Salvatore Palma, Jr. v. Matthew Johns

RECOMMENDED FOR PUBLICATION

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

File Name: 22a0037p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

SALVATORE PALMA, JR., individually and as

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administrator of the estate of Vincent Dominic Palma;

│

MELISSA PALMA; ALISHA PALMA,

│

Plaintiffs-Appellants, > No. 21-3315

│

│

v. │

│

MATTHEW JOHNS, Deputy Sheriff, in his individual │

and official capacity as an employee of the Ashtabula │

County Sheriff’s Department; ASHTABULA COUNTY, │

OHIO, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. 1:18-cv-00294—Dan A. Polster, District Judge.

Argued: December 10, 2021

Decided and Filed: February 28, 2022

Before: MOORE, CLAY, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Richard J. Perez, PEREZ LAW, Willoughby, Ohio, for Appellants. Timothy T.

Reid, MANSOUR GAVIN LPA, Cleveland, Ohio, for Appellees. ON BRIEF: Richard J.

Perez, PEREZ LAW, Willoughby, Ohio, Leslie S. Johns, MARTINEZ LAW FIRM,

Willoughby, Ohio, for Appellants. Timothy T. Reid, MANSOUR GAVIN LPA, Cleveland,

Ohio, for Appellees.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined. READLER, J.

(pp. 32–56), delivered a separate dissenting opinion.

No. 21-3315 Palma, et al. v. Johns, et al. Page 2

_________________

OPINION

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CLAY, Circuit Judge. On February 8, 2017, Defendant Deputy Matthew Johns

(“Johns”), a deputy sheriff for Defendant Ashtabula County (collectively “Defendants”), shot

and killed Vincent Palma (“Palma”), a mentally ill individual, while responding to a 9-1-1 call

about a family dispute over a television remote. Palma’s family members (“Plaintiffs”) sued

Defendants under 42 U.S.C. § 1983 and various state tort laws. The district court granted

summary judgment to Defendants on all claims. For the reasons set forth below, we REVERSE

the district court’s order granting Defendants’ motion for summary judgment and REMAND for

further proceedings consistent with this opinion.

BACKGROUND

On February 8, 2017, Johns shot and killed Palma after responding to a 9-1-1 call at the

Palma home, where Palma lived with his father, Salvatore, his stepmother, Melissa, and his

stepsister. Although some facts are undisputed, each witness recounted a different version of

events. At this stage, we must view the facts in the light most favorable to Plaintiffs and draw all

reasonable inferences in their favor, Wright v. City of Euclid, 962 F.3d 852, 864 (6th Cir. 2020)

(quoting Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013)), and we note at the outset that

we are not required to “accept the officers’ subjective view of the facts,” Jacobs v. Alam, 915

F.3d 1028, 1041 (6th Cir. 2019). Similarly, “credibility judgments and weighing of the evidence

are prohibited.” Godawa v. Byrd, 798 F.3d 457, 462 (6th Cir. 2015) (quoting Schrieber v. Moe,

596 F.3d 323, 333 (6th Cir. 2010)).

I. Deputy Johns’ Statements

On February 8, 2017—a cold winter day in Geneva, Ohio—Johns responded to a 9-1-1

call at the Palmas’ home. The 9-1-1 dispatcher told Johns of an “unwanted person,” Vincent

Palma, at the house. Johns knew that Palma “had been unhappy with the TV show that was on

TV and that he had broken the television remote.” (Matthew Johns Dep., R. 50-1, Page ID

#732.) Dispatch also told Johns that Palma was a “Code 76,” meaning Palma suffered from

No. 21-3315 Palma, et al. v. Johns, et al. Page 3

mental health issues. (Id.) Johns did not know that Palma was bipolar and schizophrenic. While

en route to the Palma house, Johns saw Palma’s driver license and knew that Palma was the

subject of the call. Before arriving, Johns removed his weapon from his ankle holster because he

anticipated that he might need it.

Johns pulled up to the house and parked his patrol car in the Palmas’ driveway, about

forty to fifty feet away from the house. Johns saw Palma standing outside on the porch with a

hood up over his head and his hands in his pockets, which immediately “concerned” Johns. (Id.

at Page ID ##740–41, #744.) Johns got out of his car and loudly greeted Palma before walking

about ten to fifteen feet towards the house. Palma did not respond. Johns tried greeting Palma

two more times, but Palma did not respond. When Johns was standing ten to fifteen feet in front

of his car, and about thirty feet from where Palma was on the porch, Palma came down the porch

stairs and began walking towards Johns. Johns described Palma’s walk as “determined” and

“aggressive.” (Id. at Page ID #776; Johns Aff., R. 46-2, Page ID #571, #574.) But Palma

“wasn’t walking at a fast pace.” (Johns Dep., R. 50-1, Page ID #776.)

Johns repeatedly told Palma to stop walking and to take his hands out of his pockets, but

Palma did not respond and continued approaching Johns. When Palma got within twenty to

twenty-five feet of Johns, Johns started backing up towards the passenger side of his patrol car.

Palma’s parents, who had come outside, told Palma to “Just stop” and “[d]o what [Johns] says to

do.” (Id. at Page ID #768.) Johns radioed for backup; calling a “Code 10.” (Id. at Page ID

#769, #771.) Code 10 means “intermediate” priority. (Id. at Page ID ##771–72.) In more

serious situations, officers would call a “Code 44.” (Id.)

After retreating backwards towards the side of his patrol car, Johns pulled out his taser.

Johns warned Palma he would use his taser if Palma did not stop approaching. Palma did not

stop and Johns tased him. The taser had little impact, and Palma kept walking towards Johns, so

Johns tased him again. This time Palma fell to the ground and landed in a puddle on the driver’s

side of Johns’ patrol car, near the front bumper. Palma fell onto his side with his back facing

Johns. Johns told Palma to rollover and show his hands. They were six to ten feet apart at this

point. Johns took a few steps towards Palma, but he stopped when Palma did not respond to

commands. Johns called for backup again, asking them to “step up” their response. (Id. at Page

No. 21-3315 Palma, et al. v. Johns, et al. Page 4

ID #797.) As Palma got up from the ground, Johns tased him a third time. This time Johns saw

Palma use one hand to pull out the taser probes. Johns did not see a weapon or any other object

in Palma’s visible hand, and he did not know where Palma’s other hand was. After Palma pulled

out the probes, Johns holstered his taser.

Palma got up and started walking towards Johns, and Johns continued retreating

backwards across the driveway. Palma was still not responding to commands. Johns then pulled

out his baton. He raised it over his head and prepared to strike Palma with it, but Johns did not

use it because Palma momentarily turned away from Johns and looked back towards his parents.

A moment later, Palma turned back around and started walking towards Johns again. Johns said

that Palma had a “crazed look on his face,” and that Palma’s “appearance, demeanor, and

behavior told [him] that [Palma] was not going to stop.” (Johns Aff., R. 46-2, Page ID #576.)

Johns kept retreating by walking backwards up a hill on the Palmas’ lawn. It was muddy, and at

one point Johns’ boot slipped as he backed up the hill. After he almost fell, Johns believed that

Palma’s “intention was to physically reach [him], assault [him], and perhaps obtain [his]

weapon.” (Id. at Page ID #576.)

Johns continued to tell Palma to stop and warned him that “this is how people get shot.”

(Johns Dep., R. 50-1, Page ID #842.) Palma was about six to seven feet away at this point.

Johns then unholstered his gun and pointed it at Palma while still retreating. Palma did not stop.

After Palma took about ten more steps, Johns shot him. Johns first shot at Palma’s leg “in an

attempt not to kill [Palma] but to stop him.” (Id. at Page ID #857.) After the first shot, Palma

continued to walk towards Johns, so Johns fired again, this time aiming for Palma’s “[c]enter

mass.” (Id. at Page ID #858.) Johns continued shooting until, after several shots, Palma “leaned

over at the waist” and got “down on the ground” in “a bear crawl stance.” (Id. at Page ID #859.)

While Palma was in this stance, Palma “lunge[d]” at Johns, so Johns continued shooting. (Id. at

Page ID #860, #863.) Johns shot at Palma until “the moment that [Palma] no longer came

towards [him].” (Id. at Page ID #857.)

Throughout the entire encounter, Palma never said anything to Johns, he never reached

out towards Johns, and he never verbally threatened Johns. Palma did not raise his fists or make

any threatening gestures. But because Palma did not respond to commands, and kept walking

No. 21-3315 Palma, et al. v. Johns, et al. Page 5

towards Johns, Johns believed the situation “was more than a friendly encounter.” (Id. at Page

ID #854.) Backup arrived shortly after the shooting. Johns then approached Palma and searched

him. Palma was unarmed.

II. Salvatore Palma’s Statements

Salvatore Palma, Jr. (“Salvatore”), Vincent Palma’s father, recounted many of the same

facts. However, he remembered the taser applications differently. As Palma approached Johns,

Johns was yelling “stop walking, I’ll tase you.” (Salvatore Palma Dep., R. 50-5, Page ID

#1034.) Palma did not stop and Johns tased him from “across the hood of the car to the other

side.” (Id.) Salvatore reported seeing Palma convulsing on the ground “for minutes” after Johns

tased Palma twice. (Id. at Page ID #1046.) Eventually, Salvatore saw Palma get up and pull the

taser wires out. Palma then looked back at his father as Johns pulled out his firearm and warned

Palma that he would shoot.

Palma then turned back around and continued walking towards Johns, Johns continued to

retreat, and Johns repeatedly ordered Palma to stop. Johns then shot some “warning shot[s].”

(Id. at Page ID #1038.) After those shots, Palma “didn’t keep approaching. He was still

standing there.” (Id. at Page ID #1042.) Salvatore said that Palma never got within ten feet of

Johns.

III. Melissa Palma’s Statements

Melissa Palma (“Melissa”), Vincent Palma’s stepmother, also saw the encounter. She

had called 9-1-1 that day after Palma took the remote out of his sister’s hands. She told the

dispatcher that she wanted Palma removed from her house and that Palma had “mental issues.”

(Melissa Palma Dep., R. 50-6, Page ID #1165.) Melissa testified that she told the police that

Palma was unarmed. However, it is unclear when she said this and whether she shared this

information with Johns before the shooting.

Melissa’s written statement, on the day of the incident, generally mirrored Johns’

account:

No. 21-3315 Palma, et al. v. Johns, et al. Page 6

Police came. [Palma] went downstairs to police. Police told him to stop, he kept

going to police. Police said, stop, again. I’m going to taser you. [Palma] kept

going after cop. Cop tased him. He fell to ground. [Palma] got up, went after

cop again. Cop told him to get on ground. [Palma] would not. Cop told him he

was going to shoot him, but [Palma] kept going to cop. The cop shot by his feet,

but [Palma] still came after cop. Cop told him to get on ground. [Palma] did not

listen, so cop shot him couple more times.

(Id.) But in her deposition, she said that she had misspoken in her written statement and that

after Johns tased Palma, Palma got up and began walking towards the house. She only heard

Johns tell Palma to stop a couple of times. Melissa also gave more detail in her deposition. She

said that Palma was on the ground for two to three minutes after Johns tased him, and that, after

the tasing, Palma “didn’t come after the cop.” (Id. at Page ID #1159.) Rather “when he got

tased, . . . [Palma] got up and started going to the house, the officer was going towards him.

[Palma] was facing the other way, going towards the house.” (Id. at Page ID #1174.)

At some point after the taser, but before Johns shot Palma, Palma was “walking towards

the end of the road.” (Id. at Page ID #1170.) She said that Palma stopped walking whenever

Johns stopped, and neither Johns nor Palma was moving when Johns shot at Palma’s feet. Johns

and Palma were ten to fifteen feet apart at that time. The encounter lasted around eight to ten

minutes.

IV. Other Evidence

The dispatcher’s records give their own timeline. They show that Johns arrived on the

scene at 3:36 P.M. Johns requested backup—radioing a Code 10—at 3:39 P.M. Johns reported

shooting Palma just eighteen seconds later. Within two and a half minutes after arriving on the

scene, Johns shot Palma. But Johns testified that these times, which are entered by the

dispatcher in real time as Johns calls them in, are “often delayed,” meaning that the time entered

does not always reflect the time of the officer’s report. (Johns Dep., R. 50-1, Page ID #832.)

The record also contained forensic evidence about Palma’s gunshot wounds. Johns fired

twelve shots. Nine of the bullets hit Palma: one in his head, one in his shoulder, two in his

chest, one in his abdomen, two in his arms, and two in his legs. According to the autopsy report,

four bullets entered Palma’s body at a “downward” angle. (Autopsy Rep., R. 50-3, Page ID

No. 21-3315 Palma, et al. v. Johns, et al. Page 7

##947–50.) Two entered from “back to front.” (Id. at Page ID #947.) Plaintiffs’ expert, relying

on the autopsy, concluded that Palma “was either on the ground, possibly in a fetal position

and/or on his hands/knees and/or crawling when he was shot by Dep[uty] Johns.” (Expert Rep.,

R. 50-2, Page ID #932.)

V. Procedural Background

Plaintiffs, family members of Vincent Palma, sued Deputy Johns and Ashtabula County

for damages under 42 U.S.C. § 1983 and various Ohio tort laws. Plaintiffs sued Johns in his

individual capacity under § 1983 alleging that Johns violated Palma’s constitutional rights by

using excessive force, and they brought a claim under Monell v. Dep’t of Soc. Servs. of New

York, 436 U.S. 658 (1978), against Ashtabula County for failure to supervise and train Johns.

Plaintiffs also brought state tort claims. Defendants filed a motion for summary judgment on all

claims, which the district court granted. Palma v. Johns, No. 18-cv-294, 2021 WL 798405, at *1

(N.D. Ohio Mar. 2, 2021). The district court found that Johns acted reasonably, that Johns did

not violate Palma’s Fourth Amendment right to be free from excessive force, and therefore Johns

was entitled to qualified immunity. Id. at *4. Without a constitutional violation, the district

court rejected Plaintiffs’ Monell claim because “Plaintiffs cannot rely on Johns’ conduct to

establish a claim of municipal liability against Ashtabula County.” Id. at *5. The court further

found that qualified immunity barred Plaintiffs’ state law claims. Id. at *4–*5. Plaintiffs timely

appealed. On appeal, Plaintiffs raise one issue: whether Johns acted reasonably when he shot

and killed Palma. This single issued was the basis for the district court’s dismissal of all of

Plaintiffs’ claims.

DISCUSSION

I. Standard of Review

We review de novo a district court’s decision granting summary judgment on qualified

immunity grounds. Burgess, 735 F.3d at 471 (citing Simmonds v. Genesee Cnty., 682 F.3d 438,

444 (6th Cir. 2012)). A court may grant summary judgment if there is “no genuine dispute as to

any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). There is a genuine dispute of material fact when “the evidence is such that a

No. 21-3315 Palma, et al. v. Johns, et al. Page 8

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). “The moving party bears the burden of showing that no genuine

issues of material fact exist.” Rafferty v. Trumbell Cnty., 915 F.3d 1087, 1093 (6th Cir. 2019).

When considering a motion for summary judgment, “the evidence is construed and all reasonable

inferences are drawn in favor of the nonmoving party.” Wright, 962 F.3d at 864 (quoting

Burgess, 735 F.3d at 471). “[A]t the summary judgment stage the judge’s function is not . . . to

reweigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Anderson, 477 U.S. at 249.

II. Analysis

Johns claims that the doctrine of qualified immunity shields Defendants against all of

Plaintiffs’ claims. The district court agreed and granted Defendants’ motion for summary

judgment. Palma, 2021 WL 798405, at *3–*5. We disagree. The record contains genuine

disputes of material fact that preclude summary judgment at this stage.

While the defendant “bears the burden of pleading” a qualified immunity defense, “[t]he

ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified

immunity.” Estate of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017) (quoting Sheets v.

