27 F.4th at 432.

Turning to the “clearly established” prong, we consider “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Baynes, 799

F.3d at 610 (quoting Saucier, 533 U.S. at 202). “It has been well settled law for a generation

that, under the Fourth Amendment, ‘[w]here a suspect poses no immediate threat to the officer

and no threat to others, the harm resulting from failing to apprehend him does not justify the use

of deadly force to do so.” Walker, 649 F.3d at 503 (quoting Garner, 471 U.S. at 11). The

question in this case is whether Officer Reinink could reasonably conclude that Hart posed a

serious danger to those on the scene.

Hart’s conduct resembles that in Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005). There,

we determined that the officer’s use of deadly force “was constitutionally impermissible” where

the suspect’s “movement was . . . limited and he could not quickly charge the officers,” “[h]e

was not verbally threatening,” and “[h]is hands were visible and empty.” Id. at 697. Similarly,

here, the video footage reflects that Hart’s movement was impaired due to Officer Bush’s

deployment of pepper spray. Officer Johnson provided deposition testimony that Hart “turned his

body away from us after being hit with the chemical spray, and then he turned back towards us,”

but “did not make an advance” on the officer line. Hart did not make verbal threats or approach

the officers aggressively after Sergeant Bush sprayed him. And, as reflected in the video, Hart

was visibly unarmed. On this record, no reasonable officer could have thought he had probable

cause to use deadly force against Hart.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 16

Our precedent makes clear that officers have fair warning that they may not use deadly

force “[w]here the suspect poses no immediate threat to the officer and no threat to others [in the

area],” Smith v. Cupp, 430 F.3d 766, 775–76 (6th Cir. 2005) (quoting Garner, 471 U.S. at 11),

and we have affirmed the denial of qualified immunity where video footage “d[id] not

conclusively show whether that was the case.” Lewis v. Charters Twp. of Flint, 660 F. App’x

339, 347 (6th Cir. 2016). Given that a suspect resisting arrest and fleeing the crime scene does

not justify deadly force, Hart’s lesser disobedience—turning back around to face the officer

line—could not warrant deadly force.

As Plaintiffs point out, our precedent also makes clear that “[t]he use of less-than-deadly

force in the context of a riot against an individual displaying no aggression is not reasonable.”

Ciminillo, 434 F.3d at 468. Though inapposite with regard to Sergeant Bush’s response to Hart’s

initial approach, Ciminillo becomes far more applicable to Officer Reinick’s actions in the

moments immediately after Hart was pepper sprayed. Again, Hart was visibly unarmed and had

retreated several steps from where Sergeant Bush pepper sprayed him when Officer Reinick left

the police line to confront Hart. And Hart was in the process of turning back to look at the police

line when Officer Reinick launched the cannister of Spede-Heat at him at point blank range. In

that moment, Hart’s hands were at his sides, he was leaning on his back foot, and he was not

advancing from his point of retreat. Viewing the facts in the light most favorable to Hart and

drawing all reasonable inferences in his favor, as we must, Scott, 550 U.S. at 378 (quoting

Diebold, Inc., 369 U.S. at 655), Hart no longer presented the aggressive behavior that he had

demonstrated moments earlier when he was advancing toward the police line.

“Precedent involving similar facts can help move a case beyond the otherwise ‘hazy

border[] between excessive and acceptable force’ and thereby provide an officer notice that a

specific use of force is unlawful.” Kisela v. Hughes, 584 U.S. 100, 104–05 (2018) (per curiam)

(quoting Mullenix v. Luna, 577 U.S. 7, 18 (2015) (per curiam)). Ciminillo demonstrates that, to

the extent any “hazy border” existed in this context at the time, it obscured whether officers may

use some degree of nonlethal force. That an officer may not use deadly force against a person

displaying no aggression, even during a riot, was and remains squarely “beyond debate.” Rivas-

Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)).

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 17

The dissent quibbles over facts that it suggests separate Ciminillo from the case at hand—

that Hart’s hands were not raised like Ciminillo’s were, that Hart approached the police line

despite officers’ dispersal orders, and that Hart turned back toward the officers after he was

pepper sprayed. But Ciminillo also approached the police officer after “officers ordered the

crowd to disperse via megaphones.” Ciminillo, 434 F.3d at 463. And, although the dissent has

identified two other purported differences, it fails to explain how either might be material. An

unarmed man is not displaying “aggressive behavior” by keeping his arms at his sides or by

turning around in place. Thus, these differences do not diminish the principle regarding

reasonable force against a person not demonstrating aggressive behavior during a riot that we

clearly established in Ciminillo. See Rivas-Villegas, 595 U.S. at 5, 7 (requiring “similar facts”

but not cases that are “directly on point”).

