Totality of Circumstances and Second Volleys of Deadly Force:
Romero v. City of Lansing and the Limits of Qualified Immunity at the Pleading Stage

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I. Introduction

In Ashly Romero v. City of Lansing, the Sixth Circuit confronts one of the most fact‑sensitive and recurring problems in modern Fourth Amendment litigation: when may officers use deadly force against an armed suspect who has already been wounded and is on the ground? The case arises from a 40‑second encounter outside the Romero family home, captured on body‑worn cameras, during which Lansing police officers Donovan Moore and Jeff Kurtz fatally shot Stephen Romero while responding to a domestic disturbance call.

The appeal presents intertwined legal questions:

• Whether officers Moore and Kurtz are entitled to qualified immunity at the motion‑to‑dismiss stage on an excessive‑force claim under 42 U.S.C. § 1983.
• How the Supreme Court’s recent decision in Barnes v. Felix affects the Sixth Circuit’s longstanding “segmented” approach to analyzing incidents involving multiple uses of force.
• When courts may rely on body‑camera footage at the Rule 12(b)(6) stage to displace the allegations of a complaint.
• Whether one officer may be liable for failing to intervene in the other’s use of force in a rapidly unfolding shooting.
• What level of factual detail is required to plead a viable municipal “failure‑to‑train” claim under Monell.

Judge Ritz, writing for the court and joined by Judge Moore, reverses in part and affirms in part. The majority holds that:

• The estate has plausibly alleged that the second volley of shots, fired while Stephen Romero was wounded and on the ground, violated his clearly established Fourth Amendment rights, and that qualified immunity is therefore unavailable at the pleading stage on that aspect of the excessive‑force claim.
• The claims for failure to intervene and municipal liability (failure to train and supervise) were properly dismissed.

Judge Griffin issues a lengthy opinion concurring in part and dissenting in part. He agrees that the non‑excessive‑force claims were rightly dismissed but would affirm entirely, concluding that both volleys of gunfire were objectively reasonable as a matter of law and that no clearly established precedent squarely prohibited the officers’ actions in this high‑risk, armed domestic‑violence context. He warns that the majority’s decision “endangers the lives of all law enforcement officers in the Sixth Circuit.”

The opinion is important for three broad reasons:

1. It clarifies the effect of Barnes v. Felix on the Sixth Circuit’s segmented‑incident framework and reinforces a robust “totality of the circumstances” analysis, especially for later phases of a confrontation.
2. It tightens the rules governing the use of body‑cam footage at the motion‑to‑dismiss stage: unless the video blatantly contradicts the complaint, the plaintiff’s allegations govern.
3. It solidifies a line of circuit authority holding that continuing to shoot a suspect who is wounded, on the ground, and plausibly attempting to comply can violate clearly established law even if a firearm is still present.

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II. Factual and Procedural Background

A. The Incident

On December 21, 2023, Ashly Romero called 911 to report a domestic disturbance in her driveway involving her husband, Stephen. She told the dispatcher that Stephen was not armed and that no weapon had been used against her. However, a second caller reported that a woman had been shot, and a third caller later said no one had been shot. It is unclear what combination of these statements—especially the correction—reached the responding officers.

Officers Donovan Moore and Jeff Kurtz of the Lansing Police Department were dispatched. When they arrived:

• Stephen was standing just outside the open driver‑side door of a vehicle; Ashly was seated in the driver’s seat.
• Both officers drew their sidearms as they approached, given what they understood to be a potentially armed domestic‑violence incident.

The crucial sequence, as alleged in the complaint and largely visible on body‑cam footage, unfolded as follows:

1. Officer Moore ordered Stephen to “show your hands” and “get on the ground.” Stephen, holding two cell phones, raised his hands and then slowly placed the phones on the ground, saying “bro! bro!”
2. The officers again ordered him to the ground. Stephen got onto his knees and raised his hands in the air. Ashly remained in the driver’s seat a few feet away.
3. When told to lie “face down,” Stephen instead slowly lowered his left hand across his body, said “listen,” and lifted his shirt to reveal a holstered handgun in his waistband, at his right hip.
4. He then reached toward the holstered gun with his right hand while raising his left hand. At that point, Officers Moore and Kurtz fired on him (the first volley).
5. Stephen yelled in pain and fell forward, ending up on his stomach and elbows. Wounded, he said, with a breaking voice, “I got you . . . I got you.”
6. While lying prone, he again moved his right hand toward his waistband. The officers fired again (the second volley), during which Stephen managed to slide the gun several feet away from his body.
7. Stephen died in the driveway. The entire confrontation—from the first verbal command to the final shot—lasted less than 40 seconds.

