Karen Heeter, as administrator of the estate of Bill G. Heeter, deceased v. Kenneth Bowers, individually

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0095p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KAREN HEETER, as administrator of the estate of Bill
G. Heeter, deceased; JONATHAN HEETER, individually
and as heir to the estate of Bill G. Heeter, deceased;
STEPHANIE HEETER, individually and as heir to the
estate of Bill G. Heeter, deceased; BRANDON HEETER,
individually and as heir to the estate of Bill G. Heeter,
deceased,
Plaintiffs-Appellees,
v.
KENNETH BOWERS, individually and in his capacity as
an employee of the City of Columbus, Ohio;
COLUMBUS POLICE DEPARTMENT,
Defendants-Appellants.
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No. 23-3296
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:20-cv-06481—Algenon L. Marbley, Chief District Judge.
Argued: February 1, 2024
Decided and Filed: April 29, 2024
Before: SUTTON, Chief Judge; CLAY and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Alana V. Tanoury, CITY OF COLUMBUS, Columbus, Ohio, for Appellants. Louis
E. Grube, FLOWERS & GRUBE, Cleveland, Ohio, for Appellees. ON BRIEF: Alana V.
Tanoury, Alexandra N. Pickerill, CITY OF COLUMBUS, Columbus, Ohio, for Appellants.
Louis E. Grube, FLOWERS & GRUBE, Cleveland, Ohio, for Appellees.
BLOOMEKATZ, J., delivered the opinion of the court in which SUTTON, C.J., joined.
CLAY, J. (pp. 30–37), delivered a separate dissenting opinion.
>

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_________________
OPINION
_________________
BLOOMEKATZ, Circuit Judge. On the morning of November 21, 2018, the day before
Thanksgiving, Bill Heeter told his wife Karen he was about to commit suicide. Mr. Heeter’s
brother called the police to stop him. At about 10:05 a.m., officers began to arrive at the family’s
Columbus, Ohio home. They spotted Mr. Heeter through his kitchen window—he was sitting at
a table smoking a cigarette, with one hand on his pistol. He told the officers he’d put his gun
away if they left. At approximately 10:15 a.m., a group of officers entered the house with their
weapons drawn. At 10:17 a.m., Officer Kenneth Bowers fired five rounds from his M16 service
rifle into Mr. Heeter’s chest. At 10:57 a.m., Mr. Heeter was pronounced dead at the hospital.
Police bodycam footage captured almost everything that happened. It shows that a police
sergeant called the paramedics. It also shows that Officer Bowers did not administer first aid or
otherwise try to help Mr. Heeter while waiting for the paramedics to arrive, even though Mr.
Heeter was audibly and visibly alive, hemorrhaging blood, and struggling to breathe.
The Heeters’ three children and their mother (as the representative of Mr. Heeter’s estate)
sued Officer Bowers and the Columbus Police Department (a subdivision of the City of
Columbus) for civil rights violations under 42 U.S.C. § 1983 and for violations of state tort law.
Officer Bowers and the City asserted that qualified immunity and Ohio statutes meant they could
not be sued. Based on careful review of the video, the district court granted the defendants
immunity from some claims but denied others.
The two constitutional claims against Officer Bowers that survived qualified immunity in
the district court are the central focus of this appeal. First, the Heeters claim that Officer Bowers
used excessive force in violation of the Fourth Amendment when he shot and killed Mr. Heeter.
Second, the Heeters claim that Officer Bowers violated Mr. Heeter’s Fourteenth Amendment
right to adequate medical care while in police custody because he stood idle after the paramedics
were called, rather than provide the emergency first aid Mr. Heeter obviously needed.

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We conclude, contrary to the Heeters’ motion to dismiss this appeal, that we have
jurisdiction to review both claims. On the merits, we affirm the district court’s denial of state-
law immunity and qualified immunity as to Officer Bowers in his individual capacity, so the
Heeters’ constitutional and state-law claims against him may proceed to trial. But, just as the
district court held that the City was entitled to summary judgment on the federal claims, the City
was also entitled to summary judgment on the state-law claims because of an Ohio municipal
immunity statute. We reverse solely on the issue of municipal immunity for the City, and
otherwise affirm.
BACKGROUND
I. Factual Background
Bill and Karen Heeter lived together in the Franklinton neighborhood of Columbus, Ohio
with their three children: twenty-one-year-old Jonathan, nineteen-year-old Jennifer, and
seventeen-year-old Brandon.
Kenneth Bowers is an officer with the Columbus Police Department, and in November of
2018 had just completed his twenty-first year of service. Through the course of his career,
Officer Bowers received training in basic first aid, de-escalation, interacting with persons in
mental health crises, and crisis intervention. The other officers most relevant to the appeal are
Sergeant Steven Redding, Officer Linda Gibson, and Officer Robert Bruce.
A. The Heeters’ Calls to the Police
Around 9:00 a.m. on November 21, 2018, either Ms. Heeter or Mr. Heeter’s brother
called Franklin County 911 Dispatch because Mr. Heeter was threatening to jump in front of a
bus. Sergeant Redding and several other officers drove to the Heeters’ house in response to this
call. On the scene, Ms. Heeter told the officers that Mr. Heeter had attempted suicide before, and
that he had threatened to shoot himself the prior evening but that she had been able to get his gun
away from him. When the officers couldn’t locate Mr. Heeter, they left.
About an hour later, Mr. Heeter’s brother called 911, reporting that Mr. Heeter was back
in the house, armed with a gun, threatening to shoot himself, and in need of “someone to talk

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him down before he gets hurt.” Dispatch Log, R. 21-3, PageID 153. About two minutes into the
call, the brother started to cry and told the dispatcher, “Please don’t shoot him.” Id.
B. The Police Response
The footage from three of the responding officers’ body-worn cameras depicts much of
the police response to this second call. See Bowers Footage, R. 21-2; Bruce Footage, R. 21-7;
Redding Footage, R. 21-12. Officer Bowers, Sergeant Redding, Officer Bruce, and Officer
Gibson arrived at the scene in quick succession. They knew from the 911 dispatch report that
Mr. Heeter was armed, suicidal, and sitting in his dining room. They also knew that Mr. Heeter
had not threatened to harm anyone else in the home.
Officer Bowers arrived first. He unracked his M16 service rifle, exited his police cruiser,
then armed and aimed his rifle as he walked towards the Heeter residence. The other officers
approached with their handguns holstered. After the officers surveyed the house for a few
minutes, Ms. Heeter announced herself and walked out of the house onto the front porch. She
told the officers that the couple’s three children along with her niece (twenty-six-year-old
Brittany) were upstairs and in the basement of the home. She also confirmed to the officers that
Mr. Heeter was still sitting at the dining table alone and said he “would put the gun up if you
guys just leave.” Redding Footage, 2:45–3:15. Officer Bowers responded, “We can’t take that
chance—we’re going home tonight, okay?” Id.
After Ms. Heeter walked out to the street, Sergeant Redding and Officers Bowers, Bruce,
and Gibson approached the front door of the home, through which they could see Mr. Heeter
seated at the dining table and smoking a cigarette. A handful of officers, including Gibson and
Bruce, clustered with Bowers by the front door. Sergeant Redding stationed himself near a
window on the porch where he could see Mr. Heeter more fully, and from there he relayed his
view of Mr. Heeter to the officers at the front door. He relayed that Mr. Heeter had a gun in his
right hand pointed down at the floor. The officers repeatedly ordered Mr. Heeter to drop his gun
and exit the house with his hands up so they could get him help. Mr. Heeter occasionally
responded by asking the officers to leave and telling them he’d put his gun away if they did.

