United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 4, 2020

Decided May 12, 2021

Before

FRANK H. EASTERBROOK, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 19-3464

ESTATE OF ANDRE ALEXANDER

GREEN,

Plaintiff-Appellant,

v.

CITY OF INDIANAPOLIS, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:17-cv-02673-JPH-TAP

James P. Hanlon, 

Judge.

O R D E R

This is an excessive force case that arises out of a fatal police shooting. After

excluding the plaintiff’s forensic psychology expert, the district court entered summary

judgment in favor of the defendants. On the limited record before the court, we affirm

the judgment.

I.

At around 10 p.m. on August 9, 2015 in Indianapolis, decedent Andre Green, age

15, and another juvenile stole a red Nissan Altima automobile at gunpoint. One of the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-3464 Page 2

two juveniles subsequently fired four shots from the car at a group of people who were

standing at an intersection. Green was driving the stolen vehicle.

In response to a police dispatch, which included a description of the vehicle and

its license plate, five marked police cars began tailing the Nissan, which Green was

driving at a normal speed. Green ultimately turned onto a dead-end street, and police

officers at that point activated their lights. As the vehicle approached the end of the

street, the officers parked their cars six to eight feet apart in a tactical V formation

behind the Nissan to block the street. (There was, however, an open field to the

immediate west of the Nissan.) 

Three things occurred as the Nissan reached the end of the street: the Nissan’s

passenger fled the vehicle on foot, Green turned the Nissan around, and Phillips exited

her vehicle and voiced loud commands to Green to exit the vehicle and show his hands. 

Officer Cory Heiny, one of the five officers at the scene, chased the fleeing

juvenile on foot. Three other officers—Adam Mengerink, Vincent Stewart, and Marc

Klonne—remained at the scene and, like Phillips, exited their vehicles, positioning

themselves between their vehicles and the Nissan. All of the officers were aware that

Green might be armed, given the reports that the Nissan was taken at gunpoint and that

someone in the car had fired at a group of people.

On the Estate’s understanding of the facts, Phillips’ order that Green step out of

the Nissan and raise his hands marked the initiation of a felony stop. It is undisputed

that Green did not comply with Phillips’ commands. He remained inside of the car, and

drove it forward toward the parked police cruisers and the officers. As the district court

noted, the parties dispute what happened next. 

According to the defendant police officers, Green drove the Nissan into Phillips’

car, then backed up, scraping the side of Heiny’s car as he did so, revved the Nissan’s

engine, and accelerated forward a second time, this time toward the officers who were

standing in front of the police vehicles. 

The Estate posits that Green drove the Nissan into Phillips’ car only once. On its

view of the facts, Green scraped against Heiny’s vehicle in the course of executing a

multi-point turn. Once the vehicle was turned around, Green drove forward slowly in
No. 19-3464 Page 3

an ill-fated effort to drive through or around the police cars now blocking his egress

from the dead-end street.

As Green drove the Nissan forward toward the officers and police vehicles

blocking his path, officers Mengerink, Stewart, and Klonne opened fire at Green

through the windshield and front passenger window of the Nissan. The three officers

would later testify that, at the moment they fired, they were unsure precisely where

Phillips was and were concerned that if she were in her vehicle, she might be injured

when Green struck it with the Nissan. One or more of the officers were additionally

concerned that the Nissan might strike and injure themselves in addition to Phillips. As

the firing commenced, the Nissan slowed, its wheels turned in the direction of Phillips’

vehicle, and struck her vehicle near the driver’s door.1

 A total of 20 shots were fired.

According to Stewart, Green opened the driver’s side car door and stood up “like

nothing had happened” but then collapsed face-first to the pavement. He had suffered

five gunshot wounds. Two of the entrance wounds were on the back side of Green’s

body: one on the right side of Green’s middle to lower back and one on his right lower

leg. As described by the coroner’s report, the bullet responsible for the former wound

entered Green’s back and traveled upward and forward, perforating the lower lobe of

the right lung, entering the right ventricle of the heart and exiting the anterior left

ventricle, and disrupting the coronary artery routes. The bullet then fractured the

sternum and the left fifth rib and lodged within the anterior chest wall. The bullet that

struck Green’s lower leg fractured his mid-tibia and fibular bones.

