Hussein Naji, personal representative of the estate of Ali Naji v. CITY OF DEARBORN, MICHIGAN; TIMOTHY CLIVE, Corporal

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0243p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HUSSEIN NAJI, personal representative of the estate of
Ali Naji,
Plaintiff-Appellant,
v.
CITY OF DEARBORN, MICHIGAN; TIMOTHY CLIVE,
Corporal,
Defendants-Appellees.
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No. 24-1058
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:23-cv-10521—F. Kay Behm, District Judge.
Decided and Filed: October 28, 2024
Before: SUTTON, Chief Judge; LARSEN and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Amir I. Makled, HALL MAKLED, P.C., Dearborn, Michigan, for Appellant.
Gary K. August, Michel C. Lewis, AUGUST LAW, PLLC, Troy, Michigan, for Appellees.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Ali Naji walked into a Dearborn police station, pulled out a
gun, and tried to shoot Corporal Timothy Clive. But Naji’s gun malfunctioned and would not
fire. While Naji tried to fix his malfunctioning gun, Clive shot and killed Naji. Hussein Naji, as
personal representative of Naji’s estate, sued both Clive and the City of Dearborn, bringing
federal claims under 42 U.S.C. § 1983 and state tort claims. The district court granted summary
judgment to Clive and the City on all claims. For the following reasons, we AFFIRM.
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No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 2
I.
On December 18, 2022, Ali Naji walked into the City of Dearborn Police Headquarters,
while Corporal Timothy Clive was on duty. The police lobby was accessible by six separate
entrances, including one public entrance, and the incident was captured on five surveillance
cameras. The surveillance footage shows Naji entering the lobby through the public entrance,
wearing a COVID face mask and a winter hat. Clive, who was standing at the lobby’s front desk
behind bulletproof glass, asked Naji how he was doing. Naji did not answer; instead, with his
right hand, he pulled a handgun from his waistband and pointed it at Clive. Clive shouted “gun,
gun, gun!” Naji pulled the trigger, but the gun malfunctioned, and no bullet fired. The gun
“clicked” and Naji pulled out the magazine, seemingly trying to fix the malfunctioning weapon.
Clive retrieved his service revolver, “slid open the front desk window and fired seventeen shots
in a continuous, 4-5 second volley.” Naji v. City of Dearborn, 709 F. Supp. 3d 398, 404 (E.D.
Mich. 2023). When Clive opened fire, Naji was holding the gun about chest-high and pointing it
towards Clive; approximately six seconds had passed since Naji had first attempted to shoot
Clive. Naji fell to the floor, dropping his gun as he fell. On the floor, the video shows Naji
contorting once, appearing to roll onto his side, before he stops moving. No members of the
public were in the lobby during the shooting, but eleven or so people were working at the station
that day.
Hussein Naji, as personal representative of Ali Naji’s estate, sued both Clive and
Dearborn in federal district court. Naji’s representative brought the following claims: (1) a
Fourth Amendment excessive force claim under § 1983; (2) a municipal-liability claim against
Dearborn; (3) assault and battery under Michigan law; and (4) gross negligence under Michigan
law.1 The district court granted summary judgment to Clive and the City on all claims. Naji’s
representative timely appealed. On appeal, both defendants also moved for sanctions under
Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912, 1927.
1Naji originally brought two more claims under the Michigan Persons with Disabilities Civil Rights Act
and the Freedom of Information Act. The district court held that Naji had abandoned those claims, and he does not
raise them on appeal.

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II.
We review a district court’s grant of summary judgment de novo. Sigley v. City of Parma
Heights, 437 F.3d 527, 532 (6th Cir. 2006). Summary judgment is appropriate when there is no
genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We construe the evidence and make all reasonable inferences in favor of
the nonmoving party. Raimey v. City of Niles, 77 F.4th 441, 447 (6th Cir. 2023). That said,
“[w]hen the record contains ‘a videotape capturing the events in question,’ we may not adopt a
‘version of the facts for purposes of ruling on a motion for summary judgment’ that ‘blatantly
contradict[s]’ the asserted version of events such that ‘no reasonable jury could believe it.’” Id.
(second alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The video’s
“gaps or uncertainties” should be construed in the nonmovant’s favor. Latits v. Phillips, 878
F.3d 541, 544 (6th Cir. 2017).
III.
A.
Corporal Clive raised the defense of qualified immunity. To overcome that defense,
Naji’s representative must show that (1) Clive violated his constitutional rights; and (2) those
rights were clearly established at the time of the violation. See Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011). The district court held that Clive did not violate the Constitution. We agree.
Naji’s representative claims that Clive used excessive force against Naji, in violation of
the Fourth Amendment. To determine whether an officer’s use of force was excessive, we ask
whether his actions were “‘objectively reasonable’ in light of the facts and circumstances
confronting [him], without regard to [the officer’s] underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 397 (1989). The use of deadly force is objectively reasonable when an
officer possesses “probable cause to believe a suspect poses an immediate threat of serious
physical harm to the officer or others.” Lee v. Russ, 33 F.4th 860, 863 (6th Cir. 2022). And we
must consider that officers often “make split-second judgments” in dangerous and difficult
circumstances about how much force is necessary. Graham, 490 U.S. at 396–97. Thus, whether