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After several minutes, Mr. Heeter stood up from the table and moved into the corner. In
response to this movement, Sergeant Redding ordered Mr. Heeter again to put the gun down and
come outside, warning him that he would be shot if he aimed his gun at the officers. Sergeant
Redding then relayed to the other officers that Mr. Heeter had put his gun on the table and said,
“You guys ready? We’re gonna move in and take him before he gets that.” Bruce Footage at
9:45–10:10.
Officers Bowers, Bruce, and Gibson then walked quickly into the home with weapons
drawn, stopping so they stood in the archway to the dining room. Officer Bowers stood with his
rifle aimed at Mr. Heeter. Sergeant Redding and a handful of other officers followed and stood
behind. Mr. Heeter side-stepped so he better faced the officers. The officers in the archway tried
for about a minute to persuade Mr. Heeter to drop his gun and raise his hands. Mr. Heeter stood
still with his hands in his pockets.
Mr. Heeter largely remained silent as the officers instructed him several times to walk
away from the table with his hands up. After some time, Mr. Heeter said, “You know, you guys
are really starting to piss me off.” Redding Footage at 10:45–10:50. An officer responded, “Just
show us your hands, we’ll get you some help.” Id. at 10:50–11:11. Mr. Heeter replied, “I don’t
want no help . . . I just want you guys to just go out, I’ll put my gun up, and I won’t touch it no
more.” Id. One officer responded, “No, it doesn’t work that way, Bill,” and another chimed in,
expressing that they did not want anyone to get hurt. Id. Mr. Heeter stood with his hands in his
pockets for the entirety of this exchange.
The bodycam footage of the moments that followed is partially obscured—we can see the
left side of Mr. Heeter’s body, including his left hand. And while Sergeant Redding told the
officers he saw Mr. Heeter put his gun onto the table, the video does not definitively resolve
where the gun was: the Heeters’ two black cats and other scattered objects obscure a clear view
of the table.
We can see from the footage that Mr. Heeter took one or two side-steps to his left. As
Mr. Heeter began these movements, Officer Bowers asked, “Where’s the gun? I see the cat.”
Bruce Footage at 11:25–11:40. Mr. Heeter took his left hand out of his pants pockets and started

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to move his torso toward the floor with nothing in his left hand. We cannot see his right hand.
As he moved slightly, an officer started to say “Bill—.” Id. Officer Bowers then pulled the
trigger of his M16 rifle and delivered five shots to Mr. Heeter’s chest in quick succession. Mr.
Heeter immediately collapsed to the floor face down.
C. After the Shooting
Immediately after the shooting, Sergeant Redding said that Officer Bowers “had point.”
Bruce Footage at 11:30–13:00. Then, about 25 seconds after the shooting, Sergeant Redding
radioed to report the shooting and call for paramedics. Meanwhile, Officer Bowers walked up to
Mr. Heeter—who was still collapsed face down on the floor—and asked him to show his hands.
Mr. Heeter didn’t move. Officer Bowers then ordered Officer Bruce to handcuff Mr. Heeter, but
said that before he did, he should put on protective rubber gloves. After retrieving and donning
his gloves, Officer Bruce pulled Mr. Heeter’s hands behind his back to cuff him. As he did, Mr.
Heeter began to audibly moan. Blood had pooled on the floor below Mr. Heeter and had gotten
on his hands. Meanwhile, Officer Bowers continued to command Mr. Heeter to show the
officers his hands.
The bodycam footage then shows Officer Bowers engaged in largely non-verbal
communications with the other officers in the room. We can see they made eye contact and
exchanged various hand signals in silence. Office Bruce gave Officer Bowers a thumbs up,
seeming to ask if he was okay. At one point, Officer Bowers appears to have been reenacting
how he shot Mr. Heeter, as he raises his rifle again. At other points, Officer Bowers walked in
and out of the room, then stood with his hand on his hip in the corner. No one was attending to
Mr. Heeter, who was bleeding profusely and struggling to breathe.
After several minutes, Sergeant Redding confirmed that Officer Bowers was the only
officer “involved” in the shooting. Bruce Footage at 12:30–14:25; Redding Footage at 12:20–
14:30. Sergeant Redding said that Officer Bowers “saved everybody,” and Officer Bruce
reassured Officer Bowers, “Don’t even think about it.” Id. Sergeant Redding then instructed
Officer Bowers to leave the room; he quickly complied. When Officer Bowers left the room,
about three minutes had passed since he shot Mr. Heeter. The other officers then approached

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Mr. Heeter and heard him cough and gasp for air. So much blood had accumulated below his
head and body in this time that Officer Bruce suggested Sergeant Redding pull Mr. Heeter’s nose
out of the puddle so he could breathe.
The paramedics appeared about eight-and-a-half minutes after the shooting. Mr. Heeter
remained cuffed. Once they arrived, the medics immediately turned Mr. Heeter onto his back.
After they detected electrical activity in Mr. Heeter’s heart, they began to administer CPR. The
paramedics transported Mr. Heeter to the hospital, where he was pronounced dead at 10:57 a.m.
II. Procedural History
Ms. Heeter (in her capacity as the administrator of Mr. Heeter’s estate), along with
Jonathan, Stephanie, and Brandon (as individuals and heirs to the estate), brought this action in
the Franklin County Court of Common Pleas against Officer Bowers in his individual and
official capacities and the Columbus Police Department. As relevant here, the family asserted
claims under 42 U.S.C. § 1983 against Officer Bowers for violating Mr. Heeter’s Fourth and
Fourteenth Amendment rights by using excessive force against him, and for violating his
Fourteenth Amendment right to receive adequate medical care while in custody. The family also
asserted state-law assault and battery claims against Officer Bowers, and a wrongful death claim
against Bowers and the department.
Officer Bowers and the Columbus Police Department removed the case to the United
States District Court for the Southern District of Ohio. The defendants moved for summary
judgment, arguing they were entitled to qualified immunity on the federal claims and statutory
immunity on the state-law claims. Officer Bowers’s defense rested largely on his own affidavit,
in which he asserted that he shot Mr. Heeter because he perceived Mr. Heeter’s “tone of voice to
be very cold and somewhat angry,” he had “his right hand and fingers formed in a ‘grip,’ as if he
was holding or grabbing the butt of a pistol,” and he then “quickly pulled his right hand from his
pocket” and “quickly stepped forward while bending at the waist or crouching.” Bowers Aff.,
R. 21-1, PageID 144–46 ¶¶ 26, 29–30. He claims this caused him to be “in fear for [his] life and
the lives of the other officers at that moment.” Id. at PageID 146 ¶ 30.

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The district court denied summary judgment on the excessive force, adequate medical
care, and state-law claims against Officer Bowers in his individual capacity. The district court,
reviewing the bodycam footage and other record evidence, concluded there were genuine
disputes of material fact as to whether Mr. Heeter had a gun on his person and whether he
“lunged” or otherwise appeared to be threatening the officers before Officer Bowers shot him.
Op. & Order, R. 37, PageID 342, 345–46. These factual disputes precluded summary judgment
on the excessive force claim. The district court also concluded that based on Officer Bowers’s
actions after the shooting, a jury could find that he violated Mr. Heeter’s clearly established right
to adequate medical care. And because Officer Bowers was not entitled to qualified immunity at
summary judgment, the district court concluded he was also not entitled to Ohio’s statutory
immunity for municipal employees or to summary judgment on the state-law claims. The court
granted summary judgment for the Columbus Police Department on all the federal claims against
it but denied municipal immunity under Ohio law.
The defendants timely appealed.
QUALIFIED IMMUNITY
We review de novo the district court’s order denying Officer Bowers summary judgment
on his qualified immunity defense. See Helphenstine v. Lewis Cnty., 60 F.4th 305, 314 (6th Cir.
2023). A public official is entitled to qualified immunity at summary judgment when, viewing
the facts in the light most favorable to the plaintiff, the challenged conduct did not violate
“clearly established . . . constitutional rights of which a reasonable person would have known.”
Jackson v. City of Cleveland, 64 F.4th 736, 745 (6th Cir. 2023) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)) (cleaned up). The official is entitled to summary judgment unless a
“genuine dispute of material fact” precludes the defense. Fed. R. Civ. P. 56(a); see Wilkerson v.
City of Akron, 906 F.3d 477, 481 (6th Cir. 2018). Once the official has asserted a qualified
immunity defense, the plaintiff must show that (1) the official violated his constitutional rights,
and (2) at the time of the violation, it was “clearly established” that the officer’s conduct would
violate the Constitution. Palma v. Johns, 27 F.4th 419, 428 (6th Cir. 2023). We may answer
those questions “in any order.” Jackson, 64 F.4th at 745.

