Ashly Romero v. City of Lansing, Mich.

RECOMMENDED FOR PUBLICATION

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

File Name: 25a0312p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ASHLY ROMERO, as personal representative for the

│

estate of Stephen Romero, deceased,

│

Plaintiff-Appellant, │

> No. 24-1865

│

v. │

│

CITY OF LANSING, MICHIGAN, a Michigan Municipal │

Corporation; DONOVAN MOORE and JEFF KURTZ, │

Officers, individually, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:23-cv-01322—Hala Y. Jarbou, District Judge.

Argued: July 30, 2025

Decided and Filed: November 18, 2025

Before: MOORE, GRIFFIN, and RITZ, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert G. Kamenec, FIEGER LAW, Southfield, Michigan, for Appellant. Michael

T. Berger, ROSATI SCHULTZ JOPPICH & AMTSBUECHLER PC, Farmington Hills,

Michigan, for Appellees. ON BRIEF: Robert G. Kamenec, FIEGER LAW, Southfield,

Michigan, for Appellant. Michael T. Berger, ROSATI SCHULTZ JOPPICH &

AMTSBUECHLER PC, Farmington Hills, Michigan, for Appellees.

RITZ, J., delivered the opinion of the court in which MOORE, J., concurred. GRIFFIN,

J. (pp. 16–28), delivered a separate opinion concurring in part and dissenting in part.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 2

_________________

OPINION

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RITZ, Circuit Judge. Two Lansing, Michigan police officers fatally shot Stephen

Romero while responding to a domestic disturbance call. Stephen’s wife, Ashly Romero, now

appeals the district court’s dismissal of her lawsuit against the officers and the city. We reverse

as to Ashly’s excessive-force claim and affirm as to the remaining claims.

I.

At the motion-to-dismiss stage, we credit all well-pleaded factual allegations in Ashly’s

complaint and draw all reasonable inferences in her favor. See Guertin v. Michigan, 912 F.3d

907, 916 (6th Cir. 2019).

A.

On December 21, 2023, Ashly Romero called 911 to report a domestic disturbance in her

driveway involving her husband Stephen Romero. Lansing police officers Donovan Moore and

Jeff Kurtz responded to the dispatch. Although Ashly told the dispatcher that her husband was

not armed and she had not been threatened with a weapon, a second caller claimed that a

shooting occurred. A third caller clarified that no one was shot, but it is unclear whether the

officers received this information.

Upon arrival, Officers Moore and Kurtz drew their weapons and approached the scene,

where Stephen stood outside the open driver-side door of a car, with Ashly in the driver’s seat.

Officer Moore commanded Stephen to show his hands and get on the ground. Stephen, who was

holding two cell phones, placed his hands in the air then slowly placed the phones on the ground.

As he did so, he said to the officers, “bro! bro!”

The officers commanded Stephen to the ground again, at which point he got on his knees

and placed his hands in the air. Ashly remained in the driver’s seat a few feet away. The

officers commanded Stephen to get “face down.” Stephen then slowly lowered his left hand

across his body; said to the officers, “listen”; and raised his shirt to show the officers a holstered

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 3

gun in his waistband, on his right hip. He then reached for the gun with his right hand, while

raising his left hand in the air. Officers Moore and Kurtz opened fire on Stephen.

Stephen yelled in pain while falling face down to the ground, and the officers stopped

shooting. Stephen, while lying on his stomach and elbows several feet away from the officers,

then said—with his voice breaking—“I got you . . . I got you,” and again reached his right hand

toward his waist. The officers resumed firing at Stephen, who was able to slide the gun several

feet away from his body during this second round of shots.

Stephen died in his driveway. The encounter between the officers and Stephen, which

lasted less than 40 seconds, was captured on the officers’ body-worn cameras.

B.

Ashly brought this suit on behalf of her husband under 42 U.S.C. § 1983. Her suit

contained three claims: (1) that Officers Moore and Kurtz violated Stephen’s Fourth Amendment

rights by using excessive force (Count One of the complaint), (2) that each officer failed to

intervene in the constitutional violations of the other (Count Two of the complaint), and (3) that

the City of Lansing failed to properly train the officers on the use of deadly force under Monell v.

Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978) (Count Three of the complaint).

Defendants moved to dismiss, arguing that the officers were entitled to qualified

immunity. The district court granted the motion, holding that the officers’ use of deadly force

did not violate Stephen’s clearly established constitutional rights. The court also dismissed

Ashly’s failure-to-intervene and municipal liability claims.

Ashly appealed. We have jurisdiction under 28 U.S.C. § 1291.

II.

A.

State officials are entitled to qualified immunity from a § 1983 suit unless a plaintiff can

show (1) that an official violated a statutory or constitutional right, and (2) that right was clearly

established when the events took place. Cahoo v. SAS Analytics, Inc., 912 F.3d 887, 897 (6th

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 4

Cir. 2019). We review de novo the dismissal of a claim on qualified immunity grounds.

Mitchell v. City of Benton Harbor, 137 F.4th 420, 429-30 (6th Cir. 2025). The key question is

whether, taking the plaintiff’s well-pled factual allegations as true and drawing all inferences in

her favor, the plaintiff has plausibly alleged facts that allow her to succeed on the merits. In re

Flint Water Cases, 960 F.3d 303, 322 (6th Cir. 2020).

Our circuit disfavors granting qualified immunity at the motion-to-dismiss stage. See

Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015). Without any “factual development

beyond the allegations in a complaint, a court cannot fairly tell whether a case is obvious or

squarely governed by precedent.” Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill.

Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2015) (Sutton, J., concurring) (citation modified).

Defendants therefore face an uphill battle. See id. “[S]o long as the plaintiff states a plausible

claim for relief,” the case may proceed to discovery. Marvaso v. Sanchez, 971 F.3d 599, 605-06

(6th Cir. 2020).

B.

Before addressing the merits, we must also delineate the scope of the record. Generally,

at the motion-to-dismiss stage, we are limited to the pleadings, attachments to the pleadings,

documents that are referred to in the complaint and central to the plaintiff’s claim, and matters of

public record. Saalim v. Walmart, Inc., 97 F.4th 995, 1002 (6th Cir. 2024). Accordingly, our

“use of [bodycam] videos is limited at this stage.” Bell v. City of Southfield, 37 F.4th 362, 364

(6th Cir. 2022). Even if available video evidence would make litigation more efficient, “we may

not consider it at the motion-to-dismiss stage if it does not blatantly contradict or utterly

undermine the complaint.” Hodges v. City of Grand Rapids, 139 F.4th 495, 510 (6th Cir. 2025).

