Woodcock v. City of Bowling Green (165 F. Supp. 3d 563, 2016)

Memorandum Opinion and Order

Joseph H. McKinley, Jr., Chief Judge, United States District Court

• This action arises from the tragic shooting of Gregory Harrison by Bowling Green Police Officer Keith Casada. The Court has great respect and admiration for the Bowling Green Police Department and law enforcement generally. It is a difficult and dangerous job we ask them to do and most times, they do it exceedingly well. In this case, there is nothing sinister or evil about Officer Casada. He simply used more force than was reasonable at the time he decided to use force. Case law justifies the use of deadly force when a suspect poses an imminent threat of serious physical harm to officers or others. Most cases justifying the use of deadly force involve rapidly occurring events requiring split second, on the spot, or instantaneous decision-making based on the threatening advances of a suspect. The situation faced that night by the Bowling Green Police Department officers, while tense and potentially dangerous, had not yet reached the point where the use of deadly force was reasonable. Officer Casada simply acted too soon.

This matter is before the Court on Plaintiffs Motion for Partial Summary Judgment on the liability of Defendants Keith Casada and Donitka Kay [DN 60] and on Defendants’ Motion for Summary Judgment [DN 61] and Motion for leave to file the sur-reply tendered by Defendants in opposition to Plaintiffs Reply in Support of Plaintiffs Motion for Partial Summary Judgment against Defendants Donit-ka Kay and Keith Casada [DN 72]. The Court heard oral argument on the motions on November 23, 2015. Fully briefed and argued, this matter is ripe for decision. For the following reasons, Plaintiffs Motion for Partial Summary Judgment [DN 60] is GRANTED in part and DENIED in part and Defendants’ Motion for Summary Judgment [DN 61] is GRANTED in part and DENIED in part. Defendants’ Motion for Leave to file a Sur-Reply [DN 72] is GRANTED and the Court considered Defendants’ Sur-Reply in addressing this matter.

I. Background

This case arises from the fatal shooting of Gregory Harrison by Keith Casada, then an officer of the Bowling Green Police Department, at approximately 2:00 AM on August 12, 2012.

At approximately 1:26 AM, an unidentified caller placed the first of two phone calls from his cell phone to the Bowling Green Police Department (“BGPD”). (Piper Dep. [DN 45-1] 29:2-:19, Mar. 3, 2015.) The first call, which was made to one of BGPD’s administrative lines, not 9-1-1, was received by telecommunication officer Danielle Piper. The caller, later identified as Harrison, stated “Yes, I’m on my way to Louisville Bridge, I wanna beat the hell out of my brother, and if they want me, KILL me,” before disconnecting. (Audio of first phone call, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.25.58 AM.) Piper entered CAD (computer aided-dispatch) notes into the BGPD system of the “nature and description of what happened during that phone call.” (Piper Dep. [DN 45-1] 13:6 — :8; see Piper Dep. Exs. 2-3 [DN 45-1] CAD Report, Aug. 12, 2012.)

Based on Piper’s CAD notes, police dispatcher Christy Montgomery dispatched Officer Keith Casada on the call as the primary officer, and Officers Jordan Wilson and Michael Amos, as back-up officers, to try to locate the caller to see what was going on. (Piper Dep. Exs. 1-3 [DN 45-1]; see Piper Dep. [DN 45-1] 14:17-:24, 21:l-:5, 23:15-24:1.) Montgomery advised of possible “unknown trouble” at Louisville Road bridge at East Riverview Drive and that they had a landline call in, male subject, “advised that he was at the Louisville Road bridge and that he wanted to assault his brother and then disconnected.” (Audio of Police Radio, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.27.25 AM.) The officers responded to the Louisville Road area but were unsuccessful in locating the caller. (Wilson Dep. [DN 43-1] 11:12-12:14, 13:1 — :5.) Piper called the number back to try to verify the caller’s location, but the phone’s voicemail picked up. (Audio of return call, Piper Dep. Ex. 1 [DN 46-1] recorded on 12-Aug-2012 at 01.31.06 AM.) From the recorded voicemail greeting, she learned that the cell phone owner’s first name was Greg. (Id.)

At 1:37 AM, Harrison, who was not yet identified, placed a second call to BGPD, using 9-1-1, instead of one of BGPD’s administrative lines. (See Audio of second call, Hanes Dep. Ex. 1 [DN 48] recorded on 12-Aug-2012 at 01.37.19.) In the second call, Harrison spoke with telecommunication officer Holly Hanes:

[Harrison]: “Uh, yes, my emergency [slurred] I’m at the T-Mart, I’m’a kill my family, I’ve asked for help and I’ve asked for help, [Hanes: “where are you?”] and they have ignored me. No, no, they have ignored me. You know what? You’ll have ignored me.”

[Hanes]: “We sent someone to where you said you were, where are you right now?”

[Harrison]: ‘You know what? I’m gon’ kill my brother, I don’t give a fuck, my mother-in-law’s had a stroke. You know what, I’m down in the parking lot with a gun, by my”

[Hanes]: “What parking lot?”

[buzzing sound] [dial tone]

(Id.) The T-mart convenience store referenced by Harrison was at the corner of Adams Street and East 12th Avenue, approximately half-a-block southwest and one block southeast of where the police first encountered Harrison. Defendant Donitka Kay, a sergeant with the BGPD, was the first officer to encounter Harrison.

At approximately 1:39 AM, police dispatch advised Officer Casada of “unknown trouble on 130 West 11th Avenue, one-three-zero West 11th Avenue. This is a subject that we tracked earlier. He called back, reference to assaulting and his brother break. He advised he would be standing by at this location in the parking lot with a gun.” (Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.38.54 AM, 0:57-1:15.) At 1:42 AM, Sergeant Todd Porter radioed to dispatch asking for the caller’s phone number and whether they knew the caller’s name. The telecommunication officer responding gave Sergeant Porter the number and advised “Negative. He becomes uncooperative, advising that we’re not helping him and that he is going to kill his brother.” (Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.42.25 AM, 0:39-:48.) Dispatch found Harrison’s approximate location by GPS triangulation on Harrison’s cell phone. Sergeant Porter called Harrison’s cell phone and also received his voicemail and learned his first name was “Greg,” which Porter advised over the radio. (Dash-cam video, Phillips Dep. Ex. 30 [DN 58] 0:32-:37, 1:44:42-:47 AM.)