The body‑cam footage captured the encounter. The parties and the district court relied on it, though they sharply disagree on what it conclusively shows at the critical moments—especially whether Stephen was actually drawing the gun in a threatening manner during the second volley or instead moving it away in an act of surrender.

B. The Lawsuit and District Court Decision

Acting as personal representative of Stephen’s estate, Ashly filed a § 1983 action in the Western District of Michigan against:

• Officers Moore and Kurtz (in their individual capacities), and
• The City of Lansing (a Michigan municipal corporation).

She asserted three claims:

1. Excessive force (Fourth Amendment) against both officers, based on:
   • Approaching with weapons drawn,
   • The initial shooting when Stephen first reached toward the holstered gun, and
   • The second shooting while Stephen was prone and wounded.
2. Failure to intervene against each officer for failing to stop the other’s allegedly unlawful use of force.
3. Municipal liability under Monell v. Dep’t of Social Servs., alleging that Lansing’s failure to properly train and supervise officers on the use of deadly force caused the shooting.

The defendants moved to dismiss under Rule 12(b)(6), arguing that:

• The officers were entitled to qualified immunity on the excessive‑force claim, and
• The failure‑to‑intervene and Monell claims were legally insufficient.

The district court granted the motion in full. It held that, even accepting the complaint’s allegations and considering the body‑cam footage:

• Both volleys of gunfire were objectively reasonable under the circumstances, and thus no clearly established right was violated.
• The officers had no realistic opportunity to intervene in each other’s use of force, given the compressed timeframe.
• The municipal liability allegations were conclusory and failed to state a plausible failure‑to‑train claim.

Ashly appealed. The Sixth Circuit has jurisdiction under 28 U.S.C. § 1291.

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III. Summary of the Sixth Circuit’s Opinion

The Sixth Circuit’s decision is partly favorable to the plaintiff and partly to the defendants.

A. Excessive Force / Qualified Immunity

On the excessive‑force claim, the court:

• Holds that Ashly’s complaint plausibly alleges that the officers violated Stephen’s clearly established Fourth Amendment rights by the time of the second volley of shots, when he was already wounded and on the ground.
• Declines to decide whether the initial (first) volley violated the Constitution, because establishing a violation during the second volley is sufficient to allow the claim to proceed.
• Emphasizes that under post‑Barnes doctrine, courts must assess the reasonableness of a particular use of deadly force in light of all prior events, including earlier uses of force and any de‑escalation.
• Rejects the district court’s view that the circumstances of the two volleys were “mostly the same.”
• Stops short of fact‑finding on the precise sequence shown in the body‑cam videos, concluding that the footage does not “blatantly contradict” the estate’s account and thus cannot defeat the complaint at the motion‑to‑dismiss stage.

The majority therefore reverses the dismissal of the excessive‑force claim against Officers Moore and Kurtz and remands for discovery and further proceedings.

B. Failure to Intervene

On the failure‑to‑intervene claim, the court affirms dismissal. It holds that although the officers observed each other’s use of force, they lacked any realistic opportunity to prevent it. The entire sequence of shots occurred over less than ten seconds, and there was no advance notice that would have allowed one officer to stop the other.

C. Municipal Liability (Monell)

On the Monell failure‑to‑train claim against the City of Lansing, the court also affirms dismissal. It concludes that the complaint:

• Alleges only general, speculative assertions that “proper training” would have prevented the shooting.
• Fails to identify specific training deficiencies, a pattern of similar prior incidents, or facts showing an “obvious” need for additional training that the City consciously disregarded.

Under Twombly and Iqbal, that is insufficient to plausibly allege deliberate indifference.

D. The Separate Opinion

Judge Griffin concurs in part and dissents in part. He agrees that the failure‑to‑intervene and Monell claims were properly dismissed but would affirm the dismissal of the excessive‑force claim as well. In his view:

• The body‑cam footage blatantly contradicts the complaint’s assertion that Stephen never removed the gun or was clearly surrendering.
• Both volleys of shots were reasonable responses to a suspect who, in the officers’ reasonable perception, had already used a firearm in a domestic disturbance, repeatedly disobeyed commands, and twice reached for and ultimately removed the gun from his waistband at close range.
• No clearly established precedent “squarely governs” these specific facts, particularly given the domestic‑violence context and the short distance between the parties.