Mullins, 287 F.3d 581, 586 (6th Cir. 2002)). “The doctrine of qualified immunity protects

government officials ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Rafferty, 915 F.3d at 1093 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

“Qualified immunity is intended to protect public officials from unnecessary interference with

their duties, while also holding them accountable ‘when they exercise power irresponsibly.’”

Godawa, 798 F.3d at 462 (quoting Pearson, 555 U.S. at 231).

We “ask two questions in evaluating whether a law-enforcement officer is entitled to

qualified immunity on an excessive-force claim: ‘(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.’” Estate of Hill, 853 F.3d at 312 (quoting Kent v.

Oakland Cnty., 810 F.3d 384, 390 (6th Cir. 2016)).

No. 21-3315 Palma, et al. v. Johns, et al. Page 9

A. Constitutional Violation

“The Fourth Amendment’s prohibition against unreasonable seizures protects citizens

from excessive use of force by law enforcement officers.” Godawa, 798 F.3d at 463 (citing Cass

v. City of Dayton, 770 F.3d 368, 374 (6th Cir. 2014)). When determining whether an officer used

excessive force, courts ask whether the officer’s actions were “objectively reasonable in light of

the facts and circumstances confronting them.’” Estate of Hill, 853 F.3d at 312 (quoting Graham

v. Connor, 490 U.S. 386, 397 (1989)). This test must account for the “totality of the

circumstances” surrounding the officer’s use of force. Roell v. Hamilton Cnty., 870 F.3d 471,

480 (6th Cir. 2017) (quoting Livermore ex rel. Rohm v. Lubelan, 476 F.3d 387, 404 (6th Cir.

2007)). In applying this test, courts look “only to the facts that were knowable to the defendant

officer[].” Reich v. City of Elizabethtown, 945 F.3d 968, 979 (6th Cir. 2019) (quoting White v.

Pauly, 137 S. Ct. 548, 550 (2017)). The question is not only “whether any force was justified,”

but also whether Johns “could reasonably use the degree of force employed against” Palma.

Roell, 870 F.3d at 483 (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir.

2013)).

The use of force “must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. And we

recognize “that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Mullins v. Cyranek, 805 F.3d 760, 766–67 (6th Cir. 2015)

(quoting Graham, 490 U.S. at 396–97). “But just because we must look at the circumstances

through the eyes of a reasonable officer does not mean . . . that we must accept the officers’

subjective view of the facts when making this assessment.” Jacobs, 915 F.3d at 1041. Rather,

“the action must be viewed in light of the surrounding circumstances.” Sample v. Bailey, 409

F.3d 689, 697 (6th Cir. 2005).

When considering the “totality of the circumstances,” the Supreme Court has articulated

three factors as a starting point: “(1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect

poses an immediate threat to the safety of the officers or others,’ and (3) ‘whether he is actively

resisting arrest or attempting to evade arrest by flight.’” Estate of Hill, 853 F.3d at 313 (quoting

No. 21-3315 Palma, et al. v. Johns, et al. Page 10

Graham, 490 U.S. at 396). This list is not exhaustive. Roell, 870 F.3d at 480 (quoting

Livermore, 476 F.3d at 404). However, the Graham factors do not easily map onto cases like

this one, where Johns was not responding to an ongoing crime and Palma never physically

resisted arrest or tried to flee. See Jacobs, 915 F.3d at 1040; Estate of Hill, 853 F.3d at 314.

Recognizing this problem, we have articulated additional factors to consider when officers

respond to a medical or mental health emergency: (1) whether the person was experiencing a

mental health or medical emergency, and whether that emergency created “an immediate threat

of serious harm” to themselves or others; (2) whether “some degree of force [was] reasonably

necessary to ameliorate the immediate threat;” and (3) whether “the force used [was] more than

reasonably necessary under the circumstances.” Estate of Hill, 853 F.3d at 314. Like the

Graham factors, this list is not exhaustive “and not necessarily dispositive in every case.” Id.

(citing Livermore, 476 F.3d at 404). Rather, these factors merely guide courts as they consider

the “totality of the circumstances” to determine whether the officer’s use of force was objectively

reasonable. See Jacobs, 915 F.3d at 1040–41 (quoting Thomas v. City of Columbus, 854 F.3d

361, 366 (6th Cir. 2017)).

Where “a plaintiff claims that excessive force was used multiple times, ‘the court must

segment the incident into its constituent parts and consider the officer’s entitlement to qualified

immunity at each step along the way.’” Wright, 962 F.3d at 865 (quoting Smith v. City of Troy,

874 F.3d 938, 944 (6th Cir. 2017)). Here, Plaintiffs claim that Johns used excessive force in

three ways: (1) by tasing Palma three times,1 (2) by taking initial shots at Palma, and (3) by

1

Defendants argue that Plaintiffs waived this claim by failing to raise it in their opposition to summary

judgment. The dissent agrees. While it is true that Plaintiffs’ opposition to summary judgment did not address their

claim that Johns’ use of the taser was excessive, the real problem is that Defendants did not identify this claim in

their motion for summary judgment. Plaintiffs’ Amended Complaint expressly stated that “Defendant, Matthew

Johns’ use of the taser was [an] unjustified and reckless use of force.” (Am. Compl., R. 23, Page ID #133.)

Although moving for summary judgment on all of Plaintiffs’ claims, Defendants ignored this portion of the

complaint and only argued against Plaintiffs’ excessive lethal force claim. Unsurprisingly, Plaintiffs used their

opposition brief to address only those claims that Defendants identified and argued in their motion for summary

judgment—thus Plaintiffs also focused on the use of lethal force.

Generally, at the summary judgment stage, the non-moving party can forfeit an argument if they fail to

respond to the moving party’s arguments. See Doughty v. Dep’t of Developmental Servs. STS, 607 F. App’x 97, 98

(6th Cir. 2015) (citing United States v. Litwok, 678 F.3d 208, 216 (2d Cir. 2012)). But the non-moving party cannot

be faulted for limiting their response to focus on those claims that the moving party raised and argued. While

explaining the fundamental justifications for our forfeiture rules, we have highlighted that response and reply briefs

are meant to do just that: respond and reply. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)

No. 21-3315 Palma, et al. v. Johns, et al. Page 11

continuing to shoot Palma even after Palma bent over with his hands on the ground. After

viewing the facts in the light most favorable to Palma, if “a jury could conclude that [the

defendant] engaged in gratuitous violence by using force beyond the scope of that which was

reasonably necessary or justifiable,” then the defendant is not entitled to qualified immunity at

the summary judgment stage. Margeson v. White Cnty., 579 F. App’x 466, 471 (6th Cir. 2014)

(citing Miller v. Sanilac Cnty., 606 F.3d 240, 252 (6th Cir. 2010)).

1. Taser Applications

Officers may use non-lethal force—such as tasers or pepper spray—if they have an

“objective justification” for doing so. Gaddis v. Redford Twp., 364 F.3d 763, 774 (6th Cir.

2004). Specifically, officers may use a taser if a person is “particularly violent or physically

resistant, so as to endanger responders.” Estate of Erwin v. Greene Cnty., 861 F. App’x 1, 6 (6th

Cir. 2021) (citing Kent, 810 F.3d at 391). Johns argues that tasing Palma was reasonable because

Palma “was actively resisting at every turn” by failing to comply with Johns’ orders to stop and

show his hands. (Defs.’ Br. at 20.)

Indeed, officers may tase a person who actively resists arrest, Rudlaff v. Gillispie,

791 F.3d 638, 641 (6th Cir. 2015) (citing Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505,

509 (6th Cir. 2012)), or who “resist[s] . . . an officer’s commands even if the officers were not

attempting to arrest him,” Kelly v. Sines, 647 F. App’x 572, 575 (6th Cir. 2016). Resistance

includes “physically struggling with, threatening, or disobeying officers.” Id. (quoting Cockrell

v. City of Cincinnati, 468 F. App’x 491, 495 (6th Cir. 2012)). But not all disobedience justifies

the use of force. “[A]n officer may not tase a citizen not under arrest merely for failure to follow

the officer’s orders when the officer has no reasonable fear for his or her safety.” Wright,

962 F.3d at 868–69. Thus, Johns could not have tased Palma merely for refusing to stop and

(quoting Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002)). Thus, Plaintiffs were under no

obligation to support their claim that use of the taser was excessive when Defendants did not identify this claim or

raise any arguments against this claim in their motion for summary judgment.

Even so, recognizing that the complaint clearly stated an excessive force claim based on the tasings, the

district court addressed this claim and concluded that all three taser applications were reasonable. Palma, 2021 WL

798405, at *3 (citing Sheffey v. City of Covington, 564 F. App’x 783, 796 (6th Cir. 2014)). Thus, while Defendants

failed to raise the issue in their summary judgment motion, we will consider whether Johns used excessive force

when he tased Palma because this claim was pled in the complaint, the district court decided the issue, and both

parties briefed it on appeal.

No. 21-3315 Palma, et al. v. Johns, et al. Page 12

show his hands unless he had some other reason to fear for his safety. See Rudlaff, 791 F.3d at

642 (reasonable to tase man who was “verbally defiant,” “swung his arms in the officer’s

direction,” and “refused to give [the officer] his hands”).

Palma never physically resisted. However, the parties agree that Palma ignored Johns’

orders to stop moving and take his hands out of his pockets. Even so, this defiance, alone,

cannot justify Johns’ decision to tase Palma. See Wright, 962 F.3d at 868–69. If the jury accepts

Johns’ version of events—that Palma “aggressively” approached him with a “crazed look on his

face,” (Johns Aff., R. 46-2, Page ID #576, #582)—then the taser applications may have been

reasonable. At the summary judgment stage, however, we do not blindly “accept the officers’

subjective view of the facts.” Jacobs, 915 F.3d at 1041. As discussed below in relation to the

shootings, viewing the facts in the light most favorable to Plaintiffs, Palma’s mere failure to

follow orders would not lead a reasonable officer to believe that Palma posed a danger. See

Wright, 962 F.3d at 868–69.

Moreover, Plaintiffs dispute key facts about the tasing. Salvatore said that Johns and

Palma were separated by Johns’ patrol car and that Johns “tased [Palma] across the hood of the

car to the other side.” (S. Palma Dep., R. 50-5, Page ID #1034.) This conflicts with Johns’

narrative that Palma was walking straight towards him in a way that was immediately

threatening. In this situation, tasing Palma while he and Johns were separated by a physical

barrier would be unreasonable.

Other evidence contradicts Johns’ reports that the taser was ineffective on Palma, thus

undermining the reasonableness of Johns’ decision to tase Palma multiple times. Palma fell to

the ground after the second taser application. Salvatore saw Palma convulsing on the ground

“for minutes” after Johns tased Palma the second time. (Id. at Page ID #1046.) Melissa

similarly saw Palma on the ground for two to three minutes after Johns tased him. If Palma fell

to the ground for several minutes after the second tasing, then Johns could not justify the third

taser application, as he had ample time to reassess the situation and react with less force. See

Gambrel v. Knox Cnty., — F.4th —, No. 20-6027, 2022 WL 369348, at *9 (6th Cir. Feb. 8,

2022) (continued use of force unreasonable if the person is on the ground for an extended period

No. 21-3315 Palma, et al. v. Johns, et al. Page 13

of time during which officers “could have handcuffed him at any time while he remained on the

ground”).

The parties also dispute where Palma was in relation to Johns and what Palma was doing

when Johns applied the taser for the third time. In her deposition, Melissa testified that Palma

stood up after the second taser application and “started going back to the house.” (M. Palma

Dep., R. 50-6, Page ID #1157.) She said that Palma was not walking towards Johns.

Admittedly, Melissa gave a different statement to officers on the scene immediately after the

shooting, where she said that Palma stood up after the second taser and again began approaching

Johns. Relying solely on Melissa’s on-the-scene written statement (and ignoring her deposition

testimony), the dissent concludes that the third taser application was reasonable because Palma

was walking towards Johns even after the first and second taser applications. The dissent goes as

far as questioning Melissa’s credibility, highlighting that her deposition testimony was given

only “after retaining counsel and filing a civil damages suit against Officer Johns.” (Infra

Dissent at 37.) But whether one statement is more reliable than another is a credibility question

that is not for this Court to decide. See Godawa, 798 F.3d at 463 (quoting Schrieber, 596 F.3d at

333). Indeed, this Court recently refused to wade into a similar credibility issue at the summary

judgement stage. See Gambrel, — F.4th —, 2022 WL 369348, at *7. In Gambrel, the plaintiff’s

star witness gave two statements that recounted starkly different versions of events—one that he

gave in an initial police interview and one that he gave during his deposition. See id. at *6–*7.

However, “[w]hen witnesses tell differing stories . . . we cannot credit the story of the witness

that we find more believable.” Id. at *7 (citing Anderson, 477 U.S. at 255). “[S]imply because

[the plaintiff] might find it difficult to convince a jury to believe [a witness] does not allow us to

ignore [that witness’s] testimony now.” Id. (citing 10A Charles A. Wright et al., Federal

Practice and Procedure § 2725.2, at 440 (4th ed. 2016)).

In her deposition, Melissa explained that her on-the-scene statement was wrong. The

police took Melissa and Salvatore’s written statements shortly after the shooting while the bullet-

ridden Palma was still laying in the yard. As Melissa explained, she was just “trying to leave”

when she gave her on-the-scene statement. (M. Palma Dep., R. 50-6, Page ID #1157.) After

unjustifiably opining on the reliability of Melissa’s different statements, the dissent chooses to

No. 21-3315 Palma, et al. v. Johns, et al. Page 14

ignore portions of her deposition testimony. It finds that, based solely on Melissa’s written on-

the-scene statement, this material fact—whether Palma was approaching Johns when Johns

applied the taser for the third time—is undisputed. This approach is antithetical to our summary

judgment standard; courts cannot choose which statements are credible and then build an

“undisputed” record based on those credibility determinations. See Gambrel, — F.4th —, 2022

WL 369348, at *7 (explicitly rejecting the approach taken by the dissent here).

Accepting the facts most favorable to Plaintiffs, the tasings amounted to excessive force,

and Defendants were not entitled to summary judgment on this issue.

2. Shootings

“A police officer may not seize an unarmed, nondangerous suspect by shooting him

dead.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). When an officer uses deadly 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.” Id. “[T]he threat factor is ‘a

minimum requirement for the use of deadly force.’” Jacobs, 915 F.3d at 1040 (quoting Mullins,

805 F.3d at 766). “We have authorized the use of deadly force ‘only in rare instances.’” Id.

(quoting Sample, 409 F.3d at 697).

When considering whether an officer reasonably believed that a person posed an

imminent threat of serious bodily harm, courts must consider the totality of the circumstances.

Here, certain factual considerations are particularly relevant, though none is dispositive and this

list is not exhaustive: (1) why the officer was called to the scene, see Graham, 490 U.S. at 396;

(2) whether the officer knew or reasonably believed that the person was armed, see Bouggess v.

Mattingly, 482 F.3d 886, 891 n.5 (6th Cir. 2007) (citing Dickerson v. McClellan, 101 F.3d 1151,

1051–62 (6th Cir. 1996)); (3) whether the person verbally or physically threatened the officer or

disobeyed the officer, see Wright, 962 F.3d at 868 (quoting Smith, 874 F.3d at 945); (4) how far

the officer was from the person, see Zulock v. Shures, 441 F. App’x 294, 302 (6th Cir. 2010);

(5) the duration of the entire encounter, see Untalan v. City of Lorain, 430 F.3d 312, 316 (6th

Cir. 2005); (6) whether the officer knew of any ongoing mental or physical health conditions that

may have affected the person’s response to the officer, see Roell, 870 F.3d at 482; and

No. 21-3315 Palma, et al. v. Johns, et al. Page 15

(7) whether the officer could have diffused the situation with less forceful tactics, see Thomas,

854 F.3d at 366–67. After weighing these factors, we conclude that Defendants cannot prevail at

the summary judgment stage because a reasonable jury could find that Johns used excessive

force when he first shot at Palma. See Anderson, 477 U.S. at 248.

a. Reason for Police Response

When officers respond to an ongoing crime, or set out to arrest a suspect, they may have

some reason to fear for their safety or the safety of others based on the nature of the crime. See

Graham, 490 U.S. at 396 (courts must consider “the severity of the crime at issue”). But Johns

was not responding to a past or ongoing crime. When officers are called for wellness checks or

other non-criminal calls, this Court looks at what the officer learned and observed about the

situation before the officer even engaged with anyone on the scene. Compare Woodcock v. City

of Bowling Green, 679 F. App’x 419, 423 (6th Cir. 2017) (factor did not support use of lethal

force when nobody accused the person of threatening or violent behavior before police arrived),

with Simmonds, 682 F.3d at 444–446 (factor supported use of lethal force when officers

responded to call about a drunk and possibly suicidal man who was threatening to kill his ex-

girlfriend’s family and officers knew the man owned guns).