Because the shooting and the preceding events were recorded by a camera affixed to Sergeant Donitka Kay’s police car (the “dash-cam video”), the underlying facts of the case are largely undisputed. The dash-cam footage begins with Sergeant Kay stopping and redirecting traffic on East 11th Avenue. As Kay is getting back into her cruiser, Sergeant Porter is heard advising over the radio that the subject may possibly be named “Greg.” (Dash-cam video; see Kay Dep. Ex. 5 [DN 41-1] Use of Force Report, Sergeant Donitka Kay, at 1 (Aug. 21, 2012).) Sergeant Kay drives her cruiser down East 11th Avenue, panning with the spotlight affixed to the vehicle. Officer Wilson and Casada’s police cruisers are seen parked on Clay Street perpendicular to East 11th Avenue. (See Dash-cam video [DN 58].)

Around 1:47 AM, Sergeant Kay turned left onto Clay Street (heading southwest) from East 11th Avenue and spotted a white male, wearing a white T-shirt and blue jeans walking (northeast) in the direction of 11th Avenue on the railroad tracks that are parallel to the 1100 block of Clay Street (between 11th and 12th Avenues). (Dash-cam video [DN 58] 2:47, 1:46:57 AM.) Kay stopped her car in the right lane of Clay Street, approximately 30 to 50 yards (or 90 to 150 feet), according to Kay and Casada’s later estimates, down the railroad tracks from Harrison. Kay fixed her cruiser’s spotlight on Harrison, alerted dispatch that she was “getting out with suspect on tracks,” got out of her cruiser, and then yelled at Harrison to “put your hands up” and “walk up here to me.” (Id.) Kay asks “are you Greg?” to which the subject yells “yeah.” (Id.) Kay is also heard yelling to “get off the tracks” and “come here,” after which Harrison is seen making a small shuffle down the tracks in Kay’s direction. Kay continues to repeatedly yell, “show me your hands” and “put your hands up,” and Harrison is seen standing motionless.

Officers Wilson and Casada, who had been on foot nearby searching for Harrison, heard Kay yelling at Harrison to “show me your hands.” Wilson and Casada ran to Kay’s location, and stationed themselves on the passenger side of her cruiser, such that the vehicle was between them and Harrison. All officers present were wearing bulletproof vests. (See Kay Dep. [DN 41-1] 67:7-69:8, June 10, 2014; Casada Dep. [DN 44-1] 32:15-:17, June 11, 2014.) There were five Bowling Green police officers present at the scene (Kay, Casada, Wilson, Steff, and Porter), as well as a Western Kentucky University officer (Brian Kitchens).

During the incident, the police blocked off the road and surrounding area and had the trains stopped. (See Phillips Dep. Exs. 32-33 [DN 55-1] CAD Report; Dash-cam video [DN 58].) Between the railroad track and Sergeant Kay and Officer Casada’s position was approximately 18 feet of grassy area, a curved concrete wall, (see Scene Photographs, Phillips Dep. Ex. 1 [DN Sill Bates Nos. D005725-26), and the left lane of Clay Street, (see BGPD Shooting Drawing, Phillips Dep. Ex. 24 [DN 54-1] Bates No. D00489). (See Google Map Images, Defs.’ Mot. Summ. J. Exs. A-C [DN 61-2, 61-3, 61-4].) Kay and Casada were in a slightly elevated position as compared to Harrison. (Casada Dep. [DN 44-1] 32:25-33:2.)

Harrison was intoxicated. (Kay Dep. [DN 41-1] 29:5-:14 (it was “pretty obvious upon contact” that Harrison was intoxicated); Casada Dep. [DN 44-1] 10:4-:19, 34:13-:15.) Officers observed Harrison urinating himself while standing on the train tracks during the incident. (Dash-cam video [DN 58] 6:10-:38, l:50:20-:28 AM; see Kay Dep. [DN 41-1] 29:11-: 14; Casada Dep. [DN 44-1] 10:4-:9.) They also saw Harrison cry intermittently, (see Kay Dep. Ex. 5 [DN 41-1] Use of Force Report of Sgt. Kay), stumble, (Kay Dep. [DN 41-1] 29:11, 58:4-:9), retrace his steps, and shout to the officers that he wanted to speak to his sister, (see Dash-cam video [DN 58]). The officers are heard on the dash-cam video telling Harrison that they will call his sister once he shows them his hands. (Dash-cam video [DN 58] 8:23, 1:52:33 AM; see Kay Dep. [DN 41-1] 58:14-59:17.) Officer Casada testified that Harrison had his left arm behind his back and was waving his right arm in the air and screaming, that he appeared sweaty, had slurred speech, and his pants looked wet, possibly from urinating on himself, and that given his behavior it was a “good possibility” that Harrison was intoxicated. (See Casada Dep. [DN 44-1] 10:4-:19.)

During the approximately twelve-minute exchange, Officer Casada and Sergeant Kay continually and repeatedly yelled to Harrison to “stop,” “stop and put your hands up,” “stop, don’t move,” “stop or I will shoot you,” and “sit down.” While Harrison is visible in the dash-cam video from Sergeant Kay’s vehicle, he is generally standing in one place. For the first five minutes of the encounter (1:47 — :52 AM), he is stationary, though he occasionally turned to face the other direction and turned back, he does not walk anywhere. For the next four minutes (l:52-:56 AM), Harrison occasionally takes a step or two down the railroad tracks in the direction of 11th Avenue and twice retraces his steps back in the direction of 12th Avenue, always stopping in response to the officers’ yelled commands. At one point, Harrison is seen reaching with his right hand into his right front pocket and then into his left front pocket with what appears to be some difficulty in getting his hand in his pocket. The officers yell “Greg, show us your hands” and Harrison straightens up. (1:55:44 — :49 AM.) At approximately 1:56 AM, Harrison takes another step down the railroad tracks toward 11th Avenue and is no longer visible from the dash-cam.

According to Wilson’s Statement, because Harrison did “not respond to any attempts to show his hands, get on the ground, or respond to any questions or attempts to deescalate the situation,” Wilson “decided to change positions to get a different angle and possibly determine whether [Harrison] was armed.” (See Kay Dep. Ex. 7 [DN 41-1] Use of Force Report, Officer Jordan Wilson (Aug. 21, 2012).) Wilson took up a position between 1131 and 1137 Clay Street, which put him directly across from Harrison and in a position to observe Harrison from concealment. (Id.; see also Kentucky State Police NIBRS Initial Report and Supplementary Reports, Phillips Dep. Ex. 9 [DN 52-1] Interview by Sgt. Phillips with Ofc. Wilson (Aug. 30, 2012).)) From this position, Wilson was still unable to determine if anything was being held in Harrison’s left hand, which was concealed in his pants behind his back. (Id.)

