[A]n officer who has already been fired on (unsuccessfully) need not pause to give an assailant time to reload or repair his gun.
Naji v. City of Dearborn
Sixth Circuit Appellate Court
October 28, 2024
Mr. Ali Naji Ambushes the Dearborn Police Headquarters and is Killed
On December 18, 2022, Ali Naji walked into the City of Dearborn Police Headquarters, while Corporal Timothy Clive was on duty. The police lobby was accessible by six separate entrances, including one public entrance, and the incident was captured on five surveillance cameras. The surveillance footage shows Mr. Naji entering the lobby through the public entrance, wearing a COVID face mask and a winter hat. Cpl. Clive, who was standing at the lobby’s front desk behind bulletproof glass, asked Mr. Naji how he was doing. Mr. Naji did not answer; instead, with his right hand, he pulled a handgun from his waistband and pointed it at Cpl. Clive. Cpl. Clive shouted “gun, gun, gun!” Mr. Naji pulled the trigger, but the gun malfunctioned, and no bullet fired. The gun “clicked” and Mr. Naji pulled out the magazine, seemingly trying to fix the malfunctioning weapon. Cpl. Clive retrieved his service revolver, “slid open the front desk window and fired seventeen shots in a continuous, 4-5 second volley.” Naji v. City of Dearborn, 709 F. Supp. 3d 398, 404 (E.D. Mich. 2023). When Cpl. Clive opened fire, Mr. Naji was holding the gun about chest-high and pointing it towards Cpl. Clive; approximately six seconds had passed since Mr. Naji had first attempted to shoot Cpl. Clive. Mr. Naji fell to the floor, dropping his gun as he fell. On the floor, the video shows Mr. Naji contorting once, appearing to roll onto his side, before he stops moving. No members of the public were in the lobby during the shooting, but eleven or so people were working at the station that day.
Link to video of Mr. Naji’s homicidal actions: https://www.youtube.com/watch?v=4p0XA-mZA9s
Mr. Ali Naji attempted to indiscriminately shoot a Dearborn Police Officer inside the Dearborn Police Station. Mr. Naji’s stolen firearm jammed and Dearborn Cpl. Clive shot and killed Mr. Naji without a verbal warning to drop his firearm. Mr. Naji’s family legal claim was that the officer failed to issue a verbal warning during a gun fight.
Mr. Naji’s Family Sues for the Police Protecting Themselves
Hussein Naji, as personal representative of Ali Naji’s estate, sued both Cpl. Clive and Dearborn in federal district court. Mr. Naji’s representative brought the following claims: (1) A Fourth Amendment excessive force claim under § 1983; (2) A municipal-liability claim against Dearborn; (3) Assault and battery under Michigan law; and (4) Gross negligence under Michigan law. The district court granted summary judgment to Cpl. Clive and the City on all claims. Mr. Naji’s representative timely appealed. On appeal, both defendants also moved for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912, 1927.
Summary Judgement is Upheld as the Video ‘Blatantly Contradicts’ Mr. Naji’s Version of Events
We review a district court’s grant of summary judgment de novo. Sigley v. City of Parma Heights, 437 F.3d 527, 532 (6th Cir. 2006). Summary judgment is appropriate when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We construe the evidence and make all reasonable inferences in favor of the nonmoving party. Raimey v. City of Niles, 77 F.4th 441, 447 (6th Cir. 2023). That said, “[w]hen the record contains ‘a videotape capturing the events in question,’ we may not adopt a ‘version of the facts for purposes of ruling on a motion for summary judgment’ that ‘blatantly contradict[s]’ the asserted version of events such that ‘no reasonable jury could believe it.’” Id. (second alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The video’s “gaps or uncertainties” should be construed in the nonmovant’s favor. Latits v. Phillips, 878 F.3d 541, 544 (6th Cir. 2017).
Corporal Cpl. Clive raised the defense of qualified immunity. To overcome that defense, Mr. Naji’s representative must show that (1) Cpl. Clive violated his constitutional rights; and (2) those rights were clearly established at the time of the violation. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The district court held that Cpl. Clive did not violate the Constitution. We agree.
Established Case Law on Excessive Use of Force
Mr. Naji’s representative claims that Cpl. Clive used excessive force against Mr. Naji, in violation of the Fourth Amendment. To determine whether an officer’s use of force was excessive, we ask whether his actions were “‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard to [the officer’s] underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). The use of deadly force is objectively reasonable when an officer possesses “probable cause to believe a suspect poses an immediate threat of serious physical harm to the officer or others.” Lee v. Russ, 33 F.4th 860, 863 (6th Cir. 2022). And we must consider that officers often “make split-second judgments” in dangerous and difficult circumstances about how much force is necessary. Graham, 490 U.S. at 396–97. Thus, whether an officer’s use of force was reasonable must be judged from the officer’s perspective in the moment “rather than with the 20/20 vision of hindsight.” Id. at 396.