After Green collapsed, one of the officers on the scene handcuffed his wrists,

dragged his prone body away from the Nissan, and turned him over onto his back. At

this point in time, a handgun was observed next to or underneath Green’s body.

The record does not reveal precisely when Green died. We may assume as the

Estate does that the bullet that transected Green’s heart was fatal, although it is worth

noting that the coroner’s report itself does not go that far, instead listing multiple

gunshot wounds as the cause of death. However, nowhere in the report does the

coroner indicate how quickly Green’s death would have ensued from the injury to his

heart.

1

 The record does not reveal in what gear the car was left after it came to a halt. 
No. 19-3464 Page 4

Green’s estate filed this section 1983 action against the City of Indianapolis and

the three officers who shot at Green, contending that the officers had used excessive

force and that the city was liable under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

658, 691 (1978). 

Given that the three officers who fired at Green were shooting from the front and

front passenger side of the vehicle, the Estate’s theory was that the fatal shot, which

entered through Green’s back, must have been fired after Green emerged from the

vehicle or while he was doing so. In support of that theory, the Estate relied in part on

the coroner’s report as to the location of the entry wound, but largely upon the report of

William Harmening, a forensic psychology expert with 36 years of experience in law

enforcement. Based on the evidence from the scene of the shooting, including the

pattern of bullet cartridges, where the shards of shattered glass from the Nissan’s

windows fell, the location of the fatal wound on Green’s back, and so forth, Harmening

concluded that the Nissan had slow-rolled into Phillips’ squad car; that many if not

most of the shots—including the fatal shot—were fired after the Nissan came to rest;

that the fatal shot that struck Green’s heart likely killed him almost immediately; and

(as just noted) that Green was getting out of the car or had left the car altogether when

the fatal bullet struck him. 

The district court granted summary judgment to the defendants. The court found

that the Estate had disclosed Harmening’s expert report 75 days after the deadline for

expert disclosures and, in the absence of a showing that the belated disclosure was

either justified or harmless, excluded the report from evidence. Based on the remaining

evidence, the court found that the individual officers were entitled to qualified

immunity on any claim that the discharge of their firearms in response to Green’s

actions amounted to excessive force. In the court’s view, the officers were reasonably

concerned for the safety of Phillips (and in at least one case, the other officers) as Green

drove the Nissan forward toward the officers and Phillips’ car. It was not clearly

established that their decision to fire at Green in light of that concern was unreasonable.

The court also found the evidence insufficient to support a Monell claim against the city.

II.

The Estate challenges the district court’s decision to exclude Harmening’s report

based on the Estate’s failure to disclose Harmening and produce his report on a timely

basis in compliance with the deadline established by the court for such disclosures. See
No. 19-3464 Page 5

Fed. R. Civ. P. 26(a)(2). We review the district court’s decision for abuse of discretion.

E.g., Novak v. Bd. of Trustees of S. Ill. Univ., 777 F.3d 966, 972 (7th Cir. 2015). The Estate

also contests the district court’s decision, based on the remaining evidence before the

court, to enter summary judgment in favor of the defendant police officers. We review

that decision de novo. E.g., Kirk v. Clark Equip. Co., 991 F.3d 865, 878 (7th Cir. 2021). As

set forth below, the disclosure of Harmening as an expert was untimely, and the Estate

did not carry its burden of demonstrating that the late disclosure was either justified or

harmless. Without Harmening’s expert analysis (and setting aside any question as to

whether his key opinions were admissible), the Estate lacks sufficient evidence to

support a finding that the shooting of Green amounted to unlawful excessive force.

Based on the record before it, the district court properly entered summary judgment in

favor of the defendant officers.2

A. Late disclosure of Harmening expert opinion. 

The initial case management plan that the parties themselves proposed and

which the court adopted and entered in November 2017 provided that the “Plaintiff

shall disclose the name, address, and vita of any expert witness, and shall serve the

report required by Fed. R. Civ. P. 26(a)(2) on or before September 7, 2018,” and that any

proposed modifications of the deadlines set forth in the plan must be approved by the

court. In June 2018, the parties jointly moved to extend the time to complete non-expert

discovery and discovery relating to liability issues, and to file dispositive motions. The

court granted that motion. However, the motion did not ask the court to extend the

September 7, 2018 deadline for the plaintiff’s disclosure of any expert witnesses and the

production of their Rule 26 reports nor did the court’s order do so.