Officer Ernie Steff was also on the scene, located behind Harrison, and thus somewhat in the line of fire from Officer Casada and Sergeant Kay. Steff took cover behind a large concrete foundation and some small trees. According to Steffs Use of Force Report, Harrison heard Steffs approach and started yelling about someone being behind him, but he could not see Steff because of Steffs cover. Steff stated that he “was able to see Harrison briefly but the officers positioned on Clay Street was [sic] washed out by spotlights and blue lights.” (Kay Dep. Ex. 8 [DN 41-1] Use of Force Report, Officer Ernie Steff (Aug. 20, 2012); see Steff Dep. [DN 39-1] 30:4-:15, Aug. 13, 2014.) Steff observed Harrison with one arm behind his back with his hand shoved down his pants, which caused Steff to be unable to verify if Harrison had a weapon or not. (Steff Dep. [DN 39-1] 28:13-:16, 29:24-30:8, 30:19-:23 (testifying that Harrison’s hand was actually inserted into his blue jeans behind his back).) Steff relayed this over the radio to the other officers and stated he was going to change position and try to get a better view. (Kay Dep. Ex. 8 [DN 41-1] Use of Force Report of Ofc. Steff.)

Throughout the exchange, Harrison stayed within the railroad tracks, moving parallel to Casada and Kay. (See Kay Dep. [DN 41-1] 47:17-:21; 33:21-:2S (Harrison never stepped over nearest railroad track toward Kay and Casada); 83:3-:10 (Harrison never moved in any direction toward Kay other than down the railroad track between the rails; clarifying Sgt. Porter’s interview), 150:4-152:13; Casada Dep. [DN 44-1] 60:4-:8.) Throughout the' encounter, Harrison’s left hand remained out of view, either behind his back and/or tucked into the waistband of his pants, (see Kay Dep. [DN 41-1] 30:11 — :18, 58:10-:13 (Harrison never moved his left hand); Casada Dep. [DN 44-1] 10:4-:13, 41:21-42:1), and attempts to view him from different angles were unfruitful. According to Kay’s Use of Force Report, Harrison turned his back towards her and Casada twice during the incident and “[d]uring those two times that Greg had his back to Officer Casada and I, I could not see if [sic] Greg’s hand. Greg had his hand stuck so far down his pants that could only see from his wrist up.” (Kay Dep. Ex. 5 [DN 41-1] Use of Force Report of Sgt. Kay at 2.) Harrison did not obey the officers’ orders that he show what was in his left hand or to sit down. (See Dash-cam video [DN 58]; Kay Dep. [DN 41-1] 103-04.) Harrison was not running from or otherwise attempting to elude the police. (Dash-cam video [DN 58].)

At 1:57 AM, Sergeant Kay advised over the police radio “that if he takes one more step this way, uh, we’re shootin’.” (Dash-cam video [DN 58] 12:48, at 1:56:57 AM; Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.56.57 AM.) Sergeant Porter advised Sergeant Kay and Officer Casada to tell Harrison they were going to shoot him, which they did. (Id.)

A minute-and-half later, Sergeant Kay reports over the police radio that Harrison has apologized to his mom for whatever it is he is about to do. (Dash-cam video [DN 58] 14:32, at 1:58:42 AM; Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 01.58.32 AM.) Following the mom-forgive-me statement, Casada asks Kay to go around to the driver’s side of her cruiser and manually adjust the searchlight in an effort to keep Harrison illuminated as he gradually made his way down the railroad tracks. (Casada Dep. [DN 44-1] 30:8-32:24; Kay Dep. [DN 41-1] 148:21-149:2.) At 1:59 AM, Kay is heard on the dash-cam video saying “cover me” and immediately thereafter, the spotlight on the left side of the frame moves position. (See Dash-cam video [DN 58] 14:55, at 1:59:05.) Kay then returns to the passenger side of the cruiser.

Just before 2:00 AM, Officer Casada shoots Harrison, hitting him in the left upper abdomen. (See Dash-cam video [DN 58] 15:36, at 1:59:46 AM; Audio of Police Radio, Phillips Dep. Ex. 28 [DN 58] recorded on 12-Aug-2012 at 1.59.32 AM.) Harrison was not facing Kay and Casada when the shot was fired. (See Autopsy Report [DN 54-1] 5 (projectile of bullet indicates that Harrison was not facing Kay and Casada when shot).) Casada' testified that Harrison was at approximately a 45 degree angle to him, (Casada Dep. [DN 44-1] 40:17-41:20), at a distance determined later to be 71.9 feet from Casada, (KSP NIBRS Report, Phillips Dep. Ex. 9 [DN 52-1] Trooper Lonnie Hodges Supp. (Aug. 27, 2012)). Kay and Casada were on the passenger’s side of Kay’s cruiser when Ca-sada fired the shot. Kay was not looking at Harrison when the shot was fired; she was somewhat crouched behind her vehicle, radioing to other officers. (See Kay Dep. [DN 41-1] 36:5 — :24.)

Officers then converged on Harrison and called for ambulance. Harrison was taken to the hospital, where he succumbed to his injury and was pronounced dead later that morning. The Kentucky State Police investigated the shooting. The lead detective of the investigation was then-Detective Laura (Isenberg) Phillips. Sergeant Phillips presented the investigation’s evidence to the Commonwealth Attorney on August 30, 2012, and he declined criminal prosecution regarding this incident. (See Phillips Dep. [DN 50-1] 78:21-79:6.)

Carey Woodcock, as administratrix of the estate of Gregory Harrison, filed this action in this court in August 2013, seeking damages. The Complaint includes claims for: excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983 (Count I); negligence and gross negligence (Count II); vicarious liability against Defendants City of Bowling Green, Hawkins, Wiles, and Watts for the state-law claims against Defendants Kay and Casada (Count III); common-law battery (Count IV); the tort of outrage (intentional infliction of emotional distress) (Count V); wrongful death under KRS 411.130 (Count VI); and violation of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (Count VII). (See 2d Am. Compl. [DN 84].) Both parties have filed motions for summary judgment.