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At issue on appeal are the two constitutional claims that survived qualified immunity in
the district court: (1) that Officer Bowers violated Mr. Heeter’s Fourth Amendment right by
using excessive force; (2) that Officer Bowers violated Mr. Heeter’s Fourteenth Amendment
right to receive adequate medical care while detained. We first address our appellate
jurisdiction, then evaluate each claim separately.
I. Appellate Jurisdiction
Before reaching the merits, we must first confirm that we have jurisdiction over Officer
Bowers’s appeal. See, e.g., Adams v. Blount Cnty., 946 F.3d 940, 948 (6th Cir. 2020). An order
denying summary judgment is not typically a “final decision” that we have jurisdiction to review
under 28 U.S.C. § 1291. Plumhoff v. Rickard, 572 U.S. 765, 771 (2014). But we treat denials of
qualified immunity a bit differently. When a defendant official is entitled to qualified immunity
(or Ohio statutory immunity), it means they are entitled to not stand trial for their actions. Id. at
771–72; Ohio Rev. Code § 2744.02(C). A summary-judgment order denying this immunity from
suit is essentially a final order as to that entitlement. That denial is separate enough from the
underlying merits to warrant immediate appeal under the collateral order doctrine. Plumhoff,
572 U.S. at 771–72; see also Mitchell v. Forsyth, 472 U.S. 511, 527–30 (1985). At least for
some appeals.
We have jurisdiction to review these interlocutory decisions “only to the extent” the
appeal “turns on an issue of law.” Adams, 946 F.3d at 948; Johnson v. Jones, 515 U.S. 304, 313
(1995) (quoting Mitchell, 472 U.S. at 530) (emphasis omitted). We have no power of review
where the officer’s appeal is based on a quarrel with the plaintiff’s record-supported facts, which
the district court must adopt at summary judgment. E.g., Perez v. Simpson, 83 F.4th 1029, 1031
(6th Cir. 2023) (“[I]n this appeal, the facts are everything. So we lack jurisdiction.”).
This fact-law distinction stems from the Supreme Court’s decision in Johnson v. Jones,
515 U.S. 304 (1995). In Johnson, the Court considered an appeal of officers sued for using
excessive force. Id. at 307. Some of the officers argued they were entitled to summary judgment
because they weren’t even present when the force was used. Id. at 307–08. The district court
disagreed: there was “potential liability” under the plaintiff’s story that “the three officers stood

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by and allowed others to beat the plaintiff,” and the record contained “sufficient circumstantial
evidence” that a jury could believe that story was true. Id. at 308 (cleaned up). On appeal,
because the officers continued to fight the facts and would not accept the district court’s view of
the record, the Seventh Circuit dismissed the case for lack of appellate jurisdiction. Id. at 313.
The Supreme Court affirmed, holding that our appellate jurisdiction to review qualified
immunity denials does not extend to disputes about “evidence sufficiency,” which ask us to
determine “which facts a party may, or may not, be able to prove at trial.” Id. We may only
review the “purely legal” issue of whether the facts “support a claim of violation of clearly
established law.” Id. (quoting Mitchell, 472 U.S. at 528 n.9).
Adhering to Johnson, we have consistently declined to exercise jurisdiction over appeals
where the officer’s dispute of facts is “crucial to” the appeal. Adams, 946 F.3d at 951 (quoting
Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002)); see also, e.g., McGrew v. Duncan, 937 F.3d
664, 669–70 (6th Cir. 2019) (dismissing fact-bound appeal for lack of appellate jurisdiction);
Anderson-Santos v. Kent Cnty., 94 F.4th 550, 554–55 (6th Cir. 2024) (same). And a defendant
“may invoke our jurisdiction by conceding” the district court’s version of the facts, as construed
in the light most favorable to the plaintiff. Anderson-Santos, 94 F.4th at 554 (citing Berryman v.
Rieger, 150 F.3d 561, 562 (6th Cir. 1998); Moldowan v. City of Warren, 578 F.3d 351, 369–70
(6th Cir. 2009)). By adopting that version of the facts, “we may decide the legal question of
whether qualified immunity is warranted.” Raimey v. City of Niles, 77 F.4th 441, 448 (6th Cir.
2023).
Deciphering whether an officer’s appeal challenges “evidence sufficiency” or is “purely
legal” sounds much easier than it often is. Johnson, 515 U.S. at 313 (quoting Mitchell, 472 U.S.
at 528 n.9). In part, that is because “it is impossible to know which ‘clearly established’ rules of
law to consult unless you know what is going on.” Elliott v. Thomas, 937 F.2d 338, 342 (7th Cir.
1991) (cleaned up). Indeed, our review of summary judgment decisions outside the qualified
immunity context—which we review de novo as “legal” determinations—frequently entails
entwined questions of fact and law and whether the district court properly construed the record
as Rule 56 dictates. See, e.g., United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999).
Determining where an interlocutory challenge to a qualified immunity denial lands on this fact-

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law spectrum, as we must, is a contentious issue. Compare Williams v. Mehra, 186 F.3d 685,
689–90 (6th Cir. 1999) (en banc) (asserting jurisdiction over interlocutory appeal to review a
“mixed” question, characterized as “an issue of ultimate fact as distinguished from subsidiary or
basic fact”), with id. at 695–96 (Merritt, J., dissenting in part) (criticizing majority’s analysis of
appellate jurisdiction question as “not what the Supreme Court had in mind when it decided
Johnson v. Jones”). See also Barry v. O’Grady, 895 F.3d 440, 444 (6th Cir. 2018) (concluding
that appellate jurisdiction was lacking, over a dissent, because what the defendants called legal
arguments were really about the facts). Our sister circuits also struggle to apply and have
criticized the Johnson standard. See Est. of Anderson v. Marsh, 985 F.3d 726, 735 (9th Cir.
2021) (Fletcher, J., dissenting) (collecting cases and emphasizing that “the law in this area is
extraordinarily confused”).
Adding to the difficulty, the Supreme Court has forgone numerous opportunities to
clarify Johnson by not discussing or explaining it in subsequent cases involving appeals from
district court denials of qualified immunity at summary judgment. See Barry, 895 F.3d at 445
(Sutton, J., dissenting) (citing Plumhoff, 572 U.S. 765; Scott v. Harris, 550 U.S. 372 (2007));
Marsh, 985 F.3d at 739–42 (Fletcher, J., dissenting) (citing Saucier v. Katz, 533 U.S. 194 (2001);
Scott, 550 U.S. 372; Plumhoff, 572 U.S. 765; Mullenix v. Luna, 577 U.S. 7 (2015); White v.
Pauly, 580 U.S. 73 (2017)). A particularly thorny question is how to properly square Johnson
with the Supreme Court’s decision in Scott v. Harris, which reversed a district court’s denial of
summary judgment as “blatantly contradicted by the record,” but did not discuss appellate
jurisdiction whatsoever. 550 U.S. at 380. We have attempted to reconcile the cases in various
ways. See, e.g., Bunkley v. City of Detroit, 902 F.3d 552, 559 (6th Cir. 2018) (characterizing
whether district court’s factual determination is “blatantly” wrong as a “legal question”
reviewable on interlocutory appeal); Barry, 895 F.3d at 443 (characterizing same inquiry as an
“exception” to Johnson). But see Barry, 895 F.3d at 445 (Sutton, J., dissenting) (criticizing
majority’s reading of Scott to permit only some evidentiary challenges on interlocutory review as
“terribly confusing” and “not a rule”); see also Raimey, 77 F.4th at 447 (explaining that when the
record contains a video, Scott constrains the facts we may “adopt” on appeal). Even though Scott
does not cite Johnson, it—like all the Supreme Court’s post-Johnson cases—is still binding on
our court.

