1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0197p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

EDWARD GODAWA and TINA GODAWA, 

Administrators of the Estate of Michael Godawa, 

Plaintiffs-Appellants, 

v. 

DAVID BYRD, 

Defendant-Appellee. 

┐

│

│

│

│

│

│

│

│

┘

No. 14-5963 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Covington. 

No. 2:12-cv-00170—William O. Bertelsman, District Judge. 

Argued: April 28, 2015 

Decided and Filed: August 19, 2015 

Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

_________________ 

COUNSEL 

ARGUED: Christopher D. Roach, THE DETERS FIRM, Cincinnati, Ohio, for Appellants. 

Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, 

Kentucky, for Appellee. ON BRIEF: Christopher D. Roach, THE DETERS FIRM, Cincinnati, 

Ohio, for Appellants. Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, 

PLLC, Covington, Kentucky, for Appellee. 

_________________ 

OPINION

_________________ 

CLAY, Circuit Judge. Plaintiffs Edward and Tina Godawa, as administrators of the 

estate of their son Michael Godawa, appeal from the district court’s August 1, 2014 order and 

judgment granting in part Defendant David Byrd’s motion for summary judgment, dismissing 

>
No. 14-5963 Godawa, et al. v. Byrd Page 2 

with prejudice Plaintiffs’ federal claims and state loss of consortium claim, and dismissing 

without prejudice Plaintiffs’ other state law claims. Plaintiffs argue that Defendant is not entitled 

to qualified immunity on Plaintiffs’ 42 U.S.C. § 1983 excessive force claim. 

For the reasons set forth below, we REVERSE the judgment of the district court and 

REMAND the case for further proceedings consistent with this opinion. 

BACKGROUND

A. Procedural Background 

Plaintiffs are the parents of Michael Godawa (“Godawa”), a young man who was fatally 

shot by a police officer, Defendant David Byrd, while attempting to flee from an arrest. 

Plaintiffs filed an amended complaint in this case on December 27, 2012, raising federal and 

state law claims including a 42 U.S.C. § 1983 excessive force claim. Following the completion 

of discovery, both Plaintiffs and Defendant filed motions for summary judgment. The district 

court heard oral argument on these motions on June 27, 2014. On August 1, 2014, the court 

issued a memorandum opinion and order denying Plaintiffs’ motion for summary judgment and 

granting Defendant’s motion for summary judgment in part. The district court dismissed 

Plaintiffs’ federal claims and state loss of consortium claim with prejudice and dismissed 

Plaintiffs’ other state law claims without prejudice. Plaintiffs timely appealed. This appeal 

exclusively addresses Plaintiffs’ § 1983 excessive force claim. 

B. Factual Background 

This case is about an incident that occurred at approximately 1:00 a.m. on June 23, 2012, 

during which Defendant fatally shot Godawa as he was attempting to flee Defendant in a vehicle. 

The evidence regarding this incident is primarily comprised of: (1) video footage from 

Defendant’s lapel camera, (2) surveillance video from the Finish Line Bar and Grill (“Finish 

Line”), and (3) Defendant’s deposition. On the evening in question, Defendant was serving on 

bicycle patrol as a police officer for the city of Elsmere, Kentucky. According to Defendant, at 

approximately 1:00 a.m., he was approached by a Finish Line employee who was concerned that 

an individual walking around the parking lot was underage and drinking. The individual, who 

was later identified as Godawa, got into a vehicle and drove from the back of the parking lot to 
No. 14-5963 Godawa, et al. v. Byrd Page 3 

the front of the parking lot. Defendant approached the vehicle and asked Godawa if he had been 

drinking. Godawa claimed he had not been drinking. Defendant inquired about a bottle of beer 

that was visible in the vehicle’s cup holder, and Godawa identified the beer as belonging to his 

girlfriend who was inside the bar. 