II. Standard of Review

Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the Federal Rules of’Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing, that the materials cited do not establish the absence ... of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

The summary judgment standard does not change when a court is presented with cross-motions for summary judgment. Profit Pet v. Arthur Dogswell, LLC, 603 F.3d 308, 312 (6th Cir.2010) (citing Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991)). “The fact that both parties have moved for summary judgment does not mean a court must grant judgment as a matter of law for one side or the other; rather, a ‘court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’” Id. (quoting Taft, 929 F.2d at 248).

III. Discussion

Plaintiff moves for summary judgment on “liability against Defendants Donitka Kay and Keith Casada,” arguing that their “decision to shoot Gregory Harrison was objectively unreasonable and therefore constituted excessive force, negligence[,] and battery as a matter of law, and negligence per se.” (Pl.’s Proposed Order [DN 60-3] 1.) Defendants move for summary judgment on all claims against them [DN 61],

A. Dismissal of Certain Claims

Plaintiff, in her response brief to Defendants’ Motion for Summary Judgment, stated she has no objection to the dismissal of her claims: (1) against Defendant Kevin Wiles; (2) against Defendant Melanie Watts; (3) of 'conspiracy involving anyone other than Defendants Kay and Casa-da; (4) under Title II of the Americans With Disabilities Act; and (5) of battery against anyone other than Defendant Ca-sada. (See Pl.’s Resp. to Defs.’ Mot. Summ. J. [DN 63] 1.) Accordingly, those claims are DISMISSED with prejudice.

B. Section 1983 (Count I)

Plaintiff brings claims under 42 U.S.C. § 1983 against the City of Bowling Green, Chief Doug Hawkins, Sergeant Donitka Kay, and Officer Keith Casada for violation of Harrison’s constitutional rights. Section 1983 of Title 42 of the United States Code imposes civil liability on those individuals who, acting under col- or of state law, deprive a citizen of, among other things, his federally guaranteed constitutional rights. Brosseau v. Haugen, 543 U.S. 194, 197-98, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). To state a claim under § 1983, a plaintiff must set forth facts that, when favorably construed, establish: (1) the deprivation of a right secured by the Constitution or laws of the United States; (2) caused by a person acting under the color of state law. Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)); see also Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir.2010). Because “[s]ection 1983 is not itself a source of any substantive rights, but instead provides the means by which rights conferred elsewhere may be enforced,” the Court’s “first task ... is to identify the specific constitutional ... rights allegedly infringed.” Meals v. City of Memphis, 493 F.3d 720, 727-28 (6th Cir.2007) (citations omitted). In this case, Plaintiff contends that Defendants, acting under the color of state law, violated Harrison’s Fourth Amendment rights by using excessive force, acting with deliberate indifference by failing to train and supervise, failing to employ qualified persons, and failing to promulgate appropriate operating policies and procedures either formally or by custom. The parties do not dispute that Officers Kay and Casada were acting under the color of state law during the incident at issue in this case.

In resolving a claim of excessive force, each defendant’s liability must be assessed individually based on his or her own actions. Pollard v. City of Columbus, Ohio, 780 F.3d 395, 402 (6th Cir.), cert. denied, — U.S. -, 136 S.Ct. 217, 193 L.Ed.2d 130 (2015). “To hold an officer liable for the use of excessive force, a plaintiff must prove that the officer (1) actively participated in the use of excessive force, (2) supervised the officer who used excessive force, or (3) owed the victim a duty of protection against the use of excessive force.” Id. (quoting Binay v. Betten-dorf, 601 F.3d 640, 650 (6th Cir.2010)).

1. § 1983 Claim against Casada for Excessive Force

Plaintiff contends that Officer Casada violated Harrison’s Fourth Amendment right to be free from excessive force. Plaintiff moves for summary judgment on her § 1983 claim against Casada, arguing that Casada’s decision to shoot Harrison was objectively unreasonable. Defendants argue that they are entitled to summary judgment on Plaintiffs § 1983 individual capacity claim against Casada (1) because Casada did not use excessive force as Ca-sada’s actions were objectively reasonable under the Fourth Amendment and (2) because Casada is entitled to qualified immunity.

The doctrine of qualified immunity shields government officials performing discretionary functions from civil liability insofar as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The immunity is “immunity from suit rather than a mere defense to liability.” Mitchell v. For-syth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The Supreme Court has recognized a two-part test for determining whether a defendant is entitled to qualified immunity. Generally, the first step in a qualified immunity analysis is to ask whether the officer’s conduct violated a constitutional right. Pearson, 555 U.S. at 232, 129 S.Ct. 808. If a constitutional right was violated, the second step is to ask whether the right was clearly established at the time of the violation, such that “a reasonable officer confronted with the same situation would have known that using deadly force would violate that right.” Chappell v. City Of Cleveland, 585 F.3d 901, 907 (6th Cir.2009). These two inquiries may be addressed in any order. Pearson, 555 U.S. at 236, 129 S.Ct. 808.

a. No Genuine Dispute of Material Fact Exists

In this case, as both parties acknowledged at oral argument, there is no dispute as to the material facts that occurred regarding the shooting of Harrison. That is, there is not “a dispute over which set of facts to believe,” as the Court is “not presented with ‘dueling accounts of what happened.’ ” Pollard, 780 F.3d at 401 (quoting Romo v. Largen, 723 F.3d 670, 670 (6th Cir.2013)). The Supreme Court stated in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), that when the material facts are not in dispute, the reasonableness of the use of force “is a pure question of law,” expressly rejecting Justice Stevens’s argument in dissent that “[wjhether a person’s actions have risen to a level warranting deadly force is a question of fact best reserved for a jury.” 550 U.S. at 381 n. 8, 127 S.Ct. 1769; id. at 395, 127 S.Ct. 1769 (Stevens, J., dissenting); see Chappell, 585 F.3d at 909 (quoting Scott, 550 U.S. at 381 n. 8, 127 S.Ct. 1769) (“At the summary judgment stage, once the relevant set of facts is determined and all reasonable inferences are drawn in favor of the plaintiff, to the extent supported by the record, the question whether the detectives’ actions were objectively unreasonable is ‘a pure question of law.’”); Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir.2008) (“Scott ... instructs us to determine as a matter of law whether the events depicted on the video, taken in the light most favorable to [the plaintiff], show that the Officers’ conduct was objectively reasonable.”); Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir.2007) (same). The parties here do not disagree about what happened, but instead disagree about the legal implications of those undisputed facts — namely, whether Casada’s use of deadly force was objectively reasonable. This is a pure question of law for the Court to determine. Scott, 550 U.S. at 381 n. 8, 127 S.Ct. 1769; Chappell, 585 F.3d at 909; see Pollard, 780 F.3d at 401 (plaintiff argued Sixth Circuit did not have jurisdiction to entertain the officers’ interlocutory appeal of the district court’s denial of officer’s motion for summary judgment based on qualified immunity; plaintiff asserted that suspect was unarmed, injured, and trapped in a car when shot by officers; officers did not dispute that account, just simply maintained that, despite being unarmed, injured, and trapped, suspect was still a threat, first, because he appeared to have a gun, and, second, because they had strong reason to believe he would use the gun; court found that because officers conceded the facts in the light most favorable to the plaintiff, they raise a pure issue of law); see also Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir.2008); Luna v. Mullenix, 765 F.3d 531, 544-46, 550 (5th Cir.) (King, J., dissenting), opinion withdrawn and superseded, 773 F.3d 712 (5th Cir.2014) cert. granted, decision rev’d, — U.S.-, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) and reh’g denied, 777 F.3d 221 (5th Cir.2014).

