Romero v. City of Lansing: Deadly-Force Claims May Proceed Past the Pleading Stage When a Second Volley Follows an Initial Incapacitation Under Barnes’s Totality-of-the-Circumstances Rule

I. Introduction

In Ashly Romero v. City of Lansing, Michigan, Ashly Romero—acting as personal representative for the Estate of Stephen Romero—brought federal civil-rights claims arising from a fatal police shooting involving Lansing Officers Donovan Moore and Jeff Kurtz, and municipal claims against the City of Lansing. After a Sixth Circuit panel decision in Romero v. City of Lansing, 159 F.4th 1002 (6th Cir. 2025), the defendants sought rehearing en banc, arguing that the panel’s qualified-immunity and excessive-force analysis conflicted with intervening and recent precedent, particularly the Supreme Court’s Barnes v. Felix, 605 U.S. 73 (2025), and the Sixth Circuit’s Eastep v. City of Nashville, 156 F.4th 819 (6th Cir. 2025).

The en banc court denied rehearing. The order is accompanied by a concurrence (Judge Ritz, joined by Judge Moore) and multiple dissents (Judges Griffin; Thapar and Hermandorfer joined by several judges; Judge Bush; and Judge Readler joined by others). The resulting procedural posture is pivotal: while the en banc court did not issue a merits opinion, the denial leaves the 2025 panel opinion as binding circuit precedent, and the separate writings crystallize a deep intra-circuit dispute about (1) how Barnes affects “segmentation” in excessive-force analysis, (2) the proper “level of generality” for the “clearly established” prong, and (3) whether and how video evidence should drive Rule 12(b)(6) resolution of qualified immunity.

II. Summary of the Opinion (Order Denying Rehearing En Banc)

The Sixth Circuit denied the petition for rehearing en banc because fewer than a majority of active judges voted to rehear the case. The denial leaves intact the panel decision, under which (as characterized by Judge Ritz) the plaintiff’s excessive-force claim—focused particularly on a second round of shots after earlier shots had allegedly wounded Stephen and brought him to the ground—may proceed to discovery, while the plaintiff’s other claims were dismissed.

Judge Ritz’s concurrence emphasizes that the petition’s principal asserted conflicts—Barnes v. Felix and Eastep v. City of Nashville—were not real conflicts. The dissents argue the opposite: that the panel opinion conflicts with Supreme Court and circuit qualified-immunity precedent, misuses the pleading posture, and threatens officer safety by effectively requiring officers to “wait and see” when a suspect reaches for a weapon.

III. Analysis

A. Precedents Cited

1. Barnes v. Felix, 605 U.S. 73 (2025) — Totality of the circumstances and anti-segmentation

Judge Ritz treats Barnes v. Felix as the controlling interpretive frame: courts assessing reasonableness “must consider all the relevant circumstances, including facts and events leading up to the climactic moment.” The concurrence argues the panel complied with Barnes by evaluating the encounter from dispatch information through on-scene observations, including the first time Stephen reached for his weapon and the officers’ initial shots, and then assessing the later shots in light of those earlier events—especially the allegation that the first volley had already wounded and grounded him.

The dissents (particularly Judge Readler’s) re-invoke Barnes in the opposite direction: they argue the panel “hyper-segmented” the episode and effectively decided the case based on the final seconds, contrary to Barnes v. Felix and earlier Supreme Court guidance in Plumhoff v. Rickard, 572 U.S. 765 (2014).

Thus, Barnes is the key doctrinal battleground: whether the panel’s focus on the second volley reflects permissible attention to a changing threat environment within the “totality,” or instead impermissible slicing of a continuous confrontation.

2. Eastep v. City of Nashville, 156 F.4th 819 (6th Cir. 2025) — Post-incapacitation force and temporal proximity

Judge Ritz contends Eastep v. City of Nashville supports, rather than undermines, the panel’s approach. In Eastep, while most officers obtained dismissal, the court permitted a claim against one officer who fired again three seconds after the suspect had been incapacitated and brought to the ground. The concurrence analogizes Romero to that narrower Eastep holding: the legal significance is not merely “seconds,” but whether the suspect—after being downed—still posed an imminent threat.

By contrast, the dissents stress that, in their view, the video shows Stephen continuing to reach for his gun, making the “incapacitated/non-threatening” analogy to Eastep untenable.

3. The “clearly established law” framework and the level-of-generality problem

The Thapar/Hermandorfer dissent anchors its critique in Supreme Court cases repeatedly cautioning courts not to define clearly established rights “at too high a level of generality,” especially in excessive-force suits:

  • District of Columbia v. Wesby, 583 U.S. 48 (2018)
  • City of Escondido v. Emmons, 586 U.S. 38 (2019)
  • Mullenix v. Luna, 577 U.S. 7 (2015)
  • Kisela v. Hughes, 584 U.S. 100 (2018)
  • City of Tahlequah v. Bond, 595 U.S. 9 (2021)
  • Ashcroft v. al-Kidd, 563 U.S. 731 (2011)
  • Brosseau v. Haugen, 543 U.S. 194 (2004)
  • City & County of San Francisco v. Sheehan, 575 U.S. 600 (2015)

Their argument is that the panel effectively relied on the broad proposition—quoted from King v. Taylor, 694 F.3d 650 (6th Cir. 2012)—that individuals have a right not to be shot unless they are perceived as posing a threat. For the dissenters, that framing is precisely what Emmons, Mullenix, and Kisela forbid: the right must be defined with specificity matching the scenario (domestic-violence call; suspected shooting; noncompliance; repeated reaching for a waistband firearm; very short time windows).