 After expressing disbelief that the beer belonged to Godawa’s girlfriend, Defendant asked 

Godawa for identification. Godawa informed Defendant that he had a driver’s license but that 

the license was not in his possession at the time. Defendant asked Godawa if he would be 

willing to submit to a field sobriety test. Godawa initially stated that he did not want to take a 

field sobriety test because he was nervous and afraid he would fail. At that point, Defendant 

asked Godawa to wait in the car while he went to his bicycle to get a notepad and pen. After 

walking to his bicycle, Defendant returned to the vehicle and asked for Godawa’s name and 

social security number. Godawa answered Defendant’s questions and provided his identifying 

information. 

Defendant once again asked Godawa whether he had been drinking, and Godawa replied 

that he had consumed one or two drinks. He also admitted that the beer in the car belonged to 

him and not to his girlfriend. He claimed to have lied earlier because he was scared. Godawa 

then agreed to submit to a field sobriety test. Defendant told Godawa to “hold on” and went to 

his bicycle to request backup for the performance of the field sobriety test. 

 While Defendant was still at his bicycle, Godawa started his vehicle and began to back 

out of the parking spot. In the process of backing out of the parking spot, Godawa appears to hit 

or knock over Defendant’s bicycle. Defendant yelled “Hey” and “Stop” multiple times, but 

Godawa did not stop. In his deposition, Defendant claims that he then “ran along the driver’s 

side of the vehicle to the front of the vehicle and ordered [Godawa] to stop the car.” (R. 26-1, 

Byrd Deposition, Page ID # 202-03.) Defendant had his gun drawn as he ran to the front of 

Godawa’s car and positioned himself ahead and to the right of the car’s front passenger side 

while the car was temporarily stopped. In the moments that followed, Defendant and Godawa’s 

car appear to have come into contact—though precisely how is disputed by the parties. 

The moment of impact is not clearly depicted in either video. Plaintiffs contend that 

Defendant was moving toward the car just prior to the impact “to block the exit,” whereas 
No. 14-5963 Godawa, et al. v. Byrd Page 4 

Defendant claims that he was “target[ed]” by Godawa. Appellant’s Br. at 7; Appellee’s Br. at 7. 

While the lapel video clearly shows that Defendant and the vehicle came closer to each other, it 

is difficult to discern whether the car was driving toward Defendant, whether Defendant was 

moving toward the car, or both. In the Finish Line surveillance video, the precise moment of 

impact occurs just off-screen. In the seconds leading up to the impact, Defendant can be seen 

ahead and to the right of the front passenger side of Godawa’s car. The car appears temporarily 

stopped at that point, having just finished backing out of a parking spot. As the car begins to pull 

forward, Defendant is seen advancing toward the car. The car then makes a right turn in the 

direction of the parking lot exit and, in the middle of the turn, Defendant seems to make contact 

with the car just off camera. This contact is suggested by Defendant’s re-emergence on the 

video in which he seems to be moving off or pushing off the car and landing unsteadily on his 

feet. In his deposition, Defendant claimed that he was hit by Godawa’s car “in the left leg about 

the knee” while the car was traveling at a speed of five to ten miles per hour. (R. 26-1, Byrd 

Deposition, Page ID # 204-05.) Defendant regains his balance quickly and appears to take three 

strides alongside the vehicle before shooting through the rear passenger-side window. 

Photographs taken at the scene also indicate that the bullet that hit Godawa went through 

the back passenger-side window. Autopsy photos reveal that the bullet entered Godawa’s body 

through the back of his right shoulder and traveled diagonally to the center left side of his chest. 

 After being shot, Godawa turned left out of the parking lot and drove south on Dixie 

Highway. Defendant can be heard on the video calling for backup, saying that shots had been 

fired. He can also be heard saying, “He ran over my bike, tried to hit me.” (R. 21-1, Lapel 

Video, 1:28:07-08.) Soon after turning onto Dixie Highway, Godawa turned around in a 

different parking lot and drove back toward Finish Line. When the car passed by Defendant, 

who was standing in the middle of Dixie Highway with his gun drawn, he observed that Godawa 

was “slumped over the steering wheel and appeared to be injured.” (R. 26-1, Byrd Deposition, 

Page ID # 209.) Godawa’s vehicle struck a utility pole at the next intersection. Two other police 

officers arrived soon after, and Defendant rode his bicycle to where the car had stopped. 
No. 14-5963 Godawa, et al. v. Byrd Page 5 

Emergency medical technicians were dispatched to the scene. Despite their efforts, 

Godawa subsequently died from “exsanguination due to perforation of the right lung” caused by 

the gunshot wound. (R. 54-1, Hamilton County Coroner’s Report, Page ID # 801.) 