b. Constitutional Violation

The federal right at issue here is Harrison’s right, secured by the Fourth Amendment, not to be subjected to excessive force during an arrest, investigatory stop, or other “seizure” of his person. Graham v. Connor, 490 U.S. 386, 388, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). It is undisputed that Casada’s use of deadly force was a “seizure” of Harrison under the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“[Ajpprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”). A claim that a government official used excessive force during the course of a seizure is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Id. Thus, in answering whether Casada violated Harrison’s constitutional rights, the Court must determine whether his use of deadly force was objectively reasonable under the Fourth Amendment.

The test for whether an officer’s use of force violates the Fourth Amendment is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. This inquiry “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Garner, 471 U.S. at 8, 105 S.Ct. 1694). Application of the objective reasonableness test “requires careful attention to the facts and circumstances of each particular case, including [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.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. This non-exhaustive list of factors “help[s] inform our ultimate inquiry, which must always be ‘whether the totality of the circumstances’ justified the use of force.” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir.2015) (quoting Livermore v. Lubelan, 476 F.3d 397, 404 (6th Cir.2007)); see Garner, 471 U.S. at 8-9, 105 S.Ct. 1694 (the question is “whether the totality of the circumstances justifle[s] a particular sort of ... seizure”).

As in other Fourth Amendment contexts, “the ‘reasonableness’ inquiry in an excessive force case is an objective one: the 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.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. “The ‘reasonableness’ of a particular 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.” Id. at 396, 109 S.Ct. 1865. “The calculus of reasonableness must embody allowance for the fact 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.” Id. at 396-97, 109 S.Ct. 1865. In making this judgment, the Court must be careful not to substitute “our 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). Rather, the Court must adopt a “built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.2002). After all, “[w]hat constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.” Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996) (citation omitted). As to the specific question of deadly force, the Sixth Circuit has stated that a minimum requirement for the use of deadly force is that there is probable cause to believe that the suspect poses an imminent threat of serious physical harm, either to the officers or to others. See Mullins, 805 F.3d at 766 (citing Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir.2005)).

Plaintiff first asserts that Garner “required three factors to be present to justify the use of lethal force: (1) the person must be suspected of committing a felony; (2) s/he must be trying to escape; and (3) s/he must present at least an immediate threat of serious physical'harm to the officer or others.” (Pl.’s Mot. Summ. J. [DN 60] 4.) Plaintiff then contends that there is no genuine issue of fact that (1) “Harrison was guilty of, at most, a misdemeanor offense or offenses, which lacked the severity to justify the use of lethal force”; (2) “Harrison did not pose an immediate risk to the safety of Defendants or others”; and (3) “Harrison was neither actively resisting arrest or attempting to evade arrest by flight when he was shot.” (Id. at 5.) Plaintiff concludes that given these undisputed facts, no reasonable juror could believe Defendants’ claim that “Harrison presented such a risk that he had to be shot,” and thus, “Defendants’ conduct constituted excessive force as a matter of law.” (Id.)

The Court disagrees with Plaintiffs premise regarding the mandatory nature of the Garner factors. The Supreme Court in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), expressly rejected a reading of Garner offered by the respondent in that case that is substantially similar to that proposed by Plaintiff in this case. See id. at 381-83, 127 S.Ct. 1769. The Court stated the “argument falters at its first step; Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Gamer was simply an application of the Fourth Amendment’s ‘reasonableness’ test, Graham, [490 U.S.] at 388, 109 S.Ct. 1865, to the use of a particular type of force in a particular situation.” Harris, 550 U.S. at 382, 127 S.Ct. 1769.

The Court also disagrees with Defendants to the extent that they imply that the Graham factors are only to be considered in a “fleeing felon” situation. Courts routinely apply these factors when determining objective reasonableness of an excessive force claim in a wide variety of circumstances, not only those involving fleeing felons. E.g., Burchett, 310 F.3d at 944; Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir.2004). Thus, while not “rigid preconditions,” this non-exhaustive list of factors is relevant to the Court’s ultimate inquiry into whether an officer’s use of deadly force was objectively reasonable under the totality of the circumstances. Mullins, 805 F.3d at 765 (citing Sigley, 437 F.3d at 534). Considering the Graham factors, as well as other relevant factors, from the perspective of a reasonable officer on the scene and not using hindsight, the Court concludés that the use of deadly force in this case was not objectively reasonable.

Seventy of the Crime. The Court finds that the severity-of-the-crime inquiry weighs against Casada. Plaintiff contends that Harrison was guilty of, at most, a misdemeanor offense or offenses, which lacked the severity to justify the use of lethal force. In this case, the officers were dispatched to Harrison’s location not to arrest him, but to investigate Harrison’s threats of violence and respond to Harrison’s request for help. See Glenn v. Washington Cnty., 673 F.3d 864, 874 (9th Cir. 2011) (noting that officers were called not to report a crime, but to seek help for their emotionally disturbed son); Deorle v. Rutherford, 272 F.3d 1272, 1280-81 (9th Cir.2001) (noting that officers were called “not to arrest him, but to investigate his peculiar behavior [as] Deorle was clearly a deeply troubled, emotionally disturbed individual”). Sergeant Kay testified that at no point were the officers trying to arrest Harrison. (Kay Dep. [DN 41-1] 115:1-:14.) Further, Kay testified that she was unaware of any offense that Harrison had committed at the time he was shot other than refusing to follow the orders of the police. (See Kay Dep. [DN 41-1] 112:18 — :25.)