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No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 4
an officer’s use of force was reasonable must be judged from the officer’s perspective in the
moment “rather than with the 20/20 vision of hindsight.” Id. at 396.
Clive’s use of deadly force was lawful. Clive had probable cause to believe Naji posed
an immediate threat of serious physical harm. Naji walked into the station, pointed his gun at
Clive, and pulled the trigger. Then Clive shot Naji, while Naji held his malfunctioning gun
chest-high, still pointed toward Clive, seemingly trying to fix the weapon. “Time and time
again, we have rejected Fourth Amendment claims in this setting—when the officers used deadly
force only after the suspects had aimed their guns at the officers or others.” Presnall v. Huey,
657 F. App’x 508, 512 (6th Cir. 2016) (citing Boyd v. Baeppler, 215 F.3d 594, 598, 604 (6th Cir.
2000); Est. of Sowards v. City of Trenton, 125 F. App’x 31, 38–39 (6th Cir. 2005); Whitlow v.
City of Louisville, 39 F. App’x 297, 300, 306 (6th Cir. 2002)); see also Jordan v. Howard, 987
F.3d 537, 543–44 (6th Cir. 2021). This case is no different: Clive’s use of deadly force was
objectively reasonable.
Naji’s representative offers several responses. The first is that Naji did not pose an
immediate threat. Naji’s representative claims there was no danger because: (1) when Clive
fired, Naji was fixing his gun rather than pointing it at Clive or anyone else; (2) Clive was
standing behind bulletproof glass; (3) Clive could not remember when he last saw a civilian in
the police station before the shooting; (4) Naji never actually fired a bullet; (5) Naji did not try to
flee; and (6) Clive continued to shoot Naji after Naji fell. Naji’s representative claims that Clive
should have tried to de-escalate the situation or warn Naji before resorting to lethal force.
This argument fails. It was objectively reasonable for Clive to believe that Naji posed an
immediate threat of serious physical harm. Legal doctrine and common sense both recognize
that “[w]hen a person aims a weapon in a police officer’s direction, that officer has an
objectively reasonable basis for believing that the person poses a significant risk of serious injury
or death.” Greathouse v. Couch, 433 F. App’x 370, 373 (6th Cir. 2011).
Naji’s representative claims that “Naji was not pointing the gun at Clive or any other
person while Clive shot him,” Corrected Appellant Br. at 18, but the video evidence directly
contradicts this account. Naji was holding his gun chest-high and fidgeting with the weapon—

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No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 5
apparently trying to fix it so he could refire. The weapon was pointed toward Clive. The district
court agreed, finding that Naji was pointing his gun “at about a 45-degree upward angle toward
Clive and [wa]s pulling back the weapon’s slide and turning the barrel directly toward Clive.”
Naji, 709 F. Supp. 3d at 409. And it does not matter that Clive was behind bulletproof glass.
Like our sister circuits, we reject the conclusion that “bulletproof” glass dispels all danger. See
United States v. Whitfield, 695 F.3d 288, 304 n.11 (4th Cir. 2012) (“[W]e join the Second and
Eleventh Circuits in rejecting the contention that bank tellers are not jeopardized simply because
they are situated behind ‘bulletproof’ glass.”).
It was also reasonable for Clive to believe that Naji posed an immediate risk of harm to
others. There were six entrances to the lobby, many other officers were present in the station,
and the shooting occurred “on a busy Sunday during a Christmas toy drive.” Naji, 709 F. Supp.
3d at 411. An officer or member of the public could have walked into the lobby at any moment.
It does not matter that Clive, at his deposition, did not remember the last time prior to the
shooting that someone had entered the station. Nor does it matter that Naji did not try to flee,
given the obvious danger he posed to both Clive and the public.
Clive’s response was also reasonable. Naji pointed his gun at Clive and pulled the
trigger; Clive responded immediately by retrieving his own gun and shooting Naji. Just as an
officer “need not wait for a suspect to open fire on him . . . before the officer may fire back[,]”
Greathouse, 433 F. App’x at 373, an officer who has already been fired on (unsuccessfully) need
not pause to give an assailant time to reload or repair his gun. A mere six seconds transpired
between Naji attempting to fire and Clive returning fire. That matters too. Graham reminds us
that officers often “make split-second judgments” in “uncertain[] and rapidly evolving”
situations. 490 U.S. at 396–97. That was certainly the case here.
Second, Naji’s representative argues that the district court erred by paying insufficient
attention to Naji’s alleged mental illness. But regardless of whether Naji was mentally ill, Clive
did not act unreasonably by resorting to lethal force. Our precedent makes that clear. In Palma
v. Johns, this court held that a defendant’s “diminished capacity” from mental illness can factor
into the totality of the circumstances in an excessive-force claim. 27 F.4th 419, 436–37 (6th Cir.
2022). But we explained that this factor is relevant only if the officer knew, or had reason to