Sixth Circuit Determines Cpl. Clive’s Use of Deadly Force was Objectively Reasonable
Cpl. Clive’s use of deadly force was lawful. Cpl. Clive had probable cause to believe Mr. Naji posed an immediate threat of serious physical harm. Mr. Naji walked into the station, pointed his gun at Cpl. Clive, and pulled the trigger. Then Cpl. Clive shot Mr. Naji, while Mr. Naji held his malfunctioning gun chest-high, still pointed toward Cpl. Clive, seemingly trying to fix the weapon. “Time and time again, we have rejected Fourth Amendment claims in this setting—when the officers used deadly force only after the suspects had aimed their guns at the officers or others.” Presnall v. Huey, 657 F. App’x 508, 512 (6th Cir. 2016). This case is no different: Cpl. Clive’s use of deadly force was objectively reasonable.
Mr. Naji’s Legal Team Alleges Pointing a Firearm at Another and Pulling the Trigger Does Not Pose an Immediate Threat
Mr. Naji’s representative offers several responses. The first is that Mr. Naji did not pose an immediate threat. Mr. Naji’s representative claims there was no danger because: (1) when Cpl. Clive fired, Mr. Naji was fixing his gun rather than pointing it at Cpl. Clive or anyone else; (2) Cpl. Clive was standing behind bulletproof glass; (3) Cpl. Clive could not remember when he last saw a civilian in the police station before the shooting; (4) Mr. Naji never actually fired a bullet; (5) Mr. Naji did not try to flee; and (6) Cpl. Clive continued to shoot Mr. Naji after Mr. Naji fell. Mr. Naji’s representative claims that Cpl. Clive should have tried to de-escalate the situation or warn Mr. Naji before resorting to lethal force.
Mr. Naji’s Argument Fails
This argument fails. It was objectively reasonable for Cpl. Clive to believe that Mr. Naji posed an immediate threat of serious physical harm. Legal doctrine and common sense both recognize that “[W]hen a person aims a weapon in a police officer’s direction, that officer has an objectively reasonable basis for believing that the person poses a significant risk of serious injury or death.” Greathouse v. Couch, 433 F. App’x 370, 373 (6th Cir. 2011).
Does Bullet Proof Glass Prevent an “Immediate Threat”?
Mr. Naji’s representative claims that “Mr. Naji was not pointing the gun at Cpl. Clive or any other person while Cpl. Clive shot him,” but the video evidence directly contradicts this account. Mr. Naji was holding his gun chest-high and fidgeting with the weapon—apparently trying to fix it so he could refire. The weapon was pointed toward Cpl. Clive. The district court agreed, finding that Mr. Naji was pointing his gun “at about a 45-degree upward angle toward Cpl. Clive and [wa]s pulling back the weapon’s slide and turning the barrel directly toward Cpl. Clive.” Mr. Naji, 709 F. Supp. 3d at 409. And it does not matter that Cpl. Clive was behind bulletproof glass. Like our sister circuits, we reject the conclusion that “bulletproof” glass dispels all danger. See United States v. Whitfield, 695 F.3d 288, 304 n.11 (4th Cir. 2012) (“[W]e join the Second and Eleventh Circuits in rejecting the contention that bank tellers are not jeopardized simply because they are situated behind ‘bulletproof’ glass.”).
[A]n immediate risk of harm to others …
It was also reasonable for Cpl. Clive to believe that Mr. Naji posed an immediate risk of harm to others. There were six entrances to the lobby, many other officers were present in the station, and the shooting occurred “on a busy Sunday during a Christmas toy drive.” An officer or member of the public could have walked into the lobby at any moment. It does not matter that Cpl. Clive, at his deposition, did not remember the last time prior to the shooting that someone had entered the station. Nor does it matter that Mr. Naji did not try to flee, given the obvious danger he posed to both Cpl. Clive and the public.
[A]n officer who has already been fired on (unsuccessfully) need not pause to give an assailant time to reload or repair his gun.