Plaintiff states that even using the benefit of 20/20 hindsight, at the time Harrison was shot, he was at most guilty of: public intoxication (misdemeanor), KRS 525.100; disorderly conduct (misdemeanor), KRS 525.055 and 525.060; terroristic threatening (misdemeanor), KRS 508.080(1); resisting arrest (misdemeanor), KRS 520.090; and/or trespassing on railroad property (misdemeanor), KRS 277.350 and 511.070. The Court agrees with Defendants that it is not necessarily the felony/misdemeanor distinction that is relevant; so much as, it is the severity of the crime at issue. The only crime Harrison potentially committed that goes to the heart of Garner’s standard — “crime[s] involving the infliction or threatened infliction of serious physical harm,” Garner, 471 U.S. at 11, 105 S.Ct. 1694 — was terroristic threatening, a Class A misdemeanor, for his threats regarding his brother/family during his calls to the police. While those threats are serious, Harrison’s family was not at the scene and Harrison did not attack the officers or anyone else, or threaten to do so at any point while the officers were on the scene. Compare Pollard, 780 F.3d at 399 (suspect with warrant for crimes of forcible rape, assault with a deadly weapon, burglary, and kidnapping led officers on high-speed chase before crossing highway median and ramming head on into semitrailer), with ■ Garner, 471 U.S. at 21-22, 105 S.Ct. 1694 (noting that although burglary is a serious crime, it is a “property” crime, not a “violent” crime and that it is not so dangerous as automatically to justify the use of deadly force); Solomon, 389 F.3d at 174 (noting that trespassing is “a minor offense and certainly not a severe crime that would justify the amount of force used,” which included slamming suspect against wall and forcibly bending her arm until it broke).

In Bouggess v. Mattingly, the court stated that

It cannot reasonably be contended that physically resisting arrest, without evidence of the employment or drawing of a deadly weapon, and without evidence of any intention on the suspect’s part to seriously harm the officer, could constitute probable cause that the suspect poses an imminent danger of serious physical harm to the officer or to others.

482 F.3d 886, 891 (6th Cir.2007). Here, Harrison was not even physically resisting the officers; he was simply passively non-compliant. In Deorle v. Rutherford, 272 F.3d 1272 (9th Cir.2001), the plaintiff “brandish[ed] a hatchet” and a crossbow, was verbally abusive to officers, threatening to “kick [their] ass,” and continually roamed about his property despite officers’ orders. 272 F.3d at 1276-77. Nonetheless, the Ninth Circuit did not consider this sufficient active resistance to warrant use of a beanbag shotgun. Id. at 1282-85. Rather, the court noted that “the crime being committed, if any, was minor.” Id. at 1282.

Actively Resisting Arrest or Attempting to Evade Arrest by Flight. Turning to the third factor, “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight,” Graham, 490 U.S. at 396, 109 S.Ct. 1865, the Court finds that it, too, weighs against Casada. First, the officers were not even trying to arrest Harrison at the time he was shot. Further, no one contends that Harrison tried to flee before Casada shot him. Kay testified that Harrison was not trying to escape, run away from the police, or hide at any point during the incident. (Kay Dep. [DN 41-1] 112:14 — :17.) Whether Harrison was “actively resisting arrest” is more complicated. As noted, the officers were not trying to arrest Harrison at the time he was shot, thus Harrison could not logically have been “actively resisting arrest.” However, the Court finds that Harrison’s level of resistance is relevant to the constitutional inquiry. See Untalan, 430 F.3d at 317 (finding it could consider the fact of the suspect’s resistance to officer’s efforts to restrain him even though suspect had not been informed he was under arrest and thus it did “not fit the wording of Graham perfectly”). Significantly, Harrison “’did not attack the officers’ or anyone else, nor did he threaten to do so at any point while officers were on the scene.” Glenn, 673 F.3d at 875 (quoting Smith v. City of Hem-et, 394 F.3d 689, 703 (9th Cir.2005)). Rather, he moved down the railroad tracks a few steps at a time, sometimes retracing his steps, while staying within the railroad tracks from the time the officers arrived and took no threatening actions (other than noncompliance with shouted orders). See id. In Smith, 394 F.3d 689, the Ninth Circuit held that the plaintiffs refusal to obey officers’ commands to remove his hands from his pockets to show police whether he was armed, as well as his entry into his home despite officers’ orders and his brief physical resistance were “not ... particularly bellicose.” 394 F.3d at 703. Smith and Glenn are similar to this case in that the crux of the resistance was the refusal to follow officers’ commands, rather than actively attacking or threatening officers or others.

Probable Cause to Believe Harrison posed an Imminent Threat of Serious Physical Harm to Officers or to Others. The question of whether there was probable cause to believe that Harrison posed an imminent threat of serious physical harm to officers or to others is the crux of this case. Both parties appear to agree on this point. “In excessive force cases, the threat factor is ‘a minimum requirement for the use of deadly force,’ meaning deadly force ‘may be used only if the officer has probable cause to believe that the suspect poses a threat of severe physical harm.’” Mullins, 805 F.3d at 766 (quoting Untalan, 430 F.3d at 314). The reasonableness of the use of deadly force is measured “at a particular time based on an ‘objective assessment of the danger a suspect poses at that moment.’” Id. (quoting Bouggess, 482 F.3d at 889).

Plaintiff contends that there is no objective evidence that Harrison posed a threat to the officers or anyone else. (Pl.’s Mot. Summ. J. [DN 60] 14 (“Based on what Defendants Kay and Casada knew at the scene of the shooting, ... there were no objective facts to support their belief that they or anyone else was at risk of serious physical harm or death when they decided to shoot Mr. Harrison. In addition to what Defendants themselves knew, the circumstantial evidence does not support any inference of such a risk: .... ”).) Plaintiff characterizes the situation as Harrison doing nothing when he was shot except taking one more step down a railroad track with his left hand behind his back. Harrison had been consistently non-compliant with those commands, stumbling, slurring, had urinated on himself, and appeared intoxicated.