In cases of blatant contradiction, the videos render the complaint “implausible,” but “[o]therwise,

we must accept the plaintiff’s version as true.” Bell, 37 F.4th at 364. The fact that videos will

likely be dispositive evidence at summary judgment or trial does not mean we have the authority

to conduct a detailed analysis now. Saalim, 97 F.4th at 1002 n.4.

Here, Ashly relied on facts from the bodycam footage in her complaint and response to

the motion to dismiss, as did the district court in its order dismissing her claims. On appeal, the

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 5

parties reference the videos extensively in their briefs, and they agreed at oral argument that we

can consider the videos. We therefore reference the videos in describing the facts, drawing all

necessary inferences in Ashly’s favor. See Lee v. Russ, 33 F.4th 860, 865 (6th Cir. 2022)

(explaining that “when facts shown in a video can be interpreted in multiple ways, those facts

should be viewed in the light most favorable to the non-moving party”) (citation modified).

That being said, we do not believe that “uncontroverted video evidence easily resolves

[this] case.” Bell, 37 F.4th at 364. Therefore, we limit our review of the bodycam footage to that

necessary to determine whether Ashly’s factual allegations are clearly false. Because the video

footage in this case is inconclusive at the relevant instances, we are ultimately required to credit

the facts as they are alleged in the pleadings. Id. at 366; Hodges, 139 F.4th at 507.

III.

We now move to the merits of Ashly’s first claim, which alleges that the officers used

excessive force. We hold that Ashly has successfully pled that Officers Moore and Kurtz

violated Stephen’s clearly established rights when they fired a second, deadly round of shots at

him while he lay on the ground.

A.

1.

To rebut the officers’ qualified immunity defense, Ashly must first show that the officers

violated her husband’s constitutional rights. An officer’s use of excessive force violates the

Fourth Amendment’s protection against unreasonable seizures. Graham v. Connor, 490 U.S.

386, 394-95 (1989). To determine whether a use of force was excessive, we ask whether the

force was justified from “the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.” Wright v. City of Euclid, 962 F.3d 852, 865 (6th Cir. 2020)

(quoting Goodwin v. City of Painesville, 781 F.3d 314, 321 (6th Cir. 2015)). An officer’s

subjective intent is irrelevant. Hart v. Michigan, 138 F.4th 409, 417 (6th Cir. 2025).

Deadly force is objectively reasonable only “when there is probable cause to believe that

the suspect poses an immediate threat to the officer or to others.” Raimey v. City of Niles,

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 6

77 F.4th 441, 448 (6th Cir. 2023); see also Tennessee v. Garner, 471 U.S. 1, 11 (1985) (same).

In evaluating probable cause, we look to the facts of each individual case, “including 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.” Raimey, 77 F.4th at 449 (quoting Graham,

490 U.S. at 396). Ultimately, in cases involving deadly force, “the question of whether a suspect

posed an immediate danger is dispositive.” Id.

To evaluate whether a use of force was reasonable, the Supreme Court has long

instructed us to look at the “totality of the circumstances.” Garner, 471 U.S. at 8-9 (1985).

Until recently, our circuit would break incidents involving the use of force into “segments,” and

“judge each on its own terms to see if the officer was reasonable at each stage.” Dickerson v.

McClellan, 101 F.3d 1151, 1161 (6th Cir. 1996) (quoting Plakas v. Drinski, 19 F.3d 1143, 1150

(7th Cir. 1994)). We would then “consider the officer’s reasonableness under the circumstances

he faced at the time he decided to use force” for each individual segment. Thomas v. City of

Columbus, 854 F.3d 361, 365 (6th Cir. 2017). By design, this segmented approach “instruct[ed]

us to disregard” events in the hours and minutes leading up to a deadly shooting, and instead

“focus on the ‘split-second judgments’ made immediately before” the use of force. Livermore ex

rel. Rohm v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (quoting Dickerson, 101 F.3d at 1162).

However, to the extent that the segmented approach strictly limited the window of time

we consider before a particular use of force, it has been abrogated. The Supreme Court recently

struck down the Fifth Circuit’s “moment-of-threat” rule, which limited the reasonableness

analysis to the seconds before a fatal shooting. Barnes v. Felix, 605 U.S. 73, 78-79 (2025). We

subsequently held that Barnes abrogated the segmented approach to the extent that it required

events to be “hermetically sealed” from the context in which they arose. Hodges, 139 F.4th at

517 (quoting Barnes, 605 U.S. at 80). Thus, following Barnes, we now consider “all of the

events preceding” a use of deadly force when conducting the totality-of-the-circumstances

inquiry. Id. at 518. Put another way, “[w]e do not evaluate a particular use of force by

considering just one tile in the reasonableness mosaic.” Feagin v. Mansfield Police Dep’t, 155

F.4th 595, 609 (6th Cir. 2025).

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 7

So, even if we divide an incident into distinct segments, we may consider all prior events,

including Fourth Amendment violations, in determining whether a particular use of force was

reasonable. Hodges, 139 F.4th at 518. One implication of this approach is that “we look

comprehensively” at video evidence depicting a use of force, “rather than narrowly considering”

a particular moment represented by a screenshot. See Feagin, 155 F.4th at 609. Another

implication is that the reasonableness of an officer’s use of deadly force may decline as a

situation progresses.

2.

Ashly points to three alleged instances of excessive force to support the Fourth

Amendment claim brought in Count One of her complaint. She argues that the officers used

excessive force by: (1) recklessly approaching the scene with their weapons drawn; (2) firing on

Stephen initially; and (3) firing a second time after he was wounded. The district court, deciding

this case before the Supreme Court issued Barnes, used this framework to segment the analysis

and addressed each alleged use of excessive force individually. To reiterate, after Barnes, while

we may divide the incident into segments, in analyzing each segment we may consider the entire

sequence, including prior uses of force.

The district court found the officers were justified in drawing their guns during their

initial approach on the scene, because based on the information they learned from dispatch, they

had reason to believe there was a dangerous weapon involved in a domestic dispute. See Romero

v. City of Lansing, No. 1:23-cv-1322, 2024 WL 4223961, at *5-6 (W.D. Mich. Sept. 18, 2024).

The facts as pled by Ashly do not tend to undermine that conclusion. The first shooting presents

a more difficult question. On one hand, Stephen largely complied with officer commands. On

the other hand, as he reached for his holstered gun while facing the officers on his knees, there

was a potential danger to both the officers and his wife, who sat only a few feet away within his

sightline.

