Qualified Immunity in Welfare-Check Shootings Involving an Armed, Noncompliant Suicidal Subject—and the Bar on Introducing New State-Law Theories at Summary Judgment

I. Introduction

This case arises from a fatal police shooting during a welfare check/suicide-threat response at the home of Desman LaDuke in Nicholasville, Kentucky. LaDuke’s girlfriend and aunt reported that he was suicidal and had a gun. Officers established a perimeter, deployed the Nicholasville Police Department’s Special Response Team (“SRT”), and attempted negotiation through LaDuke’s aunt via FaceTime. After an “emotional spike,” LaDuke appeared at a rear window with at least one firearm, refused commands to drop it, and engaged in aggressive and taunting conduct. Officer Joseph Horton fired the shot that killed LaDuke.

John Norman, as administrator of LaDuke’s estate, sued under 42 U.S.C. § 1983 and Kentucky tort law. The principal federal questions were whether the officers used excessive force (both by (1) the “show of force” in surrounding the house with guns raised and (2) the “use of force” in shooting LaDuke) and whether qualified immunity barred damages. A separate federal question involved an official-capacity (Monell) claim predicated on asserted policies/practices (including training and operational planning). On the state-law side, the appeal centered on whether plaintiff could pivot at summary judgment to a “ministerial duty” theory tied to a “Persons of Diminished Capacity” policy, and whether post-judgment amendment should have been allowed.

II. Summary of the Opinion

• Qualified immunity—deadly force: The court affirmed qualified immunity because plaintiff failed to identify a clearly established rule making it unconstitutional to shoot a mentally ill individual who is armed, disobeying commands to drop the weapon, and at least waving/brandishing it while taunting officers.
• Qualified immunity—show of force: The court likewise found no clearly established rule barring SRT’s surrounding of the home with guns raised given known access to a firearm and noncooperation.
• Official-capacity claim: The court affirmed dismissal; the majority held plaintiff waived the Monell “policy/custom” prong on appeal by failing to brief it, citing Hardrick v. City of Detroit. A concurrence questioned the forfeiture rationale but agreed the claim failed on the merits.
• State-law theory shift at summary judgment: The court held the district court properly refused to consider a new Kentucky “ministerial duty” negligence theory (based on the Persons of Diminished Capacity policy) first raised in response to summary judgment, relying on Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of Michigan.
• Post-judgment amendment: The court affirmed denial of leave to file a third amended complaint after judgment, emphasizing undue delay and prejudice under Foman v. Davis and Duggins v. Steak 'N Shake, Inc.. A concurrence added that Rule 59(e) is a threshold gate to post-judgment amendment.

III. Analysis

A. Precedents Cited (and How They Shaped the Result)

1. Summary judgment framework

• Miller v. Adm. Office of the Courts (de novo review) set the appellate posture.
• Matsushita Elec. Indus. Co. v. Zenith Radio Corp. and Anderson v. Liberty Lobby, Inc. supplied the “genuine dispute of material fact” and “scintilla of evidence” standards.
• Hawkins v. Anheuser-Busch, Inc. reiterated that inferences are drawn for the nonmovant.

These cases mattered less for resolving factual disputes (the panel largely treated the critical “armed + noncompliant + waving/brandishing” facts as undisputed) and more for legitimizing the court’s choice to decide qualified immunity at summary judgment.

2. Qualified immunity and “clearly established” specificity

• Reich v. City of Elizabethtown provided the two-prong qualified-immunity test (violation + clearly established).
• Mullenix v. Luna and Brosseau v. Haugen drove the “do not define the right at a high level of generality” approach; the panel used Brosseau to exemplify the required fact-specific framing.
• Binay v. Bettendorf supplied the formulation that contours must be sufficiently clear that a reasonable official would understand the conduct violated the right.
• Mullins v. Cyranek was used to acknowledge the general principle (“right not to be shot absent probable cause of serious harm”), but the court deemed it too general under Mullenix.

The opinion is a prototypical “clearly established prong” decision: it assumes arguendo that the shooting might be unreasonable under some view of the facts, but resolves the case because plaintiff could not identify a sufficiently particularized precedent governing these circumstances.

