McClure v. Doe

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DESHAWN MCCLURE,

Plaintiff,

v. Case No. 2:21-CV-364-GSL-AZ

RONALD DAVIDSON and CITY OF

HAMMOND,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment [DE 94]

filed on June 30, 2025. Plaintiff DeShawn McClure, who is litigating his case without a lawyer

has not filed a response and the time to do so has passed. The motion is now ripe for ruling. The

Court, having reviewed the motion and supporting documentation, now finds that entry of

summary judgment in favor of the defendants is appropriate. For the reasons set forth below, the

Court grants the motion.

LEGAL STANDARD

Summary judgment is appropriate “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.” Fed. R. Civ. P.

56(a). The movant “bears the initial responsibility of informing the district court of the basis for

its motion and identifying those portions of” the evidence that “demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To survive a

properly supported motion for summary judgment, “the nonmoving party must present evidence

sufficient to establish a triable issue of fact on all elements of its case.” McAllister v. Innovation

Ventures, LLC, 983 F.3d 963, 969 (7th Cir. 2020).

In deciding a motion for summary judgment, a court may “not weigh conflicting

evidence, resolve swearing contests, determine credibility, or ponder which party’s version of the

facts is most likely to be true.” Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th

Cir. 2021). Instead, a court’s only task is “to decide, based on the evidence of record, whether

there is any material dispute of fact that requires a trial.” Id. (internal citation omitted). If there is

no genuine dispute of material fact, then summary judgment is appropriate, and the movant is

entitled to judgment as a matter of law. Id.

Local Rule 56-1(a) requires a summary judgment movant to file a “Statement of Material

Facts” identifying the facts that the moving party contends are not genuinely disputed. Then, the

party opposing summary judgment must respond within twenty-eight days with a “Statement of

Genuine Disputes” setting forth the genuinely disputed material facts that make trial necessary.

N.D. Ind. L.R. 56-1(b)(2). “[A] failure to respond by the nonmovant as mandated by the local rules

results in an admission.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). When an opposing

party fails to respond to a summary judgment motion, Federal Rule of Civil Procedure 56(e)

permits judgment for the moving party only if the movant is entitled to it. Fed. R. Civ. P. 56(e)(3).

MATERIAL FACTS

Defendants filed a statement of material facts in accordance with Local Rule 56-1(a). Mr.

McClure failed to comply with Local Rule 56-1(b) by failing to file a response to Defendants’

motion for summary judgment. Thus, the facts as claimed and properly supported by Defendants

in their statement of material facts are deemed admitted without controversy. The Court has

reviewed those facts and finds that they are adequately supported with appropriate citations to

admissible evidence in the record, including video footage of the incident.

Mr. McClure was stopped in the intersection of Orchard Drive and Rhode Island Avenue

in Hammond, Indiana shortly after 3:30 a.m. on November 4, 2021. Hammond Police

Department Officers Davidson and Ciccotelli repeatedly ordered Mr. McClure to get out of his

vehicle. Mr. McClure repeatedly refused their commands and instead, pulled a handgun from

underneath his left thigh. Officer Davidson yelled “he’s got a gun” and fired three shots in quick

succession to protect himself and Officer Ciccotelli, striking Mr. McClure. After watching the

video footage of the encounter, Mr. McClure correctly conceded in his deposition that:

I guess the Officer Davidson was doing everything correctly, but I felt like Officer

Ciccotelli was doing everything correctly. Like, he wasn’t too aggressive. Like he

could have easily just snagged once—he could have got agitated with me and just

snatched me out the car—I seen it happen before—but he didn’t. Like, he just kept

telling me to get out the car. And I — I just feel like he — he did everything pretty

much by the book.

McClure Dep. 83:21–84:6, ECF 95-1.

DISCUSSION

Plaintiff alleges violations of his constitutional rights under 42 U.S.C. § 1983. Section

1983 is a procedural vehicle for lawsuits “vindicating federal rights elsewhere conferred.”

Graham v. Connor, 490 U.S. 386, 394 (1989). To establish a § 1983 claim, Plaintiff must show

that he was “deprived of a right secured by the Constitution or federal law, by a person acting

under color of law.” Thurman v. Vill. of Homewood, 446 F.3d 682, 687 (7th Cir. 2006).