Cpl. Clive’s response was also reasonable. Mr. Naji pointed his gun at Cpl. Clive and pulled the trigger; Cpl. Clive responded immediately by retrieving his own gun and shooting Mr. Naji. Just as an officer “need not wait for a suspect to open fire on him . . . before the officer may fire back” Greathouse, 433 F. App’x at 373, an officer who has already been fired on (unsuccessfully) need not pause to give an assailant time to reload or repair his gun. A mere six seconds transpired between Mr. Naji attempting to fire and Cpl. Clive returning fire. That matters too. Graham reminds us that officers often “make split-second judgments” in “uncertain and rapidly evolving” situations. 490 U.S. at 396–97. That was certainly the case here.
Mr. Naji’s Mental Illness is Irrelevant
Second, Mr. Naji’s representative argues that the district court erred by paying insufficient attention to Mr. Naji’s alleged mental illness. But regardless of whether Mr. Naji was mentally ill, Cpl. Clive did not act unreasonably by resorting to lethal force. Our precedent makes that clear. In Palma v. Johns, this court held that a defendant’s “diminished capacity” from mental illness can factor into the totality of the circumstances in an excessive-force claim. 27 F.4th 419, 436–37 (6th Cir. 2022). But we explained that this factor is relevant only if the officer knew, or had reason to know, of the suspect’s mental illness. Id. For example, in Palma, the dispatcher told the responding officer that Palma was a “Code 76,” meaning a person with mental illness.
Mr. Naji’s Legal Team Failed to Supply Evidence to Support One of the Legal Claims
Here, Mr. Naji’s alleged mental illness fails to create any genuine dispute regarding a material fact. There is no genuine dispute as to whether Cpl. Clive knew Mr. Naji at all, let alone that he was mentally ill. Cpl. Clive testified that he did not recognize Mr. Naji, who wore a mask and did not say a word during the encounter. Mr. Naji’s representative suggests that the Dearborn police had “every possibility . . . to know Mr. Naji and his mental health,” noting that Mr. Naji once received police assistance after a mental-health episode. But he never asserts, much less supplies evidence, that Cpl. Clive recognized Mr. Naji or knew of his mental illness. And, in any event, officers can use lethal force “against a mentally ill person who,” like Mr. Naji, “was armed and threatening.” Palma, 27 F.4th at 437 Mr. Naji’s mental illness does not render Cpl. Clive’s actions unreasonable.
[N]o constitutional violation occurred because Cpl. Clive’s actions were objectively reasonable
In sum, no constitutional violation occurred because Cpl. Clive’s actions were objectively reasonable. Therefore, Cpl. Clive is entitled to qualified immunity. And while Mr. Naji’s representative also brought a § 1983 claim against the City of Dearborn alleging municipal liability, the City cannot be held liable because there was no underlying constitutional violation. See, e.g., Gaddis ex rel Gaddis v. Redford Township, 364 F.3d 763, 777 (6th Cir. 2004).
No reasonable juror could find that Cpl. Clive acted with malice.
Mr. Naji also brought claims for assault and battery and gross negligence under Michigan law. To qualify for immunity under Michigan law, an officer must show that (1) he acted during the course of employment and within the scope of his authority; (2) he acted in good faith; and (3) his actions were discretionary, not ministerial. Odom v. Wayne County, 760 N.W.2d 217, 218 (Mich. 2008). Unlike under federal law, the standard is subjective. Shumate v. City of Adrian, 44 F.4th 427, 451 (6th Cir. 2022). So an officer who believed in good faith that the force used was necessary is protected from liability for an assault and battery claim; whereas, an officer who acted with malicious intent is not. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. Mr. Naji’s representative disputes only whether Cpl. Clive acted in good faith. But the facts do not give rise to any genuine dispute. Under Michigan law, an officer may use lethal force to defend himself or another, and an officer’s use of such force is in good faith when he fires after seeing the assailant aim either at himself or another. Ealey v. City of Detroit, 375 N.W.2d 435, 439 (Mich. Ct. App. 1985); see also Presnall, 657 F. App’x at 513. No reasonable juror could find that Cpl. Clive acted with malice. Cpl. Clive fired only after Mr. Naji tried to shoot him, while Mr. Naji was actively trying to fix his weapon. Cpl. Clive is immune from assault and battery claims under Michigan law.
Established Case Law on Gross Negligence in Cpl. Clive’s Favor
Now gross negligence. Michigan law “has rejected attempts to transform claims involving elements of intentional torts into claims of gross negligence.” VanVorous v. Burmeister, 687 N.W.2d 132, 143 (Mich. Ct. App. 2004), overruled in part on other grounds by Odom, 760 N.W.2d 217. Gross negligence is cognizable under Michigan law only when not “fully premised on” an intentional-tort claim. We have repeatedly applied that principle to bar excessive-force claims disguised as gross-negligence claims. See Bletz, 641 F.3d at 756; Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007); Presnall, 657 F. App’x at 513.