3. Fourth Amendment deadly force standards

• Tennessee v. Garner supplied the baseline: deadly force is unreasonable unless the officer has probable cause to believe the suspect poses a threat of serious physical harm.
• Graham v. Connor framed the perspective inquiry (reasonable officer, no 20/20 hindsight).
• Godawa v. Byrd reiterated the Fourth Amendment’s protection against excessive force.
• King v. City of Rockford, Michigan (citing Graham) reinforced the reasonableness vantage and served as a contemporary Sixth Circuit reference point.
• Floyd v. City of Detroit provided the doctrinal hook for potential liability where an officer “unambiguously signal[s] that such force was called for,” relevant to plaintiff’s theory that Officer Fraddosio ordered Horton to shoot.

4. The “closest case” analysis: suicidal person with access to a gun vs. brandishing

• Palma v. Johns clearly established in the Sixth Circuit that shooting an unarmed mentally ill person—despite threatening gestures—can violate clearly established law. The panel distinguished it on the dispositive fact that LaDuke was armed with at least one firearm and was waving/brandishing it while refusing commands.
• Heeter v. Bowers was plaintiff’s best authority: a suicidal man with a gun in pocket/within reach was shot after a slight movement, while not clearly holding a gun. The court held Heeter did not translate because LaDuke was actively brandishing/waving a gun at the critical moment.

The Heeter comparison is the opinion’s central doctrinal move. It implicitly marks a line: Sixth Circuit law may clearly protect a suicidal person who is not visibly armed at the moment of the shot, even if a firearm is accessible; but that protection does not clearly extend to a person who is visibly armed, noncompliant, and waving/brandishing while taunting.

5. Excessive “show of force” doctrine

• Vanderhoef v. Dixon recognized that a disproportionate show of force (e.g., pointing guns) can, in some circumstances, violate the Fourth Amendment even absent physical injury.
• Collins v. Nagle was pivotal: even in a context where arrestees were not significantly armed (at most a pocket knife), pointing a gun was not excessive given uncertainty and escalation. The court used Collins to show that no clearly established rule prohibited the officers here (who faced a known firearm risk and noncooperation).
• United States v. Heath (quoting United States v. Hardnett) supported the proposition that weapons drawn can be consistent with an investigative stop where circumstances give rise to justifiable fear for safety—reinforcing the “not clearly established as unlawful” conclusion.

6. Official-capacity / municipal liability and appellate waiver

• Kentucky v. Graham framed official-capacity suits as suits against the governmental entity.
• Monell v. Dep't of Soc. Servs. required (1) a constitutional violation and (2) a policy/custom as the moving force.
• Gambrel v. Knox County and Dibrell v. City of Knoxville
• Hardrick v. City of Detroit and Stanislaw v. Thetford Twp. were cited for waiver/forfeiture where an appellant fails to brief the Monell policy/custom prong on appeal.

Judge Nalbandian’s concurrence complicates the waiver narrative by citing Meoli v. Huntington Nat'l Bank and Innovation Ventures, LLC v. N.V.E., Inc. for the proposition that responding to alternative grounds raised on appeal is not waived, and by referencing other circuits (e.g., Warmenhoven v. NetApp, Inc.; United States v. Brown; Walker v. Exeter Region Coop. Sch. Dist.) rejecting the notion that appellants must anticipate every alternative affirmance theory in an opening brief. Still, the concurrence affirmed on the merits because of the interaction between “clearly established” and failure-to-train Monell theories (discussed below).

7. Pleading, theory-shifting at summary judgment, and amendment

• Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of Michigan supplied the governing rule: a plaintiff may not shift a theory of liability at summary judgment in a way that materially alters the pleaded factual basis and prejudices the opponent.
• Kentucky immunity and ministerial duty doctrine came from Yanero v. Davis (discretionary immunity; no immunity for negligent performance of ministerial act) and the plaintiff’s burden from Patton v. Bickford.
• Kentucky negligence elements were cited via Carter v. Bullitt Host, LLC.
• Amendment standards were anchored by Foman v. Davis (reasons to deny leave) and Sixth Circuit applications in Moore v. City of Paducah (prejudice required) and Duggins v. Steak 'N Shake, Inc. (heightened burden and prejudice where amendment is sought after deadlines/summary judgment).

The concurrence added an important procedural overlay for post-judgment amendment: it cited Sixth Circuit law and treatise principles that a party must first satisfy Rule 59(e) before Rule 15 becomes relevant, relying on Gen. Motors, LLC v. FCA US, LLC, Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., and Morse v. McWhorter.