But we need not dwell on the first two stages of the encounter because the facts of the

second shooting are well-pled enough that the excessive-force claim brought in Ashly’s

complaint survives a motion to dismiss. The circumstances of the second shooting were

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 8

materially different from the first, and our precedent requires that we allow Ashly’s claim to

proceed to discovery.

First, a brief review of the facts. After Officers Moore and Kurtz initially fired on

Stephen, he fell face down to his elbows, yelling in pain. Lying on his stomach, he said: “I got

you . . . I got you.” He again reached toward his waist. Officers Moore and Kurtz opened fire

again. As he was being shot, Stephen managed to grasp his gun and slide it away from his body,

out of his reach.

The district court reasoned that the circumstances surrounding the second shooting were

“mostly the same” as the first. Romero, 2024 WL 4223961, at *9. We disagree. When Officers

Moore and Kurtz opened fire the second time, Stephen was already wounded and, by that point,

lay on the ground, on his stomach and elbows. He was no longer a threat to Ashly, who was

outside his reach or line of sight, and any effort to draw and point his gun at the officers would

have required significant contortion of his body.

The surrounding circumstances compound these significant differences. The complaint

alleges—and the video does not contradict—that prior to and after being shot the first time,

Stephen was largely compliant and gave no clear indication that he intended to resist. The

officers ordered him to the ground, then face down; he got to his knees, moved slowly, and made

gestures of surrender. By the time he lay on the ground after a first round of fire that had clearly

injured him, a reasonable officer would not have perceived Stephen as a threat.

Moreover, between the two rounds of fire, Stephen did his best to tell the officers he

meant them no harm. While he lay on the ground, he said: “I got you . . . I got you!” Ashly

alleges that her husband was telling officers that he was complying. Even if we believed these

words to be inconclusive, we are required to accept Ashly’s characterization at this stage. See

Bell, 37 F.4th at 364.

In any event, we find it hard to imagine how Stephen’s words could be reasonably

interpreted as a threat. At this stage, nuanced interpretation of Stephen’s words is not

appropriate, but it is worth noting that the most natural characterization of “I got you” is to

indicate compliance. For example, “yes, I got you” often means “I understand.” See, e.g.,

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 9

Gotcha, Oxford English Dictionary, www.oed.com/dictionary/gotcha_int (defining the

interjection form of gotcha as “(I have) got you . . . usually with omission of ‘have’” and noting

that the phrase is “used . . . to indicate understanding.”). However, even accepting that a

reasonable officer might not understand the meaning of “I got you,” there were numerous other

contextual clues that would have led an officer to understand the words were nonthreatening.

For example, Stephen, who had just audibly reacted to being shot, did not shout the words in an

aggressive manner. In fact, as he spoke, his voice broke. He was lying on the ground and did

not move toward the officers or position himself in an offensive or provocative way. Through

the entire encounter he made no sudden or aggressive gestures. On the contrary, the officers had

seen Stephen put his hands in the air, place his cell phones on the ground, and move deliberately

to his knees. Faced with many indicators that Stephen was trying to comply with their demands,

a reasonable officer would not have interpreted Stephen’s words as a sign of danger.

In these circumstances, and under our precedent, Ashly has successfully pled an

excessive-force claim. The cases in which an officer may use deadly force in response to a

suspect holding a gun are highly fact-bound. We must treat the presence of the gun, and even the

fact that the gun may have been “in [Stephen’s] hand” as “just one consideration in assessing the

totality of the circumstances.” Thomas, 854 F.3d at 366. To be clear: an officer does not need to

wait until a suspect points their weapon before firing. Id. But officers also may not fire simply

because a suspect “has a weapon, even a gun, in hand.” Chrestman ex rel. Wooden v. Metro.

Gov’t of Nash. & Davidson Cnty., -- F.4th --, No. 24-6018, 2025 WL 2650582, at *6 (6th Cir.

Sept. 16, 2025). There must be “additional indicia that the safety of the officer or others is at

risk.” Campbell v. Cheatham Cnty. Sheriff’s Dep’t, 47 F.4th 468, 480 (6th Cir. 2022).

In fact, “[o]ur caselaw is replete with instances” where we have denied qualified

immunity to officers who used force against someone possessing a weapon, because “the facts

suggest—at least taking them in the light most favorable to the plaintiff—that the suspect did not

pose a serious threat to the officer[s].” Jacobs v. Alam, 915 F.3d 1028, 1041 (6th Cir. 2019).

Consider Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011), in which an elderly man with poor

eyesight and hearing pointed a gun at two officers attempting to arrest his son. Id. at 748. After

the man refused to drop his gun, one officer fatally shot him. Id. On a motion for summary

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 10

judgment, a posture far less favorable to plaintiffs than the motion-to-dismiss context, we denied

qualified immunity to the officer who fired the shots. Id. at 754. In doing so, we credited

testimony from the decedent’s son that the man began lowering his gun as he was shot. Id. at

752. Because the shooting occurred “while the [man] was complying with the officer’s

command,” a rights violation occurred. Id.

We reached a similar conclusion in Lee. There, a man robbed a pharmacy at knifepoint,

then brandished his knife at police when he was stopped. 33 F.4th at 862. The man was

“belligerent” and waved his knife while shouting at the police from a distance of about 30 feet.

Id. at 862-63. Though he “calmed down” and lowered his knife, when he took one more step, an

officer fatally shot him. Id. at 863-64.1 We denied qualified immunity at the summary judgment

stage, despite the fact that the officer “knew that [the decedent] had robbed a pharmacy” and

“that [the decedent] had unsheathed a knife when the officers confronted him and disregarded

commands to drop it.” Id.

The facts here parallel those of Bletz and Lee. First, in both cases we denied qualified

immunity because a potentially dangerous situation was de-escalating when the officers used

force. In Bletz, the decedent lowered his rifle. 641 F.3d at 748. In Lee, the decedent was

physically distant from the officers and had an increasingly calm demeanor. 33 F.4th at 863-64.

Similarly, when officers fired a second round at Stephen, he was already on the ground. By then,

at the very least, the situation had become significantly less dangerous, especially because the

wounded Stephen no longer posed a threat to Ashly and had given no explicit indication at any

point during the encounter that he intended harm to the officers. After having already been shot,

without any signal that Stephen intended harm, the sole fact that he again reached for his gun

was not enough to justify firing again.