Plaintiff makes a Fourth Amendment claim. The Fourth Amendment prohibits

“unreasonable searches and seizures” by the government to safeguard “[t]he right of the people

to be secure in their persons.” U.S. Const. Amend. IV. The use of force in restraint of freedom is

a “seizure” subject to the Fourth Amendment’s reasonableness requirement. Torres v. Madrid,

592 U.S. 306, 311 (2021). The Fourth Amendment applies to the States via the Fourteenth

Amendment. See Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992).

The law looks to the totality of the circumstances to decide whether any use of force was

reasonable, including the crime’s severity (or whether the suspect was under arrest or suspected

of committing a crime), the immediate threat the suspect posed to the safety of the officers or

others, whether the suspect was armed, whether the suspect was interfering with an officer’s

duties, and whether the suspect actively resisted or attempted to evade arrest. Cnty. of Los

Angeles v. Mendez, 581 U.S. 420, 427–28 (2017); Graham, 490 U.S. at 396; Dawson v. Brown,

803 F.3d 829, 833 (7th Cir. 2015). The law asks whether the force used to seize the suspect was

excessive in relation to the danger he posed. Mendez, 581 U.S. at 427; Dawson, 803 F.3d at 833.

When an officer reasonably believes a suspect’s actions place “him, his partner, or those

in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can

reasonably exercise the use of deadly force.” Horton v. Pobjecky, 883 F.3d 941, 949 (7th Cir.

2018). “If the person of interest threatens the officer with a weapon, deadly force may be used,

because the risk of serious physical harm to the officer has been shown.” King v. Hendricks Cnty.

Comm’rs, 954 F.3d 981, 985 (7th Cir. 2020). Defendant Davidson’s use of deadly force in

response to Plaintiff disobeying commands and pulling out a handgun is precisely the sort of

“split-second decisions under intense, dangerous, uncertain, and rapidly changing circumstances”

that the courts in this Circuit have repeatedly held are objectively reasonable as a matter of law.

Manery v. Lee, 124 F.4th 1073, 1079 (7th Cir. 2025); see also, e.g., Muhammed v. City of

Chicago, 316 F.3d 680, 683 (7th Cir. 2002) (affirming entry of summary judgment in favor of

police officer who fired four shots, killing suspect who pulled out a gun); Siler v. City of

Kenosha, 957 F.3d 751, 760 (7th Cir. 2020) (affirming entry of summary judgment in favor of

officer and his employer when officer shot suspect six times after refusing commands to

surrender).

Defendants have also raised the defense of qualified immunity. “Qualified immunity

protects government officials from liability for damages unless they ‘violate clearly established

statutory or constitutional rights.’” Garcia v. Posewitz, 79 F.4th 874, 879 (7th Cir. 2023) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To be “clearly established,” the right at issue

must be so “beyond debate” that any reasonable official in the defendant’s position would know

that his actions would violate it. Kisela v. Hughes, 584 U.S. 100, 104 (2018). Further, “the

undebatable right must be defined with particularity.” Garcia, 79 F.4th at 880.

Since Defendants raised qualified immunity as a defense, Plaintiff bears the burden of

showing “(1) the defendants violated a constitutional right; and, (2) the constitutional right was

clearly established at the time of the violation.” Garcia, 79 F.4th at 879 (citing Fosnight v. Jones,

41 F.4th 916, 924 (7th Cir. 2022)). Plaintiff has not carried his burden on either element. As set

forth above, Defendant Davidson’s use of deadly force was objectively reasonable and did not

violate Plaintiff’s constitutional rights.

When Plaintiff drew his handgun from under his thigh, the prevailing and established

precedent in the Seventh Circuit held that a police officer’s use of deadly force in response was

reasonable. Siler, 957 F.3d at 760; Gysan v. Francisko, 965 F.3d 567, 570 (7th Cir. 2020).

Significantly, the Siler opinion issued by the Seventh Circuit in April, 2020 quotes a 2002

Seventh Circuit opinion, Muhammed, that, in turn, quotes a 1988 Seventh Circuit opinion,

Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir. 1988). Based upon this more than 30-year

precedent, any officer in Officer Davidson’s position on November 4, 2021, understood that the

use of deadly force was reasonable and appropriate when a suspect pulls a weapon that exposes

him, his partner, or a bystander to the threat of serious bodily injury or death.

CONCLUSION

For these reasons, the Court GRANTS Defendants’ Motion for Summary Judgment

[DE 94] and DIRECTS entry of final judgment in favor of Defendants. Plaintiff takes nothing

by his complaint.

SO ORDERED.

ENTERED: September 2, 2025

/s/GRETCHEN S. LUND

Judge

United States District Court