Taken together, under our precedent, it was clearly established in May 2020 that the

deployment of deadly force against an unarmed individual who posed no imminent threat to

officers, such as Hart, was constitutionally impermissible. We therefore reverse the grant of

summary judgment in favor of Officer Reinink.

B. Claims Against the City

Recognizing that “there can be no doubt that § 1 of the Civil Rights Act was intended to

provide a remedy, to be broadly construed, against all forms of official violation of federally

protected rights,” the Supreme Court has long held that a municipality can be sued under § 1983

for constitutional violations for which “the government as an entity is responsible.” Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694, 700–01 (1978). The preliminary question in a Monell

analysis is “whether there is a direct causal link between a municipal policy or custom and the

alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989).

“Municipal liability for the actions of employees may not be based on a theory of respondeat

superior.” Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994) (emphasis omitted).

Our precedent provides at least “four methods” to prove a municipality’s illegal policy or

custom—the plaintiff may prove “(1) the existence of an illegal official policy or legislative

enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 18

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of

tolerance or acquiescence of federal rights violations.” Wright, 962 F.3d at 880 (quoting Jackson

v. City of Cleveland, 925 F.3d 793, 838 (6th Cir. 2019)). “[T]he dismissal of a claim against an

officer asserting qualified immunity in no way logically entails that the plaintiff suffered no

constitutional deprivation, nor, correspondingly, that a municipality . . . may not be liable for that

deprivation.” Doe v. Sullivan County, 956 F.2d 545, 554 (6th Cir. 1992).

Both before the district court and on appeal, Hart and Guzman connect their record

evidence to the theory that the City ratified the officers’ unconstitutional conduct by

insufficiently investigating and punishing that conduct. See Pineda v. Hamilton County, 977

F.3d 483, 494–95 (6th Cir. 2020).2 To establish Monell liability for ratification based on a

failure to investigate, a plaintiff needs to show “‘not only an inadequate investigation in this

instance,’ but also ‘a clear and persistent pattern of violations’ in earlier instances.” Pineda, 977

F.3d at 495 (quoting David v. City of Bellevue, 706 F. App’x 847, 853 (6th Cir. 2017)). This

requires the plaintiff to present evidence of “multiple earlier inadequate investigations . . .

concern[ing] comparable claims.” Id. (quoting Stewart v. City of Memphis, 788 F. App’x 341,

344 (6th Cir. 2019)). “[A]n allegation of a single failure to investigate a single plaintiff’s claim”

fails to satisfy this standard. Id. (emphasis omitted). In contrast, the testimony of several

witnesses to persistent patterns of failure to correct excessive force and/or details of past

instances of excessive force can sustain Monell claims based on a ratification theory. See Berry,

25 F.3d at 1355 (discussing cases).

Hart and Guzman present a spreadsheet listing every reported excessive force claim

against GRPD officers between 2015 and 2020, which they submit demonstrates that “every

single officer in nearly 90 complaints for excessive force over a five-year span was exonerated or

2

Elsewhere in their briefing, Hart and Guzman discuss the legal standard for a different form of Monell

liability—failure to train. Hart and Guzman likewise alluded to that claim in their complaint. A plaintiff can waive

a potential appellate argument by failing to first argue it to the district court. See Laake v.Benefits Comm., W. & S.

Fin. Grp. Co. Flexible Benefits Plan, 68 F.4th 984, 995 (6th Cir. 2023). And a plaintiff can forfeit an argument on

appeal by failing to adequately develop it though argumentation. See Ogbonna-McGruder v. Austin Peay State

Univ., 91 F.4th 833, 843 (6th Cir. 2024), cert. denied, No. 23-1238, 2024 WL 3089575 (U.S. June 24, 2024). Hart

and Guzman did not brief the failure to train claim to the district court, and their appellate briefing does not connect

this theory to any record evidence. In light of precedent and this record, Hart and Guzman abandoned any failure-

to-train claims, so we confine our Monell analysis to the preserved ratification claim.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 19

cleared by the department.” Only two claims were sustained. This, coupled with the GRPD

imposing only two days of unpaid leave on Officer Reinink for the sustained charge of

unreasonable force, Hart and Guzman argue, evidences the City’s deliberate indifference to

officers’ deployment of unconstitutionally excessive force. The City responds that, absent

additional context, “the raw number of excessive force complaints” renders Hart’s and Guzman’s

arguments purely speculative, and thus, insufficient to proceed to trial.