He warns that the majority’s approach “egregiously misapplies the law of self‑defense and qualified immunity” and will deter officers from taking necessary protective action in dangerous situations.

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IV. Detailed Legal Analysis

A. Qualified Immunity at the Motion‑to‑Dismiss Stage

Qualified immunity shields government officials from civil damages unless the plaintiff shows:

1. The official violated a constitutional or statutory right; and
2. That right was clearly established at the time of the conduct.

(Cahoo v. SAS Analytics; Mitchell v. City of Benton Harbor.)

The Sixth Circuit reiterates several important themes:

• On a motion to dismiss, all well‑pleaded factual allegations must be taken as true, and all reasonable inferences drawn in the plaintiff’s favor (Guertin; In re Flint Water Cases).
• The circuit “disfavors” granting qualified immunity at this stage because without any factual development beyond the allegations in a complaint, a court cannot fairly tell whether a case is obvious or squarely governed by precedent (Wesley v. Campbell, citing Judge Sutton’s concurrence in Evans‑Marshall).
• Defendants thus “face an uphill battle” at Rule 12(b)(6); as long as the plaintiff states a plausible claim, the case typically proceeds to discovery (Marvaso v. Sanchez).

Romero reinforces this posture: where body‑cam footage does not conclusively resolve factual disputes, the court will not use it to short‑circuit a case at the pleading stage, especially on a fact‑intensive qualified‑immunity question.

B. Use of Body‑Cam Video at the Pleading Stage

The opinion carefully cabins the role of video evidence on a motion to dismiss:

• Ordinarily, review is limited to the complaint, its attachments, documents incorporated by reference and central to the claim, and public records (Saalim v. Walmart).
• Body‑cam videos may be considered if they are referenced in the pleadings and agreed to by the parties—but only to the extent they “blatantly contradict or utterly undermine” the complaint (Bell v. City of Southfield; Hodges v. City of Grand Rapids), echoing the Supreme Court’s standard in Scott v. Harris.
• If the video can reasonably be interpreted in more than one way, the court must view it in the light most favorable to the non‑moving party (Lee v. Russ).
• The fact that video evidence will likely be “dispositive” at summary judgment or trial does not authorize “detailed analysis” of disputed micro‑moments at the Rule 12(b)(6) stage (Saalim n.4).

Here, both sides relied on the body‑cam recordings, and the district court referred to them in dismissing the case. The Sixth Circuit likewise considers the videos but concludes that they are inconclusive at “the relevant instances”—most notably, whether Stephen was reaching for his gun to use it or to surrender it during the second volley.

Crucially, the majority holds that:

• Because the footage does not “blatantly contradict” the estate’s version, the complaint’s characterization must be accepted as true.
• The dissent’s contrary reading—that the video clearly shows Stephen removing his gun—is just that: a different interpretation that might prevail before a jury or at summary judgment, but not a basis for dismissal as a matter of law.

Practically, Romero confirms that body‑cam evidence is a double‑edged sword at the pleading stage: plaintiffs can leverage it to add detail to their allegations, but defendants cannot rely on non‑conclusive video snippets to override plausible inferences in the complaint.

C. Excessive Force and the Post‑Barnes Totality‑of‑Circumstances Standard

1. Basic Fourth Amendment Principles

The starting point is well settled:

• An officer’s use of force is analyzed under the Fourth Amendment’s “objective reasonableness” standard (Graham v. Connor).
• Reasonableness is assessed from the perspective of a reasonable officer on the scene, not with “20/20 hindsight” (Graham; Goodwin v. City of Painesville; Wright v. City of Euclid).
• The officer’s subjective intent is irrelevant (Hart v. Michigan).
• Deadly force is objectively reasonable only when the officer has probable cause to believe the suspect poses an immediate threat to the officer or others (Tennessee v. Garner; Raimey v. City of Niles).
• Courts look at the totality of the circumstances, including:
  • Severity of the suspected offense,
  • Whether the suspect poses an immediate threat, and
  • Whether the suspect is actively resisting or attempting to flee.
  But, as Raimey emphasizes, in lethal‑force cases the “immediate danger” question is often dispositive.