The Griffin, Bush, and Readler dissents further marshal Sixth Circuit cases granting qualified immunity in weapon-reach and perceived-weapon contexts, including Cunningham v. Shelby County, 994 F.3d 761 (6th Cir. 2021), Puskas v. Delaware County, 56 F.4th 1088 (6th Cir. 2023), Thomas v. City of Columbus, 854 F.3d 361 (6th Cir. 2017), and Mullins v. Cyranek, 805 F.3d 760 (6th Cir. 2015), arguing these authorities make the officers’ conduct at least debatable and thus immunized.

In short, the dissents view the panel as committing a classic “level-of-generality foul,” while Judge Ritz frames the panel as applying settled “totality” principles and the case-specific inquiry at the pleading stage.

4. Video evidence, dispositive motions, and procedural posture

Several dissents contend the panel mishandled the interplay among Rule 12(b)(6), video evidence, and qualified immunity. They invoke:

  • Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity should be resolved at the “earliest possible” stage)
  • Scott v. Harris, 550 U.S. 372 (2007) (video can “blatantly contradict” a party’s account)
  • Bell v. City of Southfield, 37 F.4th 362 (6th Cir. 2022) (applying the video-contradiction principle in the pleading context)

Judge Bush criticizes the panel’s reliance on the notion that “[o]ur circuit disfavors granting qualified immunity at the motion-to-dismiss stage,” attributing that idea to Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223 (6th Cir. 2005) (Sutton, J., concurring) and its later use in Wesley v. Campbell, 779 F.3d 421 (6th Cir. 2015), while emphasizing that if the operative facts are fixed by video, the stage of litigation should not change the outcome.

Judge Readler expands the critique, warning that the panel’s approach effectively nullifies Rule 12(b)(6) when bodycam footage exists, and he highlights an emerging inter-circuit disagreement by citing Fuqua v. Santa Fe Cnty. Sheriff's Off., 157 F.4th 1288 (10th Cir. 2025).

Judge Ritz does not directly litigate the video/procedure debate at the same level of detail. Instead, he accuses the dissenters of mischaracterizing facts and failing to view them in the plaintiff’s favor—implicitly endorsing a restrained approach to video-driven fact resolution at the pleading stage where competing reasonable interpretations remain.

5. Peripheral but notable citations: institutional critique and policy considerations

Judge Griffin’s dissent also contains an institutional argument for en banc review, citing Supreme Court commentary on the Sixth Circuit’s perceived underuse of en banc correction and alleged error rates, including CNH Indus. N.V. v. Reese, 583 U.S. 133 (2018) (per curiam) and Davis v. Smith, 145 S. Ct. 93 (2025) (Thomas, J., dissenting from denial of certiorari), as well as AEDPA-related reversals (e.g., Shoop v. Twyford, 596 U.S. 811 (2022); Brown v. Davenport, 596 U.S. 118 (2022)). While those cases do not govern excessive-force doctrine, they are invoked to argue that en banc review is needed to maintain uniformity and avoid Supreme Court rebuke.

The Thapar/Hermandorfer dissent situates the case in the elevated-risk context of domestic-violence policing, citing United States v. Rahimi, 602 U.S. 680 (2024) (Sotomayor, J., concurring) and Stimmel v. Sessions, 879 F.3d 198 (6th Cir. 2018).

Judge Ritz, responding to officer-safety rhetoric, notes indemnification commentary and adjacent doctrine limits, citing Brown v. City of New York, 798 F.3d 94 (2d Cir. 2015), Nieves v. Bartlett, 587 U.S. 391 (2019) (Sotomayor, J., dissenting), and (as a contrast in the federal sphere) Egbert v. Boule, 596 U.S. 482 (2022).

B. Legal Reasoning

1. What the denial of rehearing en banc legally does

The order’s core legal effect is procedural but consequential: the en banc court’s refusal to rehear means the panel decision remains binding Sixth Circuit law. Judge Ritz underscores this explicitly: “The panel opinion does, and it binds district courts and future panels.”

2. The concurrence’s doctrinal synthesis: Barnes + evolving threat assessment

Judge Ritz’s concurrence frames the panel opinion as a faithful application of Barnes v. Felix—looking at “all the relevant circumstances”—and as consistent with Eastep v. City of Nashville in recognizing that even in a single encounter, the threat level can change rapidly. The point is not that officers must stop after the first shots as a categorical rule; rather, it is that once a suspect is allegedly incapacitated and no longer poses a threat, continued deadly force can plausibly be excessive, at least enough to warrant discovery.