On November 21, 2018, 75 days after the September 7 deadline for expert

disclosure, the Estate disclosed Harmening as an expert witness and served his Rule 26

report on the defendants. This disclosure was made at or around the time the Estate

filed its response to the officers’ motion for summary judgment. Harmening had

authored his report on June 16, 2018, and had submitted to the Estate that same day. 

2

 The Estate does not pursue the Monell claim against the city on appeal, so we

need not address that claim. And because we affirm the district court’s holding as to

qualified immunity, we need not address the defendants’ alternative contention that the

Estate’s suit against them is untimely. 
No. 19-3464 Page 6

The officers moved for an extension of time to complete expert witness and

damages discovery, noting that Harmening had been disclosed long after the deadline

for expert disclosure and just 10 days prior to the cutoff for expert discovery. The

district court granted the officers’ motion, extending the deadline for completion of

expert discovery to January 31, 2019, and also gave them until that date to file their

reply brief in support of their motion for summary judgment. The extension afforded

the defense the opportunity to depose Harmening. The court did not retroactively

extend the September 7 deadline for disclosure of the Estate’s expert. 

The officers also asked the court to exclude Harmening’s report from evidence.

Consistent with a local rule and the terms of the case management plan, they

incorporated their objection to the admission of Harmening’s report into their reply

brief in support of summary judgment.3 They asserted that the Estate’s late disclosure,

particularly near the Thanksgiving and year-end holidays, had hampered their ability to

locate witnesses to respond to Harmening’s multiple opinions in the time available to

them.

The Estate filed a perfunctory (two-page) surreply arguing that as a result of the

prior extensions of non-expert discovery and the deadline for dispositive motions, the

deadline for the disclosure of its expert was arguably extended implicitly to November

19, rendering their disclosure only two days late. The Estate also noted that the

defendants had “filed several affidavits with their reply brief in an attempt to refute

Harmening’s opinions,” but it made no effort beyond that brief observation to address

the defendants’ allegations of prejudice and to demonstrate that the accommodations

the court had granted to the defense—including the extension of time to conduct expert

discovery and depose Harmening—were sufficient to mitigate the belated disclosure of

Harmening and his analysis of the evidence.

In accordance with the terms of Federal Rule of Civil Procedure 37(c)(1) and this

circuit’s precedents, when a party fails to timely disclose an expert witness and/or

produce the report of his opinions as required by Rule 26(a), the exclusion of the

3

 Southern District of Indiana Local Rule 56-1(i) indicates that collateral motions

(including motions to exclude evidence) are disfavored in summary judgment

proceedings. The case management plan specified that a party wishing to exclude

expert witness testimony at the summary judgment stage of the case should file its

objections with its responsive brief.
No. 19-3464 Page 7

witness’s proposed testimony is automatic and mandatory, unless the proponent can

show that the violation of Rule 26(a) was either justified or harmless. E.g., Karum

Holdings LLC v. Lowe’s Cos., 895 F.3d 944, 951 (7th Cir. 2018).

The district court, as noted above, agreed that the Estate had not timely disclosed

Harmening and produced his report. And because the Estate did not argue that it had

cause for the late disclosure and did not fully engage with the defendants’ arguments as

to prejudice, the court excluded Harmening’s expert opinion.