2. The “Segmented” Approach and Its Modification After Barnes

Historically, the Sixth Circuit used a “segmented” approach in excessive‑force cases involving multiple uses of force:

• Courts would break the incident into discrete temporal “segments” and analyze each use of force separately (Dickerson v. McClellan; Thomas v. City of Columbus).
• The focus tended to be on the officer’s decision “at the time he decided to use force,” effectively narrowing the lens to the seconds or split‑second before a gunshot or other application of force (Livermore ex rel. Rohm v. Lubelan).

In Barnes v. Felix, however, the Supreme Court rejected the Fifth Circuit’s even more restrictive “moment‑of‑threat” rule, which confined the analysis to the instant the suspect allegedly posed a threat and disregarded the lead‑up. Barnes re‑emphasized that the Fourth Amendment inquiry must consider the entire totality of circumstances, including events “leading up to the climactic moment.”

The Sixth Circuit in Romero (building on its post‑Barnes decisions in Hodges and Feagin) synthesizes these strands:

• The court may still conceptually “segment” a prolonged encounter for analytical clarity.
• But Barnes “abrogated” the segmented approach to the extent it treated each segment as “hermetically sealed” from prior events.
• Now, when evaluating the reasonableness of any particular use of force (e.g., the second volley), the court must take into account all preceding events, including:
  • Earlier uses of force,
  • Prior compliance or non‑compliance, and
  • Any tactical decisions or missteps by officers.
• The “reasonableness” of deadly force may decline over time as a situation de‑escalates or a suspect becomes wounded or incapacitated.

Romero is a textbook application of this modified totality‑of‑circumstances framework: the second volley must be evaluated in light of the full 40‑second trajectory, not in isolation and not as if it were merely a continuation of the first volley under unchanged conditions.

D. Applying the Standard: The Three Alleged Uses of Force

1. Approach with Weapons Drawn

Ashly argued that the officers’ decision to approach with guns drawn was itself unreasonable. The court quickly rejects this, and the plaintiff does not materially contest it on appeal.

Given the (apparent) information available to the officers:

• A domestic dispute, historically one of the most dangerous call types for responding officers,
• A report that a woman had been shot, and
• The presence of two people still engaged in a dispute upon arrival, with the woman’s full condition not clearly visible,

the officers had ample reason to approach with their guns drawn. That show of force was a reasonable safety measure, not excessive force. Both the majority (implicitly) and the dissent (explicitly) treat this stage as constitutionally unproblematic.

2. The First Volley of Shots

The first volley occurred when Stephen, still on his knees and not yet face‑down, lifted his shirt, exposed the holstered handgun, and then moved his right hand toward the gun while raising his left hand.

• The majority characterizes this as a “more difficult question.” On one hand, Stephen was mostly compliant with commands; on the other, he made a deliberate movement toward a visible firearm at close range to his wife and the officers.
• Rather than decide the issue, the court declines to rule whether the first volley was constitutional, because the excessive‑force claim can proceed based solely on the alleged unreasonableness of the second volley (Baker v. City of Hamilton allows this type of partial focus).
• The dissent, by contrast, finds the first volley plainly reasonable under cases like Thomas, Puskas, and Thornton, emphasizing:
  • Officers reasonably believed a shooting had already occurred.
  • Stephen did not fully comply with commands to get “face down.”
  • He reached for a gun at his waist at a distance where he could very rapidly fire at the officers or his wife.
  • Officers are not required to wait for a suspect to point or fire a gun before acting.

The unresolved status of the first volley is doctrinally significant: on remand, a jury may find either or both volleys excessive, but for present purposes the appellate court needs only one constitutional violation that is plausibly pled and clearly established.

3. The Second Volley: The Core Holding

The second volley is the heart of the case. The majority and dissent both focus here, but reach opposing conclusions.

a. Majority’s Factual and Legal Framing

By the time of the second volley:

• Stephen had already been shot and had fallen forward onto his stomach and elbows, audibly crying out in pain.
• He uttered “I got you . . . I got you,” in a voice that “broke,” which Ashly alleges was an attempt to signal compliance.
• He again moved his right hand toward his waistband while lying prone.
• The officers fired again, during which Stephen was able to push or slide the gun several feet away from his body.