Although Johns seemingly believed that he was walking into a volatile situation—indeed

he unholstered his gun even before arriving on the scene—this subjective belief was not factually

supported. Johns responded to a call about an unwanted person on the Palma property who had

gotten into a fight with his sister over the TV remote.2 Johns was not responding to a crime.

Before arriving, Johns saw Palma’s driver’s license and knew that Palma was the unwanted

person. When he arrived, Johns saw Palma standing outside of the house by himself. Even if

Johns believed that removing an unwanted person may involve some inherent danger, the

unwanted person—Palma—was already isolated and away from the home. Thus, the facts do not

support Johns’ belief that he was walking into a high-risk situation. This factor therefore cuts

against Johns’ argument that Palma posed an imminent threat of serious physical harm. See

Woodcock, 679 F. App’x at 423.

2

While Defendants describe Palma’s prior mental health hospitalizations and run-ins with police, none of

these facts were known to Johns and are thus irrelevant here. See Simmonds, 682 F.3d at 445.

No. 21-3315 Palma, et al. v. Johns, et al. Page 16

b. Presence of a Weapon

“[A]n officer need not face the business end of a gun to use deadly force.” Jacobs,

915 F.3d at 1040 (citing Thomas, 854 F.3d at 366). The stronger the evidence showing that a

person is armed, the more likely the use of lethal force is reasonable. See Bouggess, 482 F.3d at

891 n.5 (citing Dickerson, 101 F.3d at 1051–62). When the evidence is weak, this factor cannot

justify the use of lethal force. See id. On the one hand, officers are often justified in shooting a

person who is visibly armed and aiming at officers. See DeMerrell v. City of Cheboygan, 206 F.

App’x 418, 429 (6th Cir. 2006). However, even if a person is visibly armed, lethal force may

still be unreasonable. E.g., Thomas, 854 F.3d at 366 (“To be clear, we do not hold that an officer

may shoot a suspect merely because he has a gun in his hand.”). Although an officer may

reasonably believe that a person was armed even if it turns out that the person was, in fact,

unarmed, the officer’s belief must have been reasonable based on the circumstances. See id. at

365. For example, in Simmonds, 682 F.3d at 445, we found that officers reasonably used lethal

force when responding to a 9-1-1 call about a man threatening to kill his family because, even

though the man was, in fact, unarmed, the caller said that the man owned guns, the man

threatened officers saying “I have a gun,” and the man brandished a “silver object” that he

pointed at officers.

Nobody told Johns that Palma was armed. Melissa allegedly told Johns that Palma was

unarmed—though the record does not indicate whether she said this before or after the shooting.

Dispatch did not tell Johns that Palma might be armed or was threatening to use a weapon, even

though dispatch otherwise gave Johns several details about the scene at the Palma house—a

sibling dispute over a TV remote control and a mentally ill person on the premises. While these

facts do not require the conclusion that Johns knew Palma was unarmed, a jury could reasonably

infer that, had there been any reason to believe Palma was armed at the time, the 9-1-1 caller

would have disclosed this fact and that dispatch would have shared this information.

Once on the scene, Johns admits that he never saw Palma holding any object, let alone a

firearm or other weapon. As it turned out, Palma was unarmed. But Johns may not have known

this, and, at the time, Johns was “concerned” that he could not see Palma’s hands. (Johns Dep.,

R. 50-1, Page ID #744.) Our decision in Woodcock is instructive here. 679 F. App’x 419.

No. 21-3315 Palma, et al. v. Johns, et al. Page 17

In that case, the officers responded to the scene after a man, Harrison, called 9-1-1 and said that

he wanted to kill his brother. Id. at 420. The officers found Harrison standing on a railroad track

with his left hand reaching into the rear waistband of his pants. Id. at 421. Officers repeatedly

told Harrison to show his hands, but he did not acknowledge or comply with the order. Id. After

warning Harrison that they would shoot, Harrison still refused to comply, and officers shot him.

Id. We found that this disobedience and suspicious hand placement did not give the officers

probable cause to believe that Harrison posed an imminent threat because, while the officers

“may have thought that Harrison had a gun, . . . Harrison never gave [the officers] reason to think

that he would use it imminently.” Id. at 424–25. Like the officers in Woodcock, Johns’ only

reason to suspect that Palma may have been armed was that he had his hands in his pockets and

refused to show them.

The fact that Johns could not see Palma’s hands would not lead a reasonable officer to

believe he was in imminent danger. See id. As we explained in Woodcock, 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. Id.; see also Graves v. Malone, 810 F. App’x 414, 417, 422–

23 (6th Cir. 2020) (unreasonable to shoot man who initially refused to show his hands even after

he suddenly raised his fist while holding a small black object); Bouggess, 482 F.3d at 891 n.5

(officer’s “mere hunch that [the person] had a firearm cannot be enough to meet his burden”

(citing Dickerson, 101 F.3d at 1051–62)). There are equally plausible, but far more innocent

explanations for Palma’s behavior. For one, it was early February in northern Ohio; as Johns

admits, “[i]t was cold.” (Johns Dep., R. 50-1, Page ID #738.) Moreover, Johns saw at least one

of Palma’s hands when Palma pulled out the taser probes, well before Johns decided to shoot.

Johns did not see a weapon or any other object in Palma’s hand. Thus, this factor does not

support Johns’ qualified immunity defense.

c. Disobedience and Threatening Behavior

When a person does not act “aggressive[ly]” towards an officer, that fact undermines the

officer’s claim that the person presented an immediate threat of serious bodily harm. Stewart v.

City of Euclid, 970 F.3d 667, 673–74 (6th Cir. 2020). Additionally, “the mere failure of a

No. 21-3315 Palma, et al. v. Johns, et al. Page 18

citizen—not arrested for any crime—to follow the officer’s commands does not give a law

enforcement official authority to put the citizen in handcuffs,” let alone to use lethal force

against him. Wright, 962 F.3d at 868 (quoting Smith, 874 F.3d at 945).

Many undisputed facts show that Palma was not acting aggressively towards Johns.

Johns admits that Palma “wasn’t walking at a fast pace” when Palma approached him. (Johns

Dep., R. 50-1, Page ID #776.) Palma was silent throughout the entire encounter, and he never

verbally threatened Johns. Nor did Palma ever make any physically threatening gestures, like

raising his fists.

On the other hand, the parties agree that Palma walked towards Johns at different points

during the encounter and agree that Palma refused to comply with several orders to stop and

show his hands. Although Johns says that Palma walked toward him in an “aggressive” and

“determined” fashion, (id.; Johns Aff., R. 46-2, Page ID #571, #574), Palma’s parents never

characterized Palma’s walk in this way. If there were ironclad evidence controverting the

Palmas’ version of the facts, perhaps we could accept Johns’ characterization of Palma’s walk as

aggressive. See Mitchell v. Schlabach, 864 F.3d 416 (6th Cir. 2017) (granting summary

judgment only because dashcam footage undisputedly showed suspect aggressively charging at

the officer after crashing his car during a high-speed car chase). But because we lack the

undisputed dashcam footage that uncontrovertibly established the sequence of events in Mitchell,

for the purpose of deciding a summary judgment motion, we must believe the Palmas’

characterization of the events of the day. The dissent incorrectly believes that Mitchell should

decide this case. The suspect in Mitchell, however, presented an objectively greater risk of harm.

After leading officers on a high-speed car chase through residential neighborhoods, the suspect

exited the car and “began to charge” at the officer “at more than a walking pace.” Mitchell, 864

F.3d at 421–22. And, as the suspect charged at the officer, he shouted that the officer would

“have to ‘f---ing shoot him.’” Id. at 422. Even if this case were on point, the Court in Mitchell

noted that its only basis for affirming summary judgment was the dashcam footage that showed

“most of the relevant events from a helpful angle.” Id. at 424. Had the “case turned on [the

officer’s] after-the-fact testimony,” rather than the video footage, then “summary judgment

would likely have been inappropriate.” Id.

No. 21-3315 Palma, et al. v. Johns, et al. Page 19

Moreover, as Mitchell itself made clear, deadly force is not justified “whenever a suspect

charges at an officer or defies an order.” Id. In the instant case, a jury could reject Johns’

characterizations and conclude that Palma’s walk was neither aggressive nor threatening. See

Jacobs, 915 F.3d at 1041 (we do not have to “accept the officers’ subjective view of the facts” on

summary judgment). And even Johns admitted that Palma “wasn’t walking at a fast pace.”

(Johns Dep., R. 50-1, Page ID #776.) Recognizing this problem, Johns contends that “the way

that one describes how [Palma] was walking or advancing at Johns is immaterial.” (Defs.’ Br. at

17.) Simply stated, according to Johns, merely walking towards an officer while defying orders

gives the officer probable cause to fear for his safety and justifies the use of deadly force. We

have expressly rejected this argument. See Mitchell, 864 F.3d at 424.

Johns also says that Palma was walking towards him when he first shot Palma, but

Melissa saw Johns shoot at Palma while both Palma and Johns were stopped. Even if Palma

were walking when Johns shot, this would not necessarily give Johns probable cause to believe

Palma posed an imminent threat. See id. And if Palma was not walking towards Johns when

Johns fired the first shots, as we must accept at this stage, then this factor shows that Palma did

not pose an imminent threat at the moment Johns decided to shoot.

d. Distance Between the Officer and the Person

While the distance between the officer and the person is less significant when the person

is armed and aiming a firearm at the officers, see DeMerrell, 206 F. App’x at 429, the distance is

relevant when the officer is afraid of a hand-to-hand confrontation with the person, see Zulock,

441 F. App’x at 302 (likely unreasonable to shoot man armed with a knife when officers were

eighteen to twenty feet away); Rucinski v. Cnty. of Oakland, 655 F. App’x 338, 342 (6th Cir.

2016) (reasonable to shoot man who approached officer and got within five feet while wielding a

knife).

Johns said he was concerned that Palma would “physically reach him, assault him, and

perhaps obtain [his] weapon.” (Johns Aff., R. 46-2, Page ID #576.) According to Johns, Palma

got within six or seven feet of Johns. But, according to Melissa, Palma never got close enough

to reach Johns. She said that Palma and Johns were always ten to fifteen feet apart. If Palma

No. 21-3315 Palma, et al. v. Johns, et al. Page 20

was ten to fifteen feet away from Johns, and was not moving when Johns shot him, then Palma

did not pose an imminent threat of harm, especially because Johns never saw a weapon.

e. Duration of the Encounter

“The fact that a situation ‘unfolds quickly’ is not alone sufficient to justify the application

of deadly force, but it is a factor that weighs in favor of a finding of reasonableness when it

accompanies a credible threat to the safety of an officer or the public.” Mitchell, 864 F.3d at 423

(citing Mullins, 805 F.3d at 766–67). The record in this case does not clearly show how long

Johns was on the scene before he shot Palma. Dispatch records indicate that only two-and-a-half

minutes passed between the time Johns arrived at the Palma house, a few seconds before 3:37

P.M., and the time he reported shooting Palma just after 3:39 P.M. However, Johns admitted

that the arrival time recorded by dispatch “is often delayed,” (Johns Dep., R. 50-1, Page ID

#832), meaning the dispatcher’s timeline could be wrong. In contrast, Salvatore indicated that

the incident lasted much longer because Palma was on the ground for several minutes after Johns

tased Palma. And Melissa said the entire encounter lasted eight to ten minutes.

If the incident lasted eight to ten minutes, then the amount of time Johns had to react to

Palma would not justify his use of lethal force. See Untalan, 430 F.3d at 316 (indicating that

deadly force is less reasonable when officers have ten minutes to assess and react to a situation).

Admittedly, officers often face rapidly evolving situations where they must make “split-second

judgment[s].” Graham, 490 U.S. at 396. However, nothing in the record indicates that Johns

had to make a split-second decision in response to rapidly changing circumstances. If Palma

steadily approached Johns at a normal walking speed—and Johns continued to back away—for

eight to ten minutes, then there was no immediate threat. See Kirby v. Duva, 530 F.3d 475, 482–

83 (6th Cir. 2008). Whether Johns shot Palma several minutes after he called for backup or only

eighteen seconds later, the alleged threat that Palma presented remained the same.3 If Johns had

3

To be clear, even if Johns shot Palma eighteen seconds after he called for backup, that short amount of

time would not automatically justify his use of force as a split-second judgment. Lethal force may have been

justified only if the encounter lasted eighteen seconds and if the undisputed facts suggested that Palma’s behavior

constituted a threat at that time.

No. 21-3315 Palma, et al. v. Johns, et al. Page 21

eight to ten minutes to assess and respond to a situation that never rapidly escalated, the use of

lethal force would be unreasonable. See id. at 483.

f. Mental Health Conditions

When assessing an excessive force claim, “[t]he totality of the circumstances includes

‘the fact that at the time of the . . . struggle, the defendant officers had reason to believe that [the

person] was . . . mentally unstable.’” Roell, 870 F.3d at 482 (quoting Landis v. Baker, 297 F.

App’x 453, 465 (6th Cir. 2008)). While true that this factor is only relevant if Johns knew about

Palma’s mental illness, see Simmonds, 682 F.3d at 445, the district court erroneously found that

“the dispatcher did not advise Johns of [Palma]’s serious mental condition,” Palma, 2021 WL

798405, at *3. In fact, the dispatcher specifically told Johns that Palma was a “Code 76”—

meaning Palma suffered from mental health issues. (Johns Dep., R. 50-1, Page ID #732, #823.)

Johns was “therefore required to take into account [Palma]’s diminished capacity before using

force” against him. Roell, 870 F.3d at 482 (citing Champion v. Outlook Nashville, Inc., 380 F.3d

893, 904 (6th Cir. 2004)).

As Johns correctly point outs, an officer is not absolutely barred from using lethal force

on mentally ill individuals. See Reich, 945 F.3d at 979. But only in extreme cases have we

found that an officer reasonably used lethal force against a mentally ill person. In every case that

Johns cites, the officers used lethal force against a mentally ill person who was armed and

threatening officers. See Gaddis, 364 F.3d at 772–73, 776–77 (reasonable to shoot mentally ill

man who attacked police officers with a knife and stabbed an officer before officers shot him);

Rucinski, 655 F. App’x at 339–42 (reasonable to shoot schizophrenic man who pulled a

switchblade on officers, yelled “bring it on” or “here we go,” and began walking towards officers

with the knife in hand); see also Summerland v. Cnty. of Livingston, 240 F. App’x 70, 72, 77 (6th

Cir. 2007) (reasonable to shoot mentally ill man who posted a sign in his yard saying, “no police

you be shot” and charged at officers with either an axe or a gun). The district court pointed to

one other unpublished district court opinion, see Palma, 2021 WL 798405, at *4, but even that

case involved a mentally ill man who “charged at [the officers] with a knife,” Johnson v. Combs,

No. 04-cv-19, 2005 WL 2388247, at *5 (W.D. Ky. Sept. 27, 2005).