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Parsing this precedent, we conclude that we have jurisdiction to review both
constitutional claims Officer Bowers appeals. Here, the bodycam footage accurately depicts
most of the relevant events. We may view the facts “in the light depicted by the videotape” and
use it to ensure the district court properly constructed the factual record. Latits v. Phillips, 878
F.3d 541, 544 (6th Cir. 2017) (quoting Scott, 550 U.S. at 381). And the video resolves many of
the factual disputes. Cf. Scott, 550 U.S. at 381 (using video to resolve disputed facts and reject
district court’s factual determinations on interlocutory qualified immunity review); Rudlaff v.
Gillispie, 791 F.3d 638, 639, 642 (6th Cir. 2015) (same); LaPlante, 30 F.4th at 576 n.8 (using
video to resolve disputed fact). As we will discuss, it allows us to reject Officer Bowers’s
contention that the factual determinations underlying the district court’s excessive force decision
were “blatantly contradicted by the record,” as they were in Scott v. Harris. Opp’n Mot. Dismiss
App. at 3, 5, 10 (quoting Scott, 550 U.S. at 380). It also gives us a clear view of what happened
after Officer Bowers shot Mr. Heeter, thus providing an uncontroverted set of facts for the
Fourteenth Amendment medical-care claim.
Because we can conduct our legal analysis based on the video and the undisputed facts,
this appeal is not about “evidence sufficiency.” See Johnson, 515 U.S. at 313. This is not a case
involving dueling affidavits where the defendants, denied qualified immunity below, rest their
appellate arguments entirely on a version of the facts that would absolve them of liability. See
Berryman, 150 F.3d at 563–64 (dismissing appeal where the defendants’ argument “boil[ed]
down to credibility determinations” about which affidavits the court was to believe); Anderson-
Santos, 94 F.4th at 555 (explaining that a defendant who would not concede to the plaintiff’s
description of the magnitude of and intent behind an officer’s use of force “fail[ed] to present us
with a legal issue”). In those instances, the dispute was not about whether the defendant’s
conduct—as alleged by the plaintiff or determined by the district court—violated clearly
established law. The question for us to answer was: What happened? Here, on the other hand,
we know what happened because we can watch the video.
For the singular contested fact we cannot discern from the video—the location of the
gun—Officer Bowers is willing to accept for purposes of appeal the district court’s
determination that, viewing the record in the light most favorable to the Heeters, a jury could

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find it was on the table. To the extent this factual dispute was “crucial” to Officer Bowers’s
appeal, his concession allows us to resolve the legal issues he has raised—which are the bases of
our interlocutory appellate jurisdiction—while allowing the parties to keep their factual disputes
on ice for potential resolution at trial. Adams, 946 F.3d at 948, 951; see also Mehra, 186 F.3d at
690 (finding jurisdiction when the defendants “admitted” to the plaintiff’s facts “for purposes of
this appeal”). Indeed, Officer Bowers argues he is entitled to qualified immunity under either
version of the facts—if the gun was in Mr. Heeter’s pocket or on the table. He’s wrong, but the
video and this concession mean we have jurisdiction over both of Officer Bowers’s claims
because we can set aside factual quarrels and determine whether he violated clearly established
law. That question is “the precise scope of our appellate jurisdiction on interlocutory appeal
from a denial of qualified immunity.” Ouza v. City of Dearborn Heights, 969 F.3d 265, 277–78
(6th Cir. 2020). We therefore proceed to the merits.
II. The Fourth Amendment Excessive Force Claim
Officer Bowers challenges the district court’s decision to deny him qualified immunity on
the excessive force claim. We begin by addressing the relevant facts that apply to this claim,
then analyze whether he violated clearly established law.
A. Mr. Heeter’s Final Actions
Our “first step” in reviewing the constitutionality of Officer Bowers’s use of force is “to
determine the relevant facts” for our analysis. Scott, 550 U.S. at 378. As we mentioned earlier,
Officer Bowers argues that our general Johnson-based rule that we do not review the facts on
interlocutory appeal does not apply here because the district court’s construction of the facts was
so “blatantly contradicted by the record” that we should use his version of the facts instead.
Opp’n Mot. Dismiss App. at 5, 10 (quoting Scott, 550 U.S. at 378). Specifically, he challenges
the district court’s conclusion that there were genuine factual questions as to whether Mr. Heeter
lunged at the officers or whether “the gun was in Mr. Heeter’s pocket or on the table.” Appellant
Br. at 23–24. Officer Bowers says that the record conclusively establishes that Mr. Heeter was
lunging at him while pulling a gun out of his pocket. The record belies both assertions.

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We easily dismiss the assertion that Mr. Heeter lunged at the officers just by watching the
video. The part of Mr. Heeter’s body that is visible in the footage made a slight downward
movement towards the floor, not an abrupt lunge towards the officers. From watching this
footage, a reasonable jury could believe that it was not a lunge or other threatening movement.
We don’t need more to reject Officer Bowers’s construction, but we have more from a fellow
officer who testified that Mr. Heeter “made a movement, like he was going to lean forward.”
Gibson Aff., R. 21-8, PageID 178 ¶ 12. Not that he lunged.
Likewise, the district court properly determined a jury could find that Mr. Heeter was not
pulling a gun out of his pocket or aiming it at the officers. The officers entered the Heeter
residence specifically because Sergeant Redding told them Mr. Heeter had put his gun down on
the dining table. After that, the video doesn’t show where Mr. Heeter’s gun was; it certainly
does not show the outline of a gun in Mr. Heeter’s pocket, as Officer Bowers claims it does. It
just shows Mr. Heeter standing with his hands in his pockets. None of the other officers
affirmed that they saw an outline of a gun in Mr. Heeter’s pocket or that they saw him holding a
gun. All of these facts support, rather than contradict, the district court’s construction of the
record.
Moreover, we reject Officer Bowers’s assertion that we must accept uncritically all the
allegations in his affidavit because the video does not show the right side of Mr. Heeter’s body
and there is no other affidavit (for instance, from the deceased) to contradict his. To do so would
sidestep our obligation to construe “gaps or uncertainties” in the videos in the Heeters’ favor.
Latits, 878 F.3d at 544. While we sometimes credit police affidavits when nothing contradicts
them, even on review of a denial of summary judgment, e.g., Chappell v. City of Cleveland, 585
F.3d 901, 904–05 (6th Cir. 2009), here the bodycam footage is enough to call Officer Bowers’s
allegations into question. In a sense, the bodycam footage takes the place of what would in
happier circumstances be testimony of Mr. Heeter. See Adams, 946 F.3d at 949. “In cases where
the witness most likely to contradict the officer’s testimony is dead,” we will not “simply accept”
the officer’s “self-serving account.” Id. (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994)) (alteration omitted). Had Mr. Heeter survived the shooting, he might have been able to
explain his actions and perhaps contradict the defendants’ assertion that he was reaching for his