The district court had treated the second volley as involving “mostly the same” circumstances as the first—namely, an armed suspect at close range moving toward his gun. The majority emphatically disagrees:

• Stephen was now wounded and prone, on his stomach and elbows.
• He no longer posed a direct threat to Ashly in the car; she was outside his reach and line of fire.
• Any effort by Stephen to draw and swing the gun toward the officers would have required significant bodily contortion, making an immediate lethal attack less likely.
• The overall trajectory of the encounter showed substantial compliance: Stephen had:
  • Raised his hands,
  • Placed his phones on the ground,
  • Gone to his knees,
  • Moved slowly, and
  • Voluntarily disclosed the gun under his shirt—rather than attempting to conceal or quickly draw and fire it.
• His tone and words (“I got you”) were at least plausibly interpretive of surrender, especially in context and particularly given that officers had just shot him.

Against this background, the majority stresses two doctrinal points:

1. The mere presence of a weapon—even one in the suspect’s hand—is only “one consideration” in assessing the reasonableness of deadly force. Sixth Circuit law rejects any bright‑line rule that “gun in hand” automatically authorizes shooting (Thomas; Chrestman ex rel. Wooden; Campbell v. Cheatham County).
2. The circuit’s precedents are “replete” with cases denying qualified immunity where armed suspects did not in fact pose an immediate threat:
   • Bletz v. Gribble: An elderly man with hearing and vision issues pointed a gun at officers but began lowering it, complying with commands, at the instant he was shot. The court held that if a suspect is shot while obeying an order to lower a gun, the force can be excessive.
   • Lee v. Russ: A knife‑wielding robbery suspect who had calmed, lowered his knife partially, and stood about 30 feet from officers was shot after taking a step that the evidence did not clearly show was toward the officers. The court denied qualified immunity at summary judgment.

The majority finds Romero analogous:

• Like the decedents in Bletz and Lee, Stephen’s behavior was trending toward de‑escalation at the time of the contested shots: he was on the ground, injured, and not making any overtly aggressive movements.
• He appeared at least as compliant as those decedents and arguably more so, since:
  • He had voluntarily shown the gun,
  • He had not explicitly refused any command specific to the weapon, and
  • By the second volley, he was fully in the position officers had ordered (on the ground).
• Under these circumstances, a reasonable officer would not have had probable cause to believe that Stephen presented an immediate threat at the time of the second volley.

As for the body‑cam video, the dissent argues that it clearly shows Stephen removing the gun from his waistband before the second shots. The majority responds:

• Even if the video suggests movement toward the gun, it is ambiguous as to Stephen’s precise intent and the exact timing of the shots relative to the removal and sliding of the gun.
• A trier of fact could plausibly interpret the movement as an attempt to disarm himself by pushing the gun away.
• Because the footage does not blatantly contradict the complaint’s allegation that Stephen was incapacitated and effectively neutralized, the allegation must be credited at this stage.

Bottom line: the majority holds that continuing to fire on a wounded, prone suspect who is plausibly signaling compliance and moving to separate himself from the firearm can violate the Fourth Amendment. On Ashly’s version of the facts, that is exactly what happened during the second volley.

b. Clearly Established Law

The majority then addresses the second prong of qualified immunity: whether Stephen’s right not to be shot under these circumstances was “clearly established” as of December 2023.

The court draws on a line of Sixth Circuit cases to show that officers had fair warning:

• King v. Taylor and Dickerson v. McClellan: Individuals have a right not to be shot unless they are perceived as posing a threat to officers or others.
• Bletz: The right to be free from deadly force while complying with commands to disarm was clearly established by 2011.
• Heeter v. Bowers and Leftwich v. Driscoll: By 2023, it was well established that a suspect’s being armed and disobeying some commands alone does not automatically amount to a threat justifying deadly force; courts repeatedly held that qualified immunity is generally inappropriate when a suspect possesses a weapon but does not have it pointed at anyone.
• Baker v. City of Hamilton: The court has “repeatedly held that the use of force after a suspect has been incapacitated or neutralized is excessive as a matter of law.”

Taken together, these precedents clearly established that:

1. A suspect who is incapacitated or neutralized (e.g., already wounded and on the ground) cannot lawfully be subjected to further deadly force, absent renewed imminent threat.
2. Deadly force against an arm‑bearing suspect is unlawful when he is complying with disarmament commands or otherwise de‑escalating.

The dissent’s central rejoinder is that these cases do not “squarely govern” the specific facts here: domestic‑violence context, a gun at close range, repeated reaching for the weapon, and removal of the firearm from the waistband. The majority responds, implicitly, that exact factual match is not required: what matters is whether a reasonable officer in December 2023 would have understood that shooting a prone, wounded, largely compliant suspect who appeared to be surrendering the weapon posed constitutional problems. Given Bletz, Lee, Heeter, Leftwich, and Baker, the court answers yes.