The spreadsheet contains seven columns of information, and all but two columns identify

the complaint and the subject officer. Those two columns, labeled “Allegation” and “Finding,”

offer little in the way of substance. Every row of the “Allegation” column reads, “Unreasonable

Force.” The “Finding” column contains the result of GRPD’s investigation—indicating only that

the claim was sustained, not sustained, withdrawn, or unfounded, or that the subject officer was

exonerated. Accordingly, the spreadsheet lacks any substantive description of the events giving

rise to the complaint or of any specifics of GRPD’s investigation or its results.

Without some qualitative specifics, the district court lacked a basis under our precedent to

conclude that genuine disputes of material fact regarding Hart’s and Guzman’s single ratification

claim remain. Some information or evidence indicating that GRPD failed to properly investigate

the unreasonable force complaints it received or that dismissed complaints were well-founded

could have provided the requisite foothold. Pineda, 977 F.3d at 495–96; see also Wright, 962

F.3d at 882 (reserving the grant of summary judgment based on testimony that the sergeant “had

never heard of a use of force incident by a[n] . . . officer that seemed inappropriate to him”). But

Hart and Guzman did not adduce information or evidence indicating a pattern supporting their

claim of ratification based on a failure to investigate past unreasonable force complaints. Thus,

the district court’s grant of the City’s motion for summary judgment on Hart’s and Guzman’s

municipal liability claims is supported by governing law.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the grants of summary judgment to Officer

Johnson, Sergeant Bush, and the City, REVERSE the grant of summary judgment in favor of

Officer Reinink, and REMAND for further proceedings consistent with this opinion.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 20

_____________________________

CONCURRENCE / DISSENT

_____________________________

LARSEN, Circuit Judge, concurring in part and dissenting in part. I concur in the

majority opinion to the extent that it affirms the district court’s grant of qualified immunity to

Officer Johnson and Sergeant Bush and the grant of summary judgment to the City.

I respectfully disagree, however, with the majority opinion’s analysis of Officer Reinink’s

liability. Because Hart has failed to meet his burden of establishing that Officer Reinink violated

his clearly established rights, I would affirm the district court’s grant of qualified immunity to

Officer Reinink.

Two long-established qualified immunity principles compel this result. To overcome an

officer’s qualified immunity defense, “[t]he plaintiff bears the burden of showing that the right

was clearly established.” Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir. 2022). That is,

the “plaintiff must point to a case showing that reasonable officers would have known their

actions were unconstitutional under the specific circumstances they encountered.” Id.; see also

Mosier v. Evans, 90 F.4th 541, 547 (6th Cir. 2024) (The plaintiff bears the “burden of identifying

a case that should have put [the officer] on notice that his specific conduct was unlawful.”

(citation omitted)).

That principle dovetails with the second—specificity. “[W]hen it comes to excessive

force, the Court has repeatedly told us that specific cases are especially important.” Bell, 37

F.4th at 367 (citation omitted). That’s because “excessive force is an area of the law ‘in which

the result depends very much on the facts of each case,’ and thus police officers are entitled to

qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”

Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)).

So while Supreme Court “caselaw does not require a case directly on point for a right to be

clearly established, existing precedent must have placed the statutory or constitutional question

beyond debate.” Id. at 104.

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 21

Hart stumbles from the start. In his briefing, Hart offers just a single case to show that

Officer Reinink violated his clearly established constitutional rights—Ciminillo v. Streicher, 434

F.3d 461 (6th Cir. 2006). Ciminillo, however, is not a lethal force case. Hart’s lone argument is

that Ciminillo shows that no amount of force whatsoever could be justified in these

circumstances; a fortiori, lethal force was inappropriate here. But Ciminillo is, as even the

majority opinion recognizes, distinguishable from the circumstances of this case.

Hart says Ciminillo shows that an officer’s use of less-than-lethal force was excessive

when a plaintiff “slowly walked toward an officer in a non-threatening manner during a riot.”

Appellant Br. at 23. Maybe so, but that isn’t this case. It is true that Ciminillo shares some

features of the instant case. The use of force in Ciminillo occurred within the setting of a riot

while the police broadcasted dispersal orders over the unrest. Ciminillo, 434 F.3d at 463. But

the record in Ciminillo also reveals critical differences in the plaintiff’s behavior that

significantly distinguish Hart’s actions in the instant case.