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gun. See Jefferson v. Lewis, 594 F.3d 454, 461–62 (6th Cir. 2010) (affirming denial of summary
judgment when the plaintiff lived to contradict the police officer’s version of the events before
the shooting).
It is true that, following Scott, we have used video footage to depart from the district
court’s factfinding when reviewing denials of qualified immunity. See Rudlaff, 791 F.3d at 639–
40. But Officer Bowers’s argument asks us to flip Scott on its head to use self-serving affidavits
to contradict (or, at best, fill holes) in a video. We reject such a challenge and conduct our legal
analysis with the record as shown in the video and as construed by the district court in the
Heeters’ favor.
B. Fourth Amendment Violation
We next determine whether a reasonable jury could find Officer Bowers violated Mr.
Heeter’s Fourth Amendment rights by using excessive force. The Fourth Amendment prohibits
officers from using more force than is “objectively reasonable” under the circumstances. Palma,
27 F.4th at 428 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)) (cleaned up). Officer
Bowers used deadly force, shooting Mr. Heeter five times with an assault rifle. That was
unconstitutional unless Officer Bowers had “probable cause to believe” Mr. Heeter “posed a
significant threat of death or serious physical injury” to the officers in the room. Thomas v. City
of Columbus, 854 F.3d 361, 365 (6th Cir. 2017) (quoting Tennessee v. Garner, 471 U.S. 1, 3
(1985)) (alteration omitted). We evaluate Officer Bowers’s actions from the perspective of a
reasonable officer in his position, recognizing that he made the “split-second” decision to shoot
Mr. Heeter without the benefit of hindsight. Raimey, 77 F.4th at 448 (citation omitted). In
making our determination, we may consider why the officers were called to the Heeter residence
as well as whether Mr. Heeter’s words or actions show he resisted, disobeyed, or otherwise acted
aggressively towards the officers. See Palma, 27 F.4th at 432; Wilkerson, 906 F.3d at 482.
Consider what we can see from the video: The officers knew they had been called to the
home because Mr. Heeter was suicidal and armed. When they arrived, Mr. Heeter was sitting
alone at a table smoking a cigarette. While there may have been a concern of self-harm, Mr.
Heeter did not tell the officers in his home he intended to shoot his family or any of the officers.

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While not dispositive, that Mr. Heeter had not acted aggressively towards the officers and had
not committed a crime suggests the use of deadly force against him was unreasonable. See
Palma, 27 F.4th at 432–33, 434–35.
Eventually, Mr. Heeter put his gun down and asked the officers to leave. A group of
officers then walked inside with their guns drawn; Officer Bowers had his large assault rifle at
his shoulder. In response, Mr. Heeter stood up and took a few steps toward the wall to retreat
from the officers. Just after an officer asked him to “show us your hands,” Mr. Heeter began to
take his hands out of his pockets and started some sort of movement toward the ground. Redding
Footage at 10:50–11:11. It was at this moment that Bowers shot Mr. Heeter.
A jury could find these actions would indicate to a reasonable officer that Mr. Heeter was
not threatening to the officers in the room; indeed, they could indicate that Mr. Heeter was
beginning to comply with officer instructions. One of the officers reacted to Mr. Heeter’s
movements by starting to talk to him; his words got cut off by the five shots from Officer
Bowers’s rifle. And none of the other officers fired their weapons. Since a jury could find a
reasonable officer would not have perceived Mr. Heeter to pose a deadly threat, Officer Bowers
is not entitled to summary judgment on the excessive force claim. See Campbell v. Cheatham
Cnty. Sheriff’s Dep’t, 47 F.4th 468, 480 (6th Cir. 2022).
Officer Bowers’s various counterarguments are unavailing. First, Officer Bowers asks us
to focus on the parts of the video which show Mr. Heeter was not following the officers’
commands to exit the house, to put his gun down, or to raise his hands. Mr. Heeter’s
disobedience and words of frustration that the group of armed officers in his home were “really
starting to piss [him] off” indicated that the situation was tense. Redding Footage at 10:45–
10:50. But “the mere failure of a citizen—not arrested for any crime—to follow the officer’s
commands” does not give the officer probable cause to use deadly force against him. Palma, 27
F.4th at 434 (quoting Smith v. City of Troy, 874 F.3d 938, 945 (6th Cir. 2017)) (cleaned up).
Second, Officer Bowers argues that it was reasonable under the circumstances to think
Mr. Heeter’s gun was on his person, regardless of whether that was true. He emphasizes that our
precedent sometimes excuses an officer who has misperceived a suspect to pose an immediate

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threat of serious harm, especially when, as here, the suspect is just a few feet from the officers
and could quickly raise and fire a weapon. See Thomas, 854 F.3d at 366. The video shows that
Bowers did not have a full view of the table—it was obscured by clutter and the Heeters’ two
black cats. So, whether the gun was in Mr. Heeter’s pocket or on the adjacent table, Officer
Bowers emphasizes that it was in reach.
While it may have been reasonable for Officer Bowers to believe the weapon was within
reach, whether it was also reasonable for him to believe Mr. Heeter would use his weapon
against the officers is a different—and critical—question. That’s because, as we have repeatedly
stressed, an officer does not have probable cause to use deadly force against a suspect just
because he is armed. Palma, 27 F.4th at 443; Thomas, 854 F.3d at 366. Something else about
the situation must have reasonably indicated to Officer Bowers not only that Mr. Heeter was
armed, but that he planned to shoot the officers or otherwise posed a serious threat to their safety.
Campbell, 47 F.4th at 480. Here, Officer Bowers hasn’t shown that, viewing the facts in the
light most favorable to the plaintiffs, it was “objectively reasonable” for him to have
“failed . . . to properly assess the reality of the situation.” Floyd v. City of Detroit, 518 F.3d 398,
408 (6th Cir. 2008) (alteration omitted). To be sure, he may try to get a jury to agree with him.
But on these summary-judgment facts, it was unreasonable for Officer Bowers to mistake a
slight movement from a suicidal man who had not expressed an intent to harm anyone else as a
threat of serious or deadly harm.
Third, Officer Bowers asserts that, as a matter of law, we cannot consider the fact that the
other officers did not fire their weapons. Not so. Officer Bowers cites to Jordan v. Howard, but
in that case we determined the conduct of another officer was irrelevant because that officer had
a different perspective from the ones who fired the shots. 987 F.3d 537, 547 (6th Cir. 2021).
This situation more closely tracks Brandenburg v. Cureton, which involved three officers who
stood in close proximity to each other. 882 F.2d 211, 215 (6th Cir. 1989). We reasoned there
that given the similar perspectives of the three officers, “the jury might reasonably consider why
the two other officers did not fire shots if it was quite obvious that they were being threatened
with imminent bodily harm.” Id. So too here. As the body camera footage depicts, Officer
Bowers stood nearly shoulder-to-shoulder with two other officers. That neither thought it

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appropriate to fire at Mr. Heeter cuts against Officer Bowers’s assertion that he reasonably
perceived an imminent threat.
Lastly, Officer Bowers points to various precedents he believes show he did not use
excessive force. Those cases, however, involve undisputed facts that would indicate to a
reasonable officer that the suspect posed a threat to the lives of others at the scene. See
Campbell, 47 F.4th at 480. A rape suspect who had crashed after leading officers on a dangerous
highway car chase, for example, gave officers probable cause to use deadly force against him
when he repeatedly gestured as if he was going to shoot at them from the wreckage. Pollard v.
City of Columbus, 780 F.3d 395, 403 (6th Cir. 2015); see also Lemmon v. City of Akron, 768 F.
App’x 410, 415–16 (6th Cir. 2019) (armed robbery suspect fled from pursuing officers, dared
them to shoot him, and reached for his waistband); Jordan v. Howard, 987 F.3d 537, 543–44
(6th Cir. 2021) (suspect swung his gun at the officers); Tucker v. Marquette County, No. 20-
1878, 2021 WL 2828027, at *1, *3–4 (6th Cir. July 7, 2021) (suspect repeatedly shouted “shoot
me!” as he walked towards officers while holding a shotgun); Cooper v. City of Columbus, No.
22-3251, 2023 WL 1434055, at *6–7 (6th Cir. Feb. 1, 2023) (suspect reached for his gun while
wrestling another officer). The cases exemplify the types of aggressive escalations and
threatening behavior that we have held lead a reasonable officer to perceive a risk of serious or
deadly harm. Mr. Heeter’s slight movements shown in the bodycam footage don’t even come
close. If they did, there would have been no way for him to comply with the officers’
instructions without giving them probable cause to shoot him. We reject such a rule.
C. Clearly Established Law on Excessive Force
The next step of the qualified immunity analysis asks us to determine whether the law
was clearly established at the time of the violation. We ask whether any reasonable officer on
that November morning would have objectively and “clearly understood that he was under an
affirmative duty to have refrained from” using deadly force against Mr. Heeter. Campbell,
47 F.4th at 480–81 (quoting Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987)) (cleaned up).
Especially in the excessive force context, where the scope of the right is highly fact-dependent,
the Supreme Court has stressed the importance of identifying controlling precedent where the
factual circumstances are specific enough to “‘give fair and clear warning’ to officers” that