DISCUSSION

A. Standard of Review 

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if 

the materials in the record “show that there is no genuine issue as to any material fact and that 

the movant is entitled to a judgment as a matter of law.” Barker v. Goodrich, 649 F.3d 428, 432 

(6th Cir. 2011) (internal quotation marks omitted). “[I]n reviewing a summary judgment motion, 

credibility judgments and weighing of the evidence are prohibited.” Schreiber v. Moe, 596 F.3d 

323, 333 (6th Cir. 2010) (quoting Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 

2009)). We view all facts and related inferences in the light most favorable to the non-moving 

party and review all questions of law de novo. Davenport v. Causey, 521 F.3d 544, 550 (6th Cir. 

2008). 

B. Analysis 

Public officials are entitled to qualified immunity in cases seeking civil damages if their 

conduct does not violate “clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is intended to protect 

public officials from unnecessary interference with their duties, while also holding them 

accountable “when they exercise power irresponsibly.” Id. The qualified immunity analysis 

entails two general steps, which can be considered in any order. Pearson, 555 U.S. at 236. In 

one step, the court determines whether “the facts alleged show the officer’s conduct violated a 

constitutional right”; in the other, it determines whether the right was “clearly established” at the 

time of the events. Cass v. City of Dayton, 770 F.3d 368, 374 (6th Cir. 2014) (citing Saucier v. 

Katz, 533 U.S. 194, 201-02 (2001)). 
No. 14-5963 Godawa, et al. v. Byrd Page 6 

1. Factual Record Taken in the Light Most Favorable to Plaintiffs

As was previously noted, we must consider the facts in the light most favorable to 

Plaintiffs and make all reasonable inferences in their favor when undertaking the qualified 

immunity analysis on summary judgment. Davenport, 521 F.3d at 550. Defendant in the instant 

case claims that Plaintiffs’ version of events, particularly with respect to the nature of the impact 

between Defendant and Godawa’s car, cannot be credited because the video evidence “blatantly 

contradicts” Plaintiffs’ account. Appellee’s Br. at 15. We disagree and find that the video 

evidence does not clearly contradict Plaintiffs’ version of events. 

Defendant seeks to support his argument by likening this case to Scott v. Harris, 550 U.S. 

372 (2007). In Scott, the Supreme Court found that a police officer was entitled to qualified 

immunity in a Fourth Amendment excessive force claim. In so doing, the Court rejected the 

plaintiff’s factual account due to the existence of a videotape that captured the relevant events 

and “quite clearly contradict[ed]” the plaintiff’s story such that “no reasonable jury could believe 

it.” Id. at 378, 380. That is not the case here. Contrary to Defendant’s claim, the video evidence 

in this case does not clearly contradict Plaintiffs’ version of events, nor does it necessarily 

support Defendant’s assertion that Godawa’s vehicle “target[ed]” him. Appellee’s Br. at 7. 

Specifically, both videos can reasonably be interpreted as indicating that Defendant was not 

directly in front of the vehicle, but rather was located ahead of the vehicle to the right of the 

passenger side during the relevant timeframe, and that the car never “targeted” Defendant. 

Moreover, based on the Finish Line surveillance footage and the nature of the movement 

depicted in the lapel video, it appears possible—and arguably likely—that Defendant was 

moving toward the car with his gun drawn in the moments before the apparent impact. A 

reasonable juror observing the video evidence could conclude that Defendant initiated the 

contact with Godawa’s car in an apparent attempt to stop Godawa from fleeing the parking lot. 