The district court did not abuse its discretion in excluding Harmening’s opinion

as untimely. The simple fact is that although the Estate had engaged Harmening and

had his report in hand months before the September 7 disclosure deadline—which the

court never extended—the Estate failed to name him and produce his Rule 26 report

until 75 days past that deadline. The Estate suggests that the court improperly treated

exclusion of Harmening’s report as automatic and mandatory based solely on the

lateness of disclosure. But the court used the language that the Estate highlights when

noting (correctly) that it was the Estate’s burden to demonstrate that the late disclosure

was either substantially justified or harmless. Moreover, as the district court observed,

the Estate neither justified the failure to timely produce the report nor meaningfully

rebutted the defendants’ assertions as to the prejudice resulting from the Estate’s

belated disclosure of Harmening. In the latter regard, the Estate merely noted that the

defendants had produced some affidavits in an effort to refute Harmening’s opinions,

without demonstrating that the defendants were able to address all material aspects of

Harmening’s analysis. The court was therefore on solid ground in finding that the

Estate had not met its burden to show that the report was admissible notwithstanding

the late disclosure. See Novak, 777 F.3d at 972.

The Estate has suggested on appeal that the disclosure of Harmening should be

treated as timely given that the district court had extended the deadlines for non-expert

discovery and that, logically, whatever evidence was produced during that discovery

would have informed the opinions of the parties’ respective experts. But this argument

was not made below, and for that reason it was waived.
No. 19-3464 Page 8

B. Propriety of summary judgment as to the officers.

As noted, the district court granted summary judgment in favor of the

defendants on the basis of qualified immunity. A police officer is entitled to qualified

immunity when his or her conduct does not violate a clearly established statutory or

constitutional right of which a reasonable person would have known. E.g., Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam). Where the plaintiff is alleging that an

officer used excessive force in violation of the Fourth Amendment, whether or not the

force was excessive will necessarily turn on the facts of the case. See id. at 1153 (quoting

Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)). Consequently, in an excessive force

case, “police officers are entitled to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue” and makes clear that the force employed

by the officers was impermissible. Id. (quoting Mullenix, 577 U.S. at 13).

The district court in this case, looking to the Supreme Court’s decisions in

Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam), and Plumhoff v. Rickard, 572 U.S. 765

(2014), reasoned that it was not clearly established at the time of the shooting in 2015

that the degree of force the defendants used to stop Green amounted to constitutionally

impermissible excessive force. Brosseau held that a police officer did not violate clearly

established law as to the use of force when she fired at a fleeing vehicle in order to

protect from potential harm other officers whom she believed to be on foot in the

immediate area. 543 U.S. at 200–01. Plumhoff sustained as reasonable the use of deadly

force against the driver of a vehicle who had led police on high-speed chase, collided

with a police vehicle, come to a temporary standstill, and then attempted to maneuver

his car so as to resume his flight. 572 U.S. at 776–77. In the district court’s view, it was

reasonable for the officers to perceive that Green was using the Nissan as a weapon as

he drove the car forward toward the officers and the police vehicles blocking his path.

The court pointed out that all three of the defendant officers who fired at Green feared

for Phillips’ safety: Green was aiming his vehicle in the general direction of her cruiser,

and the officers believed that she was either in that vehicle or might be standing

somewhere nearby in harm’s way. See Tolliver v. City of Chicago, 820 F.3d 237, 245–46

(7th Cir. 2016). All three also were aware that Green was one of two suspects in an

armed carjacking after which shots had been fired. It was therefore reasonable for the

defendant officers to conclude that the use of lethal force to stop Green’s vehicle was

appropriate in view of the danger that he posed to the officers and others.
No. 19-3464 Page 9

The Estate does not quarrel on appeal with the rationale underlying the district

court’s qualified immunity determination—specifically, that it was not clearly

unconstitutional for the officers to shoot at a fleeing driver whose maneuvering of the

vehicle posed a danger to one or more of the officers themselves—but rather challenges

the factual premise of the court’s holding. The Estate asserts that if one resolves all

disputes and inconsistencies and draws all inferences in its favor, one may reasonably

infer that the Nissan had come to a halt, and that Green was outside of the vehicle or

emerging therefrom when he was struck with the fatal bullet. The Estate bases its

assertion on both the path of the fatal bullet as described in the coroner’s report and the

damage that bullet did to Green’s heart. If the car was no longer moving and Green was

no longer behind the wheel, the Estate posits, he posed no danger to any of the officers

and there was no need to employ lethal force against him.

Because Green is dead and we have only the officers' accounts of their fatal

encounter with him, we must engage in a "fairly critical assessment" of the evidentiary

record. Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994); see also Estate of Escobedo v.