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particular conduct violates the law. Kisela v. Hughes, 584 U.S. 100, 105 (2018) (per curiam)
(quoting White, 580 U.S. at 79) (cleaned up).
Officer Bowers would have known Mr. Heeter had “a clearly established right not to be
shot” unless he posed a threat of serious or deadly harm to the officers in his home. Mullins v.
Cyranek, 805 F.3d 760, 765 (6th Cir. 2015). He concedes as much. But it was also clearly
established in November 2018 that, even if Mr. Heeter was armed and had disobeyed the
officers’ commands, these facts do not alone amount to a threat of serious or deadly harm. See
Thomas, 854 F.3d at 366; City of Troy, 874 F.3d at 945 (explaining that it is “well-established”
that “a non-violent, non-resisting, or only passively resisting suspect who is not under arrest has
a right to be free from an officer’s use of force”). In short, any officer would have known it
violated the Constitution to shoot a suicidal individual that had moved slightly, even if the person
held a gun in their pocket or could grab a gun within reach. Officer Bowers is therefore not
entitled to qualified immunity on the excessive force claim.
III. Adequate Medical Care
We next turn to the Heeters’ claim that Officer Bowers violated Mr. Heeter’s Fourteenth
Amendment right to adequate medical care while in police custody. The bodycam footage
shows the disturbing aftermath of the shooting—Mr. Heeter bleeding profusely, struggling to
breathe, and moaning in distress. Despite his training, Officer Bowers did not provide any first
aid in the minutes after the shooting and before he was dismissed from the scene. Based on the
bodycam footage, the district court concluded that Officer Bowers was not entitled to immunity
on this claim. We apply the two-step qualified immunity analysis and again, we affirm.
A. Fourteenth Amendment Violation
The due process clause of the Fourteenth Amendment requires government officials to
provide adequate medical care to pretrial detainees and others in their custody who are not
serving a sentence. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). That includes
a person who, like Mr. Heeter, has been “injured while being apprehended by the police.” Id.
To prevail on this claim, the Heeters must show that (1) Mr. Heeter “had a sufficiently serious
medical need” and (2) Officer Bowers recklessly disregarded “an unjustifiably high risk of harm

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that is either known or so obvious that it should be known.” Helphenstine, 60 F.4th at 317
(cleaned up). These requirements are known as the “objective” and “subjective” components of
the claim, respectively. E.g., Hicks v. Scott, 958 F.3d 421, 438 (6th Cir. 2020). The violation
arises from an officer’s decisions in the face of the risk of harm, and the law does not look to
whether the officer’s action or inaction has a causal connection to the fate of the detainee. Cf.
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004). That is, we’re not asking if
Officer Bowers’s failure to provide medical care was a but-for cause of Mr. Heeter’s death.
Instead, we’re asking if, under our precedent’s objective and subjective tests, Officer Bowers
violated Mr. Heeter’s due process rights to adequate medical care in police custody.
Objective Component. For the objective component, the plaintiffs must demonstrate a
“serious medical need,” which we identify by asking if the injury was so obvious that anyone
would understand it posed a “substantial risk of serious harm” without medical intervention.
Hicks, 958 F.3d at 438 (quoting Blackmore, 390 F.3d at 899). The parties agree Mr. Heeter’s
gunshot injuries were so obvious that anyone would recognize his need for medical care.
Subjective Component. For the subjective component, the plaintiffs must address the
officer’s mental state and responsive actions. They must show that the officer either knew the
risk of harm and disregarded it, or that they “recklessly disregarded a risk so obvious that they
. . . should have known of it.” Lawler ex rel. Lawler v. Hardeman Cnty., 93 F.4th 919, 927 (6th
Cir. 2024) (citing Helphenstine, 60 F.4th at 317). The plaintiffs must also prove that the officer
“‘responded’ to the risk in an unreasonable way.” Id. at 929 (quoting Farmer v. Brennan, 511
U.S. 825, 844 (1994) and citing Beck v. Hamblen Cnty., 969 F.3d 592, 600 (6th Cir. 2020)).
A recent clarification on the subjective element merits some discussion. We previously
applied the same standard to medical-care claims by pretrial detainees alleging due process
violations under the Fourteenth Amendment and to claims by inmates alleging unconstitutional
punishment under the Eighth Amendment. See id. at 927. That “deliberate indifference”
standard required the officer not only to know the facts giving rise to the medical risk, but also to
subjectively know the risk of harm, and then respond unreasonably. Farmer, 511 U.S. at 837,
844. Following Supreme Court precedent, we changed the mental state for the due process
claims. For a Fourteenth Amendment claim, as the Heeters assert, we no longer require that the

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officer knew the risk of harm from failure to provide medical care; an officer is still liable for
recklessly disregarding the risk. Lawler, 93 F.4th at 927 (citing Helphenstine, 60 F.4th at 317).
We clarified this new standard in Helphenstine v. Lewis County just a month before the district
court issued its decision. 60 F.4th 305. As neither party raised the case, the district court applied
the prior standard. See Op. & Order, R. 37, PageID 348. The change makes no difference in this
case, however, because the Heeters meet the stricter, older standard. See Bryant v. Hensley,
No. 23-5608, 2024 WL 1180440, at *4 (6th Cir. Mar. 19, 2024) (explaining defendant’s conduct
violated clearly established law “under either an actual-knowledge or recklessness standard”).
There is no dispute that Officer Bowers subjectively knew the risk of harm—death—to Mr.
Heeter from shooting him five times in the center of his body. Neither is there a dispute that
Officer Bowers knew Mr. Heeter was bleeding profusely and that without immediate medical
attention he had a high risk of dying.
The question we face, then, turns not on whether Officer Bowers knew or should have
known the risk to Mr. Heeter, but instead on whether he “responded reasonably” to the risk.
Farmer, 511 U.S. at 844. He didn’t. As Mr. Heeter lay face down, bleeding from multiple
gunshot wounds, it was unreasonable for Officer Bowers to stand idle—even for a few minutes
and even while paramedics were on their way—rather than administer the first aid he was trained
to provide.
Our court has repeatedly held that officers violate a pretrial detainee’s right to adequate
medical care when, despite knowing of an emergent risk of harm, they stand idle and fail to
provide immediately necessary medical care that they have been trained to administer. In Jones
v. City of Cincinnati, a police sergeant arrived at a scene to find a detainee lying face down and
not breathing; other responding officers had subdued and asphyxiated him. 521 F.3d 555, 558
(6th Cir. 2008). The sergeant called the paramedics but didn’t do anything else. Id. We denied
the sergeant qualified immunity because he did not provide medical care or even remove the
detainee’s handcuffs to facilitate medical care. Id. at 560. Likewise, we denied qualified
immunity to police officers—three of whom were trained emergency medical technicians—when
they discovered that a detainee they had subdued was not breathing. Est. of Owensby v. City of
Cincinnati, 414 F.3d 596, 600–01, 603 (6th Cir. 2005). They discussed his injuries, waited for