3. The dissents’ doctrinal synthesis: specificity, deference, and video finality

The dissents converge on three related claims:

  • Specificity: Under City of Escondido v. Emmons, Mullenix v. Luna, Kisela v. Hughes, and District of Columbia v. Wesby, the plaintiff must identify precedent that clearly prohibits the officers’ conduct in materially similar circumstances—especially when a suspect is reaching for a weapon.
  • Deference in split-second decisions: Echoing Graham v. Connor, 490 U.S. 386 (1989) and City & County of San Francisco v. Sheehan, they argue courts should not “second-guess” life-or-death decisions with hindsight.
  • Video as dispositive: Relying on Scott v. Harris and Bell v. City of Southfield, they argue the bodycam footage eliminates genuine factual dispute even at Rule 12(b)(6), making discovery unnecessary and inconsistent with Pearson v. Callahan.

Judge Readler adds a further doctrinal critique: even if one accepts that force can become unreasonable once a threat ends, the panel improperly treated the event as divisible into “stages” and failed, in the dissent’s view, to apply Plumhoff v. Rickard and Barnes v. Felix in a way that treats shots fired seconds apart as part of a continuous confrontation.

C. Impact

1. Immediate doctrinal impact within the Sixth Circuit

Because en banc rehearing was denied, the practical impact is that district courts and panels must apply the 2025 panel decision as precedent. The most concrete doctrinal signal—reinforced by Judge Ritz—is that, in a deadly-force case, a plaintiff may survive dismissal (and proceed to discovery) where the pleadings and record permit a reasonable inference that a later volley occurred after the suspect was wounded, downed, and plausibly no longer threatening, consistent with an evolving-threat understanding also discussed in Eastep v. City of Nashville and Lee v. Russ, 33 F.4th 860 (6th Cir. 2022).

2. Litigation-stage impact: Rule 12(b)(6) and bodycam-era qualified immunity

The separate writings suggest continuing uncertainty—if not a brewing conflict—about how readily courts should resolve qualified immunity on a motion to dismiss when video is in the record. The dissents (especially Bush and Readler) push toward earlier termination based on video clarity; Judge Ritz’s concurrence suggests greater caution where video is “inconclusive” or reasonably contestable when viewing facts in the plaintiff’s favor.

3. Broader ecosystem impact: policing incentives and community trust

Judge Ritz’s concurrence rejects the framing that allowing discovery “gravely endangers” officers, stressing the narrowness of the panel holding and emphasizing policing legitimacy and community trust when deadly force is alleged to be unreasonable. The dissents stress the opposite policy valence: that exposure to litigation and liability may deter decisive self-defense in volatile settings. Although these are not holdings, they are likely to be cited in future briefs as competing narratives about what qualified immunity is meant to accomplish.

IV. Complex Concepts Simplified

  • Rehearing en banc: A request that the full circuit court (not just the original three-judge panel) rehear the case to resolve conflicts or address exceptionally important issues. Denial means the panel decision stays in force.
  • Qualified immunity (two prongs): (1) Did the officers violate the Constitution? (2) Was that constitutional rule “clearly established” in the specific context? If either prong fails, officers are immune from damages.
  • “Clearly established” and “level of generality”: Courts cannot deny immunity by stating the right at a high level (e.g., “don’t use excessive force”). They must identify precedent that makes it obvious, in similar circumstances, that the conduct was unlawful (the dissents rely heavily on City of Escondido v. Emmons, Mullenix v. Luna, Kisela v. Hughes, and District of Columbia v. Wesby).
  • Totality of the circumstances: Under Barnes v. Felix, reasonableness is assessed by looking at the whole encounter, including what led up to the moment force was used.
  • Segmentation vs. evolving threat: “Segmentation” is improperly treating a fast-moving event as isolated slices to find liability. “Evolving threat” recognizes that the threat can increase or decrease over time, and force that was justified at one instant may become unjustified later—particularly after a suspect is incapacitated.
  • Video “blatant contradiction”: Under Scott v. Harris (and as applied in Bell v. City of Southfield), if video unmistakably contradicts a plaintiff’s allegations, courts may disregard those allegations even at early stages. The dissents argue the video is clear; the concurrence’s posture suggests reasonable ambiguity remains when facts must be viewed for the plaintiff.

V. Conclusion

The Sixth Circuit’s denial of rehearing en banc in Ashly Romero v. City of Lansing, Michigan is a procedural endpoint with substantive consequences: it cements the panel opinion as circuit precedent and, per Judge Ritz, confirms that Barnes v. Felix requires a totality-of-the-circumstances analysis that can accommodate an excessive-force theory focused on a second volley after an initial incapacitation. The dissents warn that the panel diluted qualified immunity by employing an overly general “clearly established” framing and by refusing to treat bodycam footage as dispositive at the pleading stage, arguing this conflicts with Supreme Court specificity mandates and Sixth Circuit self-defense precedents.

Going forward, the decision’s significance lies less in the en banc order’s brevity and more in what it preserves: a binding Sixth Circuit rule that, at least on some bodycam records and pleadings, post-downing deadly force may be litigated past dismissal—with the court sharply divided over whether that result reflects faithful application of Barnes and Eastep or a departure from qualified-immunity orthodoxy.