RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0081p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

R ONALD M OORE ; G INA W ALDROP ; D ONALD M OORE , J R ., Plaintiffs-Appellants ,

v

.

C ITY OF M EMPHIS ; P HILLIP P ENNY , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ ┘ No. 16-5552

Appeal from the United St ates District Court for the Western District of Tennessee at Memphis. No. 2:14-cv-02089—S. Thomas Anderson, District Judge. Argued: February 1, 2017 Decided and Filed: April 10, 2017 Before: BATCHELDER, SUTTON, and KETHLEDGE, Circuit Judges.

_________________ COUNSEL
ARGUED: Jeffrey S. Rosenblum, ROSENBLUM & REISMAN, P.C., Memphis, Tennessee, for Appellants. Richard J. Myers, GLANK LER BROWN, PLLC, Memphis, Tennessee, for Appellee City of Memphis. Betsy McKinney, GODWIN, MO RRIS, LAURENZI & BLOOMFIELD, P.C., Memphis, Tennessee, for Appellee Penny. ON BRIEF: Jeffrey S. Rosenblum, Marc E. Reisman, ROSENBLUM & REISMAN, P.C., Memphis, Tennessee, Howard B. Manis, MANIS LAW FIRM, Memphis, Tennessee, for Appellants. Richard J. Myers, GLANKLER BROWN, PLLC, Memphis, Tennessee, Henry L. Klein, APPERSON CRUMP PLC, Memphis, Tennessee, for Appellee City of Memphis. Betsy McKinney, Deborah Godwin, GODWIN, MORRIS, LAURENZI & BLOOMFIELD, P.C., Memphis, Tennessee, for Appellee Penny. KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER and SUTTON, JJ., joined. BATCHELDER, J. (pg. 8) , delivered a separate concurring opinion. 

### >No. 16-5552 Moore, et al. v. City of Memphis, et al. Page 2

_________________ OPINION

_________________ KETHLEDGE, Circuit Judge. Phillip Penny, a Memphis police officer, fatally shot Donald Moore, Sr., after Moore pointed a gun at him during the execution of a search warrant at Moore’s home. Moore’s children sued Penny an d the City of Memphis under 42 U.S.C. § 1983, alleging constitutional violations that they say re sulted in Moore’s death. The district court granted summary judgment for the defendants, holding that they did not violate Moore’s constitutional rights. We affirm.

I.
On September 5, 2012, Memphis Animal Servi ces received its third complaint regarding potential animal cruelty at Moore’s home. The following month, an animal-control officer, Carol Lynch, went to Moore’s resi dence to investigate. Moore did not come to the door initially, but Lynch spoke to Moore’s neighbor, Tammy H illis, who said that Moore had threatened her and that she was “terrified” of him. Lynch then called the Memphis Police Department for support, and two officers joined her at the scene. This time, Moore came to the front door and gestured with his hand behind his back as if he had a weapon. The police officers asked to see Moore’s hands, at which point Moore cursed, backed into the house, and s hut the door. One of the officers tried to tell Moore th rough the door that they just want ed to talk to him about his animals, but Moore responded with more curses.
Soon thereafter, Lynch and John Morgret, a criminal investigator with the Memphis Humane Society, met with Lieutenant Martin Ku la and Officer Scott Edwards of the Memphis Police Department. Based on Lynch’s statement, Lieutenant Kula thought that Moore might be unstable. But Officer Edwards—who was traine d in dealing with people with mental illness— saw nothing in Moore’s records to in dicate that he had a history of vi olence or was mentally ill.
On January 8, 2013, Officer Edwards and Lynch went to Moore’s home. Moore refused to open the door, but through it Officer Edwards told Moore that Animal Services merely wanted to ensure that his animals we re healthy. Moore kept his door closed, ordered them off hisNo. 16-5552 Moore, et al. v. City of Memphis, et al. Page 3