In this way, Romero pushes back against a narrow, hyper‑fact‑specific reading of the “clearly established” requirement that would effectively immunize all but near‑identical police encounters.

E. Failure‑to‑Intervene Claim

A failure‑to‑intervene claim requires proof that:

1. The defendant officer observed or had reason to know that excessive force would be or was being used; and
2. He had both the opportunity and the means to prevent the harm.

(Turner v. Scott; Bard v. Brown County.)

The Sixth Circuit has repeatedly emphasized that an officer must have a “realistic chance to end it” (Chaney‑Snell v. Young; Pelton v. Perdue). Generally, an event unfolding in a matter of seconds, with no prior warning, does not allow a meaningful opportunity to intervene.

Applying this standard:

• The shootings here occurred in “rapid succession,” with the entire shooting sequence (both volleys) taking less than ten seconds.
• There is no allegation (or realistic inference) that either officer had advance notice the other was about to fire, or time to physically or verbally interpose.
• The court therefore holds that, even assuming the force was excessive, neither officer had the necessary opportunity to prevent the other’s actions.

The court affirms dismissal of the failure‑to‑intervene claim on this basis, whereas Judge Griffin would affirm because he sees no underlying constitutional violation to intervene against.

For practitioners, this reinforces that failure‑to‑intervene claims are exceedingly difficult to sustain in fast‑moving shooting incidents. They are more viable when an officer has time to observe ongoing excessive force—such as a prolonged beating, choking, or repeated tasering—rather than a split‑second gunfire decision.

F. Monell Municipal Liability / Failure to Train

Under Monell v. Dep’t of Social Servs., municipalities are not vicariously liable for the constitutional torts of their employees. A plaintiff must show that:

• An official policy, custom, or practice of the municipality,
• Caused the constitutional injury.

Policies or customs can be shown by:

1. An illegal official policy or enactment;
2. Actions by an official with final decision‑making authority;
3. A policy of inadequate training or supervision; or
4. A custom of tolerance/acquiescence in rights violations.

(Burgess v. Fischer.)

Ashly’s theory was a failure‑to‑train claim: that Lansing failed to train its officers adequately on the use of deadly force. To succeed, she needed to allege:

1. Training or supervision inadequate for the tasks at hand;
2. The inadequacy reflected the City’s deliberate indifference; and
3. The inadequacy caused the constitutional injury.

(Ouza v. City of Dearborn Heights; Ellis v. Cleveland Municipal Sch. Dist..)

“Deliberate indifference” in the training context can be shown either by:

• A pattern of similar constitutional violations that should have put the city on notice; or
• A highly predictable (obvious) risk making the need for training so apparent that failure to provide it amounts to deliberate indifference (City of Canton v. Harris).

In Romero, the complaint alleged in essence that:

• If Lansing had properly trained Moore and Kurtz in use‑of‑force principles, they would have acted differently.

The court finds this insufficient:

• No specific facts are pled about what Lansing’s training consisted of (or failed to include).
• No pattern of similar shootings or prior incidents suggesting a systemic issue is alleged.
• No concrete facts show an “obvious” deficiency in training for domestic‑violence or armed‑suspect encounters.

Given Twombly and Iqbal, such bare recitations of the legal standard and speculative causation cannot survive a motion to dismiss. The court therefore affirms dismissal of the Monell claim.

This portion of Romero illustrates a recurring pattern in Monell litigation: courts demand specific, non‑conclusory allegations about municipal policies, training curricula, patterns of complaints, or policymaker decisions. A single incident, without more, rarely suffices to plausibly allege deliberate indifference via failure to train.

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V. Simplifying the Key Legal Concepts

A. Qualified Immunity, in Plain Terms

Qualified immunity is a legal doctrine that protects government officials (including police officers) from being sued for money damages unless:

1. They actually violated someone’s federal rights; and
2. A reasonable official in their position would have known at the time that what they did was illegal because courts had already clearly said so in similar situations.

It does not say “officers can break the law with impunity.” Rather, it is intended to:

• Give officials breathing room to make reasonable mistakes in difficult, fast‑moving situations.
• Protect them from being sued whenever the law was not clear at the time.

In Romero, the key debate is not so much whether Stephen’s rights were violated (the majority says yes, at least as to the second volley) but whether those rights were “clearly established” in light of prior cases about armed suspects, de‑escalation, and post‑incapacitation use of force.