Here, under the totality of the circumstances, there was not probable cause to believe that Harrison presented an imminent threat of serious physical harm to the officers or to others. The officers knew from the police radio that Harrison had called the police department twice that night; that his name was possibly Greg; that he had a gun, based upon Harrison’s statement in the phone call, not upon personal observation of Harrison with a gun, as no one observed Harrison with a gun or a weapon of any kind; that he had called the police asking for their help (see Casa-da Dep. [DN 44-1] 9:14-:20 (“I believe the comments hp made to dispatch was that he was not getting any help or we were not helping him. And I can’t remember the specifics, other than that call was tracked to that location area.”)); and that he had stated he wanted to assault or wanted to kill his brother. The officers knew from arriving at the scene and observing Harrison that he had on a white T-shirt, blue jeans, and had brown shaggy hair; he had his left arm behind his back and was waving his right arm in the air and screaming; he appeared sweaty, had slurred speech, and his pants looked wet, possibly from urinating on himself; given his behavior it was a “good possibility” that Harrison was intoxicated. It is undisputed that Harrison was noncompliant with the officers’ commands to “show your hands” and “sit down.”

Defendants contend that Casada acted reasonably in the situation he confronted, which Defendants characterize as a “dynamic scene” created by Harrison’s repeated refusals to follow officers’ orders. Defendants rely on Pollard v. City of Columbus, 780 F.3d 395 (6th Cir.2015), but the facts of Pollard are clearly distinguishable from this case. In Pollard, a rape suspect under surveillance left his apartment and drove off in his vehicle. There was a warrant for his arrest on several charges and the police sergeant ordered for a marked cruiser to make the arrest because the suspect was potentially armed. Id. at 398-99. The suspect refused to stop and led four police vehicles on a highway car chase before crossing the median, accelerating the wrong way, and ramming head-on into a semitrailer. Id. Officers surrounded the suspect’s vehicle as it was radioed that the suspect had a concealed-carry permit (information that later proved false). Id. at 399. The officers fatally shot the suspect after he reached down into the car, despite police commands to “show his hands,” and after clasping his hands into a shooting posture, pointing them at the officers. Id. at 400.

Here, there was no warrant issued for Harrison’s arrest, let alone for violent offenses such as forcible rape, assault with a deadly weapon, burglary, and kidnapping as there was in Pollard. There was no clear die-before-surrender mentality as exhibited by driving a car head-on into a semitrailer. See Pollard, 780 F.3d at 403 (“Additionally, the officers knew Bynum was determined to avoid arrest, even at the expense of others’ safety and his own life. In fact, Bynum was so determined to avoid arrest he chose to engage in a high-speed car chase and drive head-on into a semitrailer rather than surrender. Bynum ‘had proven he would do almost anything to avoid capture.’” (quoting Smith, 954 F.2d at 347)). Unlike in Pollard, where the officers were faced with a split-second decision in a situation that unfolded quickly, the officers here had twelve minutes to assess the situation before Casada fired at Harrison, see Kirby v. Duva, 530 F.3d 475, 482-83 (6th Cir.2008) (“Finally, and critically, defendants had sufficient time under plaintiffs’- account to assess the situation before firing' several rounds at Kirby.”). Moreover, there was no sudden, unexpected escalation of events giving rise to a serious physical threat to the officers or to others like there was in Pollard, 780 F.3d at 403-04 (officers, who originally approached suspect’s vehicle post-collision without hesitation- thinking suspect was unconscious, “shot after a dramatic change ’ in circumstances — after Bynum regained consciousness and made gestures suggesting he had a weapon, gestures he continued to make even after officers told him to ‘Drop it’ and ‘Don’t do it’”); see Mullins, 805 F.3d at 767 (officer faced with “rapidly escalating situation” when, during stop and frisk where suspect physically struggled with officer, within a five-second span, suspect removed previously concealed firearm without any direction from officer to do so, had his finger on the trigger, threw the weapon over officer’s shoulder after being commanded to drop it, and officer shot suspect twice). Here, at the moment he was shot, Harrison was on the railroad tracks, not directly facing the officers, taking a step/steps in the direction of 11th Avenue, as he had numerous times throughout the 12-minute encounter, with his left hand still behind his back in his waistband, as it had been throughout the 12-minute encounter, and having made no threats against the police. Contra Untalan, 430 F.3d at 315 (“Armed with a butcher knife, Ronnie suddenly burst out of the kitchen and lunged at Officer Wolford. Ronnie attacked Wolford and caused him to drop to the ground. Officer Kopronica shot Ronnie within seconds of this attack, after Ronnie had tried to get up off of the couch, while Ronnie was struggling for the butcher knife on the couch with Romeo.”). In addition to there being no split-second judgment to be made, Plaintiff emphasizes that not only had Harrison not suddenly done something out of the ordinary from the preceding twelve minutes, but that Kay testified that Harrison’s shooting was the result of an agreement she reached with Casada to shoot Harrison if he moved past the point illuminated by the searchlight on her cruiser. (See Pl.’s Mot. Partial Summ. J. [DN 60] 15-16 (quoting Kay Dep. [DN 41-1] 19-22).)

Defendants contend.that by continually refusing to show the officers’ both hands and keeping one hands in his pants, Harrison acted as though he had a gun. It was unknown to the officers at the scene whether Harrison had a weapon, as Harrison had told the 9-1-1 operator that he had a gun, but one hand (his left) remained out of view, behind his back and tucked into the waistband of his pants, and attempts to view him from different angles were unfruitful and Harrison did not respond to officers’ instructions to put his hands up. As Defendants note, the fact that Harrison was actually unarmed when he was shot is beside the point, see Mullins, 805 F.3d at 767-68; Pollard, 780 F.3d at 403, what matters is what a reasonable officer in their position would have done, knowing what the officers knew, id. However, unlike in Pollard, where the suspect “extended his arms and clasped his hands into a shooting posture, pointed at the officers,” 780 F.3d at 400, Harrison made no such movements or gestures to indicate that he had a gun, let alone to indicate that he was pointing a weapon at the officers. Both officers testified in their depositions that Harrison never even moved his left hand. Thus, even if Harrison had been concealing a weapon in his left hand, there is no evidence that he made any aggressive movements with it or threatened officers with it in any way. Further, during the 12-minute encounter with the police, Harrison never claimed he had a gun, never brandished anything that appeared to be a weapon, and never threatened anyone.