Further, in both Bletz and Lee we denied qualified immunity because decedents were

compliant enough to allay a fear of immediate harm when they were shot. As a matter of fact, in

both cases, the decedents seemed to be largely uncompliant. See Bletz, 641 F.3d at 748 (“[The

1

Note that the parties disputed whether the decedent had stepped forward (toward the officers) or sideways.

The video evidence was “equivocal,” so we construed the video in the light most favorable to the plaintiff. Lee,

33 F.4th at 864-65.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 11

decedent] did not promptly comply with [the officer’s] instructions to drop his weapon.”); Lee,

33 F.4th at 863 (describing testimony that the decedent was “belligerent”). In Bletz, the outcome

hinged on the final moment in which the victim appeared to obey an officer command to lower

his weapon in the seconds before he was shot. 641 F.3d at 752. The same was true in Lee,

where the decedent ignored commands to drop his knife, but stopped waving it. 33 F.4th at 863.

So too here. Stephen was largely compliant with officer instructions. True, Stephen did

not get “face down” when told to, instead remaining on his knees. But Bletz and Lee show that

we do not require perfect compliance. And unlike both of those cases, Stephen did not disobey

any commands explicitly related to his weapon, which he voluntarily showed to the officers.

Additionally, by the time officers fired a second round, Stephen was on the ground in full

compliance with their commands. Any orders Stephen ignored are far less indicative of a threat

than those ignored by the decedents in Bletz and Lee. Under our case law, that means the use of

deadly force was not justified.

Our cases granting qualified immunity do not sway us in a different direction. Where we

have granted qualified immunity in suits alleging deadly force, the officers faced more

immediately dangerous circumstances than those present here. For example, we have frequently

granted qualified immunity when an officer used deadly force to stop an armed individual who

was advancing quickly from a short distance or behaving aggressively. See e.g., Thomas, 854

F.3d at 362-63 (granting qualified immunity when an officer fatally shot a man, who the officer

reasonably believed was a burglar, running toward him down a narrow hallway holding a gun);

Chappell v. City of Cleveland, 585 F.3d 901, 905, 916 (6th Cir. 2009) (granting qualified

immunity when a fifteen-year-old suspected of armed robbery “lunged” towards officers in a

small bedroom, while ignoring commands to drop his knife); Thornton v. City of Columbus, 727

F. App’x 829, 831-32 (6th Cir. 2018) (granting qualified immunity to officers who shot a man

who threatened passerby with a shotgun, then ignored officer commands to drop his weapon

while walking towards officers from short distance). Of course, when an armed individual

advances on officers or acts erratically and offensively, deadly force can be justified even when a

suspect does not point a gun.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 12

But here, Stephen did not make any overtly hostile actions and never gave any indication

that he would advance toward the officers. He heeded officers’ commands to raise his hands and

get on the ground. After the officers shot him the first time, he dropped to his stomach,

wounded. Our dissenting colleague believes that the video then depicts Stephen removing his

weapon from his waistband before the officers fired their second round of shots. We interpret

the video differently, and so, plausibly, could a trier of fact. Indeed, as Ashly alleges in her

complaint, Stephen’s actions could reasonably be seen as an attempt to surrender the firearm.

But even if the video is ambiguous as to the precise sequence of events or what Stephen

intended, it does not blatantly contradict Ashly’s allegation that Stephen was incapacitated when

the officers fired a second round of shots, so we must credit that allegation. The fact that

Stephen had already been wounded prior to the second shooting and showed no obvious

resistance throughout the encounter distinguishes this case from those where we granted

qualified immunity.

In short, Bletz and Lee govern the outcome here. Without more, Stephen’s reaching

towards his firearm was not enough to justify the continued shooting of a wounded man who was

lying on his stomach and had been otherwise compliant. By the time Officers Moore and Kurtz

fired a second round of shots, a reasonable officer would not have felt that Stephen presented an

immediate threat. Therefore, Ashly has plausibly alleged that officers violated Stephen’s Fourth

Amendment rights.2

B.

Moreover, Stephen’s rights to not be shot while (1) not posing a threat, (2) complying

with officer instructions, and (3) being otherwise incapacitated were all clearly established at the

time these events took place. Our case law provides abundant notice that “individuals have a

right not to be shot unless they are perceived as posing a threat to officers or others.” King v.

Taylor, 694 F.3d 650, 664 (6th Cir. 2012) (internal quotation marks omitted); see also

2

Because we believe that Ashly has plausibly alleged a rights violation by the time of the second shooting,

her excessive-force claim can proceed, and it is unnecessary for us to decide whether the officers violated Stephen’s

rights at an earlier point. See Baker v. City of Hamilton, 471 F.3d 601, 608-09 (6th Cir. 2006) (denying summary

judgment on an excessive-force claim because the officer struck a suspect with a baton, when the single excessive-

force claim also alleged tackling, choking and other injuries.).

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 13

Dickerson, 101 F.3d at 1163 (same). Further, the “right to be free from deadly police force while

complying with police commands to disarm [is] clearly established.” Bletz, 641 F.3d at 754.

And by 2023, it was clearly established that even if a suspect is “armed and . . . disobeyed the

officers’ commands, these facts do not alone amount to a threat of serious or deadly harm.”

Heeter v. Bowers, 99 F.4th 900, 915 (6th Cir. 2024); see also Leftwich v. Driscoll, Nos. 22-

1572/1575, 2023 WL 3563207, at *4, (6th Cir. May 19, 2023) (“[W]e have repeatedly held that

when a suspect possesses a weapon but does not have it pointed at anyone, qualified immunity is

generally inappropriate.”). Lastly, “we have repeatedly held that the use of force after a suspect

has been incapacitated or neutralized is excessive as a matter of law.” Baker, 471 F.3d at 607.

Our dissenting colleague agrees that these propositions were clearly established at the

time the defendants shot and killed Stephen but maintains that Stephen remained a threat to the

officers even after they shot him the first time. As described above, though, we draw all

reasonable inferences and interpret the video in Ashly’s favor, and she has plausibly alleged that

Stephen was neutralized and complying with the officers’ commands. Under these well-pleaded

facts and our case law, Officers Moore and Kurtz were on notice that Stephen had a right not to

be lethally shot. To be sure, the Supreme Court has cautioned that “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, 12 (2015)

(per curiam)). But for that reason, and because the video in this case is inconclusive, it makes

sense to conduct discovery here. Without the benefit of the full record, it is difficult to make

definitive conclusions about factual parallels. See Chrestman, -- F.4th --, 2025 WL 2650582, at

*7; Evans-Marshall, 428 F.3d at 235 (Sutton, J., concurring).