Ciminillo approached the police with both of his hands held above his head in the

surrender position. Id. He was attempting to comply with their dispersal order by peacefully

leaving the scene of the riot, having been turned away from his first attempted exit path by a bat-

wielding occupant of a neighboring home. Id. The court concluded that no reasonable police

officer would believe that a person in this posture presented a serious threat. Id. at 468.

In contrast, Hart was not attempting to peacefully leave the scene. Quite the opposite.

As the district court explained, “[T]he record is undisputed that Hart, despite multiple orders to

leave, returned to the scene, exited his car and advanced toward the officers.” R. 132 Opn. &

Order, PageID 1563. The situation was tense as Hart approached the officers—given that he

walked to the “line of officers with his hand in his pocket.” Id. His hands were not raised in a

surrender position that “demonstrated that he was not armed, and thus posed no threat to the

officers’ safety.” Ciminillo, 434 F.3d at 467. Eventually, Hart exposed both of his hands while

pointing one at the police officers. It was then that Sergeant Bush sprayed Hart with pepper

spray. Hart, however, “was undisputedly not deterred by Sergeant Bush’s use of pepper spray.”

R. 132 Opn. & Order, PageID 1563. Rather than retreat, Hart “lifted his head, took a drag on his

cigarette, and turned back again toward the police line.” Id. In his own testimony, Hart

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 22

explained “that he ‘turned back’ because he was ‘mad.’” Id. at 1539 (quoting Hart. Dep., Ex. M

at 256).

This court in Ciminillo determined that no force was warranted because Ciminillo “posed

no risk” to the safety of officers, largely due to the fact that Ciminillo held his hands in the

surrender positions. Ciminillo, 434 F.3d at 467–68; see also Baker v. City of Hamilton, 471 F.3d

601, 607 (6th Cir. 2006) (“By raising his hands in the surrender position, [the plaintiff] arguably

showed that he was unarmed, was compliant, and was not a significant threat to [the officer’s]

safety.”). The facts aren’t the same here. The fact that both of Hart’s hands were visible in the

seconds directly before Officer Reinink’s use of force does not bring the instant case within the

scope of Ciminillo. Hart’s hands were never in the surrender position; he was unwilling to

comply with the officers’ directives (including one from Officer Reinink to leave and get back);

and he turned back toward the officers, “mad” and undeterred by non-lethal force. So, Ciminillo

does not place the conclusion that a reasonable officer would perceive Hart as nonthreatening

beyond debate.

The majority opinion offers two cases of its own—Sample v. Bailey, 409 F.3d 689 (6th

Cir. 2005), and Lewis v. Charters Township of Flint, 660 F. App’x 339, 357 (6th Cir. 2016).

Sample is factually distinguishable and not sufficiently on point to create a clearly established

right. See Bell, 37 F.4th at 368. Among many distinguishing factors, the police in Sample found

the defendant in a cabinet, meaning that “[h]is movement was therefore limited and he could not

quickly charge the officers.” Sample, 409 F.3d at 697. Here, however, Hart was roughly eight to

ten feet away from the officers and presumably could charge at any moment, especially given

that the pepper spray appeared to have little effect on him. As for Lewis, it is also factually

distinguishable. Hart was not “a fleeing suspect,” Lewis, 660 F. App’x at 347, rather he was

advancing seconds before he was pepper sprayed, and undeterred, had turned back toward the

officers again. Moreover, the majority opinion doesn’t tie the facts of Lewis to this case but

instead relies on Lewis in support of the general proposition that “officers have fair warning that

they may not use deadly force ‘[w]here the suspect poses no immediate threat to the officer and

no threat to others [in the area].’” Maj. Op. at 16 (alterations in the original) (quoting Smith v.

Cupp, 430 F.3d 776, 775–76 (6th Cir. 2005)). Such general rules don’t suffice in this context,

No. 23-1382 Hart, et al. v. City of Grand Rapids, Mich., et al. Page 23

and in any event, Lewis is an unpublished opinion and cannot create clearly established law.

Bell, 37 F.4th at 368. Finally, it is Hart’s burden to come forward with a case, not this court’s.

Id. at 367. I would affirm the district court’s grant of qualified immunity to Officer Reinink.

For these reasons, I respectfully dissent in part.