property, and called 911. His call was directed to Lieutenant Kula, who tried unsuccessfully to get Moore to cooperate. After th eir interactions with Moore that day, both Officer Edwards and Lieutenant Kula thought that Moore was angry but not mentally ill. The next day, Hillis told Lynch that, after the officers had left the day before, Moore came out of his house with a gun and said he would kill Lynch if she returned. Acco rding to Hillis, Moore added that he would “shoot first and then ask questions late r” if the officers came back.
On January 10, 2013, Morgret got a warrant to search Moore’s home. Lynch and Morgret presented the warrant to Lieutenant Co lonel Marcus Worthy, who was in charge of the precinct. Lynch and Morgret to ld Lieutenant Colonel Worthy th at Moore had th reatened Lynch and Memphis police officers and that Moore wa s likely armed. Based on that information, Lieutenant Colonel Worthy decide d that TACT (the Memphis Po lice Department’s version of SWAT) should assist in serving the warrant.
TACT uses what it calls a “dynamic entry” wh en it has probable cause to think that the officers who execute a search warrant will enc ounter a person armed and dangerous to them. During dynamic entries, TACT often deploys “f lash-bangs,” which are small, grenade-like devices that disorient persons around them with a sudden loud noise and a very bright light.
After dark on January 11, 2013, Penny led the TACT team to Moore’s home. When they arrived, the officers split into two groups—one posted at Moore’ s front door, and one at the back. At the front door, an officer announced “police department, search warrant,” and then broke the living-room window and threw a flash- bang inside. At the rear, Penny then announced “police department, search warra nt,” entered through the back door , and tossed in another flashbang. One of the TACT officers saw Moore go down a hallway and enter his bedroom, where Moore called 911. Penny and his team appro ached the bedroom and called out “Memphis Police” and “we have a search warrant, Don.” The officers can be heard doing so on the 911 call. Moore yelled back, “I ain’t committed a crime,” and “a search warrant, big shit, . . . nothing criminal happened here.”
Penny decided to secure the bedroom so that Moore could not barricade himself there. One of the officers threw a flash-bang into th e bedroom; Penny followed close behind. Once inNo. 16-5552 Moore, et al. v. City of Memphis, et al. Page 4

the room, according to Penny, he saw Moore several feet in front of him. Moore was facing Penny and holding a semi-automatic pistol in hi s hand—pointed at Penny. On the 911 tape, after the flash-bang goes off, Penny can be heard ye lling, “Hands, Don! Hands, hands, hands!” A couple of seconds later, Penny fi red three shots at Moore, killi ng him. Another officer entered the bedroom and secured Moore’s gun, which was fully loaded with a round in the chamber and still in Moore’s hand. Moore had another pistol in a holster on his belt. Officers also found a rifle next to the front door and axes next to each door into the house.
A year later, Moore’s children sued th e city of Memphis and Officer Penny under 42 U.S.C. § 1983, claiming the officers used excessi ve force in violation of Moore’s Fourth Amendment rights. The defendants moved for summary judgment, which the district court granted. This appeal followed.

II.

We review the district court’s decision de novo. Gradisher v. City of Akron , 794 F.3d 574, 582 (6th Cir. 2015).
To prevail on their § 1983 claims, the plain tiffs must establish that the defendants violated a clearly establis hed constitutional right. See Kindl v. City of Berkley , 798 F.3d 391, 398 (6th Cir. 2015). Officers viol ate the Fourth Amendment when they use “excessive force in the execution of a search warrant[.]” Burley v. Gagacki , 729 F.3d 610, 619 (6th Cir. 2013) (citation omitted). An officer’s use of for ce is excessive if, under the totality of the circumstances, the force wa s objectively unreasonable. Livermore ex rel. Rohm v. Lubelan , 476 F.3d 397, 404 (6th Cir. 2007).
Here, the district court separated the Me mphis Police Department’s encounter with Moore into three segments: the Department’s decision to use TACT to serve the warrant; TACT’s use of a dynamic entry; and Penny’s use of deadly force. Ultimately, however, the district court did not specifically analyze the reasonableness of the decision to deploy TACT; instead, the court found that the reasonableness of that decision merged with the reasonableness of the dynamic entry itself.No. 16-5552 Moore, et al. v. City of Memphis, et al. Page 5

A.
As an initial matter, the plaintiffs argue that the district court should have analyzed the police department’s decision to use TACT separa tely from the dynamic entry that resulted from that decision. We disagree: the decision to us e TACT was not itself an application of force under the Fourth Amendment. What the TACT team did when they got to Moore’s house, however, was an application of force.
So we turn to the question whether the so -called dynamic entry was unreasonable. The plaintiffs say it was, asserting that the TACT team should have knocked (rather than break the living-room window) before entering, and that th e team should not have used flash-bangs. Generally, the police must knock and announce their presence before they enter a residence to execute a search warrant. See Wilson v. Arkansas , 514 U.S. 927, 934 (1995). But that rule does not apply if the officers “hav e a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile[.]” Richards v.
Wisconsin , 520 U.S. 385, 394 (1997).
Here, the officers had several reasons to th ink that knocking and announcing would be dangerous, to wit: when Moore answered the door for officers during their initial visit to his home, he gestured with his hand behind his b ack as if he had a weapon; Moore’s neighbor, Hillis, told Lynch that Moore had a gun; and ( according to Hillis) Moore said he would “shoot first and ask questions later” if the officers came back, and would kill Lynch in particular. Those reasons were enough to allow the offi cers to execute a no-knock entry. See United States v.
Bates , 84 F.3d 790, 795 (6th Cir. 1996). The plainti ffs respond that Hillis’s statements were hearsay. But the defendants di d not offer those statements for the truth of the matter asserted— that is, to show that Moore actually threatened Lynch and the officers. See Fed. R. Evid. 801(c). Instead, the statements were relevant for their e ffect on the listener—namely, that they made the officers believe that Moore had threatened their safety. See United States v. Churn , 800 F.3d 768, 776 (6th Cir. 2015). The statemen ts were therefore admissible.
The plaintiffs also challenge the officers’ us e of flash-bangs, both when they entered the house and just before Penny entered Moore’s room. To determine whether an officer’s use ofNo. 16-5552 Moore, et al. v. City of Memphis, et al. Page 6