We hold that Ashly has adequately pled that at least by the time of firing a second round

of shots, Officers Moore and Kurtz violated Stephen’s clearly established rights. We reverse the

district court’s dismissal of the excessive-force claim.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 14

IV.

Ashly brings two other claims: (1) failure of each officer to intervene in the constitutional

violations of the other; and (2) a municipal liability claim against the City of Lansing. We affirm

the district court’s dismissal of these claims.

A.

Ashly argues that each officer should have intervened in the other’s use of excessive

force. To succeed on this claim, a plaintiff must show that the officer (1) “observed or had

reason to know that excessive force would be or was being used,” and (2) “had both the

opportunity and the means to prevent the harm from occurring.” Bard v. Brown County, 970

F.3d 738, 752-53 (6th Cir. 2020) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)).

Ashly cannot make this showing. Although the officers observed each other’s use of

excessive force, they did not have the opportunity to prevent it. To succeed on the second prong,

Ashly must show that “the primary wrongdoer used the force for a ‘long enough’ time that the

observing officer had a realistic chance to end it.” Chaney-Snell v. Young, 98 F.4th 699, 722 (6th

Cir. 2024) (quoting Pelton v. Perdue, 731 F. App’x 418, 426 (6th Cir. 2018)). The events in this

case occurred in rapid succession, and the shootings took place over the course of less than ten

seconds. Generally, we have held that an officer without forewarning cannot intervene in actions

that continue for less than ten seconds. Id. Thus, there was no opportunity for either officer to

intervene in the other’s use of excessive force.

B.

We also affirm the district court’s dismissal of Ashly’s Monell claim against the City of

Lansing. To succeed on a Monell claim, a plaintiff must demonstrate that the officers’ illegal

actions resulted from an official municipal policy or custom. 436 U.S. at 694-95. A

municipality’s illegal policy or custom can by shown by: “(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 existence of a policy of inadequate training or supervision; or (4) the

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 15

existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v.

Fischer, 735 F.3d 462, 478 (6th Cir. 2013).

Ashly argues that the City of Lansing failed to adequately train and supervise its officers

as to the use of deadly force. To succeed, Ashly must show that “(1) the training or supervision

was inadequate for the tasks performed; (2) the inadequacy was the result of the municipality’s

deliberate indifference; and (3) the inadequacy was closely related to or actually caused the

injury.” Ouza v. City of Dearborn Heights, 969 F.3d 265, 286-87 (6th Cir. 2020) (quoting Ellis v.

Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006)). According to Ashly, the City of

Lansing was deliberately indifferent because it “fail[ed] to equip law enforcement officers with

specific tools to handle recurring situations.” Id. at 287 (citations omitted).

Ashly has not plausibly pled a successful Monell claim. First, this theory of liability is

narrow, and occurs only when “in light of the duties assigned to specific officers . . . the need for

more or different training is . . . obvious.” Id. (quoting City of Canton v. Harris, 489 U.S. 378,

390 (1989)). Ashly does not provide any concrete allegations about the city’s behavior, only

speculation that Officers Moore and Kurtz would have behaved differently had they been

properly trained. Even at the motion-to-dismiss stage, Ashly must plead specific facts beyond

speculation and bare recitation of the standard for municipal liability. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). We agree with the district court that, without more concrete

allegations, this claim cannot proceed to discovery.

V.

For these reasons, we affirm the district court as to Ashly’s failure to intervene and

Monell claims. As to the excessive-force claim, we reverse.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 16

_____________________________

CONCURRENCE / DISSENT

_____________________________

GRIFFIN, Circuit Judge, concurring in part and dissenting in part.

Today’s decision endangers the lives of all law enforcement officers in the Sixth Circuit.

It egregiously misapplies the law of self-defense and qualified immunity to the extent that few, if

any, police officers would voluntarily assume such a high level of personal risk and potential

financial liability.

Because Officers Moore and Kurtz are entitled to qualified immunity, I would affirm the

district court’s dismissal of plaintiff’s excessive-force claim. I therefore respectfully dissent. I

concur, however, with affirming the district court’s dismissal of plaintiff’s other claims.

I.

At the motion-to-dismiss stage, we generally “construe the complaint in the light most

favorable to plaintiffs, accept all well-pleaded factual allegations as true, and draw all reasonable

inferences in plaintiffs’ favor.” Guertin v. Michigan, 912 F.3d 907, 916 (6th Cir. 2019). That

said, when video evidence, such as body-cam footage, “blatantly contradicts or utterly discredits

the plaintiff’s version of events,” we may rely on this evidence instead. Bell v. City of

Southfield, 37 F.4th 362, 364 (6th Cir. 2022) (citation modified) (quoting Scott v. Harris, 550

U.S. 372, 380 (2007)).

The complaint alleges that “Mr. Romero submitted by getting on his knees,”

“communicated his intent to surrender the firearm and lay it to the ground,” and never

“remove[d] a firearm from his waistband.” The officers’ body-cam footage blatantly contradicts

these allegations, however, and therefore I will rely on the video evidence, which shows the

following.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 17

As Officers Moore and Kurtz responded to a domestic disturbance, dispatch informed

them of a confirmed shooting of a woman. At the scene, Romero stood outside a vehicle with

the driver-side door open and a woman inside. With his service weapon drawn, Officer Moore

yelled, “Hey! Show your hands, show me your hands!” Romero turned towards the officers

with his hands open. Officer Moore then commanded, “Get on the ground, get on the ground,

now!” Romero showed two cellphones, one in each hand. Officer Moore again commanded,

“Get on the ground or I will shoot you!” Romero slowly placed the cellphones on the ground,

remained standing, and eventually kneeled down. Officer Kurtz ordered Romero to get “face

down.” Instead, Romero lifted his shirt to reveal a gun at his waist. Romero then moved his

right hand down and grabbed the gun.

Officer Moore fired his service weapon. After being struck, Romero fell on the ground

and said “I got you” twice. Romero then reached for his gun, again.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 18

Officer Moore yelled, “Stop!” Romero removed the gun from his waistband.

The officers fired their weapons several more times, and the gun slid down the driveway

towards them while Romero lay motionless, fatally wounded.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 19

In sum, the video evidence clearly establishes that Romero failed to comply with the

officers’ commands, reached for and grabbed his firearm twice, removed it from his waistband,

and the officers used deadly force in response.

II.