With regard to the shooting, the Finish Line surveillance video may be reasonably 

interpreted as indicating that Defendant was effectively chasing Godawa’s car before he fired the 

shot that killed Godawa and that he was not in harm’s way at that critical moment. Accordingly, 

for the purposes of the following analysis, we assume that Defendant was not actively struck by 

Godawa’s car, but initiated the impact with the vehicle in his efforts to keep Godawa from 
No. 14-5963 Godawa, et al. v. Byrd Page 7 

fleeing. Under this factual account, Godawa did not pose an immediate threat at the time 

Defendant discharged his weapon. 

2. Constitutional Right 

The Fourth Amendment’s prohibition against unreasonable seizures protects citizens 

from excessive use of force by law enforcement officers. Cass, 770 F.3d at 374. Nonetheless, 

the government has a “right to use some degree of physical coercion or threat thereof” to 

effectuate an arrest. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (quoting 

Graham v. Connor, 490 U.S. 386, 396 (1989)). Claims alleging the use of excessive force 

during an arrest are considered under the Fourth Amendment’s “objective reasonableness” 

standard. Graham, 490 U.S. at 388. Under this standard, a court considers whether “the 

officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting 

them, without regard to their underlying intent or motivation.” Id. at 397. This analysis entails a 

balancing of the following three factors articulated by the Supreme Court in Graham: “[1] the 

severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of 

the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest 

by flight.” Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (quoting 

Graham, 490 U.S. at 396). 

It is well established that courts should consider the reasonableness of an officer’s use of 

force from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision 

of hindsight.” Graham, 490 U.S. at 396. In so doing, the objective reasonableness 

determination should account for the fact that, when faced with “rapidly evolving” and tense 

situations, “police officers are often forced to make split-second judgments” in deciding how 

much force is necessary given the circumstances. Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 

(2014). 

If an officer “has probable cause to believe that [a] suspect poses a threat of serious 

physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent 

[the suspect’s] escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). In 

contrast, where a suspect “poses no immediate threat to the officer and no threat to others, the 

harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” 
No. 14-5963 Godawa, et al. v. Byrd Page 8 

Id. Where a suspect is attempting to flee in a vehicle, police officers are “justified in using 

deadly force against a driver who objectively appears ready to drive into an officer or bystander 

with his car. But, as a general matter, an officer may not use deadly force once the car moves 

away, leaving the officer and bystanders in a position of safety.” Cass, 770 F.3d at 375 (internal 

quotation marks and citations omitted) (affirming a grant of summary judgment on the basis of 

qualified immunity where the officer shot a fleeing suspect after the suspect accelerated towards 

a police officer and struck two officers). An officer may, however, “continue to fire at a fleeing 

vehicle even when no one is in the vehicle’s direct path when the officer’s prior interactions with 

the driver suggest that the driver will continue to endanger others with his car.” Id. (internal 

quotation marks omitted). Still, where the car no longer “presents an imminent danger,” an 

officer is not entitled to use deadly force to stop a fleeing suspect. Smith v. Cupp, 430 F.3d 766, 

775 (6th Cir. 2005). 

In evaluating whether Defendant’s conduct was objectively reasonable in the case at 

hand, our previous decision in Cupp is directly on point. In Cupp, we considered facts that bear 

significant resemblance to key facts in this case and concluded that an officer was not entitled to 

qualified immunity for his use of deadly force against a man fleeing in a car. In that case, the 

defendant police officer arrested Smith, whom the officer perceived to be intoxicated, for making 

harassing phone calls in the officer’s presence. Id. at 769. The officer placed Smith in the back 

of a police cruiser while he went to speak with a tow truck driver about removing Smith’s 

vehicle. Although he had previously been compliant, Smith crossed from the back seat into the 

front seat and began to flee the scene in the police cruiser. Smith maneuvered the cruiser such 

that he was driving toward the officer and the tow truck driver. The officer moved out of the 

way of the vehicle and, as the car passed him, he fired four shots, killing Smith. The officer 

claimed that Smith had directed the cruiser at him and at the tow truck driver, and that he shot 