B. Legal Reasoning

1. Deadly force: the “clearly established” gap where the subject is armed and brandishing

The panel’s reasoning follows a structured qualified-immunity path:

1. Identify the asserted right (not to be subjected to deadly force absent probable cause of serious harm) while emphasizing that the right must be defined with particularity (Mullenix v. Luna; Brosseau v. Haugen).
2. Compare fact patterns to existing Sixth Circuit cases involving mental health crises:
   • Palma v. Johns is too different because the individual was unarmed.
   • Heeter v. Bowers is too different because the person was not visibly holding a gun at the moment of the shot.
3. Fix the material undisputed facts as the court sees them: LaDuke was armed with at least one firearm, refused commands to drop it, and was at least waving/brandishing it while engaging in aggressive behavior.
4. Conclude no clearly established rule covers those circumstances, so qualified immunity applies without resolving (in detail) whether the shooting violated Garner reasonableness.

In practical terms, the opinion treats “brandishing + noncompliance” as categorically important for the clearly-established analysis. Even if there were factual disputes about whether LaDuke pointed the gun at officers, the court concluded the law was not clearly established even under plaintiff-friendly assumptions (armed, noncompliant, waving/brandishing).

2. Show of force: guns drawn as a not-clearly-unlawful response to a known firearm risk

On the “show of force” theory, the court recognized that merely pointing firearms can violate the Fourth Amendment (Vanderhoef v. Dixon), but treated the case as controlled by the absence of clearly established law prohibiting this level of force given:

• the officers’ knowledge that LaDuke had access to a gun inside the home;
• his refusal to cooperate (ID refusal, refusal to exit, refusal to comply with commands); and
• Sixth Circuit authority that even in less dangerous circumstances, pointing a gun may be permissible (Collins v. Nagle).

The reasoning here is defensive and comparative: plaintiff could not identify a case saying that an armed, barricaded, noncompliant subject has a clearly established right not to have weapons trained on him during an unfolding crisis.

3. Official-capacity claim: waiver vs. merits, and the “clearly established” link to failure-to-train

The majority resolved the official-capacity claim primarily through an appellate waiver rule: because plaintiff did not brief the Monell “policy/custom” prong, the argument was waived under Hardrick v. City of Detroit.

The concurrence’s more substantive resolution is notable for future litigants. It reasoned that where a plaintiff’s Monell claim is rooted in a single incident under a failure-to-train theory, the plaintiff must show it is obvious the lack of training will lead to conduct that is obvious (i.e., clearly established) unconstitutional conduct. The concurrence cited Martinez v. Wayne County (quoting J.H. v. Williamson County) and the line that “the absence of a clearly established right spells the end of the Monell claim,” supported by Arrington-Bey v. City of Bedford Heights. On that view, qualified immunity’s “clearly established” failure is not merely a defense to individual officers—it undercuts a single-incident failure-to-train theory as well.

4. State-law ministerial duty theory: procedural fairness and prejudice

The court’s refusal to consider plaintiff’s Kentucky “Persons of Diminished Capacity policy” theory at summary judgment is an application of a broader procedural fairness principle: defendants are entitled to litigate the case that was pleaded, not a materially different one introduced in opposition to summary judgment.

The opinion emphasizes that the policy-based theory would have changed the litigation’s core questions:

• Whether policy provisions were ministerial (mandatory) or discretionary (judgment-based) under Yanero v. Davis;
• Whether the officers negligently performed ministerial duties (implicating immunity and duty content) under Patton v. Bickford;
• Rather than the pleaded theory—negligence/excessive force in the application of deadly force under Carter v. Bullitt Host, LLC.

The court also rejected plaintiff’s “notice” argument (that deposition testimony and expert reports referencing the policy sufficed). Under Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of Michigan, developing facts about a topic is not the same as pleading it as a liability theory—particularly where defendants would have conducted discovery and summary-judgment briefing differently had the theory been squarely in the case.

5. Post-judgment amendment: undue delay and prejudice (plus the concurrence’s Rule 59(e) overlay)

Applying Foman v. Davis and Sixth Circuit precedent, the majority affirmed denial of a third amended complaint because:

• plaintiff had long been aware of the policy-based theory yet waited until after summary judgment;
• plaintiff had already amended twice without adding this theory; and
• allowing amendment would prejudice defendants by reopening discovery and forcing defense against a “quite different” claim (Duggins v. Steak 'N Shake, Inc.).

The concurrence usefully clarified that once final judgment enters, the plaintiff must first satisfy Rule 59(e) standards before amendment may be allowed, citing Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., Morse v. McWhorter, and Gen. Motors, LLC v. FCA US, LLC. Even if the outcome converges under Rules 59 and 15, the concurrence warns against collapsing Rule 59 into a nullity.