Law enforcement officers are entitled to qualified immunity unless a plaintiff plausibly

alleges that they “(1) violated a constitutional right (2) that was clearly established at the time of

the wrongdoing.” Bell, 37 F.4th at 367 (citation modified). Here, plaintiff fails to show either

and, thus, Officers Moore and Kurtz are entitled to immunity from suit.

A.

An officer’s use of force violates the Fourth Amendment “when it is not ‘objectively

reasonable’” under the “totality of the circumstances.” Barnes v. Felix, 605 U.S. 73, 76 (2025)

(citation omitted). The totality of the circumstances accounts for “the facts and circumstances

confronting [the officers], without regard to their underlying intent or motivation.” Graham v.

Connor, 490 U.S. 386, 397 (1989). And we judge the officers’ actions “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Goodwin v. City

of Painesville, 781 F.3d 314, 321 (6th Cir. 2015) (quoting Graham, 490 U.S. at 396). “The

bottom-line inquiry is whether the totality of the circumstances justifies a particular level of

force.” Wright v. City of Euclid, 962 F.3d 852, 865 (6th Cir. 2020) (citation modified).

When an incident involves several uses of force, we “segment the incident into its

constituent parts and consider the officer’s entitlement to qualified immunity at each step along

the way.” Id. (citation modified). Here, plaintiff alleges three uses of excessive force by the

officers: (1) approaching Romero with weapons drawn when arriving on the scene; (2) shooting

Romero after he grabbed a gun at his waist; and (3) shooting Romero when he removed the gun

from his waistband.

The parties employed the segmented approach in briefing, as did the district court. The

majority chooses to discuss only the last use of force, while also suggesting that Barnes

precludes us from taking the segmented approach. At issue in Barnes was the Fifth Circuit’s

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 20

“moment of threat” rule. Under that rule, a court reviewing whether a use of deadly force was

excessive “could ask only about the situation existing ‘at the moment of the threat’ that sparked

the fatal shooting.” 605 U.S. at 78 (citation omitted). The Court held that such a rule does not

comply with the Fourth Amendment because it “constricts the proper inquiry into the ‘totality of

the circumstances.’” Id. at 79. Our segmented analysis, however, is simply a method to sensibly

analyze “each step along the way” in cases involving “multiple” alleged unlawful uses of force.

Wright, 962 F.3d at 865. And “for each purported violation . . . we must consider all the

‘relevant circumstances’ ‘leading up to the climactic moment.’” Feagin v. Mansfield Police

Dep’t, 155 F.4th 595, 611 (6th Cir. 2025) (quoting Barnes, 605 U.S. at 76). Barnes does not

foreclose this approach, at least not when properly applied to avoid temporal extremes. Id. at

610–11.

Like the parties and the district court, I address each in turn.

1.

Officers Moore and Kurtz responded to a domestic-violence call. While en route,

dispatch informed them that a weapon had been discharged and that a woman had been shot.

Upon arrival, they sprang from their vehicles and rushed to the scene, weapons drawn. Plaintiff

asserts that this was an unreasonable use of force because the officers did so “without a

justifiable fear.” This assertion is unavailing.

An officer does not violate the Fourth Amendment by approaching with his weapon

drawn when the officer reasonably fears for his safety or the safety of the public. Wright, 962

F.3d at 865–66. As the district court correctly found and the video evidence confirms, this was

the case here: Officers Moore and Kurtz “had reason to believe that a firearm had been used and

that Plaintiff had been a target,” which gave the officers ample “reason to approach Romero with

a show of deadly force in order to dissuade him or anyone else from using a firearm again.”

Further, as the district court stated, the surrounding circumstances “amplified” the

officers’ safety concerns: “two individuals (whom the officers would have reasonably assumed

were Plaintiff and the shooter) arguing or yelling at one another,” which signaled that “the

domestic dispute had not ended”; and “Plaintiff herself was not fully visible, so it would not have

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 21

been clear whether she was unharmed.” As we have recently explained, “domestic abusers with

firearms are dangerous not only to their direct victims, but also to accompanying loved ones,

bystanders, and responding law enforcement officers.” United States v. Gailes, 118 F.4th 822,

827 (6th Cir. 2024). Indeed, empirical evidence suggests “that domestic disputes were the most

dangerous type of call for responding officers, causing more officer deaths with a firearm than

any other type of call.” United States v. Rahimi, 602 U.S. 680, 706–07 (2024) (Sotomayor, J.,

concurring); Stimmel v. Sessions, 879 F.3d 198, 210 (6th Cir. 2018) (noting that as much as 10%

of non-accidental officer fatalities had occurred while officers were responding to domestic

disturbances). The fact that Officers Moore and Kurtz were responding to a domestic dispute

further bolsters the reasonableness of approaching Romero with weapons drawn.

Accordingly, the officers did not violate the Fourth Amendment in this instance.

2.

After encountering Romero outside the vehicle, the officers instructed him to lie face

down. Romero failed to fully comply, only kneeling, and then grabbed a gun on his waist.

Officer Moore opened fire, striking Romero. Plaintiff asserts that Romero had to do more—put

his finger on the trigger, rack the gun, aim it, or even fire it—before Officer Moore could have

used deadly force. Again, however, plaintiff’s assertion is unavailing.

“To justify lethal force, an officer must have probable cause to believe the suspect

presents an immediate threat of serious physical harm to the officer or others.” Studdard v.

Shelby Cnty., 934 F.3d 478, 481 (6th Cir. 2019) (citing Tennessee v. Garner, 471 U.S. 1, 11

(1985)). The “objective assessment of the danger a suspect poses” must be made “from the

perspective of a reasonable officer in the defendant’s position.” Jacobs v. Alam, 915 F.3d 1028,

1040–41 (6th Cir. 2019) (quoting Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir. 2007)).

When considering whether the use of deadly force was reasonable, we look to the totality of the

circumstances that the officer faced at the time he decided to use force. See Thomas v. City of

Columbus, 854 F.3d 361, 365 (6th Cir. 2017). Shooting a suspect is lawful when officers could

reasonably conclude that he might fire a gun at them. Puskas v. Delaware Cnty., 56 F.4th 1088,

1096 (6th Cir. 2023).