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their supervisors, and “made no attempt to summon or provide any medical care until several
minutes later.” Id. In Heflin v. Stewart County, we considered the constitutional obligation of a
jail deputy who encountered a detainee hanging from a makeshift noose in his cell; the deputy
called for paramedics but didn’t cut down the detainee or try to help him in any way, as he had
been trained to do. 958 F.2d 709, 711–12, 717 (6th Cir. 1992). Thinking the detainee was dead,
the deputy stood in the cell waiting for paramedics for several minutes. Id. We denied qualified
immunity. Id.
To apply this law here, we consider what Officer Bowers would have known in the
moments after the shooting. Mr. Heeter had just suffered multiple rifle wounds at close range, so
Officer Bowers knew Mr. Heeter was in critical condition and required immediate medical care.
He knew that Sergeant Redding had called the paramedics and that other officers were attending
to the public safety duties of the scene. It is undisputed he had the training to provide Mr. Heeter
with basic first aid while the paramedics were on the way. With that in mind, a reasonable jury
could believe that Officer Bowers knew that Mr. Heeter’s massive bleeding required attention
right away, within minutes or seconds. The police department’s Use of Force Manual even
states the first priority after a suspect has been shot is to “Cause any needed medical aid to be
rendered.” R. 21-4, PageID 164. Accepting these facts, as we must, Officer Bowers had a
Fourteenth Amendment duty to provide Mr. Heeter with basic first aid while the ambulance was
en route.
Instead, Officer Bowers’s first decision was to order Officer Bruce to handcuff Mr.
Heeter. He told Officer Bruce to put gloves on to avoid touching Mr. Heeter’s blood, suggesting
he thought that Mr. Heeter was not so dangerous as to require immediate restraint. Officer
Bowers heard Mr. Heeter moan as Officer Bruce started to pull his arms behind his back.
Despite seeing Mr. Heeter’s obvious injuries, Officer Bowers continued to command Bruce to
handcuff Mr. Heeter and to loudly order, “Bill, give me your hands.” Bruce Footage at 11:52–
12:40; Bowers Footage at 12:45–13:00. The bodycam footage shows Bowers looked at Mr.
Heeter’s body. It also shows Mr. Heeter hemorrhaging blood. Officer Bowers would have seen
the pool of blood too.

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The footage shows what Officer Bowers did next: stood idle. Officer Bowers engaged in
a nonverbal exchange with his colleagues during which he appears to have reenacted the
shooting. To the extent Officer Bowers communicated with the other officers, the topic was his
own well-being, not Mr. Heeter’s. Sergeant Redding reassured Officer Bowers that he’d “saved
everybody.” Redding Footage at 10:45–10:50. “Everybody,” apparently, did not include Mr.
Heeter. Despite his training and police department policy, Officer Bowers did not even try to
provide Mr. Heeter first aid as he lay moaning and bleeding and as his breathing became
increasingly labored. The district court was therefore correct in finding Officer Bowers violated
the Constitution when he “knowingly left a mortally wounded suspect lying face down on the
ground while handcuffed without administering aid during the critical moments following
injury.” Op. & Order, R. 37, PageID 350.
In response, the defendants tell us there is a bright-line rule that after summoning the
paramedics, officers have no further duty to provide medical care to pretrial detainees. Citing
Stevens-Rucker v. City of Columbus, they contend that Officer Bowers responded reasonably
because he knew the paramedics had been called, and the Constitution “does not require [an]
officer to intervene personally” or “exhaust[] every medical option” so long as they call for care
and do not delay it from reaching the suspect. 739 F. App’x 834, 846 (6th Cir. 2018); see also
Wilkerson, 906 F.3d at 483 (“When police injure a person while apprehending him, they
generally satisfy the Fourteenth Amendment by summoning medical care and not intentionally or
recklessly delaying his access to it.”). To the extent we suggested in Stevens-Rucker and other
cases that officers do not have to “intervene personally” when they believe medical aid is en
route, it was because there we accepted or presumed that the officers reasonably believed “their
individual intervention would not have helped.” 739 F. App’x at 846; see also Hicks, 958 F.3d
at 439–40 (granting qualified immunity to officer who rejected another’s offer to provide first aid
to suspect that was shot because the officer reasonably would have thought the suspect’s
“lifeless” body was beyond help). That is not the case here. Given Mr. Heeter’s moans and
labored breathing, it was clear he was still alive, and a jury could conclude that a reasonable
officer trained in basic first aid would have tried to use that training to help Mr. Heeter. Officer
Bowers overreads our fact-bound cases.

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As a matter of common sense and precedent, there is no bright-line rule that officers
never have to provide care after calling for help. We have never held that calling for a
paramedic always terminates a police officer’s constitutional obligations to a pretrial detainee—
irrespective of the time it will take for help to arrive, how urgently help is needed, how the
officer has been trained, or even how easy it would be for the officer to help. Under the
defendants’ view, a trained correctional officer has no obligation to administer the Heimlich
maneuver to help a choking inmate, and a prison guard has no obligation to cut down a detainee
who has attempted suicide by hanging.
That’s not just contrary to Heflin, but to myriad other precedents where we’ve held that
calling the paramedics does not guarantee an officer qualified immunity from like Fourteenth
Amendment claims. 958 F.2d at 711–12, 717; see also Thomas, 854 F.3d at 367 (citing Scozzari
v. Miedzianowski, 454 F. App’x 455, 465–66 (6th Cir. 2012)). An officer’s “obligation to
provide adequate medical care to an injured detainee is not discharged merely by promptly
calling for assistance.” Scozzari, 454 F. App’x at 466. Jones v. City of Cincinnati established
that an officer who has called for paramedics still violates the Constitution when he decides not
to provide immediately necessary medical care. 521 F.3d at 558, 560. The suspect’s
asphyxiation there required immediate attention just as Mr. Heeter’s massive bleeding did here.
Id. Likewise, in Scozzari, officers who had shot a suspect in his home called paramedics and
then decided to discuss the shooting with the suspect’s neighbors rather than clear the area to
ensure the paramedics could reach the suspect’s body. 454 F. App’x at 466. We denied
qualified immunity there too. Id. Indeed, a key reason to provide basic medical training to
officers at all is so they can treat critical injuries before paramedics arrive. Cf. Heflin, 958 F.2d
at 714–15 (recalling how prison officials were trained statewide to cut down individuals found
hanging in their cells). Even the other officers at the scene seemed to have recognized their
obligation to try to save Mr. Heeter’s life: Sergeant Redding and Officer Bruce at least held Mr.
Heeter’s head out of the puddle of blood so he could breathe and offered him words of
encouragement.
Beyond arguing for a bright-line rule, Officer Bowers relies upon several other cases
where the responding officers did not provide emergency medical care and we concluded that