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No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 6
know, of the suspect’s mental illness. Id. For example, in Palma, the dispatcher told the
responding officer that Palma was a “Code 76,” meaning a person with mental illness. Id.
Here, Naji’s alleged mental illness fails to create any genuine dispute regarding a material
fact. There is no genuine dispute as to whether Clive knew Naji at all, let alone that he was
mentally ill. Clive testified that he did not recognize Naji, who wore a mask and did not say a
word during the encounter. Naji’s representative suggests that the Dearborn police had “every
possibility . . . to know Naji and his mental health,” noting that Naji once received police
assistance after a mental-health episode. Corrected Appellant Br. at 15. But he never asserts,
much less supplies evidence, that Clive recognized Naji or knew of his mental illness. And, in
any event, officers can use lethal force “against a mentally ill person who,” like Naji, “was
armed and threatening.” Palma, 27 F.4th at 437 (emphasis omitted). Naji’s mental illness does
not render Clive’s actions unreasonable.
In sum, no constitutional violation occurred because Clive’s actions were objectively
reasonable. Therefore, Clive is entitled to qualified immunity. And while Naji’s representative
also brought a § 1983 claim against the City of Dearborn alleging municipal liability, the City
cannot be held liable because there was no underlying constitutional violation. See, e.g., Gaddis
ex rel Gaddis v. Redford Township, 364 F.3d 763, 777 (6th Cir. 2004).
B.
Naji also brought claims for assault and battery and gross negligence under Michigan
law. To qualify for immunity under Michigan law, an officer must show that (1) he acted during
the course of employment and within the scope of his authority; (2) he acted in good faith; and
(3) his actions were discretionary, not ministerial. Odom v. Wayne County, 760 N.W.2d 217,
218 (Mich. 2008). Unlike under federal law, the standard is subjective. Shumate v. City of
Adrian, 44 F.4th 427, 451 (6th Cir. 2022). So an officer who believed in good faith that the force
used was necessary is protected from liability for an assault and battery claim; whereas, an
officer who acted with malicious intent is not. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir.
2011).

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No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 7
Naji’s representative disputes only whether Clive acted in good faith. But the facts do
not give rise to any genuine dispute. Under Michigan law, an officer may use lethal force to
defend himself or another, and an officer’s use of such force is in good faith when he fires after
seeing the assailant aim either at himself or another. Ealey v. City of Detroit, 375 N.W.2d 435,
439 (Mich. Ct. App. 1985); see also Presnall, 657 F. App’x at 513. No reasonable juror could
find that Clive acted with malice. Clive fired only after Naji tried to shoot him, while Naji was
actively trying to fix his weapon. Clive is immune from assault and battery claims under
Michigan law.
Now gross negligence.2 Michigan law “has rejected attempts to transform claims
involving elements of intentional torts into claims of gross negligence.” VanVorous v.
Burmeister, 687 N.W.2d 132, 143 (Mich. Ct. App. 2004), overruled in part on other grounds by
Odom, 760 N.W.2d 217. Gross negligence is cognizable under Michigan law only when not
“fully premised on” an intentional-tort claim. Id. We have repeatedly applied that principle to
bar excessive-force claims disguised as gross-negligence claims. See Bletz, 641 F.3d at 756;
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007); Presnall, 657 F. App’x at
513.
Naji’s representative contends that his gross-negligence claim is independent from his
assault and battery claims. Dearborn Police Department policy, he says, requires an officer to
give a verbal warning before resorting to lethal force, which Clive failed to do. Thus, Naji says
his gross-negligence claim is premised not on the assault and battery, but on Clive’s failure to
follow department policy.
Even assuming this is a viable theory, Naji’s claim still fails. In Brent v. Wayne County
Department of Human Services, we dismissed a gross-negligence claim against Detroit and its
officers because the plaintiffs failed to identify any legal rule “impos[ing] a duty running from
Detroit police officers to private citizens requiring the officers to abide by internal departmental
policies.” 901 F.3d 656, 701 (6th Cir. 2018). So too here: Naji’s representative does not
explain how Clive owed Naji a duty to follow departmental policy. He asserts that “law
2Michigan law does not immunize officers for grossly negligent conduct. Mich. Comp. Laws
§ 691.1407(2)(c).

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No. 24-1058 Naji v. City of Dearborn, Mich., et al. Page 8
enforcement officers should follow procedures or statutory obligations of the Police
Department.” Corrected Appellant Br. at 33. But he identifies no legal authority for the
proposition that failure to do so makes an officer liable in tort. Thus, even assuming that Naji’s
gross-negligence claim is not fully premised on underlying intentional conduct, it raises no
genuine issue of material fact.
* * *
We AFFIRM.

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