Smith in “self-defense as the cruiser was bearing down on them.” Id. at 770. The tow truck 

driver stated that Smith may have redirected the car in order to follow the natural direction of the 

roadway, rather than to target the officer and himself. Additionally, the tow truck driver stated 

that the officer was actually “running toward the patrol car” when he shot Smith. Id. at 774. 
No. 14-5963 Godawa, et al. v. Byrd Page 9 

Considering these circumstances, we concluded that, under the plaintiffs’ version of the 

facts, the officer’s actions violated Smith’s constitutional rights. We explained: 

According to the plaintiffs’ evidence, [the officer] shot Smith after the police 

cruiser was past [the officer] and there was no immediate danger to anyone in the 

vicinity. [The officer’s] use of force was made even more unreasonable by the 

fact that Smith had been cooperative up to this point, and was arrested for the 

nonviolent offence of making harassing phone calls. Although there was some 

danger to the public from Smith’s driving off in a stolen police car, the danger 

presented by Smith was not so grave as to justify the use of deadly force. 

Id. at 773. Of particular concern to us in Cupp was the fact that, under the plaintiffs’ version of 

events, neither the officer nor any bystanders were in danger at the time that the officer shot 

Smith. We therefore determined that, while the officer “[was] constitutionally permitted to put 

himself in a dangerous position in order to effectuate an arrest,” a reasonable officer in his 

position “would not have perceived danger to anyone at the scene,” including himself, under the 

plaintiffs’ interpretation of the evidence. Id. at 774. The plaintiffs presented witness testimony 

that the officer had taken “four or five steps” toward the side of the patrol car before firing his 

gun, and that he was in fact running toward the car. That evidence suggested that the officer was 

not in danger and did not need to “use deadly force to protect himself or others.” Id. 

In reaching our holding, we recognized that, “[a]lthough this circuit’s previous cases give 

substantial deference to an officer’s decision to shoot an unarmed suspect in a car chase, the 

officer must have reason to believe that the car presents an imminent danger.” Id. at 775. The 

situation presented in Cupp “d[id] not present ‘a perceived serious threat of physical harm to the 

officer or others in the area from the perspective of a reasonable officer.’” Id. (quoting Sample v. 

Bailey, 409 F.3d 689, 697 (6th Cir. 2005)). 

The same reasoning applies equally in the present case. As in Cupp, viewing the facts in 

the light most favorable to Plaintiffs, Godawa never attempted to hit Defendant with his car and 

did not drive in a manner that endangered Defendant’s life. Cf. Cass, 770 F.3d at 375 (holding 

that a police officer may be justified in firing at a fleeing vehicle even where there is no one in 

the vehicle’s path if the “officer’s prior interactions with the driver suggest that the driver will 

continue to endanger others with his car”). Rather, Defendant actively “put himself in a 

dangerous position in order to effectuate an arrest” by running alongside the car and using his 
No. 14-5963 Godawa, et al. v. Byrd Page 10 

body to try to block the exit. Cupp, 430 F.3d at 774. Likewise, Defendant was not in front of the 

car, but instead was positioned near the rear passenger side, at the time that he fired his weapon. 

From that position, Defendant would have had no reason to fear being struck by the car as it 

continued to advance. Defendant emphasizes how fast the events transpired, noting that he had 

“less than two seconds to process being physically assaulted by a vehicle.” Appellee’s Br. at 26. 

Under Plaintiffs’ version of the facts, however, Defendant was not in danger. And critically, the 

fact that a situation is rapidly evolving “does not, by itself, permit [an officer] to use deadly 

force.” Cupp, 430 F.3d at 775. 