No. 21-3315 Palma, et al. v. Johns, et al. Page 22

Johns knew that Palma was a “Code 76,” meaning he was mentally ill, and he knew that

he was responding to a domestic dispute over a remote control. (Johns Dep., R. 50-1, Page ID

#823.) A reasonable officer would take these facts into account when assessing whether Palma

posed a threat. If a person who is not suffering from mental illness acts in a way that is

objectively threatening, an officer may believe that the person poses an imminent danger because

their actions—under normal circumstances—convey hostility towards the officer. But if the

officer knows that person is suffering from some mental illness, the officer must consider this

fact and respond accordingly. See Gambrel, — F.4th —, 2022 WL 369348, at *9 (citing

Studdard v. Shelby Cnty., 934 F.3d 478, 480–82 (6th Cir. 2019)). Stated differently, behavior

that ordinarily seems threatening may present a lower risk of harm if the officer has reason to

believe that the behavior is a symptom of a mental condition. See generally Graves, 810 F.

App’x at 417, 423 (lethal shooting unreasonable even when mentally ill man ignored officers’

commands and continued “staring vacantly ahead”). Here, Palma’s unresponsiveness was

consistent with his mental illness, thus undermining Johns’ belief that it was threatening. This is

especially true because Palma was silent and made no physically threatening gestures.

The dissent agrees that officers can and should consider a person’s mental state when

analyzing the amount of risk that they face. But the dissent says that this factor will always

support the use of force. It believes that people with known mental illnesses inherently “pose[] a

heightened risk,” therefore giving officers probable cause to believe that they face a risk of

imminent harm, and goes as far as to say that the use of force, including lethal force, is more

easily justified even if officers are merely conducting a wellness check because “a mentally ill

individual in the midst of a psychotic break will not respond to reason, or to anything other than

force.” (Infra Dissent at 43 (emphasis in original) (quoting Vos v. City of Newport Beach,

892 F.3d 1024, 1043 (9th Cir. 2018) (Bea, J., dissenting in part)).)

But police routinely respond to non-criminal mental health calls and wellness

checks. See Black’s Law Dictionary, What is a Police Welfare Check?, available at

https://thelawdictionary.org/article/what-is-a-police-welfare-check/. Accordingly, under this

Court’s precedent, officers should use their training and expertise in crisis management to

determine whether and how to de-escalate a situation before resorting to force. See Martin,

No. 21-3315 Palma, et al. v. Johns, et al. Page 23

712 F.3d at 958–59 (denying qualified immunity because a reasonable officer “would try to de-

escalate the situation and reduce the level of force needed to gain control”). Officers must use

this experience to assess the level of risk in light of a person’s mental illness. We are not saying,

as the dissent suggests, that officers may never use force against mentally ill persons. We have

recognized many cases finding reasonable uses of force against mentally ill persons. See Reich,

945 F.3d at 979. In reality, mental illness may mitigate the risk in one situation and aggravate

the risk in another. Therefore, we cannot simply defer to an officer’s post hoc use of mental

illness as a justification for using force. Rather, if a jury could find that a reasonable officer

would not perceive an imminent threat of danger—or would use other de-escalation tactics—

then qualified immunity is unwarranted. See Martin, 712 F.3d at 958–59; Johnson v. City of

Philadelphia, 837 F.3d 343, 353 (3d Cir. 2016). Based on the undisputed facts that Johns knew

Palma was mentally ill and that Palma was unresponsive but not threatening throughout the

entire encounter, mental illness in this case was a mitigating factor showing that Palma did not

pose an immediate threat. See Graves, 810 F. App’x at 417, 423.

Furthermore, Palma’s mental illness is relevant when considering whether Johns used

excessive force. “The diminished capacity of an unarmed [person] must be taken into account

when assessing the amount of force exerted.” Roell, 870 F.3d at 482 (quoting Champion,

380 F.3d at 904) (emphasis added). While we have found that using a taser or pepper spray on a

mentally ill person was reasonable, see id. (likely not excessive to repeatedly tase a man

suffering from a psychotic break after he “aggressive[ly]” approached officers with a garden

hose and physically resisted arrest); Estate of Erwin, 861 F. App’x at 5 (reasonable to tase a

mentally ill women who yelled at officers to leave and approached them while holding a rake

above her head), we have never held that shooting a mentally ill person was reasonable when the

officers had little reason to suspect that the person was armed.4 A jury is best positioned to

balance these considerations.

4

Only twice have we said it was reasonable to shoot a mentally ill person who turned out to be unarmed. In

both instances, however, officers had ample reason to believe that the suspect was armed with either a gun or an

explosive device. Thus, these cases are more akin to those involving lethal force against a visibly armed mentally ill

person. First, in Beans v. City of Massilon, 706 F. App’x 295, 301 (6th Cir. 2017), we held that officers reasonably

used lethal force in a hostage situation when officers raided the crime scene and found the mentally ill suspect trying

to “ignite [a] lighter and cause an explosion.” Though perhaps not armed in the traditional sense, this case is more

No. 21-3315 Palma, et al. v. Johns, et al. Page 24

g. Readily Available Alternatives

Plaintiffs argue that “Johns failed to use readily available alternatives to avoid the

encounter with [Palma] and avoid shooting and killing him.” (Pls.’ Br. at 8.) Specifically, they

argue that Johns had the opportunity to use less than lethal force—his baton—and that Johns

could have easily removed himself from the situation. Generally, an officer is not precluded

from using deadly force even if his own “poor planning or bad tactics” unnecessarily escalated

the situation. Reich, 945 F.3d at 978 (citing Livermore, 476 F.3d at 407). However,

“[s]ometimes, the time or space available to an officer may mean that the reasonable thing to do

is monitor the suspect, issue a warning, or take cover.” Thomas, 854 F.3d at 366–67 (citing

Dickerson, 101 F.3d at 1163); see also Mitchell, 864 F.3d at 423 (indicating that failure to use

alternatives—if officers had the time and opportunity to use them—may render use of deadly

force unreasonable); Gaddis, 364 F.3d at 784 (Clay, J., dissenting) (finding use of lethal force

likely unreasonable when officers failed to use “tactically more appropriate” measures first).

This factor is particularly important in cases involving mental health crises, where officers

should use the least force necessary to subdue the person. See Estate of Hill, 853 F.3d at 313–14.

As the Third Circuit has stated:

Depending on the severity and immediacy of the threat and any potential risk to

public safety posed by an officer’s delayed action, it may be appropriate for an

officer to retreat or await backup when encountering a mentally disturbed

individual. It may also be appropriate for the officer to attempt to de-escalate an

encounter to eliminate the need for force or to reduce the amount of force

necessary to control an individual.

Johnson, 837 F.3d at 353 (citing Martin, 712 F.3d at 958).

When Johns arrived on the scene, the threat of the unwanted person was neither severe

nor immediate. See id. While Johns apparently thought that he was walking into a volatile

situation—so much so that he preemptively unholstered his gun while driving to the scene—this

akin to those involving an armed mentally ill person. Similarly, in Simmonds, 682 F.3d at 445, we affirmed the

district court’s decision finding that the officers had qualified immunity after they shot and killed a mentally ill man

because officers had ample reason to believe the man was armed: he was threatening to kill his family members, his

family told officers he owned multiple guns, the man shouted “I have a gun,” and the man pulled out a “silver

object” and pointed it towards officers. Although the man in Simmonds was actually unarmed, officers had every

reason to believe he had a gun. See id.

No. 21-3315 Palma, et al. v. Johns, et al. Page 25

was hardly the scene he found when he arrived. By that time, Palma was already outside of the

home and isolated from the rest of his family.

According to the dissent, the situation on the scene was so dire that any failure to

intervene or await backup would have amounted to a “dereliction of duty.” (Infra Dissent at 44.)

In its view, had Johns not taken immediate action, he would have been “leaving the family to

fend for themselves” against “an unwelcome intruder.” (Id.) This was hardly the case. When

Johns pulled into the driveway, he saw Palma standing alone on the front porch with his hood up

and his hands in his pockets. With Palma—the unwanted person—already having departed from

the house, no one was in immediate danger and Johns had time to further assess the scene. It

must be remembered that the police were called to the scene only because of a family dispute

over a TV remote control. Johns should have waited for backup before engaging with a mentally

ill man who posed no immediate threat to anyone.

Even after engaging with Palma, Johns still could not use force that was “grossly

disproportionate to the need.” Martin, 712 F.3d at 961 (quoting Simpson v. Hines, 903 F.2d 400,

401 (5th Cir. 1990)). After tasing Palma, Johns had the opportunity to subdue him using other,

non-lethal methods such as handcuffs or his baton. Indeed, Johns pulled out his baton, extended

it, and raised it above his head ready to strike Palma. Ultimately, Johns abandoned any attempt

to use the baton after Palma turned back towards Johns. If an officer reasonably unholsters his

gun during an encounter, it may be unreasonable to expect him to swap out the gun for a less

lethal tool. See Mitchell, 864 F.3d at 423. But the opposite happened here; Johns unholstered

his gun even though a less deadly alternative was already in his hands. Furthermore, if the entire

encounter lasted eight to ten minutes, Johns may have been able to safely pursue other options

such as getting into his patrol car and awaiting backup.

h. Balancing All Factors

While each of these factual considerations is distinct, none can be considered standing

alone. Altogether, the facts, viewed in the light most favorable to Plaintiffs, raise a triable issue

as to the reasonableness of Johns’ decision to use lethal force. Defendants focus primarily on

Palma’s disobedience; Palma purportedly kept walking towards Johns and refused to show his

No. 21-3315 Palma, et al. v. Johns, et al. Page 26

hands. But equally important is that Johns knew Palma was mentally ill; Palma did not commit

any crime before Johns arrived; he did not threaten Johns; he did not make any threatening

gestures, like raising his fists; and he did not visibly brandish a weapon. Palma walked towards

Johns at a normal pace—and it is the jury’s job to decide whether this was “aggressive,” as Johns

said. After tasing Palma, Johns saw one of Palma’s hands, but still did not see any weapons.

According to Melissa, the encounter lasted eight to ten minutes and, even while approaching

Johns, Palma never got within ten to fifteen feet of Johns. Under these circumstances, Johns

lacked probable cause to believe that Palma posed an imminent threat of serious bodily harm.

Defendants point to an Eleventh Circuit opinion that they believe is “directly on point.”

(Defs.’ Br. at 27 (citing Martinez v. City of Pembroke Pines, 648 F. App’x 888 (11th Cir. 2016).)

In Martinez, multiple officers responded to a mental health emergency and found the plaintiff

pacing, yelling, and waving his hands around. Martinez, 648 F. App’x at 889–90. As officers

tried to handcuff him, the plaintiff swung his arms around and hit an officer in the head causing

him to bleed profusely. Id. at 891. The plaintiff got away from the officers but turned around

and took two steps towards the officers while he was only ten to twelve feet away. Id. Officers

then shot the plaintiff once before using a taser to subdue the plaintiff as officers handcuffed

him. Id. The Eleventh Circuit found the shooting reasonable and affirmed summary judgment in

the officers’ favor. Id. But this case is not “directly on point” at all. While officers were

similarly responding to a mental health crisis, the plaintiff in Martinez physically resisted when

officers tried to restrain him, and he seriously injured one of the officers in the process. See id. at

893. If Palma had violently resisted in this manner and injured Johns before approaching him

again, this would be a different case. But those are not the facts presented here.

In fact, we have found triable issues as to the officer’s reasonableness even when officers

faced more threatening situations. For example, in Bouggess, we held that the officer was not

entitled to summary judgment because the officer “offered only a hunch, a crack deal, a hand-to-

hand struggle, and a ‘look in [the person’s] eyes’ to support his claim that his choice to shoot

[the person] . . . was reasonable under the Fourth Amendment.” 482 F.3d at 892. In Jones v.

Sandusky County, 541 F. App’x 653, 655–56, 665–66 (6th Cir. 2013), we found a triable issue as

to the officers use of deadly force when officers shot an armed suspect who had threatened to kill

No. 21-3315 Palma, et al. v. Johns, et al. Page 27

his family because, just before the officers shot, they detonated a flash bang that would have

made it hard to see whether the suspect was poised to use the firearm against the officers. And in

Zulock, 441 F. App’x at 302, we found that officers were not entitled to summary judgment on

qualified immunity grounds when the officers shot a man who was armed with a kitchen knife,

did not respond to the officers’ orders, and repeatedly cursed at officers. Here, viewing the facts

in the light most favorable to Plaintiffs, a police officer unreasonably shot a mentally ill man

who was not verbally threatening the officer, was not making any threatening movements or

gestures, and gave the officer little reason to suspect that he was armed or dangerous. Thus,

Defendants were not entitled to summary judgment on this theory of excessive force. See

Jacobs, 915 F.3d at 1041 (quoting O’Malley v. City of Flint, 652 F.3d 662, 677 (6th Cir. 2011)).

3. Continued Shooting

Finally, Plaintiffs argue that, even if the tasing and initial shooting were reasonable,

Johns acted unreasonably by continuing to shoot at Palma with a second volley of shots. Once

an officer eliminates the imminent threat, any continued use of force is unreasonable. See

Dickerson, 101 F.3d at 1162 n.9; Margeson, 579 F. App’x at 471–72. Plaintiffs rely on

Margeson to argue that shooting Palma nine times—including several shots after Palma fell to

the ground—was unreasonable. As Plaintiffs note, the number of shots fired is certainly

relevant, but it is not dispositive. Margeson, 579 F. App’x at 472. In Margeson, the officer shot

the plaintiff forty-three times in multiple volleys. See id. Based on this fact alone, “a jury could

reasonably infer that [the plaintiff] became incapacitated, and was therefore unable to pose a

threat after having been shot with the first few bullets.” Id. A jury could make the same finding

here; if Palma became incapacitated after the first round of shots, Johns had no reason to

continue shooting.

The parties dispute whether Johns subdued Palma after the first few gunshots. Johns

claims that Palma “lunge[d]” at him after Palma bent forward in a “bear crawl” stance. (Johns

Dep., R. 50-1, Page ID #860, ##862–63.) At this point Johns could clearly see both of Palma’s

hands. But Salvatore disputes this description of events. He said that, after the first shots, Palma

“didn’t keep approaching. He was still standing there.” (S. Palma Dep., R. 50-5, Page ID

#1042.) Similarly, the autopsy report indicates that Palma did not get back up and move towards

No. 21-3315 Palma, et al. v. Johns, et al. Page 28

Johns. Four of Palma’s gunshot wounds were inflicted by bullets entering his body at a

“downward” angle. (Autopsy Rep., R. 50-3, Page ID ##947–50.) And two bullets entered from

“back to front.” (Id. at Page ID #947.) Plaintiffs’ expert noted that the pattern of the gunshot

wounds on Palma’s body indicated that “Palma was either on the ground, possibly in a fetal

position and/or on his hands/knees and/or crawling when he was shot by Dep[uty] Johns.”

(Expert Rep., R. 50-2, Page ID #932.)5 “These factual disputes are material because they

concern the nature of any movement that [Palma] may have made just before the shooting.”

Lopez v. City of Cleveland, 625 F. App’x 742, 746 (6th Cir. 2015) (denying summary judgment

when witnesses disagreed whether suspect was facing officers while holding machete over his

head or whether he was facing his sister with the machete at his side when officers shot him).

Taking the facts in the light most favorable to Plaintiff, Johns continued shooting even though he

could now see that Palma was not holding a weapon, Palma was not moving, and Palma was

bent over with his hands on the ground. In that situation, any threat Palma posed dissipated after

the first few shots and that Johns acted unreasonably by continuing to shoot Palma.

B. Clearly Established

Having found that there were constitutional violations, we turn to the second prong of the

qualified immunity inquiry—whether that constitutional right was clearly established.6 As a

starting point, Palma had a clearly established right to be free from excessive force. See

Godawa, 798 F.3d at 463. While this general right is well known, the right at issue is not

defined at such “a high level of generality.” Id. at 467 (quoting Plumhoff v. Rickard, 572 U.S.

765, 779 (2014)). Rather, “the clearly established law must be ‘particularized.’” White, 137 S.

Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). When determining

5

The parties dispute whether the expert’s testimony can create a genuine dispute of material fact. But even

without the expert’s opinion, Johns does not deny that he could now see Palma’s hands and that Palma was hunched

over after the first round of shots. Even considering only these undisputed facts, a jury could find that Palma no

longer posed a threat and that the second round of shots was unreasonable.

6

Because the district court found that Johns did not violate the Fourth Amendment, it did not reach this

prong, see Palma, 2021 WL 798405, at *3–*4, and the parties have not thoroughly argued the issue on appeal

beyond Plaintiffs’ broad statements that Palma has a clearly established right to be free from excessive force.

However, whether the law is clearly established presents a purely legal question that we need not leave to the district

court to resolve. See Gossman v. Allen, 950 F.2d 338, 342 (6th Cir. 1991); Cox v. Glanz, 800 F.3d 1231, 1246 (10th

Cir. 2015) (“[W]e can entertain a[n] . . . argument on the clearly-established-law prong . . . even if the argument had

been forfeited in district court, because the issue involves a pure matter of law.”).

No. 21-3315 Palma, et al. v. Johns, et al. Page 29

whether a particular right is clearly established, courts “ask whether it would have been clear to a

reasonable officer that the alleged conduct ‘was unlawful in the situation he confronted.’” Ziglar

v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

“[T]his is not to say that an official action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640. Applying this test,

Johns violated clearly established Fourth Amendment law by tasing and shooting Palma.

First, “‘the gratuitous or excessive use of a taser’ violates a clearly established

constitutional right.” Goodwin v. City of Painesville, 781 F.3d 314, 327 (6th Cir. 2015) (quoting

Landis, 297 F. App’x at 463). Indeed, for some time, the law has clearly established “the right of

people who pose no safety risk to the police to be free from gratuitous violence.” Gambrel, —

F.4th —, 2022 WL 369348, at *7 (quoting Shreve v. Jessamine Cnty. Fiscal Ct., 453 F.3d 681,

688 (6th Cir. 2006)). “[T]his legal rule is identified at a sufficiently ‘specific’ level of generality

to qualify as clearly established law.” Id. (citing Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per

curiam)). Moreover, we have previously found tasings unreasonable when officers faced similar

circumstances. See Wright, 962 F.3d at 867–68. As we held in Wright, officers violate the

Fourth Amendment by tasing a man who is not under arrest, does not physically resist, and is not

visibly armed, even if the man defies the officers’ orders and officers cannot see his hands. See

id. Thus, a reasonable officer would know that tasing Palma violated his clearly established

constitutional rights. See supra Part II.A.1.

Second, “it is axiomatic that individuals have a clearly established right not to be shot

absent ‘probable cause to believe that [they] pose[] a threat of serious physical harm.’” Mullins,

805 F.3d at 765 (quoting Sample, 409 F.3d at 698); see also Garner, 471 U.S. at 11 (“A police

officer may not seize an unarmed, nondangerous suspect by shooting him dead.”). Under our

precedents, reasonable officers would know that Palma did not pose a threat of serious physical

harm and, therefore, using lethal force would be unconstitutional. An officer does not have

probable cause to justify deadly force just because the person’s hands are in his pockets and the

officer cannot see his hands. See Woodcock, 679 F. App’x at 423–24 (citing Simmonds, 682

F.3d at 445). Moreover, officers cannot shoot based on a “mere hunch” that the person might be

No. 21-3315 Palma, et al. v. Johns, et al. Page 30

armed. Bouggess, 482 F.3d at 892. Nor may officers use lethal force merely because someone

disobeys the officer’s orders. See Wright, 962 F.3d at 868 (quoting Smith, 874 F.3d at 945);

Woodcock, 679 F. App’x at 423–24. And, when responding to mental health calls, officers must

take into account the person’s mental status when assessing the situation. See Gaddis, 364 F.3d

at 775 (citing Graham, 490 U.S. at 396); Graves, 810 F. App’x at 417, 423.

Further bolstering this conclusion, many of our cases have found that lethal force was

unreasonable even when officers faced objectively more threatening circumstances. See Jacobs,

915 F.3d at 1041 (unreasonable to shoot a man who reached for a gun in his waistband and

shouted at officers before turning away from them); Russo v. City of Cincinnati, 953 F.2d 1036,

1044–45 (6th Cir. 1992) (unreasonable to shoot mentally ill and homicidal man who was armed

with two knives and standing only a few feet from the officers); Godawa, 798 F.3d at 465–67

(unreasonable to shoot drunk driver who fled after hitting an officer with his car); Jones, 541 F.

App’x at 655–56, 665–66 (unreasonable to shoot an armed suspect who had threatened to kill his

family because officers could not see whether the suspect was poised to use the firearm); Zulock,

441 F. App’x at 302 (unreasonable to shoot a man who was armed with a kitchen knife, did not

respond to the officers’ orders, and repeatedly cursed at officers); Sova v. City of Mt. Pleasant,

142 F.3d 898, 902 (6th Cir. 1998) (unreasonable to shoot a man wielding butcher knives when

unclear if he was on the porch with officers or inside the house when shot). Under Plaintiffs’

factual account, Johns had no reason to believe that Palma “pose[d] a threat of serious physical

harm.” Garner, 471 U.S. at 11. Under the circumstances, shooting Palma violated clearly

established constitutional law. See supra Part II.A.2.

Finally, “[w]e have held repeatedly that the use of force after a suspect has been

incapacitated or neutralized is excessive as a matter of law.” Baker v. City of Hamilton, 471 F.3d

601, 607 (6th Cir. 2006) (citing Shreve, 453 F.3d at 687); see Dickerson, 101 F.3d at 1162 n.9.

And we have specifically held that continuing to shoot a person who no longer presents a danger

violates the Fourth Amendment. See Russo, 953 F.2d at 1045; Hood v. City of Columbus, 827 F.

App’x 464, 471 (6th Cir. 2020); Margeson, 579 F. App’x at 472. Thus, by continuing to shoot

after Palma was bent forward or on the ground, Johns violated Palma’s clearly established

constitutional rights. See Margeson, 579 F. App’x at 472; supra Part II.A.3.

No. 21-3315 Palma, et al. v. Johns, et al. Page 31

CONCLUSION

Plaintiffs raise genuine disputes of material fact that bear on whether Deputy Johns

violated Vincent Palma’s clearly established constitutional rights. Therefore, we REVERSE the

district court’s order granting Defendants’ motion for summary judgment and REMAND for

further proceedings consistent with this opinion.

No. 21-3315 Palma, et al. v. Johns, et al. Page 32

_________________

DISSENT

_________________

CHAD A. READLER, Circuit Judge, dissenting. If one were unsure about the power a

circuit court can wield, this case is a blunt example. With two circuit judges in agreement, a

majority opinion can run roughshod over a well-reasoned opinion by an experienced and

dispassionate district court judge. It can selectively amplify arguments barely made by the

parties and can willfully resurrect others long ago abandoned. And, perhaps most striking of all,

it can entirely ignore our Court’s prior decisions as well as those from the Supreme Court,

comforted by the knowledge that few decisions garner review beyond the appellate panel stage.

Consider the following: Although the Palmas themselves failed to argue the point, the

majority opinion zealously reads into the Fourth Amendment a purportedly clearly established

command that categorically prohibits police officers from using lethal force save for when an

individual brandishes a weapon, is within ten feet of the officer, or physically strikes the officer.

That dim view whittles down the highly fact-specific concept of probable cause to a grossly

over-simplified nub and ignores myriad other ways in which a person can demonstrate

significantly threatening behavior to an officer. It likewise ignores abundant precedent

confirming why the district court was correct in granting qualified immunity. Even when viewed

with a generous eye, the majority opinion’s rule has little precedent to justify it, let alone

precedent that is clearly established.

If this case represented a mine run example of jurists elevating personal views over

precedent, one might forgive the consequences. But this is no mine run case. For in beating a

new path in Fourth Amendment jurisprudence, the majority opinion dramatically—and

dangerously—limits the ways in which officers can protect themselves during threatening

encounters. By the majority opinion’s logic, an officer may not act too soon, for fear of

engaging in excessive force. But he also may not wait too long. For if he does, the majority

opinion reasons, that proves the threat posed to the officer was not immediate, rendering the

officer’s actions excessive. And while the officer waits (and hopefully remains unharmed), he

must attempt alternative uses of force. Unless, of course, that alternative is a taser. Yet all of

No. 21-3315 Palma, et al. v. Johns, et al. Page 33

this goes out the window, we learn, if the officer knows the individual has some vague mental

health issue. While the majority opinion ties its holding to the individual’s mental health status,

it never explains how an officer is to respond to a threatening individual believed to be suffering

from mental distress, short of advising officers to hide in their cars rather than intervene in a

potentially hostile situation. Instead, the majority opinion erects a seemingly insurmountable

standard to justify an officer’s use of force in encounters with a person suffering mental distress.

Doing so effectively bars a grant of qualified immunity if the officer is generally aware an

individual faces such challenges. That is not how we have previously interpreted the Fourth

Amendment. Nor, for even more obvious reasons, is it reflective of a clearly established rule in

our Circuit.

For the responsible officer looking to us for direction on permissible uses of force, the

majority opinion offers only confusion. And, no doubt, grave trepidation. After all, save for

extreme circumstances where a person seemingly is striking an officer or brandishing a weapon,

the majority opinion would leave officers with an impossible dilemma, where protecting one’s

personal safety almost invariably leads to personal liability. That dilemma not only piles onto

the already difficult task faced by law enforcement, but it also flouts background principles

underlying our Fourth Amendment excessive force jurisprudence. See Nieves v. Bartlett, 139 S.

Ct. 1715, 1725 (2019) (“Police officers conduct approximately 29,000 arrests every day—a

dangerous task that requires making quick decisions in ‘circumstances that are tense, uncertain,

and rapidly evolving.’” (citation omitted)); Colorado v. Bertine, 479 U.S. 367, 372 (1987)

(noting that “guard[ing] the police from danger” is a “strong governmental interest[]” underlying

Fourth Amendment jurisprudence); Beech v. Melancon, 465 F.2d 425, 426 (6th Cir. 1972)

(McCree, J., concurring) (“[C]ourts should not second-guess police officers who, faced with

making split-second decisions, reasonably and in good faith believe that their lives . . . would be

endangered if they refrain from employing deadly force.”).

There is one point upon which we can all agree: Vincent’s shooting was a tragic episode.

As a legal matter, however, Officer Johns’s use of force was constitutional. And even assuming

it was not, a straightforward application of qualified immunity shields Officer Johns from civil

liability. I would therefore affirm the grant of summary judgment.

No. 21-3315 Palma, et al. v. Johns, et al. Page 34

I.

A. Before turning to the law on excessive force, a few words about the facts of this case.

Time and again, the majority opinion cites what it describes as disputed material facts as a basis

for denying qualified immunity to Officer Johns. Sure, there are some differences between the

stories given by Officer Johns and by the Palmas. That is virtually always the case in these sorts

of disputes. But those quibbles do not stop us from taking as true the version of material events

most favorable to the Palmas.

Here, a clear picture unfolds. Vincent Palma, a 26-year-old man, got into a fight with his

stepsister over the television remote. Melissa, Vincent’s stepmother, called the police and asked

them to remove Vincent, indicating that he had “mental issues.” Officer Matthew Johns, a

police officer for the Ashtabula County Sheriff’s Department, was assigned to respond to

Melissa’s 911 call. When Officer Johns arrived at the Palmas’ home, he knew that “there was an

unwanted subject at the residence” who “had broken the television remote” and “was 76,” a code

indicating the individual had unspecified “mental issues.”

The relevant events unfolded against the backdrop of a cold, damp February day in

Northeast Ohio. Officer Johns parked about halfway up the driveway at the Palmas’ home,

approximately 60 to 70 feet from the front door. It was clear from Officer Johns’s uniform,

badge, and cruiser that he was a Sherriff’s Department officer. As he exited his police cruiser,

Officer Johns saw Vincent walking down the front porch steps with his sweatshirt hood pulled

up and his hands in his pockets. Officer Johns waved and called out to Vincent. He asked

Vincent, “Hey, how are you doing? Hey, how is it going?” Vincent did not respond. Instead, he

walked toward Officer Johns’s police cruiser. As Vincent approached the cruiser, Officer Johns

walked around to the front of the vehicle. He called out to Vincent several times, saying “Hey,

how is it going.” Vincent did not respond.

Officer Johns instructed Vincent to stop and show his hands. Vincent did not comply.

Instead, he continued to walk toward Officer Johns silently, his hands in his pockets. At this

point, Officer Johns began to retreat, walking backward toward the passenger side of his cruiser

while repeating his orders to Vincent to stop and show his hands. Vincent ignored those

No. 21-3315 Palma, et al. v. Johns, et al. Page 35

instructions and continued to walk toward the cruiser. Officer Johns warned Vincent that if he

did not stop, Officer Johns would tase him. Ignoring that warning, Vincent, in the words of his

father, Salvatore, “kept coming at the officer.” Melissa described the situation in a similar vein:

Vincent continued “going after” Officer Johns. At that point, Melissa and Salvatore, standing at

a distance on their front porch, yelled at Vincent to stop. But he did not respond. Nor did he

obey. So Officer Johns deployed his taser, launching the probes at Vincent from across the

cruiser’s front hood.

The first taser application did not stop Vincent. He remained standing and, in Salvatore’s

words, “kept coming at” Officer Johns. Officer Johns applied the taser for a second time.

Vincent fell to the ground on his side, facing away from Officer Johns. Vincent’s hands were

not visible. While Vincent lay on the ground, Officer Johns ordered him “to roll onto his

stomach and show [Officer Johns] his hands.” Again, Vincent did not comply. Instead, he stood

up and, according to the Palmas, “continued towards” and “went after [Officer Johns] again.”

Officer Johns applied the taser a third time. Vincent took one hand out of his pocket, grabbed

the taser wire and probes, and pulled them out of his skin. Vincent paused for a moment, and

then, in Melissa’s words, “kept going to” Officer Johns, who walked backward, away from his

cruiser and up a muddy hill, while ordering Vincent to stop.

Officer Johns unholstered his firearm. He warned Vincent that if he did not stop, Officer

Johns would shoot. Just as before, Vincent did not comply with Officer Johns’s commands.

Officer Johns fired into the ground near Vincent’s feet. In the seconds that followed, there is a

question of whether Vincent stood still. But all agree that he did not move away or show his

hands. So Officer Johns aimed at Vincent’s “center mass” and fired several times. Vincent

“leaned over at the waist,” with his hands and feet on the ground. When Vincent, according to

Salvatore, “tr[ied] to get back up,” Officer Johns continued to shoot, hitting Vincent a total of

nine times, until Vincent stopped coming toward him. From the time Officer Johns arrived at the

Palmas’ home until the final shot, Vincent remained silent.

B. All of this reveals very little in terms of disputed fact and, in truth, offers a record ripe

for a grant of summary judgment. But the majority opinion has other ideas. It laces its recitation

of the facts with purportedly disputed material issues, seemingly to draw into question the

No. 21-3315 Palma, et al. v. Johns, et al. Page 36

district court’s assessment of the case. But some of these issues are not disputed, some are

immaterial, and some are neither disputed nor material. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment.”).