B. Excessive Force and “Immediate Threat”

When evaluating police force, courts look at whether the officer reasonably believed the suspect was an immediate danger. Factors include:

• Is a serious crime suspected (like armed robbery)?
• Does the suspect have a weapon? Is it visible? Is it pointed at anyone?
• How close are the suspect and the potential targets?
• Is the suspect advancing, retreating, closing distance, or staying still?
• Has the suspect been obeying commands or resisting?

An officer is not required to wait to be shot or stabbed before acting. At the same time, the law does not allow officers to continue to use deadly force once a suspect has been neutralized or is clearly complying.

C. Barnes v. Felix and the “Totality of the Circumstances”

Think of an encounter as a short film. The Supreme Court in Barnes says courts must watch the film, not just “freeze‑frame” the last second before the shooting. Earlier events—like whether officers created or escalated a confrontation, or whether the suspect had started to comply—can affect whether the final use of force was reasonable.

The old “moment‑of‑threat” rule looked only at the last instant; Barnes rejected that. Romero shows the Sixth Circuit applying the film‑not‑freeze‑frame principle to the second volley: when Stephen was on the ground, wounded, and arguably complying, the context had changed considerably from the initial moment he first reached for the gun.

D. The “Blatantly Contradicts” Standard for Video

When a video exists, it does not automatically override the plaintiff’s written complaint. Courts defer to video only if it:

• Clearly and conclusively shows the events in a way that cannot reasonably be disputed, and
• “Utterly discredits” the plaintiff’s story.

In practice, that is a very high bar. If the video is grainy, partially obstructed, or susceptible to different reasonable interpretations, courts must accept the plaintiff’s version at the motion‑to‑dismiss stage, even if the video might later persuade a jury otherwise.

E. Failure to Intervene

This doctrine addresses scenarios where one officer stands by while another uses excessive force. Liability attaches only when the bystander officer:

• Is aware of the excessive force (or that it will be used) and
• Has time and ability to step in and stop it.

In a prolonged beating, an officer might reasonably be expected to shout “stop” or physically pull the aggressor away. But in a five‑second exchange of gunfire, it is unrealistic to expect one officer to foresee and prevent the other’s shots.

F. Monell / Failure‑to‑Train

Municipal liability is not automatic. To sue a city for a wrongful shooting, a plaintiff must connect the dots between:

• The officer’s actions, and
• A citywide policy, custom, or deliberate lack of training or supervision.

A “failure‑to‑train” claim is essentially an argument that:

The city knew (or should have known) that its officers regularly face a certain type of situation, and that without specific training they were very likely to violate people’s rights—and the city nevertheless chose not to provide that training.

To be plausible, such a claim needs more than, “If they’d been better trained, this wouldn’t have happened.” It usually requires allegations about:

• What training actually existed (or did not),
• Past incidents, complaints, or lawsuits showing a pattern, and
• How better training on concrete topics would have prevented the harm.

Romero confirms that broad, generic accusations of poor training are not enough even to get past a motion to dismiss.

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VI. Likely Impact and Broader Significance

A. On Police Practices and Training

Romero sends a clear message about second volleys of gunfire:

• Officers must reassess the threat level after each use of force, especially once a suspect is wounded and on the ground.
• Continuing to fire at any motion toward a weapon, without considering whether the suspect is trying to surrender it or is otherwise incapacitated, can be constitutionally risky.
• De‑escalation indicators—such as compliance with commands, slower movements, vocalizations resembling surrender, and the physical challenges a wounded suspect would face in mounting an attack—should be factored into split‑second threat assessments.

Departments in the Sixth Circuit may need to:

• Update policies and training bulletins emphasizing reassessment between volleys of shots.
• Use scenario‑based training where officers are confronted with wounded but armed suspects and must choose between continuing to fire, taking cover, issuing further commands, or waiting for backup.

At the same time, the dissent’s warnings reflect a genuine concern: if courts too readily second‑guess officers’ split‑second judgments in armed‑suspect encounters, officers may hesitate in situations where hesitation could be lethal. The tension between officer safety and stringent Fourth Amendment limits remains palpable.

