42 USC § 1983 action alleging excessive force; Qualified immunity; Whether a “clearly established” right was violated; Aiming a chemical spray launcher at & pepper spraying demonstrators; Launching a tear gas canister at a demonstrator; The Fourth Amendment reasonableness test for the use of “deadly force”; Palma v Johns; Municipal liability; Alleged ratification of unconstitutional conduct by insufficiently investigating & punishing it; Grand Rapids Police Department (GRPD)

[This appeal was from the WD-MI.] The court held that two of the defendants-police officers (Johnson and Bush) were entitled to qualified immunity and that defendant-City was also properly granted summary judgment on plaintiffs’ municipal liability claims. But it concluded a reasonable jury could find that defendant-Reinink used excessive force by deploying a tear-gas canister “at close range, such that it could have exerted lethal force” against a demonstrator who did not present “‘an imminent threat of harm.’” Plaintiffs-Hart and Guzman sued the City and several officers for events that occurred during a “Black Lives Matter” demonstration. Bush “fired pepper spray at Hart’s head for two to three seconds.” Video recordings by bystanders showed “Reinink left the police line to confront Hart after Sergeant Bush began pepper spraying him and Hart had started to retreat. As Hart was turning back toward the police line, Officer Reinink launched a” cannister at him from a few feet away. “Reinink testified that he believed the canister—which he loaded without a witness, contrary to GRPD policy—contained Muzzle Blast[,]” a powder dispersion round used in close deployment. But it was instead Spede-Heat, a tear-gas “designed to be launched into a target area and not directly at a subject.” On appeal, Guzman argued that “Johnson employed excessive force by pointing the launcher, which she believed was a firearm, at her, which caused [her] to fear for her life.” But the court agreed with the district court that plaintiffs failed “produce ‘any existing precedent’” that showed Johnson had violated a clearly established right. It also held that none of the cases Hart cited established “that it was ‘beyond debate’ at the time of this incident that Sergeant Bush’s pepper spraying of Hart was unlawful.” However, the court concluded that, viewing “the record evidence in the light most favorable to Hart … Officer Reinink did deploy Spede-Heat at close range, such that it could have exerted lethal force.” The court assessed the “reasonableness of the use of deadly force” under the Palma factors and held that while the crowd could have presented a danger, “[i]n the moments before Officer Reinink deployed deadly force, Hart did not” pose a credible threat to the safety of the public or an officer. A “‘reasonable jury could find that [Officer Reinink] used excessive force’ when he fired Spede-Heat at Hart at point-blank range.” And under the court’s precedent, it was clearly established in 5/20 that deploying “deadly force against an unarmed individual who posed no imminent threat to officers, such as Hart, was constitutionally impermissible.” The court affirmed summary judgment for Johnson, Bush, and the City, reversed summary judgment for Reinink, and remanded.