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 22

The district court aptly described—and the video evidence confirms—the circumstances

surrounding the first shooting:

When [Officer Moore] shot Romero the first time, he had not fully complied with

multiple orders to “get on the ground” . . . and he was not moving toward

compliance. Instead, he had lifted his shirt and put his hand on a gun that he had

apparently used earlier in the evening during a dispute with his wife. He did not

explain his intentions or make gestures clearly indicating that he intended to turn

his weapon over to the officers. Nor did he reach for his weapon slowly and

gradually, which might have given the officers an opportunity to specifically warn

him not to touch his weapon. And by the time he put his hand on his gun, he

could have quickly and easily turned it on his wife nearby or the officers in front

of him. In fact, Plaintiff was only a few feet away to his left and would have been

in a direct line of fire had he finished pulling the pistol out of his waistband with

his right hand. Thus, not knowing Romero’s intentions, but knowing the

possibility that he might use his weapon again, [Officer Moore] had to make a

split-second decision about how best to protect [the officers] and Plaintiff from

the apparent threat [Romero] posed.

Further, as explained before, the officers were responding to a domestic disturbance purportedly

involving a confirmed shooting. And the whole encounter, from when Officer Moore first

commanded Romero to show his hands to when Romero reached for his gun, lasted only fifteen

seconds.

Under these circumstances, Officer Moore had probable cause to believe that Romero

posed an immediate threat of serious physical harm to the officers or others: The officers

reasonably believed that a firearm had been discharged and a woman shot; they had ordered

Romero to get face down on the ground and he never did; and Romero grabbed a gun on his

waist, of his own accord and unexpectedly, mere feet away from the officers and plaintiff.

Officer Moore was not required to wait for Romero to rack or point the gun before using deadly

force. See Jacobs, 915 F.3d at 1040 (“[A]n officer need not face the business end of a gun to use

deadly force.”); Thomas, 854 F.3d at 365–66; Thornton v. City of Columbus, 727 F. App’x 829,

838 (6th Cir. 2018). Moreover, Officer Moore had only a split second to protect himself, Officer

Kurtz, and plaintiff from the imminent threat Romero posed after he placed his hand on the gun,

and we “do not second guess such split-second decisions.” Puskas, 56 F.4th at 1096.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 23

In hindsight, plaintiff hypothesizes that Romero may have reached for his weapon

intending to surrender it. But this is not the standard we employ. Thomas, 854 F.3d at 365. We

ask whether the use of deadly force was reasonable from the perspective of an objective officer

confronting the circumstances Officer Moore did. Id. (adding that we do so “mindful that police

officers face tense, uncertain, and rapidly evolving situations” (citation modified)). Under this

standard and these circumstances, Officer Moore’s use of deadly force was reasonable.

3.

After being shot by Officer Moore, Romero fell to the ground. He groaned in pain, said

“I got you” twice, and then reached down and removed the gun from his waistband. Both

officers fired, fatally striking Romero. Plaintiff argues that this shooting was excessive because

Romeo was already incapacitated. Plaintiff is incorrect. Because Romero continued to threaten

the safety of the officers, even while wounded, their use of deadly force was reasonable.

It is true that Romero was now on the ground—but this was not because he had finally

complied with the officers’ orders; he was only there because he had just been shot by Officer

Moore. And even as Officer Moore yelled “Stop,” Romero did not cease his movements. He

reached for his gun, again, and this time removed it from his waistband. The officers had not

ordered him to do this; in fact, reaching for the gun was the reason he had been shot the first

time. Given these circumstances, lasting mere seconds, the officers had probable cause to

believe that Romero continued to present an immediate threat of serious physical harm and, thus,

their use of deadly force was reasonable. See Gambrel v. Knox Cnty., 25 F.4th 391, 405–06 (6th

Cir. 2022) (collecting cases) (“[W]e have found that officers had the probable cause that made

their shooting lawful when they could reasonably conclude that a suspect might fire a gun at

them or use another dangerous weapon against them (even if they turned out to be wrong).”).

The majority claims that Romero was no longer a threat because “any effort to draw and

point his gun at the officers would have required significant contortion of his body.” But

Romero was obviously able to draw his weapon from his waistband and, again, “an officer need

not face the business end of a gun to use deadly force,” Jacobs, 915 F.3d at 1040, so this

argument falls flat.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 24

Relying on Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011), and Lee v. Russ, 33 F.4th 860

(6th Cir. 2022), the majority also contends that shooting Romero a second time was unreasonable

because the situation was deescalating. But the video evidence does not bear this out. To be

sure, Romero was now lying on the ground. He continued to reach for his gun, however, and this

time he brought it forth from his waistband (all the while, it must be remembered, having been

ordered by the officers to stay still, not surrender his weapon). From the objective perspective of

a reasonable officer—at that moment—this posed an escalated threat.

Additionally, the present case is distinguishable from lowering one’s weapon, as was the

case in Bletz, 641 F.3d at 748, and Lee, 33 F.4th at 863. The more on-point case is Mullins v.

Cyranek, where the decedent “removed a previously concealed firearm without any direction

from [the officer] to do so, threw the weapon over [the officer’s] shoulder after being

commanded to drop it, and was then shot” by the officer. 805 F.3d 760, 767 (6th Cir. 2015).

Even though the decedent was no longer a threat when he was shot, we concluded that the officer

“was faced with a rapidly escalating situation, and his decision to use deadly force in the face of

a severe threat to himself and the public was reasonable.” Id. Officer Moore’s and Kurtz’s

decision to use deadly force was equally reasonable given the severe threat that Romero posed

by continuing to reach for his gun and then removing it from his waistband.

The mere fact that Romero said “I got you” before taking the gun from his waistband

does not dispel this conclusion. The majority interprets these three words to demonstrate that

Romero “did his best to tell the officers he meant no harm” and, drawing from the Oxford

English Dictionary, posits that “the most natural characterization of ‘I got you’ is to indicate

compliance.” But the officers had responded to a domestic disturbance purportedly involving a

confirmed shooting, faced a suspect who continually reached for a firearm at his waist while

being ordered to get face down and stop moving, and then saw a weapon being drawn—all in a

matter of seconds. Officers Moore and Kurtz did not have the benefit of stopping time and

contemplating the nuances of English vernacular. Nor is this the standard we hold them to when

assessing the reasonableness of using deadly force under these circumstances. See Thomas, 854

F.3d at 365.

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 25

Moreover, even if everyone at the scene understood “I got you” to mean different

things—which, of course, is entirely speculative—the Fourth Amendment requires officers only

to act reasonably on the information they have, not to perceive a situation accurately. Id.;

Chappell v. City of Cleveland, 585 F.3d 901, 916 (6th Cir. 2009). Here, the officers witnessed

Romero continually reach for his firearm and then remove it from his waistband; and, based on

this information, they reasonably concluded that Romero might fire a gun at them. Thus, despite

Romero saying “I got you,” using deadly force was objectively reasonable. Gambrel, 25 F.4th at

405–06.