Martin, 702 F.3d 388, 409 (7th Cir. 2012); Abdullahi v. City of Madison, 423 F.3d 763, 772

n.7 (7th Cir. 2005). Nevertheless, the Estate as the party opposing summary judgment

retains the burden of presenting evidence that creates a dispute of material fact for a

finder of fact to resolve. Estate of Escobedo, 702 F.3d at 409.

We disagree with the Estate that, on the limited record before us, the factfinder

could reasonably conclude that the Nissan had come to a stop and Green had already

emerged from the car (or was in the process of doing so) when the fatal bullet struck

him. The defendants themselves all testified to the contrary. They were present at the

scene, observed the relevant events first-hand, and testified based on their personal

knowledge. Their testimony, however self-serving it may have been, was affirmative

evidence that Green was still inside of the Nissan, and was driving it toward the

officers, when they shot at him.

The fact that the fatal bullet entered Green’s back (as did the bullet that struck his

lower leg) makes it a possibility that he was already out of the car, but it was only one

possibility among several. Green might have remained inside the car but turned his

body away from officers defensively as they began to shoot at him. He might have been

preparing to exit the car and turning toward the car door for that purpose. Or the bullet
No. 19-3464 Page 10

might have ricocheted within the car so as to strike him in the back.4 These additional

possibilities are consistent with the officers’ testimony. Setting aside for a moment that

testimony, which unequivocally places Green inside of the car, we can only speculate as

to the likelihood of any of the various alternative possibilities, including the possibility

that Green had already emerged or was emerging from the car. Expert testimony may

not always be necessary to enable a factfinder to make an assessment as to the likely

trajectory of a bullet, but this strikes us as the sort of case in which such testimony is

essential to support the Estate’s factual theory. Cf. McGrath v. Tavares, 757 F.3d 20, 26–27

(1st Cir.2014) (absent expert testimony as to trajectory of bullet, photographs of bullet

holes in automobile were not enough to show where an officer was standing when he

fired his gun). Without expert opinion on this subject, there would literally be no

evidence to guide the jury in any direction in assessing the likelihood that Green was

not inside the car, as the officers testified, but rather outside of the car, as the Estate

presupposes, when the fatal bullet struck him. On the record as it stands, a jury could

only do what we can, which is to speculate. As the Estate itself concedes, speculation is

not a valid basis for a judgment in the Estate’s favor or for defeating the officers’ motion

for summary judgment. See Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010) (granting

to party opposing summary judgment the benefit of all reasonable inferences does not

extend to inferences that are supported only by speculation or conjecture); Avery v.

Mapco Gas Prods., Inc., 18 F.3d 448, 453–54 (7th Cir. 1994) (however theoretically possible

plaintiffs’ factual theory might be, “[they] must flesh out their theory with evidence;

speculation will not do”) (citation omitted).

 Nor can we say that the damage done by the bullet that pierced Green’s heart

rules out the possibility that the bullet struck him while he was still in the car. The

Estate presumes, based on the coroner’s finding that the bullet transected Green’s heart

and disrupted coronary blood flow, that Green’s death must have been virtually

instantaneous and that it would have been impossible for him to open the car door and

get to his feet, “as if nothing had happened,” before collapsing, as Stewart testified. But

this, again, is a subject on which expert testimony is required. We ourselves can only

speculate on the record before us as to how quickly the injury to Green’s heart would

4

 Although there apparently were no holes in the driver’s seat back, that does

not rule out the possibility that a bullet might have ricocheted within the vehicle and

struck Green in the back without passing through the driver’s seat. This would depend,

obviously, on how Green’s body was positioned when he was struck. 
No. 19-3464 Page 11

have disabled and killed him. Again, the coroner’s report is silent as to how quickly

death would have resulted. 

The same is true with respect to the injuries to Green’s lower leg, which the

Estate likewise suggests would have made it impossible for Green to get out of the car

and rise to his feet. Without medical testimony as to the likely effects of such injuries,

we, like the factfinder, can only guess as to what Green could or could not have done.

