United States District Court, W.D. Michigan, Southern Division
T. NEFF UNITED STATES DISTRICT JUDGE
filed this civil rights action pursuant to 42 U.S.C. §
1983 against Defendant City of Battle Creek and police
officer Esteban Rivera, after N.K., a minor, was shot in the
right shoulder by Officer Rivera outside a convenience store
on November 16, 2013 when Rivera responded to a 911 dispatch
of a male carrying a gun. The City has since been dismissed.
The sole remaining claim is Plaintiffs § 1983 claim of
matter is before the Court on Defendant Rivera's Motion
for Summary Judgment on the ground of qualified immunity (ECF
No. 60). Plaintiff has filed a Response (ECF No. 61), and
Defendant has filed a Reply (ECF No. 62). Defendant has also
filed a notice of intent to rely on new authority (ECF No.
73), to which Plaintiff has filed an objection (ECF No.
After full consideration, the Court concludes that oral
argument is unnecessary to resolve the Motion. See
W.D. Mich. LCivR 7.2(d). Defendant's Motion is denied.
parties stipulate to the following material facts:
1. On November 16, 2013, NK and three of his friends (SC, SW,
and JW) were playing "Cops and Robbers" inNK's
2. On the day and times in question, NK had an Airsoft BB
pistol, which he had colored all black with a Sharpie marker.
The Airsoft gun had also been altered so that it no longer
had an orange tip.
3. At some point, the girls (SC, SW, and JW) went to the
Drive-Thru Party Store so they could use a bathroom.
4. The [dispatch] log indicates that at 11:58 am Officer
Rivera was dispatched and en route to the call at the Party
6. Officer Rivera did not activate his lights or siren.
7. NK was still crouched down by a Newport cigarette sign at
the end of the store when he first saw Officer Rivera's
car. With the Airsoft gun placed in his waistband, NK walked
from the sign toward the front door of the store.
8. As Rivera turned right onto the street of the Party Store,
Officer Rivera could see NK and he radioed Dispatch to say,
"OK, I got him. He's walking towards the store
now." 9. As Officer Rivera turned into the Party Store
parking lot, he could see the girls exit the Party Store and
saw NK walk toward them.
10. Officer Rivera pulled in and parked his patrol car at an
angle and exited his car.
11. At some point, Officer Rivera fired his gun one time,
hitting NK in the right shoulder.
Statement of Material Facts (JSMF), ECF No. 72).
judgment is proper "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The court must consider the evidence and all
reasonable inferences in favor of the nonmoving party.
Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir.
2013); U.S. S.E.C. v. Sierra Brokerage Servs., Inc.,
712 F.3d 321, 327 (6th Cir. 2013) (citation omitted).
moving party has the initial burden of showing the absence of
a genuine issue of material fact. Jakubowski v. Christ
Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010). The
burden then "shifts to the nonmoving party, who must
present some 'specific facts showing that there is a
genuine issue for trial.'" Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). "There is no genuine issue for trial where the
record 'taken as a whole could not lead a rational trier
of fact to find for the non-moving party.'"
Burgess, 735 F.3d at 471 (quoting Matsushita
Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). "The ultimate inquiry is 'whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'" Sierra
Brokerage Servs., 712 F.3d at 327 (quoting
Anderson, 477 U.S. at 251-52).
state a viable claim under 42 U.S.C. § 1983, a plaintiff
must allege (1) the violation of a right secured by the
Constitution or laws of the United States; and (2) that the
deprivation was caused by a person acting under color of
state law. Harbin-Bey v. Rutter, 420 F.3d 571, 575
(6th Cir. 2005). Claims that law enforcement officers have
used excessive force are analyzed under the Fourth
Amendment's reasonableness standard. Jones v. City of
Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008).
'"[T]he question is whether the officers'
actions are 'objectively reasonable' in light of the
facts and circumstances confronting them, without regard to
their underlying intent or motivation.'"
Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir.
2007) (quoting Graham v. Connor, 490 U.S. 386, 397
(1989) (citation omitted)).
affirmative defense of qualified immunity applies to
excessive force claims under § 1983. "Police enjoy
qualified immunity unless (1) the facts alleged show that the
police violated a constitutional right; and (2) the right was
clearly established." Jones, 521 F.3d at 559.
Under this test, "qualified immunity is proper unless
'it would be clear to a reasonable officer' that his
use of excessive force 'was unlawful in the situation he
confronted.'" Champion v. Outlook Nashville,
Inc., 380 F.3d 893, 902 (6th Cir. 2004) (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001)).
"The burden is on the plaintiff to demonstrate that the
officer is not entitled to qualified immunity."
Coble v. City of White House, 634 F.3d 865, 870-71
(6th Cir. 2011).
argues that Plaintiff has not met her burden to present a
genuine challenge to Officer Rivera's qualified immunity
from suit. Defendant contends that the facts concerning his
shooting a teen who disobeyed police orders and instead
seemingly drew a real weapon did not violate clearly
established law because "[c]ourts nationwide recognize
that when a person draws or brandishes a real-looking BB gun
to an officer and disobeys police orders, an officer who
shoots that person does not violate clearly
established law because officers must diffuse reasonably
perceived threats of serious harm, and BB guns (especially
Airsoft ones) commonly look real" (ECF No. 60 at PagelD.
does not disagree that whether an officer's conduct is
objectively reasonable depends, in part, on whether the
suspect poses an immediate threat to the safety of the
officers or others. Plaintiff contends, however, that
Defendant's deployment of deadly force against N.K. was
unreasonable and excessive because case law precedent at the
time of the incident clearly established that "it is
unlawful to shoot an unarmed man, who is neither fleeing nor
a felon ..." (ECFNo. 61 atPageID.314).
Tennessee v. Garner,471 U.S. 1, 105 S.Ct. 1694, 85
L.Ed.2d 1 (1985), the police may not use deadly force against
a citizen unless 'the officer has probable cause to
believe that the suspect poses a significant threat of death
or serious physical injury to the officer or
others.'" Sovav. City of Mt.
Pleasant,142 F.3d 898, 902-03 (6th ...