flash-bangs was reasonable, we ba lance the officer’s interest in using them against the suspect’s interest in forbearance. Bing ex rel. Bing v. City of Whitehall, Ohio , 456 F.3d 555, 569 (6th Cir. 2006). Here, as the officers ente red Moore’s home, they had reason to believe th at Moore would pose an immediate threat to their safety. Mean while, nothing in the record suggests that flashbangs themselves posed a danger to Moore: he had no health conditions that made him vulnerable to loud noises or blinding light, an d the house contained no accelerants or other substances that could easily ignite. See Krause v. Jones , 765 F.3d 675, 679 (6th Cir. 2014). The officers’ initial use of flash- bangs was therefore reasonable.
As for the second use, by then Moore had refu sed to comply with the officers’ orders after they entered his home; instead he retreate d into his bedroom. Of ficer Penny feared that Moore would barricade himself there, which could endanger the officers. Suffice it to say that, on this record, we see no basis to second-guess that judgment.

B.
That leaves Officer Penny’s decision to s hoot Moore. Law enforcement officers may employ deadly force where “the officer has proba ble cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others[.]” Tennessee v. Garner , 471 U.S. 1, 11 (1985). To determine if an officer had such probable cause, “we must consider the totality of the circumstances from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Pollard v. City of Columbus, Ohio , 780 F.3d 395, 403 (6th Cir. 2015) (internal citations and quotation marks omitted).
The plaintiffs argue that a ge nuine dispute exists as to wh ether Moore pointed a gun at Officer Penny; in their view, Penny might have seen the phone in Moore’s hand and mistakenly thought it was a gun. Be that as it may, however, the relevant question is not whether Moore in fact had a gun in his hand, but whether Penny r easonably thought that M oore did. And on this record a jury could not find othe rwise. Before Penny entered M oore’s bedroom, as noted above, Penny had good reason to think th at Moore was armed. True, when Penny entered the room, smoke from the flash-bang might have obsc ured the object in Moore’s hand. But the 911 recording makes clear that Penny thought it was a gun: he yelled “Hands, Don! Hands,No. 16-5552 Moore, et al. v. City of Memphis, et al. Page 7

hands, hands!” immediately before he shot M oore. Penny’s decision to shoot under these circumstances was the archetype of a split-s econd decision to which we must defer. See id.
As a matter of law, therefore, the defendant s’ use of force was not excessive under the Fourth Amendment. But that does not mean th e dynamic entry, in particular, was wise. The warrant here concerned evidence only of a misdemeanor; and yet the defendants chose a course of action that, though constituti onal, unavoidably jeopardized th e officers’ lives along with Moore’s. In the end Moore was shot, though it just as easily could have been Penny—as the defendants themselves emphasize here. Meanwhile, the officers plainly had available to them other options that did not involv e an immediate physical confronta tion. The officers would have done well to consider them more seri ously than they apparently did.

C.
Finally, the plaintiffs challeng e the district court’s denial of municipal liability. If a plaintiff fails to establish a constitutional violation by the in dividual defendants, then “the municipal defendants cannot be held liable under § 1983.” Watkins v. City of Battle Creek , 273 F.3d 682, 687 (6th Cir. 2001). That is true (despi te the plaintiffs’ argu ments to the contrary) even if the court applied the so-called segmen ting rule in determining that the individual defendants were not liable. See Gaddis ex rel. Gaddis v. Redford Twp. , 364 F.3d 763, 772, 777 (6th Cir. 2004). Hence the district court correctly de nied municipal liability here.

* * *
The district court’s judgment is affirmed.No. 16-5552 Moore, et al. v. City of Memphis, et al. Page 8

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CONCURRENCE

_________________ ALICE M. BATCHELDER, Circuit Judge, conc urring. Although I concur fully in my colleagues’ reasoned opinion, I wr ite separately to emphasize th at, while the Memphis Police Department did not violate any clearly established rule of constitutional law, its decision to use a tactical unit and the way it used that unit are, in these circumstances which stem from a suspected animal cruelty misdemeanor offense, appalling. The fact is that the police department’s conduct, while not constitutionally im permissible, was certainly disproportionate. Had cooler and more rational heads prevailed, M oore’s life likely would have been spared and Memphis Animal Services would still have b een able to investigate the animal cruelty complaints it had received. “The care of human life and happiness, and not their destruction, is the first and only legitimate obj ect of good government.” Thomas Jefferson to the Republican Citizens of Washington County, Maryland (March 31, 1809), reprinted in 1 The Papers of Thomas Jefferson 98–99 (J. Jefferson Looney e d., 2004). The Memphis Police Department would do well to think a bout this admonition.