B. On Litigation Strategy in the Sixth Circuit

Romero reinforces several important litigation realities:

• Qualified immunity at Rule 12(b)(6) will rarely succeed in complex, fact‑bound excessive‑force cases unless the complaint is obviously deficient or the video is unequivocal.
• Body‑cam footage will not rescue a motion to dismiss unless it leaves no room for reasonable dispute. Defendants will often have to wait for summary judgment to fully leverage video evidence.
• Plaintiffs drafting complaints should:
  • Incorporate key video details that support their narrative,
  • Explain why ambiguous movements (e.g., reaching toward a waist) were consistent with surrender or compliance, and
  • Frame shooting sequences as distinct “phases” where the threat level changed.

Moreover, Romero, in combination with Hodges and Feagin, underscores that post‑Barnes courts will take a holistic view of the encounter. Defense strategies that attempt to isolate only the last fraction of a second will likely be less persuasive.

C. On the Development of Excessive‑Force Doctrine

Doctrinally, Romero:

• Anchors the proposition that continued lethal force against an incapacitated or largely compliant suspect is unlawful in a line of cases going back at least to Baker and Bletz.
• Extends that principle into the challenging context of armed suspects who are wounded and on the ground, where the suspect’s intent is ambiguous (surrender vs. renewed threat).
• Affirms that even when a suspect is armed and has disobeyed some commands, mere possession plus noncompliance is not automatically an “immediate threat” for deadly‑force purposes.

At the same time, the sharp disagreement between majority and dissent—especially over how to read the same precedents (e.g., Thomas, Lee, Jacobs, Mullins)—reveals how fact‑specific and contestable “clearly established” analysis remains. That tension could draw further appellate or even Supreme Court attention if similar cases proliferate.

D. On Municipal Liability and Pleading Standards

On the municipal side, Romero further tightens the already demanding landscape:

• Courts will rigorously enforce Twombly/Iqbal in Monell cases.
• Merely appending a boilerplate Monell count to an excessive‑force complaint—without factual elaboration on training regimes, patterns of misconduct, or policymaker decisions—will almost certainly fail at Rule 12(b)(6).
• Plaintiffs seeking municipal liability should generally:
  • Use pre‑suit investigation or FOIA/public‑record requests to gain a factual basis about policies and training,
  • Allege specific prior incidents (if any), and
  • Explain concretely how the training was deficient and why the risk of constitutional violations was obvious.

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VII. Conclusion: The Significance of Romero v. City of Lansing

Romero v. City of Lansing stands as a significant refinement of excessive‑force and qualified‑immunity doctrine in the Sixth Circuit, particularly in cases involving:

• Multiple volleys of gunfire,
• Armed suspects who are wounded or prone, and
• Ambiguous body‑cam footage at the pleading stage.

The majority’s decision crystallizes several key principles:

1. Totality, not freeze‑frame. In light of Barnes, courts must consider all events leading up to a use of deadly force. A second volley fired at a wounded, compliant suspect cannot simply be justified by reference to the threat level before the first shot.
2. Video is powerful but not omnipotent. Body‑cam footage that leaves room for reasonable dispute cannot be used on a motion to dismiss to override plausible allegations in the complaint.
3. Being armed does not erase other facts. The presence of a gun—even in a suspect’s hand—is only one factor in the reasonableness analysis; compliance, incapacitation, and de‑escalation remain highly relevant.
4. Force after incapacitation is presumptively unlawful. The Sixth Circuit reaffirms that using deadly force on a suspect who is neutralized or incapacitated violates clearly established law, even where the suspect previously posed a serious threat.
5. Ancillary claims are still hard to maintain. Failure‑to‑intervene claims will rarely survive when shootings unfold within seconds, and Monell failure‑to‑train theories require concrete, non‑speculative pleadings.

Judge Griffin’s dissent underscores the controversy surrounding these issues. He views the majority as misreading the video, misapplying self‑defense principles, and diluting qualified immunity by relying on high‑level formulations rather than tightly fact‑matched precedents. His concerns highlight the enduring tension between officer safety and constitutional accountability.

In the broader legal landscape, Romero reinforces a trajectory in Sixth Circuit law toward:

• More searching scrutiny of continued force against subdued or severely injured suspects,
• More rigorous insistence on totality‑of‑circumstances review after Barnes, and
• Greater reluctance to cut off fact‑intensive excessive‑force suits at the threshold based on ambiguous video evidence.

For litigants, law enforcement agencies, and lower courts within the circuit, Romero is now a central reference point in assessing when and how officers may continue to fire on an armed suspect who appears to be down—and what must be pled to challenge or defend such actions under § 1983.