In a further effort to call into doubt the officers’ exculpatory recounting of the

events, the Estate has flagged certain inconsistencies among the officers’ accounts and

between those accounts and certain other evidence in the record. None of the

discrepancies, however, is sufficient to establish a dispute of fact material enough to

preclude summary judgment.

The Estate has argued, for example, that the officers opened fire at Green within

a few seconds of initiating a felony stop and that this casts doubt on their description of

what Green did with the car to purportedly warrant the use of lethal force. As noted

earlier, after the officers activated their lights and blocked the Nissan’s escape path with

their vehicles, Phillips initiated a felony stop as Green reached the end of the street and

began to turn the car around. She ordered him to stop the car and get out. By the

defendants’ account, it was only after Green ignored the order, completed his turn,

drove his car forward into Phillips car once, backed up, and began driving forward a

second time, did the officers open fire. However, pointing to the audio recording of the

police radio communications surrounding the incident, the Estate argues that as little as

five seconds elapsed between a radio announcement that a felony stop had been

initiated and a subsequent report of shots fired. The officers respond that the audio

recording represents an edited compilation of the various radio reports (edited to delete

extraneous communications concerning other incidents and to remove the silences

between reports) rather than a historical record of the radio traffic as it occurred in real

time. By contrast, a written history of events as reported to a control operator indicates

that a minimum of 15 seconds elapsed between a report that the Nissan’s passenger was

fleeing (which took place close in time to the moment when Phillips initiated the felony

stop) and the subsequent report of shots fired.5

 Our own review of the recording is

consistent with the defendants’ understanding: with few exceptions, each radio

5

 Because we do not know how quickly events at the scene were reported to the

control operator, we cannot know precisely when those events occurred in real time.
No. 19-3464 Page 12

transmission is separated from the next by one to three seconds (itself suggesting

editing to eliminate extraneous communications and silences, as the defendants have

indicated); and among the last recorded transmissions are a police chaplain reporting

that he was headed to a particular address to assist another chaplain and the same

chaplain reporting less than 30 seconds later that he was departing that address and

“headed home,” confirming that the recording is not a reflection of how quickly these

radio communications followed one another in real time. We are not convinced that

there is a genuine discrepancy here that raises a doubt as to the accuracy of the officers’

version of events. 

The Estate also suggests that photographs of the damage to Phillips’ squad car

are inconsistent with the defendants’ accounts that the Nissan struck her car forcefully

when he drove it forward the first time (assuming he did so twice). The photographs

reflect that the primary damage to Phillips’ vehicle was to the driver’s door, which was

dislocated upward. To our mind, this does not rule out the possibility that officers’

would have perceived the collision, as it occurred, to be a forceful one nonetheless. Even

if we assume, as the Estate posits, that Green only drove forward toward the officers

and their vehicles once rather than twice, the resulting damage to Phillips’ car does not

rule out the possibility that the Nissan was coming toward the officers in a manner that

would have caused them to fear for their safety.

Finally, there indeed are certain inconsistencies among the officers’ testimonies as

to certain details: some officers testified that they saw the Nissan strike Phillips’ car

twice, whereas one officer said that he only saw it strike Phillips’ vehicle a single time.

At various times in the litigation, officers differed as to whether their primary concern,

as Green drove the Nissan forward toward them, was for Phillips or one of the other

officers in the Nissan’s path. Officers also differed in their recollection of who it was

who handcuffed Green and dragged him away from the Nissan after the shooting

ended and he had collapsed to the ground. Inconsistencies of this sort are to be expected

in the aftermath of events that unfolded quickly and ended violently and tragically.

They do not, whether considered in isolation or collectively, support a reasonable

inference that Green posed no danger to the officers and had in fact stopped and exited

the car before he was shot dead.

III.

For the reasons we have set out above, the district court did not abuse its

discretion in excluding the report of the Estate’s expert. Nothing in the remaining
No. 19-3464 Page 13

evidence presents a material dispute of fact precluding summary judgment and

requiring a trial. In the absence of admissible expert testimony supporting the Estate’s

theory that Green was emerging from or outside of the car when he was fatally shot by

the defendant police officers, a jury could only speculate that Green was exiting the car

and no longer plausibly posed a danger to the officers. 

AFFIRMED