42 USC § 1983 action alleging an excessive force claim; Determining whether deadly force was justified; Barnes v Felix; Whether a second shooting violated the Fourth Amendment; Bletz v Gribble; Lee v Russ; “Failure to intervene” claim; Municipal liability; Failure to train

[This appeal was from the WD-MI.] The court held that plaintiff successfully pled a claim that defendants-police officers violated her husband’s (Stephen) “clearly established rights when they fired a second, deadly round of shots at him as he lay on the ground.” During their response to a domestic disturbance call, the two officers shot and killed Stephen. The interaction involved two separate shootings where the officers first shot him and seconds later, shot him again as he was lying on the ground. Plaintiff sued for excessive force, failure to intervene, and municipal liability on the part of defendant-City. The district court dismissed all claims. On appeal, as to the claim of excessive force, the court noted that after Barnes, when determining whether a reasonable officer could consider the use of deadly force justifiable based on an immediate threat, it “may divide the incident into segments,” and when analyzing each segment, it could “consider the entire sequence, including prior uses of force.” The court explained that while the reasonableness of the first shooting could be debated, “the facts of the second shooting are well-pled enough that the excessive-force claim” survived a motion to dismiss. The officers fired their second round when Stephen was on the ground and already wounded. The complaint alleged—and the video did “not contradict—that prior to and after being shot the first time, Stephen was largely compliant and gave no clear indication that he intended to resist.” The court concluded that by “the time he lay on the ground after a first round of fire that had clearly injured him, a reasonable officer would not have perceived Stephen as a threat.” It found that, after he had “been shot, without any signal that Stephen intended harm, the sole fact that he again reached for his gun was not enough to justify firing again.” Thus, the court reversed as to the excessive force claim. But it affirmed the dismissal of the claim for each officer’s failure to intervene in the other’s use of deadly force where “they did not have the opportunity to prevent it.” It also affirmed the dismissal of the municipal liability claim, agreeing “with the district court that, without more concrete allegations, this claim cannot proceed to discovery.”