Is there a Constitutional Violation for Violation of Department Policy?
Mr. Naji’s representative contends that his gross-negligence claim is independent from his assault and battery claims. Dearborn Police Department policy, he says, requires an officer to give a verbal warning before resorting to lethal force, which Cpl. Clive failed to do. Thus, Mr. Naji says his gross-negligence claim is premised not on the assault and battery, but on Cpl. Clive’s failure to follow department policy.
Even assuming this is a viable theory, Mr. Naji’s claim still fails. In Brent v. Wayne County Department of Human Services, we dismissed a gross-negligence claim against Detroit and its officers because the plaintiffs failed to identify any legal rule “impos[ing] a duty running from Detroit police officers to private citizens requiring the officers to abide by internal departmental policies.” 901 F.3d 656, 701 (6th Cir. 2018). So too here: Mr. Naji’s representative does not explain how Cpl. Clive owed Mr. Naji a duty to follow departmental policy. He asserts that “law enforcement officers should follow procedures or statutory obligations of the Police Department.” But he identifies no legal authority for the proposition that failure to do so makes an officer liable in tort. Thus, even assuming that Mr. Naji’s gross-negligence claim is not fully premised on underlying intentional conduct, it raises no genuine issue of material fact.
Information for this article was obtained from Naji v. City of Dearborn, No. 24 – 1058 and news reports.
Naji v. City of Dearborn, No. 24 – 1058 was issued by the Sixth Circuit Appellate Court on October 28, 2024 and is binding in Kentucky, Michigan, Ohio and Tennessee.
Lessons Learned:
- Constitutional Use of Force – On May 15, 1989 the U.S. Supreme Court issued Graham v. Connor, 490 U.S. 386 (1989) that provides a three part test to determine if a law enforcement officer’s use of force is Objectively Reasonable; 1) What is the severity of the crime. 2) What threat did the suspect pose? 3) Was the suspect trying to flee or resist? Id at In this case Mr. Naji had indiscriminate homicidal actions when he walked into a police department lobby, pointed a firearm and pulled the trigger in a CLEAR attempt to harm or kill a police officer. Any reasonable person knows that law enforcement officers are presently armed so Mr. Naji KNEW he was initiating an armed encounter. The severity of the crime was attempted homicide. Mr. Naji was a clear and present danger to officers and others and he was resisting his compliance when Cpl. Clive pointed his own firearm at him and Mr. Naji continued to clear the jammed handgun. Consequently, the Sixth Circuit came to the conclusion any reasonable person could “Cpl. Clive’s use of deadly force was objectively reasonable.”.
- Mental Illness – The lawsuit against Dearborn Police asserts the following “ Naji’s representative suggests that the Dearborn police had “every possibility . . . to know Mr. Naji and his mental health,” noting that Mr. Naji once received police assistance after a mental-health episode.”. The outrageous premise is that because Mr. Naji once received law enforcement assistance for his mental illness Cpl. Clive should have taken that previous encounter into account prior to using deadly force against Mr. Naji. Fortunately the Sixth Circuit Appellate Court summarily dismissed this accusation.
- Violation of Policy is Not a Constitutional Violation – Mr. Naji’s legal counsel alleges that Dearborn Police has a policy to give a verbal warning prior to using deadly force. Legal counsel further alleges that at the moment Mr. Naji was trying to clear the firearm jam Cpl. Clive should have called for a deadly force encounter time out and delivered verbal warnings. This outrageous allegation fails in practical application and law. The practical application fails because a firearm jam can be cleared within seconds and Cpl. Clive could have been seriously injured or killed. Additionally, a violation of policy is not a constitutional violation. This was specifically addressed by the Sixth Circuit Appellate court on January 6, 1992 when the court held “A city can certainly choose to hold its officers to a higher standard than required by the Constitution without being subjected to increased liability under §1983. To hold that cities with strict policies commit more Constitutional violations than those with lax policies would be unwarranted extension of the law, as well as a violation of common sense.”. Smith v. Freland, 954 F.2d 343, 348 (1992)
- Pre-Sent Arms! Tim Clive should be highly commended for returning fire under extremely stressful circumstances. Cpl. Clive protected himself, the Dearborn Police staff and the community from a homicidal and mentally unstable predator. Well done!
Does your agency train on Deadly Use of Force?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!