In reaching our holding in Cupp, we distinguished Brosseau v. Haugen, 543 U.S. 194 

(2004). The present case is similarly distinguishable from Brosseau. In Brosseau, the Supreme 

Court reversed a denial of qualified immunity for a police officer who had shot a suspected felon 

while he was attempting to evade arrest and flee in a vehicle. Id. at 195-96. The Court found 

that the suspect posed “a major threat” to others, including officers located at the end of the 

street. Id. at 200. Whereas Godawa was suspected of nothing more than drinking underage and 

having an open container in his car, the fleeing driver in Brosseau “was a suspected felon with a 

no-bail warrant out for his arrest, with whom [the officer] had experienced a violent physical 

encounter prior to the shooting.” Cupp, 430 F.3d at 776. Additionally, the “undisputed facts [in 

Brosseau] showed that the shooting officer believed the suspect had a gun and was fearful for 

officers in the immediate area.” Id. In contrast, Godawa never displayed any violence in his 

interactions with Defendant and never engaged Defendant in a physical struggle. Critically, 

unlike the fleeing suspect in Brosseau, Godawa posed no discernable threat to the officers or to 

any other individuals at the time he was shot. 

Prior to Godawa’s flight, Defendant only suspected him of having an open container in 

his car and underage drinking. Even so, the district court in this case determined that, in addition 

to the alcohol offenses, “at the time the fatal shot was fired, the officer had probable cause to 

believe Godawa committed a number of violent and serious offenses, including attempted 

murder, first degree assault, wanton endangerment in the first degree, and fleeing and evading in 

the first degree.” (R. 66, Memorandum Opinion and Order, Page ID # 885-86.) Police officers 

are entitled to consider felonies committed by a fleeing suspect after the flight has commenced in 
No. 14-5963 Godawa, et al. v. Byrd Page 11 

determining the appropriateness of using deadly force. See Hocker v. Pikeville City Police 

Dep’t, 738 F.3d 150, 156 (6th Cir. 2013). The district court, however, did not view the facts in 

the light most favorable to Plaintiffs in reaching its conclusion, and instead based its 

determination on a factual account that assumed Godawa had actively struck Defendant with his 

car. With the exception of fleeing and evading arrest, none of the offenses listed by the district 

court are applicable once the facts are viewed in the light most favorable to Plaintiffs, as we are 

required to do. 

Defendant cites to the Supreme Court’s decisions in Scott and Plumhoff to support the 

argument that his behavior was objectively reasonable. Neither case supports Defendant’s 

position. Both Scott and Plumhoff addressed police officers’ use of deadly force to stop fleeing 

suspects who were engaged in high speed chases and whose recklessness had endangered police 

and bystanders. In Scott, the officer rammed a fleeing suspect’s car from behind to end a chase 

after the suspect had driven at high speeds, collided with a police cruiser during the chase, and 

generally had driven “so recklessly” that he was “placing police officers and innocent bystanders 

alike at great risk of serious injury.” Scott, 550 U.S. at 380, 385. Similarly, in Plumhoff, the 

fleeing suspect sustained a high speed chase in which he attained speeds exceeding 100 miles per 

hour, collided with police cruisers, and nearly hit a police officer in attempting to continue his 

flight. Throughout that chase, the fleeing suspect’s “outrageously reckless driving posed a grave 

public safety risk.” Plumhoff, 134 S. Ct. at 2021. The Court concluded that, “[u]nder the 

circumstances at the moment when the shots were fired, all that a reasonable police officer could 

have concluded was that [the suspect] was intent on resuming his flight and that, if he was 

allowed to do so, he would once again pose a deadly threat for others on the road.” Id. at 2022. 