Take, for example, the facts surrounding Officer Johns’s use of the taser. There is no

dispute as to whether the men were separated by the front hood of the car. And any dispute

would be immaterial because even from the other side of the cruiser’s front hood, Officer Johns’s

safety was at risk, with Vincent able to reach Officer Johns in a matter of seconds. See Chappell

v. City of Cleveland, 585 F.3d 901, 911 (6th Cir. 2009) (noting that whether a person was

“separated” from officers is only relevant if the barrier posed an impediment to the person

reaching the officer); Reich v. City of Elizabethtown, 945 F.3d 968, 981–82 (6th Cir. 2019) (“An

assailant can close [a 25 to 36 foot] distance in a second or two.”). As to the effectiveness of the

first taser application, it is undisputed that Vincent continued to walk toward Officer Johns after

that application. Further, all agree that Vincent fell and lay on the ground for several minutes

after the second application. And it is undisputed that after the second application of the taser,

Vincent stood up and, in the words of Melissa, “went after [Officer Johns]” again. Only then did

Officer Johns apply the taser a third time. Here, the majority opinion attempts to manufacture a

conflict between Melissa’s deposition testimony and her at-the-scene statement, reading into the

deposition testimony what is plainly not there: a statement that Officer Johns tased Vincent as

Vincent was walking toward the Palmas’ home. Doing so ignores Melissa’s deposition

statement that Officer Johns did not tase Vincent after he stood up.

Nor is it a material consideration that Officer Johns described Vincent’s walk as

“aggressive” and “determined” while Salvatore and Melissa, who remained on the front porch

looking at Vincent’s back, “never characterized [it] in this way.” Supra, at 18. Generally

speaking, the adjectives used to describe a person walking toward an officer are immaterial to the

reasonableness analysis. See Chappell, 585 F.3d at 911 (“[T]he semantic difference between

‘charging’ and ‘moving quickly toward’ is immaterial.”). And even accepting the Palmas’

coloring of the events, it is undisputed that Vincent refused to obey Officer Johns’s commands to

stop and show his hands, and that he continued to pursue Officer Johns up a hill and across the

No. 21-3315 Palma, et al. v. Johns, et al. Page 37

Palmas’ front yard after being tased three times, after being warned that Officer Johns would

shoot, and after being shot.

Whether Vincent was walking toward Officer Johns when he shot Vincent is also

immaterial. The Palmas stated immediately after the incident that Vincent was walking toward

Officer Johns but later testified—after retaining counsel and filing a civil damages suit against

Officer Johns—that Vincent paused after Officer Johns fired toward his feet. Accepting the

Palmas’ revised description of events, any pause by Vincent is immaterial to the reasonableness

analysis. See Reich, 945 F.3d at 979–80 (“But even including [the plaintiff’s] view that [the

decedent]” turned around and took several steps away from the officers, “the officers’ conduct

was still objectively reasonable . . . .”). Whether Officer Johns and Vincent were six feet apart,

as Officer Johns said, or ten to 15 feet apart, according to Melissa, is likewise immaterial. After

all, “[a]n assailant can close [a 25 to 36 foot] distance in a second or two,” and we do not require

a person to be within a “strike zone” to render the officer’s use of force reasonable. See id. at

982. And whether the entire duration of the encounter was “pretty short” in Officer Johns’s

words, or eight to ten minutes as Melissa claims, is irrelevant as well. Our inquiry into the

reasonableness of the force used “focus[es] on the ‘split-second judgments’ made immediately

before the officer used allegedly excessive force” and does not discount those split-second

judgments if they result from an escalating series of events. Livermore ex rel. Rohm v. Lubelan,

476 F.3d 397, 407 (6th Cir. 2007) (citation omitted).

Finally, there is no dispute that Vincent tried to stand up and move toward Officer Johns

after being shot. In an attempt to muddy the water, the majority opinion highlights Salvatore’s

statement that Vincent “didn’t keep approaching. He was still standing there.” Supra, at 27.

But Salvatore made that statement in response to a question about Vincent’s actions after Officer

Johns fired toward the ground (not, as the majority opinion suggests, after Officer Johns shot

Vincent). Ultimately, whether we label Vincent’s actions as a “lunge” or more simply as an

attempt to stand up and move toward Officer Johns is immaterial. See Chappell, 585 F.3d at

911. To the same end, the autopsy’s and expert reports’ indication that some of the bullets were

fired at a downward angle matches the parties’ statements that Officer Johns shot at Vincent as

he attempted to get up.

No. 21-3315 Palma, et al. v. Johns, et al. Page 38

At bottom, the crucial and undisputed facts are these: Officer Johns, having been notified

of a domestic disturbance by someone with unspecified mental health issues, arrived at the scene,

found an individual who repeatedly refused to obey commands and kept walking toward the

officer, refusing to remove his hands from his pockets. Having applied the taser multiple times

to try to stop Vincent from advancing, and with the distance between them closing, Officer Johns

finally resorted to lethal force.

II.

With this understanding of the undisputed factual background in mind, the indisputable

conclusion is that Officer Johns’s uses of force were reasonable, and thus constitutional under

the Fourth Amendment, as the district court concluded. See Graham v. Connor, 490 U.S. 386,

394–97 (1989).

A. I begin with the lone issue raised by the Palmas in the district court: Officer Johns’s

decision to fire his gun at Vincent. The Fourth Amendment prohibits only unreasonable

seizures. U.S. CONST. amend. IV. With that standard in mind, we evaluate Officer Johns’s use

of lethal force by asking, based on the totality of the circumstances, whether Officer Johns had

“probable cause to believe the suspect present[ed] an immediate threat of serious physical harm

to the officer or others.” Studdard v. Shelby County, 934 F.3d 478, 481 (6th Cir. 2019) (citing

Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

1. These events are much like those we encountered in Mitchell v. Schlabach, where we

affirmed summary judgment on the basis of qualified immunity. 864 F.3d 416, 423 (6th Cir.

2017). There, like here, Mitchell walked toward the officer as the officer backed away. The

officer ordered Mitchell to stop and pointed his gun at Mitchell. Id. at 419, 421–22. The

distance between the officer and Mitchell was at most 21 feet (farther than that between Vincent

and Officer Johns), and, based on video footage, we concluded that whatever the precise distance

between the two was, Mitchell could close the gap in a matter of seconds. Id. at 423 & n.2.

Mitchell, like Vincent, continued “toward [the officer]” after he was shot, justifying the second

shot. Id. at 422. And the officer, like Officer Johns, stopped shooting once Mitchell stopped

trying to continue after the officer. Id.

No. 21-3315 Palma, et al. v. Johns, et al. Page 39

The majority opinion and I agree that Mitchell (which, again, affirmed a grant of

qualified immunity) is controlling authority. That consensus should make affirming here a

straightforward matter. Not so for the majority opinion, which somehow reads Mitchell as

requiring us to deny qualified immunity to Officer Johns. That is an odd conclusion when one

considers that Mitchell deemed the officer’s use of force there not excessive. Id. at 423, 426.

True, Mitchell acknowledged that it did “not stand for the proposition that deadly force is

reasonable or proper whenever a suspect charges an officer or defies an order.” Id. at 424. But

such force was reasonable on the facts presented there, facts that largely mirror today’s case.

And attempting to distinguish today’s case from Mitchell on the grounds that this case “turn[s]

on [Officer Johns’s] after-the-fact testimony” is but one more attempt to ignore the obvious: we

can easily affirm summary judgment on the Palmas’ descriptions of the encounter alone. Supra,

at 18 (quoting Mitchell, 864 F.3d at 424). Yes, some of the facts in Mitchell paint Mitchell as the

relatively greater threat. But some facts suggest just the opposite. The point is that Mitchell is

the best parallel to today’s case. Yet the outcomes are not.

2. So how can the majority opinion reach a contrary conclusion here? In part by shifting

the burden of proof. Time and again, the majority opinion faults Officer Johns for failing to

show that he reasonably believed Vincent posed an imminent threat of serious physical harm.

See supra, at 15 (“This factor therefore cuts against [Officer] Johns’[s] argument that Palma

posed an imminent threat of serious physical harm.”); supra, at 17 (“Thus, this factor does not

support [Officer] Johns’[s] qualified immunity defense.”); supra, at 19 (“[A]ccording to

[Officer] Johns, merely walking towards an officer while defying orders gives the officer

probable cause to fear for his safety and justifies the use of deadly force. We have expressly

rejected this argument.”); supra, at 23 (“[W]e have never held that shooting a mentally ill person

was reasonable when the officers had little reason to suspect that the person was armed.”). And

it is quick to point to factual differences between this case and those cited by Officer Johns

(while forgiving the Palmas for the same failing). See supra, at 21 (“In every case that [Officer]

Johns cites, the officers used lethal force against a mentally ill person who was armed and

threatening officers.”); supra, at 26 (describing a case Officer Johns cites to as “not directly on

point at all” (internal quotation marks omitted). The majority opinion’s approach, however, is

contrary to controlling authority placing the burden on the Palmas to show a clearly established

No. 21-3315 Palma, et al. v. Johns, et al. Page 40

constitutional violation. See Williams v. Maurer, 9 F.4th 416, 430–31 (6th Cir. 2021) (“[W]hen

a defendant raises the defense of qualified immunity in a motion for summary judgment, the

plaintiff must show that [the] facts and inferences would allow a reasonable juror to conclude

that the defendant violated a clearly established constitutional right.”). As one might expect,

Officer Johns urges us to affirm the grant of summary judgment by demonstrating why his acts

were reasonable. But as a legal matter, the spotlight is on the Palmas to prove that Officer

Johns’s use of lethal force was unreasonable, a burden they cannot carry.

3. Having improperly shifted the burden of proof, the majority opinion then compounds

that error by evaluating Officer Johns’s conduct against the backdrop of a moving legal target. It

proposes three legal standards. One proffered framework is the Estate of Hill factors. That

framework, however, is mentioned once, and then never raised again, much less applied to the

facts of this case. Another is the traditional Graham three-factor approach, which, after being

introduced by the majority opinion, likewise goes by the wayside. Ultimately, the majority

opinion settles on a framework consisting of seven other “factors” of its choosing, all of which

the majority opinion believes weigh in favor of the Palmas. But why or how those factors relate

to each other is left unsaid. To the extent a cited case addressed one of the majority opinion’s

factors, it did not concern the others. Analyzing each factor in a silo ignores the “totality of the

circumstances” that confronted Officer Johns, a point the majority opinion concedes. Garner,

471 U.S. at 8–9; see supra, at 25 (“[N]one [of the factors] can be considered standing alone.”).

Yet the majority opinion spends 11 pages doing just that. And contrast that with the single

paragraph, unadorned by authority, where the majority opinion concludes that these factors,

taken together, prove that “[Officer] Johns lacked probable cause to believe that Palma posed an

imminent threat of serious bodily harm.” Supra, at 26.

a. In truth, the cases cited by the majority opinion rejected virtually all seven of its

factors as grounds for denying an officer qualified immunity. Starting with the first of those

seven factors, the majority opinion emphasizes that Vincent committed no crime on the day he

confronted Officer Johns. An individual’s commission of a crime, of course, is not a prerequisite

to finding probable cause that he posed a threat to the officer. See Boyd v. Baeppler, 215 F.3d

594, 600 (6th Cir. 2000) (holding that whether the individual committed a crime prior to the use

No. 21-3315 Palma, et al. v. Johns, et al. Page 41

of force was “wholly immaterial to the issue of whether [the individual] presented a threat to

[the] officers”). But more to the point, that fact is largely irrelevant in light of the reality that

Melissa called the police and asked them to remove Vincent because he had fought with his

stepsister and refused to leave the Palmas’ home, giving Officer Johns reason to believe Vincent

posed a threat. See Simmonds v. Genesee County, 682 F.3d 438, 441, 444–46 (6th Cir. 2012)

(holding that officers’ use of lethal force was reasonable where the decedent had not committed a

crime because the decedent posed a threat of serious harm to the officers). Recasting this

threatening scene as merely “a wellness check” only confirms the lengths the majority opinion

will go to achieve today’s result. Supra, at 15.

b. The majority opinion next notes that Vincent was unarmed. For two reasons, that fact

fails to establish that Officer Johns acted unreasonably. First, Officer Johns did not know that

Vincent was unarmed at the time, and we do not use “the 20/20 vision of hindsight” to judge an

officer’s use of force. Graham, 490 U.S. at 396; see also Pollard v. City of Columbus, 780 F.3d

395, 403 (6th Cir. 2015) (“That [the decedent] was actually unarmed . . . is beside the point; what

matters is the reasonableness of the officers’ belief as they ‘did not and could not have known’

otherwise.” (citation omitted)); Mullins v. Cyranek, 805 F.3d 760, 767 (6th Cir. 2015) (“The fact

that [the decedent] was actually unarmed when he was shot is irrelevant to the reasonableness

inquiry.”). And second, Officer Johns confronted plenty of other facts at the scene that

established Vincent posed a threat. Those facts include that Vincent, given his proximity to

Officer Johns, could “attack[] . . . with his fists” or “wrestle for control of [Officer Johns’s] gun

so that he could use it against [Officer Johns].” Mitchell, 864 F.3d at 423. And they include that

Officer Johns could reasonably believe that Vincent’s refusal to follow orders to take his hands

out of his pockets meant that he possessed a weapon. See Lemmon v. City of Akron, 768 F.

App’x 410, 415 (6th Cir. 2019); Jackson v. Washtenaw County, 678 F. App’x 302, 306 (6th Cir.

2017).

c. The at most 15-foot distance between Vincent and Officer Johns at the time of the

shooting also does not render Officer Johns’s use of force unreasonable. That is true both

because “[a]n assailant can close [a 25 to 36 foot] distance in a second or two,” and because

there is no required minimum distance for lethal force to be justified. Reich, 945 F.3d at 982.

No. 21-3315 Palma, et al. v. Johns, et al. Page 42

d. The amount of time between Officer Johns’s arrival and the shooting is irrelevant. See

Livermore, 476 F.3d at 407; Gaddis ex rel. Gaddis v. Redford Township, 364 F.3d 763, 772 (6th

Cir. 2004). The majority opinion’s focus on the time Officer Johns arrived until the time of the

shooting seems to assume nothing occurred in the interim to justify the use of force, see supra, at

20–21 (citing Kirby v. Duva, 530 F.3d 475, 482–83 (6th Cir. 2008); Untalan v. City of Lorain,

430 F.3d 312, 316 (6th Cir. 2005) (discussing Russo v. City of Cincinnati, 953 F.2d 1036 (6th

Cir. 1992))), and ignores cases (like this one) where the threat to the officer escalates.

e. With respect to Vincent’s mental health status, the same excessive force standard

applies regardless of his mental condition. See Roell v. Hamilton County, 870 F.3d 471, 482 (6th

Cir. 2017) (“[T]he fact that [a person’s] resistance was probably caused by his excited delirium

did not preclude the deputies from using a reasonable amount of force to bring him under

control.” (citation omitted)); Reich, 945 F.3d at 979; Rucinski v. County of Oakland, 655 F.

App’x 338, 342 (6th Cir. 2016). Contrary to the legal picture the majority opinion paints, the

Constitution contains no categorical rule requiring an officer to deescalate a situation merely

because he knows the person has an unspecified mental health issue. Especially when, as here,

doing so jeopardizes the officer’s safety.

With a singular focus on a one-off line in Roell, the majority opinion reads into the

Fourth Amendment a rule that Officer Johns lacked probable cause to believe Vincent posed a

serious threat to him because Officer Johns failed to “take into account” Vincent’s mental health

status. Supra, at 21 (citing Roell, 870 F.3d at 482). Yet Roell affirmed a grant of qualified

immunity for officers who used force against a person with a known mental health

condition who “presented an immediate threat” to the safety of the officers and others. 870 F.3d

at 481–82, 486–87. To be sure, where a person with a known mental illness poses no threat to an

officer, it is difficult to imagine how that individual justifiably could be subjected to lethal force.

See, e.g., Graves v. Malone, 810 F. App’x 414, 422–23 (6th Cir. 2020) (holding use of lethal

force was unreasonable against a man with a mental illness who was sitting stationary in a

bathtub with his legs dangling over the side of the tub). By the same token, when a person does

pose a threat to an officer, the officer’s use of force is reasonable, irrespective of the person’s

No. 21-3315 Palma, et al. v. Johns, et al. Page 43

mental health status. See supra, at 21 (citing Rucinski, 655 F. App’x 338; Summerland v. County

of Livingston, 240 F. App’x 70 (6th Cir. 2007); Gaddis, 364 F.3d 763).

