1 18-1491-cv Rose v. City of Utica UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in th e City of New York, on the 25 th day of September, two thousand nineteen. PRESENT: ROBERT A. KATZMANN, Chief Judge , RICHARD C. WESLEY, JOSEPH F. BIANCO, Circuit Judges

.
CHRISTINE ALMAS ROSE, individually and as mother of Jessie Lee Rose, MICHAEL J. ROSE, individually and as father of Jessie Lee Rose, and as the administrator of the estate of Jessie Lee Rose, Plaintiffs-Appellants , v. No. 18-1491-cv CITY OF UTICA, OFFICER ANTHONY ELLIS, individually and as a police o fficer of the City of Utica, Defendants-Appellees , UTICA POLICE DEPARTMENT, Defendant. *

* The Clerk of Court is directed to amend the caption as shown above.2 For Plaintiffs-Appellants: W OODRUFF L EE C ARROLL , Woodruff Carroll P.C., Syracuse, NY. For Defendants-Appellees: Z ACHARY C. O REN , First Assistant Corporation Counsel, Utica, NY.
Appeal from a judgment of the United States District Court for the Northern District of New York (Sannes, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Christine and Michael Rose appeal from a judgme nt of the United States District Court for the Northern District of New York (Sannes, J. ) entered in favor of the City of Utica and Officer Anthony Ellis on April 19, 2018, granting defenda nts’ motion for summary judgment and dismissing plaintiffs’ claims ar ising under 42 U.S.C. § 1983 in c onnection with a police shooting that took place on July 14, 2013. The dist rict court held in relevant part that it was not clearly established at the time of the shooting that a po lice officer could not lawf ully use deadly force against an armed individual who (1) had reportedly been firing a shotgun in side a public park, (2) did not react to an approaching officer’s command to drop his w eapon, and (3) turned toward the officer while still holding the shotgun in his hands . We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. Qualified immunity protects pub lic officials from suit under 42 U.S.C. § 1983 unless they have “violated a statutory or c onstitutional right that was clearl y established at the time of the challenged conduct.” City & Cty. of San Francisco, Calif. v. Sheehan , 135 S. Ct. 1765, 1774 (2015); see also White v. Pauly , 137 S. Ct. 548, 551 (2017) (per curiam) (“Qualified immunity attaches when an official’s conduct does not viol ate clearly established statutory or constitutional3 rights of which a reasonable person would have known.”). 1 The Fourth Amendment “guarantees citizens the right to be secure in thei r persons against unreasonable seizures,” Graham v. Connor , 490 U.S. 386, 394 (1989), incl uding the use of deadly force unless they “pose[] a threat of serious physical harm” to others, Tennessee v. Garner , 471 U.S. 1, 11 (1985). But wh ile “[t]he right to be free from the use of excessive force [under th e Fourth Amendment] has long been clearly established,” Green v. Montgomery , 219 F.3d 52, 59 (2d Cir. 2000), “[a]n officer cannot be said to have violated a clearly esta blished right unless the right’s contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it, meaning that existing precedent placed the statutory or constitutional question beyond debate,” Sheehan , 135 S. Ct. at 1774. This standard “gives government officials breathing r oom to make reasonable but mistaken judgments by protecting all but th e plainly incompetent or those who knowingly violate the law.” Id. On the undisputed facts, it was objectively reasonable for Ellis to believe that Rose posed a threat of serious physical harm to others. Exis ting case law supports defenda nts’ position that an officer is entitled to use deadly force when an ar med individual fails to co mply with an order to put down a weapon and moves in what the officer reasonably perceive s to be a threatening manner. See, e.g. , Fortunati v. Campagne , 681 F. Supp. 2d 528, 539 (D. Vt. 2009), aff’d sub nom. Fortunati
v. Vermont , 503 F. App’x 78 (2d Cir. 2012) (summary order); Greenwald v. Town of Rocky Hill , 3:09-cv-211, 2011 WL 4915165, at *8-9 (D. Conn. Oct. 17, 2011); see also Sheehan , 135 S. Ct. at 1775. 2

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, footnotes, and citations are omitted.

2 Plaintiffs also argue that Ellis did not follow the police department’s de-escalation policies. But whether Ellis followed the policies or not is irrelevant to whether, at the time he fired4 Jessie Rose’s death was a tragedy. But the quest ion before us is whether, taking the facts in the light most favorable to th e plaintiffs, Officer Ellis violated clearly established law. He did

not. We have considered all of pl aintiffs’ other contentions on appeal and have found in them no basis for reversal. For the reasons stated herein, the judgment of the dist rict court in favor of defendants is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

the shots, Ellis was acting reasonably under the Constitution. See Salim v. Proulx , 93 F.3d 86, 92 (2d Cir. 1996) (defendant’s “vari ous violations of police procedur e . . . leading up to the shooting are irrelevant to the objective r easonableness of his conduct at the moment he decided to employ deadly force”).