In sum, plaintiff fails to plausibly show that the officers violated the Fourth Amendment

in any of the three instances.

B.

Even assuming plaintiff succeeded under the first prong of the qualified immunity test,

she fails to plausibly allege that the officers violated a constitutional right that was clearly

established at the time of the alleged wrongdoing. To make this showing, a plaintiff “must point

to a case showing that reasonable officers would have known their actions were unconstitutional

under the specific circumstances they encountered.” Bell, 37 F.4th at 367. “[W]hen it comes to

excessive force, the Court has repeatedly told us that specific cases are ‘especially important.’”

Id. (citing City of Tahlequah v. Bond, 595 U.S. 9, 12–13 (2021) (per curiam); Kisela v. Hughes,

584 U.S. 100, 104–05 (2018) (per curiam)). “The unlawfulness of the officer’s acts ‘must be so

well defined’ that no reasonable officer would doubt it.” Id. (quoting Bond, 595 U.S. at 12).

But plaintiff fails to cite a case showing that all reasonable officers would have known

that shooting Romero under the specific circumstances faced by Officers Moore and Kurtz was

unconstitutional.1 She does cite cases for the proposition that an individual has a right not to be

1

When discussing the second prong of the qualified immunity test, plaintiff focuses solely on the officers’

use of deadly force and does not cite a single case regarding whether a reasonable officer would have known that

approaching this scene with weapon drawn was unconstitutional. Accordingly, I discuss only plaintiff’s assertion

that the officers’ use of deadly force violated a constitutional right that was clearly established at the time. I also

note that plaintiff has likely abandoned the issue of qualified immunity regarding the officers’ first use of force. See

Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003).

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 26

shot when complying with commands, but this is not in dispute. Nor is it relevant: Romero was

not complying, as the video evidence clearly shows.

Lee does not help either—as already mentioned, the decedent in that case was lowering

his weapon when he was shot, not grabbing for it or removing it from his waistband, and he

stood thirty feet away, not mere feet from the officers. 33 F.4th at 862–63. Nor does Jacobs,

where the plaintiff reached for a pistol still in its holster, and which was never unholstered, and

was shot only after falling down the stairs, away from the officers. 915 F.3d at 1033. In

contrast, Romero kept reaching for an unholstered gun and actually drew it, in close proximity to

both plaintiff and the officers. Moreover, neither Lee nor Jacobs involved officers responding to

a domestic-violence situation involving an ongoing argument and what officers reasonably

believed was a confirmed shooting—facts suggesting that the suspect had already resorted to

violence and might do so again.

The cases cited by the majority fare no better. Some simply stand for the general

proposition that an individual has a right not to be shot while “(1) not posing a threat, (2)

complying with officer instructions, and (3) being otherwise incapacitated.” But, again, the

video evidence clearly demonstrates that these were hardly the circumstances here: The officers

reasonably believed that Romero had discharged his firearm and shot someone moments before

their arrival; Romero reached for his gun while being ordered to do the opposite (lie still, face

down); and even after being wounded by Officer Moore, Romero continued to reach for the gun

and then removed it from his waistband. None of this demonstrates a non-threatening,

compliant, or otherwise incapacitated individual.

Other cases cited by the majority fail to give the requisite “fair and clear warning” that

the particular conduct alleged here violated the law. Kisela, 584 U.S. at 105. For example, in

King v. Taylor, officers shot the decedent through a window while he was at home lying on the

couch, not making any threatening gestures. 694 F.3d 650, 654, 663–64 (6th Cir. 2012).

Similarly, in Dickerson v. McClellan, officers shot the decedent through a closed door when he

went to answer it. 101 F.3d 1151, 1163 (6th Cir. 1996). And the plaintiffs in Baker v. City of

Hamilton were unarmed and indisputably compliant. 471 F.3d 601, 607–09 (6th Cir. 2006).

None “squarely governs the specific facts at issue” or provides notice to Officers Moore and

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 27

Kurtz that shooting Romero was unlawful under the circumstances they encountered. Kisela,

584 U.S. at 104–05 (citation modified).

More on-point is Thomas. There, an officer responded to a burglary in progress. 854

F.3d at 363. With his service weapon unholstered, he ran to the scene where he could hear a

commotion. Id. He then saw two men exiting the apartment and running towards him, with the

first man holding a gun. Id. When that person closed the distance to about ten feet, the officer

fired two shots. Id. The person he had shot was the apartment’s owner, who had disarmed the

burglar and was fleeing with the gun. Id. When deciding whether the officer was entitled to

qualified immunity, we considered the circumstances that the officer faced in the moment. Id. at

365. He saw a suspect with a gun running toward him and quickly closing the gap, to a range at

which “a suspect could raise and fire a gun with little or no time for an officer to react.” Id. at

365–66. “Given these facts, a reasonable officer would perceive a significant threat to his life,”

even if the suspect had never actually raised his gun and was the victim, not the burglar. Id. at

366.

If it was objectively reasonable for an officer to use deadly force under those facts, then

the law is not clearly established such that all reasonable officers would have known that

shooting Romero was unconstitutional. Just as in Thomas, at a distance of mere feet, Romero

could have raised and fired his gun “with little or no time for an officer to react.” Id. at 366.

And here Romero could have done so not once but twice. Given those facts, in addition to the

fact that the officers were responding to a domestic disturbance purportedly involving a

confirmed shooting, “a reasonable officer would perceive a significant threat to his life,” which

makes Officers Moore’s and Kurtz’s use of deadly force “objectively reasonable.” Id.

In sum, existing precedent does not place beyond debate whether Officers Moore and

Kurtz violated a constitutional right that was clearly established at the time of the alleged

wrongdoing and, thus, the officers are entitled to qualified immunity. Kisela, 584 U.S. at 104.

III.

The district court dismissed plaintiff’s two other claims: a failure-to-intervene claim and

a municipal liability claim. Regarding the first, I would affirm on the grounds provided by the

No. 24-1865 Romero v. City of Lansing, Mich. et al. Page 28

district court, not those of the majority: neither officer violated the Fourth Amendment and,

thus, neither had an obligation to intervene. Accordingly, I concur in the judgment only.

Regarding the second, I join the majority’s analysis in full.

IV.

For the foregoing reasons, I would affirm the judgment of the district court. Accordingly,

I respectfully concur in part and dissent in part.