Defendants argue that “Harrison’s final declaration — asking his mother for forgiveness for what he was about to do — followed by his failure to show both hands while advancing upon Kay and Casada beyond the reach of the cruiser’s spotlight reasonably created the impression that Harrison posed a serious threat of bodily injury.” (Defs.’ Mem. Supp. Summ. J. [DN 61-1] 14.) Defendants emphasize what they characterize as Harrison’s “final declaration,” the alleged statement by Harrison to the effect of “momma, please forgive me.” According to Sergeant Phillips’s KSP Report following her interview with Sergeant Kay, Kay stated that she felt, after hearing Harrison mutter something that she interpreted to be Harrison apologizing to his mother for what he was about to do, that whatever Harrison was going to do was imminent. (KSP NIBRS Report, Phillips Dep. Ex. 9 [DN 52-1] Interview by Sgt. Phillips with 'Sgt. Kay (Aug. 14, 2012).) When asked in his deposition whether Harrison had “indicate[d] that he had any intent whatsoever to visit harm upon any members of the [BGPD] that were out on that scene other than his movements?” Casada responded ‘Tes” and referenced the same “mama, forgive me for what I’m about to do” statement. (See Casada Dep. [DN 44-1] 38:5 — :23.) Notwithstanding this perceived indication of intent to harm BGPD, Casada then asked Kay to abandon her position of cover on the passenger side of her cruiser and go around to the driver’s side of her cruiser and manually adjust the searchlight, in an effort to keep Harrison illuminated as he slowly made his way down the railroad tracks. (Casada Dep. [DN 44-1] 30:8-32:24; Kay Dep. [DN 41-1] 148:21-149:2.) Kay is heard on the dash-cam video saying “cover me” and immediately thereafter, the spotlight on the left side of the frame moves position. Casada testified during his deposition that he did not feel that Kay was in danger, despite that she was moving out from the cover of the car to the side of the car exposed to Harrison, because he had his weapon trained on Harrison and felt absolutely confident that he could shoot Harrison if Harrison made any sudden movements or tried anything. (Casada Dep. [DN 44-1] 31:7-:23.) Likewise, Kay testified that while she undertook some additional risk in repositioning the searchlight, as she was no longer covered by her police cruiser and she was “very concerned” about Harrison, she trusted Officer Casada because she knew he had been well trained and was reasonably confident that if Harrison made an aggressive move or pulled a weapon, Casada could shoot Harrison before Harrison shot her. (Kay Dep. [DN 41-1] 142:9-143:17.) While the subjective beliefs of Kay and Casada are not material to the objective reasonableness inquiry, a reasonable officer on the scene might perceive that Harrison’s “mom, forgive me” statement indicated something imminent was going to happen. However, an officer exposing herself by abandoning her cover right after that statement and nothing happening decreases the reasonableness of the perception of imminent action.

Furthermore, Harrison was not “advancing upon” Kay and Casada, as Defendants claim. Both Kay and Casada testified that Harrison never stepped over the rails, and thus was travelling parallel to the officers. Kay testified that Harrison never gave any indication that he was going to step over the rail nearest Kay and Casada and come towards them directly. (Kay Dep. [DN 41-1] 152:8-:13.) Casada testified that Harrison had gotten to a point that was close enough to him and Kay that he believed that Harrison presented a risk of death or serious bodily harm to him, if Harrison had a handgun. (See Casada Dep. [DN 44-1] 24:6-:16.) Ca-sada’s subjective perception of a threat, of course, are not pertinent to the objective reasonableness inquiry. Graham, 490 U.S. at 397, 109 S.Ct. 1865 (“An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”); see Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011); Clem v. Corbeau, 284 F.3d 543, 553 n. 5 (4th Cir.2002) (noting that the district court erroneously suggested that the officers subjective actual belief at the time of the shooting had some relevance in determining his entitlement to qualified immunity and stating that the entitlement to qualified immunity depends not on subjective beliefs but rather on the objective reasonable officer on the scene). Plaintiff emphasizes that Harrison was 71.9 feet from Officer Casada at the moment he was shot. In DeMerrell v. City of Cheboygan, 206 Fed.Appx. 418 (6th Cir.2006), the suspect was 25-30 feet from the officer when the officer shot him. Id. at 428-29. The plaintiff argued that the distance was not close enough to pose an imminent threat to the officer. Id. The Sixth Circuit said it mattered little whether the distance was 25-30 feet or 15-20 feet because the undisputed evidence showed that the suspect was “on a direct path approaching the officers” and aiming his gun at the officers at the time he was shot. Id. Here, by contrast, Harrison was almost 72 feet from the officers, who were barricaded behind Kay’s cruiser, was not on a direct path approaching the officers, but instead was continuing down the railroad tracks parallel to the officers’ position, and was not even facing the officers at the time he was shot, let alone pointing a gun at them.

Whether Warning Given. The Court also considers whether officers gave a warning before employing the force, when feasible under the circumstances. See Garner, 471 U.S. at 11-12, 105 S.Ct. 1694; Bouggess, 482 F.3d at 892. In this case, more than once Casada and Kay yelled warnings like “we’re about to shoot you, show us your hands!” and “Stop, Greg, or I’ll shoot!” It seems that Harrison did hear these warnings, as the officers reported that he had responded “shoot me,” although it is unclear whether Harrison understood these warnings because he was intoxicated. See Glenn, 673 F.3d at 876.

Suspect’s Mental State. Plaintiff, relying on Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir.2004), asserts that whether a person is mentally ill is a factor to be considered in assessing the reasonableness of the force employed. Id. at 904. Plaintiff, citing her police practices expert, argues that Casada and Kay failed to manage properly a situation involving a man who was “obviously drunk, emotionally distraught, and mentally ill.” (Pl.’s Mot. Partial Summ. J. [DN 60] 14.) Defendants counter that Plaintiffs argument that Harrison was mentally ill “is irrelevant, due to the fact it is undisputed that the officers were not aware of Harrison’s mental illness at the time of the incident.” (Defs.’ Resp. to Pl.’s Mot. Partial Summ. J. [DN 65] 6.) Further, relying on Sheffey v. City of Covington, 564 Fed.Appx. 783, 796 (6th Cir.2014), Defendants argue that “the Officers’ actions cannot be said to be unreasonable based upon perceived mental illness or mental disturbance where the suspect poses an immediate danger to the officers and himself.” (Defs.’ Resp. to Pl.’s Mot. Partial Summ. J. [DN 65] 6.)

In making the reasonableness inquiry, a suspect’s mental state is one of the factors that must be taken into account, to the extent that it could be known by a reasonable officer on the scene. See Champion, 380 F.3d at 904 (quoting Deorle, 272 F.Sd at 1283) (“[W]here it is or should be apparent to the offic