Equally unconvincing is the majority opinion’s assertion that Vincent’s

“unresponsiveness was consistent with his mental illness,” thus requiring Officer Johns to react

differently. Supra, at 22. As a threshold matter, unresponsiveness suggests an individual who

will not obey commands, which, to my mind, raises the threat level, not lowers it. At the very

least, when assessing the threat posed to an officer, those who cannot obey an officer are

functionally equivalent to those who will not. Yet even taking the majority opinion on its own

terms, it cites no medical or legal authority to support its assertion; this bare conclusion amounts

to little more than an uninformed medical diagnosis from two jurists. Federal judges have many

attributes, but mental health expertise, it is fair to say, is unlikely to be one of them. The same

goes for police officers. Without medical degrees, officers rely on their training and experience

in reacting to each situation as it arises, assessing whether a person poses a serious threat to the

officers’ personal safety based on the totality of the circumstances. We should not undermine

that judgment with arm-chair mental health assessments.

One final point on the issue of mental health deserves emphasis. The majority opinion

characterizes Vincent’s mental health status as a kind of mitigating circumstance, one that

required a heightened standard of probable cause before Officer Johns could use lethal force. Of

course, the majority opinion fails to back the point with supporting case law. And whatever

standard the majority opinion would impose on Officer Johns, that does not change the fact that a

reasonable officer in Officer Johns’s position could have fairly believed that Vincent’s mental

health issue meant that Vincent posed a heightened risk. Those who suffer from mental illness

may well behave more unpredictably than those who do not. See Vos v. City of Newport Beach,

892 F.3d 1024, 1043 (9th Cir. 2018) (Bea, J., dissenting in part) (“The danger to the officer is not

lessened with the realization that the person who is trying to kill him is mentally ill. Indeed, it

may be increased, as in some circumstances a mentally ill individual in the midst of a psychotic

break will not respond to reason, or to anything other than force.”).

f. Nor can the Palmas survive summary judgment solely by showing that Officer Johns

could have used non-lethal force to avoid shooting Vincent. As precedent makes clear, the

No. 21-3315 Palma, et al. v. Johns, et al. Page 44

existence of alternative measures does not render an officer’s use of force unreasonable. City &

County of San Francisco v. Sheehan, 575 U.S. 600, 615 (2015) (holding that a plaintiff does not

“establish a Fourth Amendment violation based merely on bad tactics that result in a deadly

confrontation that could have been avoided” (citation omitted)); Ashford v. Raby, 951 F.3d 798,

802 (6th Cir. 2020) (“To be sure, showing a potential gentler alternative [use of force] is not

enough (by itself) to make a use of force unreasonable.”). Particularly alarming is the majority

opinion’s suggestion that because Vincent was “standing alone on the front porch” “no one was

in immediate danger” and, therefore, Officer Johns should have taken shelter in “his patrol car

and await[ed] backup.” Supra, at 25. Imagine a police officer who, upon arriving at the home of

a family facing an unwelcome intruder, determines with one glance that the suspect, at that

moment, is not actively harming anyone, and thus hides in his vehicle, leaving the family to fend

for themselves until backup arrives. Unsurprisingly, we have never required officers to desert

those they serve to protect. Stewart v. City of Euclid, 970 F.3d 667, 673 (6th Cir. 2020) (noting

that police officers “hav[e] no duty to retreat” from danger). Not only is that dereliction of duty

below the public’s expectation of law enforcement, but doing so seemingly would subject the

officer to tort liability under our precedent. See Wilson v. Gregory, 3 F.4th 844, 853–54, 862

(6th Cir. 2021) (denying state law immunity to officer who left the home of a suicidal man and

sat in his police cruiser while the man committed suicide in his home). And it boggles the mind

to see the majority opinion conclude that Officer Johns’s use of lethal force was unreasonable

because he could have used non-lethal force when, only pages earlier, the same opinion denied

summary judgment to Officer Johns as to his use of non-lethal force. No matter what level of

force Officer Johns used, it appears, the majority opinion would deem it unjustified.

g. The majority opinion repeatedly emphasizes what did not happen in this case rather

than what did. For instance, the majority opinion highlights cases where we found the use of

force to be reasonable, and granted either qualified immunity or summary judgment for the

officer, because the officer in question faced more threatening circumstances than those present

here. See supra, at 15–16, 23–24 n.4 (citing Simmonds, 682 F.3d 438); supra, at 18–19 (citing

Mitchell, 864 F.3d 416); supra, at 19, 21 (citing Rucinski, 655 F. App’x 338); supra, at 20 (citing

Untalan, 430 F.3d 312); supra, at 21 (citing Summerland, 240 F. App’x 70; Gaddis, 364 F.3d

763); supra, at 23 (citing Est. of Erwin ex rel. Erwin v. Greene County, 861 F. App’x 1 (6th Cir.

No. 21-3315 Palma, et al. v. Johns, et al. Page 45

2021); Roell, 870 F.3d 471); supra, at 23–24 n.4 (citing Beans v. City of Massillon, 706 F. App’x

295 (6th Cir. 2017)); supra, at 26 (citing Martinez v. City of Pembroke Pines, 648 F. App’x 888

(11th Cir. 2016) (per curiam)). But that can be done in nearly every case (save for the most dire

and ominous instance). Yet “the mere fact that courts have approved deadly force in more

extreme circumstances says little, if anything, about whether such force was reasonable in the

circumstances here.” Mullenix v. Luna, 577 U.S. 7, 18 (2015). In other words, that Vincent

could have acted in a more threatening manner does not prove that he was not threatening

enough to justify Officer Johns’s use of force.

No more convincing is the majority opinion’s invocation of three opinions from the other

end of the legal spectrum, that is, cases where we denied qualified immunity in supposedly

“more threatening situations.” Supra, at 26–27. Those cases make for poor analogies. In two of

them, the person (unlike Vincent) was walking away from the officer at the time of the shooting.

Zulock v. Shures, 441 F. App’x 294, 302 (6th Cir. 2010); Bouggess v. Mattingly, 482 F.3d 886,

890 (6th Cir. 2007). And in the third, the officers woke the decedent immediately before

shooting him. Jones v. Sandusky County, 541 F. App’x 653, 664–65 (6th Cir. 2013).

4. Finally, the majority opinion would consider the last shots Officer Johns fired—when

Vincent was trying to stand up and continue after Officer Johns—as a separate use of force from

the shots fired when Vincent was still standing. This approach turns the objective

reasonableness analysis—where “each search or seizure that is alleged to be unconstitutional” is

“separately” considered, County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 (2017)—on its

head, transforming a federal court’s analysis into a hyper-segmented approach that incorrectly

dissects the encounter second-by-second, see Plumhoff v. Rickard, 572 U.S. 765, 777 (2014)

(considering 15 gunshots as a single use of force); Mullins, 805 F.3d at 768 (considering multiple

gunshots as a single use of force for purposes of qualified immunity analysis because the

“second shot did not come at a time after which a reasonable officer would think the threat had

passed”). Even accepting this framing, however, does not change the conclusion that Officer

Johns used reasonable force. The fact remains that Vincent, despite having already been shot,

was still trying to reach Officer Johns, giving him reason to believe that Vincent continued to

pose a serious threat of physical harm. See Plumhoff, 572 U.S. at 777 (“[I]f police officers are

No. 21-3315 Palma, et al. v. Johns, et al. Page 46

justified in firing at a suspect in order to end a severe threat to public safety, the officers need not

stop shooting until the threat has ended.”).

5. All things considered, the majority opinion simply “substitut[es] [its] personal notions

of proper police procedure for the instantaneous decision of the officer at the scene.” Smith v.

Freland, 954 F.2d 343, 347 (6th Cir. 1992). Nowhere is this more evident than in the majority

opinion’s assessment, from its perch on the bench, years after the incident at hand, that “[Officer]

Johns should have waited for backup.” Supra, at 25. This approach tramples our decades old

understanding that it is not “appropriate for us, in the quietude of our chambers, to second-guess

. . . [an officer’s] on-the-scene judgment.” United States v. Bradshaw, 102 F.3d 204, 212 n.19

(6th Cir. 1996); see also Smith, 954 F.2d at 347 (“We must never allow the theoretical, sanitized

world of our imagination to replace the dangerous and complex world that policemen face every

day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible

assailant than to someone analyzing the question at leisure.”). Accordingly, we should affirm the

grant of summary judgment to Officer Johns.

B. Much the same is true as to the Palmas’ assertion that Officer Johns engaged in

excessive force by tasing Vincent.

1. Consider first that the Palmas did not make that argument in the district court at

summary judgment. Confirming as much, counsel conceded its forfeiture during oral argument

in this Court. Oral Argument at 03:16–03:30, Palma v. Ashtabula County, No. 21-3315 (Dec.

10, 2021), https://www.opn.ca6.uscourts.gov/internet/court_audio/aud1.php (“We didn’t argue

that the force was excessive at [summary judgment] on the taser.”). The Palmas took the same

concessionary approach in their reply brief in this Court by failing to respond to Officer Johns’s

recognition of the Palmas’ forfeiture in the district court. All of this should end the matter. See

Greco v. Livingston County, 774 F.3d 1061, 1064 (6th Cir. 2014) (“[T]he forfeiture rule . . . tells

us to correct errors raised and addressed below, not to entertain new claims raised for the first

time on appeal.”); Armstrong v. City of Melvindale, 432 F.3d 695, 699–700 (6th Cir. 2006)

(“Although both parties briefed this court on the issue, the failure to present an issue to the

district court forfeits the right to have the argument addressed on appeal.” (emphasis in

original)).

No. 21-3315 Palma, et al. v. Johns, et al. Page 47

But why be troubled by the Palmas’ Triple Crown of concessions? Not when this appeal,

the majority opinion appears to believe, is the “exceptional case[]” where forfeiture should be

excused. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008) (citation omitted).

Truth be told, there is nothing exceptional about the circumstances of the Palmas’ forfeiture. Far

from it, in fact. The Palmas’ taser claim presents a classic example of forfeiture: the Palmas’

claim before the district court was premised on a single argument (Officer Johns’s use of lethal

force was unreasonable); the district court rejected that argument and granted summary judgment

for Officer Johns; and then the Palmas, on appeal, raised “a better case fashioned after [the]

district court’s unfavorable order”—that Officer Johns’s use of the taser was unreasonable.

Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005) (citation omitted) (finding

forfeiture when the trial court rejected the plaintiff’s argument that evidence was admissible and

the plaintiff raised a different argument in support of admissibility on appeal).

Nothing in the majority opinion justifies a different outcome. The majority opinion

provides three reasons to forgive forfeiture: the amended complaint referenced the use of force

from tasing, the district court addressed tasing, and the parties briefed the issue on appeal. But

similar grounds have not convinced thoughtful judges to overlook our forfeiture doctrine in

previous cases. See Scottsdale, 513 F.3d at 551–54 (holding that an argument was forfeited due

to a party’s failure to raise it in its summary judgment motion even when the district court

discussed the issue in its amended order, and the parties addressed it in their appellate briefs).

And none of the individual reasons stand up to scrutiny. What the majority opinion describes as

the district court “address[ing]” Vincent’s tasing was, truth be told, a mere passing reference,

likely because the Palmas did not argue that the tasing was excessive force. And, by definition,

forfeiture arises in every case where the parties brief the issue on appeal but failed to present it to

the district court. See Greco, 774 F.3d at 1064.

Nor is the Palmas’ amended complaint a basis for forgiving forfeiture. For starters, it did

not in fact allege that Officer Johns’s use of the taser was excessive force; at most, it offered a

general observation, one unconnected to their excessive force claim, that Officer Johns’s “use of

the taser was unjustified and reckless use of force.” True, the Palmas’ amended complaint does

No. 21-3315 Palma, et al. v. Johns, et al. Page 48

raise Officer Johns’s use of non-deadly force as to their state law assault and battery claim. But

as to their federal § 1983 claim, the amended complaint is silent.

Transforming a bare assertion into a second legal theory, and then holding that the newly

crafted theory survives summary judgment, as does the majority opinion, has us playing the roles

of both advocate and adjudicator, something we understandably are loath to do. See McCalvin v.

Yukins, 444 F.3d 713, 723 (6th Cir. 2006) (Cole, J., dissenting) (noting that when a party fails to

raise an argument in its opening brief, “it is not this court’s place, as a neutral adjudicatory body,

to search the record for grounds upon which” to resolve a case). And even if, charitably read, the

Palmas’ complaint did make the claim that the majority opinion ascribes to it, we should still

deem the argument forfeited due to the Palmas’ failure to raise it in opposition to Officer Johns’s

motion for summary judgment. After all, as every Civil Procedure professor and student well

knows, a party at summary judgment “may not rest upon the mere allegations or denials of his

pleading.” Anderson, 477 U.S. at 248 (citation omitted); see also Warf v. U.S. Dep’t of Veterans

Affs., 713 F.3d 874, 878 (6th Cir. 2013) (“To defeat a motion for summary judgment a plaintiff

‘can no longer rely on the conclusory allegations of its complaint.’” (citation omitted)).

Equally unavailing is the majority opinion’s contention that defendants did not move for

summary judgment on the tasing claim. That assertion is difficult to square with the language in

defendants’ motion for summary judgment where they asked the district court to “grant summary

judgment to Defendants in this matter, and dismiss this action.” It is also hard to reconcile with

the district court’s assessment, which viewed the motion as dispositive; after granting the

motion, the district court “terminated and dismissed [the case].” If, as the majority opinion

seems to suggest, defendants’ motion only sought partial summary judgment, we would lack

jurisdiction to hear the Palmas’ appeal. After all, ordinarily a “district court’s order granting

partial summary judgment does not amount to a final decision.” Trayling v. St. Joseph Cnty.

Emp. Chapter of Local 2955, 751 F.3d 425, 426 (6th Cir. 2014) (emphasis in original). Because

defendants moved for summary judgment, the Palmas were “‘required to come forward with

every legal theory’ on which [they] relied.” Dibrell v. City of Knoxville, 984 F.3d 1156, 1160

(6th Cir. 2021) (citation omitted). By failing to do so, the Palmas did not preserve the tasing

claim for appeal. Id.

No. 21-3315 Palma, et al. v. Johns, et al. Page 49

2. If preserved, the Palmas’ excessive force argument nonetheless fails. To determine if

an officer’s conduct violated the Fourth Amendment’s prohibition on unreasonable force, we ask

“whether the totality of the circumstances justifies a particular level of force.” Coffey v. Carroll,

933 F.3d 577, 588 (6th Cir. 2019). In answering that question, we may consider several factors,

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 or attempting to evade

arrest by flight.” Id. (quoting Graham, 490 U.S. at 396).

As already discussed, the undisputed facts reveal that Officer Johns reasonably believed

Vincent posed an immediate threat to his safety. Vincent, whose fight with his stepsister led his

parents to ask law enforcement to remove him from their home, was, in the words of Melissa,

“going after” Officer Johns, walking silently toward him with his hands in his pockets and

ignoring Officer Johns’s repeated orders to stop and show his hands as well as Officer Johns’s

warning that he would tase Vincent. Only then did Officer Johns deploy and apply the taser—“a

reasonable response to a threat of immediate harm when a suspect disobeys police orders and

may be armed.” Kapuscinski v. City of Gibraltar, 821 F. App’x 604, 610 (6th Cir. 2020). When

the first application did not stop Vincent, Officer Johns applied the taser a second time. Vincent

fell to the ground, but he later disobeyed Officer Johns’s order to roll onto his stomach and show

his hands, and instead stood up and “went after [Officer Johns] again.” Officer Johns applied the

taser a third time. Each application was appropriate under the circumstances. See id. at 611

(holding that when multiple taser “discharges failed to immobilize [the person],” it was

“reasonable for officers to believe [the person] was ‘out of control,’” justifying subsequent taser

applications (citation omitted)).