C. Impact

1. Substantive Fourth Amendment/qualified-immunity impact

The opinion reinforces a recurring Sixth Circuit pattern: in mental-health crisis shootings, the “clearly established” inquiry often turns on whether the individual was visibly armed and what the individual was doing with the weapon at the moment force was used. The panel’s treatment of Heeter v. Bowers suggests a doctrinal dividing line:

• Accessible-but-not-in-hand firearm (and hands visible): potentially clearly established protection against immediate deadly force absent more.
• Firearm in hand + refusal to drop + waving/brandishing (and taunting/aggression): no clearly established Sixth Circuit rule prohibiting deadly force, at least on the precedents presented.

This is likely to be cited (persuasively, though nonprecedential) in future welfare-check and barricade cases to argue that plaintiffs must produce factually close precedent when the decedent was armed and noncompliant, even if mentally ill and suicidal.

2. Show-of-force claims in armed-barricade contexts

By relying on Collins v. Nagle and investigative-stop cases like United States v. Heath, the court signals that “guns drawn” claims face a high “clearly established” hurdle when officers have credible information of firearms and escalating noncooperation. For plaintiffs, this increases the premium on identifying cases that condemn prolonged or escalatory displays of force in similar armed, barricaded welfare checks—rather than relying on general proportionality statements.

3. Municipal liability strategy

The split between the majority and concurrence on forfeiture underscores a strategic appellate point: even if the district court did not reach the Monell policy/custom prong, appellants should consider briefing it anyway to avoid waiver arguments under Hardrick v. City of Detroit. Substantively, the concurrence’s reasoning also flags an additional headwind for single-incident failure-to-train theories where the underlying right is not clearly established, as framed by Martinez v. Wayne County and Arrington-Bey v. City of Bedford Heights.

4. Procedural discipline in state-law pleadings

The opinion’s application of Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of Michigan has concrete consequences for police-misconduct cases that combine federal constitutional claims with state-law negligence theories:

• If plaintiffs intend to rely on departmental policies to establish ministerial duties (and thereby avoid discretionary immunity under state law), that theory should be pleaded with clarity early—ideally with specific policy provisions, the asserted mandatory duties, and how breach caused harm.
• Discovery references to a policy, or expert discussion of a policy, will not necessarily preserve a late-breaking policy-based negligence theory.

IV. Complex Concepts Simplified

• Qualified immunity: A doctrine that shields officials from damages unless (1) they violated the Constitution and (2) prior case law made it clear—in a factually specific way—that the conduct was unlawful at the time.
• “Clearly established” right: Not a broad statement like “don’t use excessive force,” but a rule that would have put a reasonable officer on notice that this particular use of force in these particular circumstances was unconstitutional (Mullenix v. Luna; Brosseau v. Haugen).
• Show of force vs. use of force: “Show of force” focuses on displays like pointing firearms; “use of force” is the actual application (e.g., shooting). Both can implicate the Fourth Amendment, but both still require clearly established law to overcome qualified immunity.
• Official-capacity / Monell claim: A claim against the government entity (city/county) arguing that a policy or custom caused the constitutional violation (Monell v. Dep't of Soc. Servs.).
• Ministerial vs. discretionary duties (Kentucky): Discretionary acts involve judgment and often carry immunity; ministerial duties are mandatory, specific tasks, and negligent performance may not be immune (Yanero v. Davis).
• Theory-shifting at summary judgment: Courts generally will not allow a plaintiff to change the core basis of a claim in response to summary judgment where it would prejudice the defendant’s ability to conduct discovery and defend (Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of Michigan).
• Post-judgment amendment: After final judgment, a plaintiff usually must first reopen the judgment under Rule 59(e) (or Rule 60) before Rule 15 amendment is considered, a point emphasized in the concurrence.

V. Conclusion

John Norman v. Joseph Horton affirms summary judgment for officers in a welfare-check shooting by holding that existing precedent did not clearly establish the unconstitutionality of shooting an armed, noncompliant individual who was at least waving/brandishing a gun while taunting officers. It also fortifies two procedural guardrails: (1) plaintiffs cannot introduce materially new state-law liability theories at summary judgment where doing so would prejudice defendants, and (2) post-judgment efforts to amend pleadings face steep delay-and-prejudice barriers (with the concurrence underscoring Rule 59(e) as an added threshold). Even as a nonpublished decision, its reasoning offers a clear blueprint for how Sixth Circuit panels may analyze armed mental-health crises through the lens of “clearly established” law and procedural regularity.