Scott and Plumhoff establish that, where a fleeing driver is imperiling the lives of officers 

or the public, it will generally be objectively reasonable for a police officer to employ deadly 

force to end the flight. However, these cases simply do not stand for the proposition that an 

officer may reasonably use deadly force against a fleeing motorist where no such peril or risk 

exists. Applying the Graham factors to the Plaintiffs’ facts, we conclude that Defendant’s use of 

force in this case was objectively unreasonable; although he was fleeing from police, Godawa 

was suspected of only minor offenses and posed no “immediate threat” to Defendant or any 
No. 14-5963 Godawa, et al. v. Byrd Page 12 

member of the public. See Martin, 712 F.3d at 958 (quoting Graham, 490 U.S. at 396) 

(identifying Graham factors as “[1] the severity of the crime at issue, [2] whether the suspect 

poses an immediate threat to the safety of the officers or others, and [3] whether he is actively 

resisting arrest or attempting to evade arrest by flight”). In light of this Circuit’s on-point 

precedent and critical differences between the facts of this case and the facts of the cases relied 

upon by Defendant, we conclude that a reasonable jury could find that Defendant’s use of force 

violated Godawa’s Fourth Amendment rights. 

3. Clearly Established Right 

The qualified immunity analysis does not end with the determination that, under the facts 

alleged, Defendant’s use of force was objectively unreasonable. We must also determine 

whether the constitutional right being violated was clearly established at the time of the incident. 

Pearson, 555 U.S. at 231. The Supreme Court has “repeatedly told courts not to define clearly 

established law at a high level of generality.” Plumhoff, 134 S. Ct. at 2023. An officer “cannot 

be said to have violated a clearly established right unless the right’s contours were sufficiently 

definite that any reasonable official in the defendant’s shoes would have understood that he was 

violating it.” Id.

It is clearly established law that the “[u]se of deadly force to prevent the escape of all 

felony suspects, whatever the circumstances, is constitutionally unreasonable.” Garner, 

471 U.S. at 11. Relying on Brosseau, the Plumhoff Court concluded that, as of 2004, “it was not

clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his 

flight might endanger.” Plumhoff, 134 S. Ct. at 2023 (emphasis added). Accordingly, the 

Plumhoff Court determined that in order to defeat the defendant’s qualified immunity and 

demonstrate a clearly established right, the plaintiff in Plumhoff would need to show either

(1) that the officer’s conduct was “materially different from the conduct in Brosseau,” or (2) that 

between February 21, 1999, when the events in Brosseau took place, and the date of the events at 

issue in Plumhoff, “there emerged either ‘controlling authority’ or a ‘robust consensus of cases of 

persuasive authority,’ that would alter [the] analysis of the qualified immunity question.” Id. at 

2024 (internal quotation marks and citations omitted). The Court ultimately determined that the 
No. 14-5963 Godawa, et al. v. Byrd Page 13 

plaintiff could not meet either requirement and thus failed to demonstrate a relevant clearly 

established right. Id. 

Applying the same requirements in this case leads to the opposite outcome. First, as was 

addressed above, this case relates to “materially different” conduct than was at issue in Brosseau 

and subsequent cases including Scott. Namely, under Plaintiffs’ factual account, Defendant had 

no reason to believe that Godawa presented “an actual and imminent threat to the lives of [any 

officers or civilians]” at the time of the shooting. Scott, 550 U.S. at 384. Second, this Court’s 

decision in Cupp established controlling authority that affects the relevant qualified immunity 

analysis in this case. The Court in Brosseau explicitly recognized that determining whether a 

right is clearly established requires a “particularized” analysis, and that “this area is one in which 

the result depends very much on the facts of each case.” Brosseau, 543 U.S. at 200-01. Cupp

addressed materially similar facts to the case at hand and established clear and controlling 

precedent that in a comparable situation to the circumstances facing Defendant, the use of deadly 

force violates the Fourth Amendment. No subsequent controlling precedent has diminished the 

clarity of Cupp’s holding or its applicability to the present case. 

 In sum, a genuine dispute of material fact exists regarding the circumstances of 

Defendant’s impact with Godawa’s vehicle. Under Plaintiffs’ version of the facts, a reasonable 

juror could conclude that Defendant’s use of deadly force violated Godawa’s clearly established 

constitutional rights under the Fourth Amendment. Consequently, Defendant is not entitled to 

summary judgment, and the district court erred in granting qualified immunity to Defendant. 

CONCLUSION

For the foregoing reasons, we REVERSE the order and judgment of the district court 

and REMAND this case for further proceedings consistent with this opinion.