This was not, in other words, a “mere failure to follow orders,” as the majority opinion

describes the encounter. Supra, at 12. That view turns a blind eye to other aspects of the

confrontation. Vincent’s disobedience also included walking silently toward Officer Johns with

his hands in his pockets. And the order Vincent disobeyed was to stop the behavior that gave

Officer Johns reason to believe Vincent posed a threat. Though absent from the majority

opinion, the first taser application did not stop Vincent from walking toward Officer Johns, and

after being tased for the second time, Vincent stood up and, as Melissa said, “went after [Officer

No. 21-3315 Palma, et al. v. Johns, et al. Page 50

Johns] again.” Vincent’s conduct easily distinguishes this case from Wright v. City of Euclid and

Gambrel v. Knox County, cases on which the majority opinion relies in its attempt to show why

Officer Johns’s use of the taser was unreasonable. In Wright, unlike here, the officer tased a

person who had complied with the officer’s orders to turn off his car and put his hands up, yet

was unable to comply with the officer’s order to exit the car because of his medical issues.

962 F.3d 852, 866–67 (6th Cir. 2020). And in Grambrel, the decedent was lying on the ground

and not fighting back as he was “brutally beaten” by two officers. — F.4th —, No. 20-6027,

2022 WL 369348, at *9 (6th Cir. Feb. 8, 2022).

III.

Assuming, for purposes of argument, that the Palmas’ claims satisfy the first step of

qualified immunity, they wildly fail the second. Step two’s legal framework is familiar.

“Qualified immunity attaches when an official’s conduct ‘does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’” White v.

Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (citation omitted). To prove that Vincent’s right

in this instance was clearly established, the Palmas bear the burden to either “identify a case that

put [Officer Johns] on notice that his specific conduct was unlawful” or show that the case is an

“obvious” one, such that the generalized Fourth Amendment standards set forth in Graham and

Garner “‘clearly establish’ the answer, even without a body of relevant case law.” Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (citation omitted). In other words, a

plaintiff faces a fork in the road: present controlling, on-point contemporaneous case law, or

show that the violated right was obvious.

Yet standing at that fork, the Palmas proceeded down neither path. Officer Johns’s

assertion of qualified immunity obligated the Palmas to explain why Officer Johns’s conduct—

either the tasing or the shooting—violated clearly established law. See Jacobs v. Alam, 915 F.3d

1028, 1039 (6th Cir. 2019) (“A plaintiff bears the burden of showing that a defendant is not

entitled to qualified immunity.”) On appeal, however, they left those questions largely

unanswered. Here again, the Palmas’ litigating decisions should spell the end of the case.

No. 21-3315 Palma, et al. v. Johns, et al. Page 51

Enter the majority opinion. Once again, it comes to aid the Palmas, both crafting an

argument on the Palmas’ behalf—this time, that Officer Johns violated clearly established law—

and then evaluating that argument. And, unsurprisingly, the majority opinion agrees with the

argument it advocates. This approach is as disrespectful to the legal process as it is

unprecedented. Cf. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“Courts are

essentially passive instruments of government. They do not, or should not, sally forth each day

looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts

normally decide only questions presented by the parties.” (cleaned up)). Gossman v. Allen does

not endorse these tactics, contrary to the majority opinion’s suggestion. There, we resolved the

clearly established inquiry (rather than reversing and remanding) because the district court

misapplied the clearly established test “by using an overly abstract analysis,” as the defendants

argued on appeal. 950 F.2d 338, 341–42 (6th Cir. 1991). That is a far cry from this case, where

the district court did not address the clearly established prong at all, and where the appellant did

not raise the issue on appeal. Cox v. Glanz is no better. In Cox, the court “assum[ed] arguendo”

that the defendant forfeited the clearly established prong before the district court, held that the

plaintiff failed to show the defendant violated clearly established law, and granted qualified

immunity. 800 F.3d 1231, 1244–47 (10th Cir. 2015).

In a situation like this, where the district court did not consider a potentially case-

dispositive issue, the ordinary and more prudent practice is to remand the matter to the district

court for further consideration. See, e.g., Haywood v. Hough, 811 F. App’x 952, 962 (6th Cir.

2020) (remanding with instructions to determine if officer violated a clearly established right

because the district court had not addressed the issue); Jones, 541 F. App’x at 662–63 (same).

After all, “we are a court of review, not first view.” United States v. Houston, 792 F.3d 663, 669

(6th Cir. 2015). And the majority opinion’s decision to issue a published case declaring the

clearly established law of our Circuit without prior consideration by the district court and full

development of the record is, quite literally, a rush to judgment. See Elonis v. United States,

575 U.S. 723, 742 (2015) (explaining that “following [the] usual practice of awaiting a decision

below and hearing from the parties would help ensure that [a court] decide[s] it correctly”).

No. 21-3315 Palma, et al. v. Johns, et al. Page 52

Were it appropriate for the clearly established inquiry to make its debut on appeal,

Officer Johns’s conduct did not violate clearly established law. The Palmas effectively concede

that there is no on-point, controlling case law prohibiting Officer Johns’s conduct. In their

appellate briefing, the Palmas confessed that “there is no Sixth Circuit precedent directly on

point with the facts of this case.” They likewise failed to cite to any on point Supreme Court

decision. Those concessions foreclose this manner of overcoming qualified immunity. See

Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017) (to determine if a

right was clearly established, “[w]e begin with, and could end with, the reality that [the plaintiff]

points to no Supreme Court or Sixth Circuit case” that would have notified the officers that they

violated a constitutional requirement).

In the absence of a controlling, on-point case, the Palmas are left to show that this is the

rare, “obvious” case where the general excessive force standard articulated in Graham and

Garner clearly established the law. See Rivas-Villegas, 142 S. Ct. at 8. But the Palmas

essentially concede this argument too. After all, they describe their case in their brief as one

involving “factually nuanced questions,” not obvious and blatant misconduct. Cf. Taylor v.

Riojas, 141 S. Ct. 52, 53 (2020) (per curiam) (defining an obvious case as one where “no

reasonable . . . officer could have concluded that” the defendants’ behavior was constitutionally

permissible); Hope v. Pelzer, 536 U.S. 730, 745 (2002) (defining an obvious case as one with

“obvious cruelty inherent in” the officers’ conduct). With the Palmas having failed to offer any

manner of argument that Officer Johns violated any clearly established law, we must affirm the

judgment of the district court. See Rivas-Villegas, 142 S. Ct. at 8; see also Thomas v. City of

Columbus, 854 F.3d 361, 364 (6th Cir. 2017) (“We ‘may affirm a decision of the district court

for any reason supported by the record, including on grounds different from those on which the

district court relied.’” (quoting Stein v. Regions Morgan Keegan Select High Income Fund, Inc.,

821 F.3d 780, 786 (6th Cir. 2016))).

That surely would be the result in most cases. But not here, we learn. Unwilling to

accept the Palmas’ concessions, the majority opinion takes it upon itself to show that Officer

Johns violated clearly established law. Setting aside the procedural oddities of the referees

taking shots for one team, none of the majority opinion’s cases clearly establishes that Officer

No. 21-3315 Palma, et al. v. Johns, et al. Page 53

Johns’s uses of force were unreasonable. Several of the majority opinion’s cases were decided

after the shooting, meaning that they “could not have given fair notice to [Officer Johns] and are

of no use in the clearly established inquiry.” Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004)

(per curiam). See Hood v. City of Columbus, 827 F. App’x 464 (6th Cir. 2020); Graves, 810 F.

App’x 414; Wright, 962 F.3d 852; Jacobs, 915 F.3d 1028; Woodcock v. City of Bowling Green,

679 F. App’x 419 (6th Cir. 2017). And all of the cases involved factually different

circumstances. In some, the decedent, unlike Vincent, was walking or driving away from the

officer at the time of the shooting. See Jacobs, 915 F.3d at 1033–34; Godawa v. Byrd, 798 F.3d

457, 461–62, 465–66 (6th Cir. 2015); Zulock, 441 F. App’x at 302; Bouggess, 482 F.3d at 887.

In others, the decedent had not repeatedly approached the officer, defying the officer’s orders to

stop. See Wright, 962 F.3d at 866–67 (person sitting in his car had complied with several of the

officers’ orders but was unable to comply with the order to exit the vehicle due to his medical

issues); Woodcock, 679 F. App’x at 424 (decedent stood 72 feet away and faced away from the

officers); Jones, 541 F. App’x at 665 (decedent awoken by a flash bang device immediately

before being shot); Sova v. City of Pleasant, 142 F.3d 898, 902–03 (6th Cir. 1998) (decedent

stood in his kitchen). And with respect to the specific contention that Officer Johns violated

clearly established law by shooting Vincent when he tried to stand up and continue toward

Officer Johns, in the majority opinion’s cases, unlike here, there either was a factual dispute as to

whether the decedent still posed a threat to the officer when the officer shot, see Hood, 827 F.

App’x at 471; Margeson v. White County, 579 F. App’x 466, 472 (6th Cir. 2014); Russo, 953

F.2d at 1040–41, or the case did not involve lethal force, see Baker v. City of Hamilton, 471 F.3d

601, 607 (6th Cir. 2006).

Particularly troubling, once again, is the majority opinion’s continued reliance on

Vincent’s mental health status as grounds to deny qualified immunity. Simply put, the majority

opinion identifies no case that would have put Officer Johns on notice that Vincent’s unspecified

mental health condition made his use of lethal force unconstitutional despite the threat of

imminent harm that Vincent posed. Graves is not such a case—it was decided after the

encounter between Officer Johns and Vincent and, at any event, involved a man with a mental

illness who was trapped in a bathtub and “stationary, staring straight ahead, not making eye

contact with anyone.” 810 F. App’x at 423. Nor is Gaddis, where we held that an officer who

No. 21-3315 Palma, et al. v. Johns, et al. Page 54

used nonlethal force against a person with a mental illness was entitled to summary judgment.

364 F.3d at 775.

No more compelling is the majority opinion’s reliance on the general excessive force

standard in Graham, Garner, and their progeny. To the majority opinion’s mind, those decisions

clearly established Vincent’s right to be free from Officer Johns’s uses of force. But that would

be so, at most, only if this case were an “obvious” one, that is, where “no reasonable . . . officer

could have concluded that” Officer Johns’s use of force was constitutional. Taylor, 141 S. Ct. at

53; see also Rivas-Villegas, 142 S. Ct. at 8. As already explained, this is far from an obvious

case. Indeed, two judges (myself and the district court) believe that no constitutional violation

occurred whatsoever, let alone an obvious one. And even the majority opinion, in a more candid

moment, acknowledges that this case merely “raise[s] a triable issue as to the reasonableness of

[Officer] Johns’[s] decision to use lethal force,” not an obvious violation of the Fourth

Amendment. Supra, at 25.

Nor can one accept the majority opinion’s formulations of the purported rights at issue. It

does so in the following ways. One, that there is a clearly established right to be from “the

gratuitous or excessive use of a taser.” Supra, at 29 (quoting Goodwin v. City of Painesville, 781

F.3d 314, 327 (6th Cir. 2015)). And two, “that individuals have a clearly established right not to

be shot absent ‘probable cause to believe that [they] pose[] a threat of serious physical harm.’”

Supra, at 29 (quoting Mullins, 805 F.3d at 765). But that level of abstraction is far too general to

articulate a “clearly established” Fourth Amendment right. I am not alone in that belief. As the

Supreme Court has explained, the right is defined “too general[ly] if the unlawfulness of the

officer’s conduct ‘does not follow immediately from the conclusion that [the rule] was clearly

established.’” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (citation omitted). And

formulating the right with “specificity is especially important in the Fourth Amendment

context.” Mullenix, 577 U.S. at 12. Turning a blind eye to the Supreme Court’s statements in

this area of law is risky business. Indeed, the Supreme Court routinely reverses lower courts for

the exact error that the majority opinion makes. See, e.g., City of Escondido v. Emmons, 139 S.

Ct. 500, 503 (2019) (per curiam) (summarily reversing court of appeals for holding that the

“right to be free of excessive force” was clearly established); Mullenix, 577 U.S. at 12 (same);

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see also Mullenix, 577 U.S. at 14 (“The general principle that deadly force requires a sufficient

threat hardly settles this matter.”); Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“The general

proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of little

help in determining whether the violative nature of particular conduct is clearly established.”).

Simply put, a purported clearly established right to be free from excessive force is a far too

general standard, a fact that even the majority opinion seems to understand. See supra, at 28–29

(noting that the “right to be free from excessive force” is “defined at . . . a high level of

generality” but then claiming that the right to be free from “excessive use of a taser” and “not to

be shot absent ‘probable cause to believe that [the person] pose[s] a threat of serious physical

harm’” are sufficiently particularized formulations of the right); cf. Studdard, 934 F.3d at 481

(describing the use of lethal force as excessive where the officer lacked “probable cause to

believe the suspect presents an immediate threat of serious physical harm to the officer or others”

(citing Garner, 471 U.S. at 11)).

To refute this straightforward conclusion, the majority opinion invokes our recent

decision in Gambrel. But there, unlike here, the plaintiff “‘identif[ied] a case’ . . . with

‘materially’ indistinguishable facts.” — F.4th —, 2022 WL 369348, at *7 (alteration in original)

(citation omitted). That the majority opinion relies so squarely on a decision whose ink is barely

dry further confirms its futility in identifying a right clearly established at the time of Vincent’s

shooting.

Otherwise, the majority opinion essentially duplicates its analysis as to whether a Fourth

Amendment violation occurred when it addresses the separate clearly established prong. That

approach, however, eviscerates the two-step qualified immunity inquiry. See Hagans v. Franklin

Cnty. Sheriff’s Off., 695 F.3d 505, 508 (6th Cir. 2012). It deems a finding that an officer’s use of

force violated the Fourth Amendment (because he lacked probable cause to believe the person

posed a sufficient threat) as tantamount to a finding that the officer violated a clearly established

right. Here too, the majority opinion runs afoul of bedrock Supreme Court precedent, this time

cases holding that resolution of step one does not automatically resolve step two. See Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (“‘[Whether] the right’s contours were

sufficiently definite that any reasonable official in the defendant’s shoes would have understood

No. 21-3315 Palma, et al. v. Johns, et al. Page 56

that he was violating it’ . . . is a necessary part of the qualified-immunity standard . . . .” (citation

omitted)); Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“[T]his Court [has] mandated a two-

step sequence for resolving government officials’ qualified immunity claims.”).

The majority opinion, of course, has some company of its own. But it is not respectable

company to keep. By my count, the Supreme Court has summarily reversed our sister circuits at

least ten times in as many years for incorrectly analyzing the clearly established prong. See

Rivas-Villegas, 142 S. Ct. 4; City of Tahlequah v. Bond, 142 S. Ct. 9 (2021) (per curiam);

Emmons, 139 S. Ct. 500; Kisela, 138 S. Ct. 1148; White, 137 S. Ct. 548; Mullenix, 577 U.S. 7;

Taylor v. Barkes, 575 U.S. 822 (2015) (per curiam); Carroll v. Carman, 574 U.S. 13 (2014) (per

curiam); Stanton v. Sims, 571 U.S. 3 (2013) (per curiam); Ryburn v. Huff, 565 U.S. 469 (2012)

(per curiam). The majority opinion bears a striking resemblance to, among other cases, the

decisions reversed in Emmons, Kisela, White, and Mullenix. In each instance, the Supreme Court

reiterated the courts of appeals’ error in failing to identify on-point, controlling precedent

holding that the official’s conduct was unconstitutional, and instead erroneously relying on the

general statement that excessive force violates clearly established law. See Emmons, 139 S. Ct.

at 503–04; Kisela, 138 S. Ct. at 1153; White, 137 S. Ct. at 552; Mullenix, 577 U.S. at 16–18.

Regrettably, we have not learned from these past mistakes.

At day’s end, qualified immunity “protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Wesby, 138 S. Ct. at 589 (citation omitted). Because the Palmas

have not come close to satisfying that demanding standard, I would affirm the judgment of the

district court.