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they did not violate the Fourteenth Amendment. But in those cases, the officers were busy
protecting themselves or the public; they weren’t standing idle like Officer Bowers. The
defendants cite to Thomas v. City of Columbus, for example, where an officer did not render aid
on the spot because he feared for his own safety and “took cover” while “wait[ing] for backup to
arrive.” 854 F.3d at 367. We noted there that an officer “cannot prioritize activities unrelated to
securing the scene or unnecessary to their duties over trying to save the suspect’s life.” Id. at 367
(cleaned up). But in that case it would have been “dangerous” to render aid to the detainee, so
there was no constitutional violation. Id.; see also Wilkerson, 906 F.3d at 480, 483 (two officers
on public street were not deliberately indifferent where there was no allegation officers had first
aid training, they “urge[d] the ambulance to ‘step it up,’” and attended and encouraged the
injured as the ambulance came). And in Rich v. City of Mayfield Heights, there was no occasion
to ask whether the jail officer should have personally provided aid before the paramedics arrived
because there the officer immediately ran to get help and then returned to the cell with the
medical personnel only a minute later. 955 F.2d 1092, 1096–97 (6th Cir. 1992); Heflin, 958 F.2d
at 718 (explaining that in Rich, “[t]here was no period when responsible officers were doing
nothing but waiting for someone else to make the first move”).
To summarize, it is undisputed that Officer Bowers focused on ordering an officer to
handcuff Mr. Heeter, then stood idle as Mr. Heeter bled out, moaned, and struggled to breathe.
A reasonable jury could find that Mr. Heeter’s critical injury called for immediate first aid before
professional paramedics arrived, and that Officer Bowers—trained in first aid and unoccupied by
police duties—could and should have rendered that care. Therefore, a reasonable jury could find
Officer Bowers violated Mr. Heeter’s Fourteenth Amendment right to adequate medical care.
B. Clearly Established Law on Adequate Medical Care in Police Custody
We next ask if it was “clearly established” in November 2018 that these actions would
violate the Constitution. Beck, 969 F.3d at 599. For us to consider a right clearly established, a
broad, generalized construction will not do. See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
The contours of the right must be defined so that it is “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). While it is not necessary that we have a case in the same factual scenario or

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that “the very action in question has previously been held unlawful,” it must be apparent to an
official “in the light of” existing law that such actions are unlawful. Id. at 640. We ask whether
our existing cases give “‘fair and clear warning to officers’ about what the law requires.” Beck,
969 F.3d at 599 (quoting Vanderheof v. Dixon, 938 F.3d 271, 279 (6th Cir. 2019)) (citation
omitted in original).
The Supreme Court established in 1983 that an officer has an obligation under the Due
Process Clause to provide adequate medical care to suspects shot during apprehension. City of
Revere, 463 U.S. at 244. As discussed above, the standard applicable in November 2018
required a plaintiff to show an officer knowingly and deliberately disregarded a detainee’s risk of
harm in order to prevail on an adequate medical care claim. Richko v. Wayne Cnty., 819 F.3d
907, 915 (6th Cir. 2016). Since at least 2005, we applied the rule to officers who engaged in
banal chatter as a suspect they had asphyxiated sat without breathing. Owensby, 414 F.3d at 603.
Since at least 2008, it was clear that a police officer who calls paramedics for a critically injured
suspect violates the Constitution when he can safely attend to the suspect’s obvious injuries, but
instead does nothing. Jones, 521 F.3d at 558, 560; see also Heflin, 958 F.2d at 714–15. Officer
Bowers’s conduct fits squarely within this precedent; from these rules it “follow[s] immediately”
that he violated the Constitution. Beck, 969 F.3d at 599 (quotation omitted). He is therefore not
entitled to qualified immunity on the adequate medical care claim.
The defendants argue that existing precedent defined the rule at too high a level of
generality for it to have clearly established that Officer Bowers needed to provide basic first aid
after shooting Mr. Heeter. See Ashcroft, 563 U.S. at 742. They correctly note that the cases are
each fact dependent. But “there is no requirement of absolute factual identity before the law may
be found to be ‘clearly established.’” Heflin, 958 F.2d at 718 (quotation omitted). And the cases
we have described would put officers on notice that their actions (or inactions) were unlawful.
Officer Bowers fails to meaningfully distinguish them. In parsing cases, for example,
Officer Bowers falters on Jones v. City of Cincinnati. Tellingly, he attempts to distinguish it
based on procedural posture, rather than the “fact pattern.” Beck, 969 F.3d at 599. But that isn’t
relevant given that on a motion to dismiss we construe the facts in the light most favorable to the
plaintiff, as we do at summary judgment, and ask if there was a clearly established constitutional

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violation. While he addresses some of the officers’ conduct in that case, he skips over our
analysis of the sergeant who arrived at the scene and called the paramedics after the other
officers had beaten and maced the suspect. See Jones, 521 F.3d at 558, 560. We denied him
qualified immunity because, while he did call for help, he didn’t provide the suspect with the
medical care even though the suspect was obviously struggling to breathe. Id. The defendants
do not identify a “constitutional distinction” between the conduct of that sergeant and Officer
Bowers. Hope v. Peltzer, 536 U.S. 730, 742 (2002). Like the sergeant in Jones, Officer Bowers
had an obligation to provide Mr. Heeter with immediately necessary medical care; his decision to
instead stand idle violated the Constitution.
Nor is it persuasive for Officer Bowers to argue that he was relying on broad statements
in several of our cases stating that, when police injure a suspect, “they generally satisfy the
Fourteenth Amendment by summoning medical care and not intentionally or recklessly delaying
his access to it.” Wilkerson, 906 F.3d at 484 (emphasis added); see also Stevens-Rucker, 739
F. App’x at 846 (no “absolute requirement” that an officer personally provide medical aid or
“exhaust[] every medical option.”). In relying on these singular sentences, Officer Bowers is
trying to have it both ways—he wants to use helpful language in our precedents, while
discarding critical distinctions. True, our qualified immunity analysis rests in part on a fiction
that police officers read our cases. That’s why only a factually similar case can put officers on
“fair notice” that their actions would violate the law. Joanna C. Schwartz, Qualified Immunity’s
Boldest Lie, 88 U. Chi. L. Rev. 605, 619 (2021) (emphasis omitted) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)); see also Sosa v. Martin Cnty., 57 F.4th 1297, 1304 (11th
Cir. 2023) (Jordan, J., concurring) (analyzing claim of qualified immunity “under the legal
fiction” of “a reasonable police officer who read [the relevant] cases”). Supreme Court
precedent compels us to sustain that fiction. But that instruction also means we must reject
officers’ attempts to use a case’s generalized statements of law, devoid of factual context, to
shield themselves from their clearly established constitutional obligations. That a case
announces a general rule of thumb tells us little about what is lawful under these facts and
circumstances.

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For “fair notice,” we look to analogous cases (and sometimes, common sense).
Brosseau, 543 U.S. at 599 (citation omitted). Based on the law in November 2018, the
“unlawfulness of doing nothing to attempt to save” Mr. Heeter’s “life would have been apparent
to a reasonable officer” in Officer Bowers’s position. Heflin, 958 F.2d at 717. As the district
court concluded, Officer Bowers is therefore not entitled to qualified immunity on this claim.
STATE-LAW CLAIMS
Because the questions regarding Ohio law immunities largely track federal immunities,
we need not discuss them in detail. The district court denied the defendants summary judgment
on their claims that they were immune from suit under Ohio Revised Code § 2744.03, which
entitles Ohio municipal employees to immunity. We have appellate jurisdiction to review these
denials of state-law immunity to the extent they turn on questions of law, and our review is de
novo. Hopper v. Plummer, 887 F.3d 744, 759–60 (6th Cir. 2018); Sabo v. City of Mentor, 657
F.3d 332, 336–37 (6th Cir. 2011).
I. Municipal Immunity Under Ohio Rev Code § 2744.02
We start with municipal immunity under Ohio Revised Code § 2744.02. This statute
provides that an Ohio “political subdivision is not liable in damages in a civil action for injury,
death, or loss to person or property allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision . . . .” Id. § 2744.02(A)(1). Recall that
the Heeters brought state law tort claims against Officer Bowers in his individual and official
capacities and against the Columbus Police Department. The Department is an improper
defendant because it is part of the larger entity of the City of Columbus, but we “liberally
construe the complaint as having been brought against” the City itself. Tysinger v. Police Dept.
of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). Likewise, an action against an officer in
his official capacity is “another way of pleading an action against an entity of which an officer is
an agent,” in this case the City. State ex rel. Est. of Miles v. Vill. of Piketon, 903 N.E.2d 311,
315 (Ohio 2009) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)). The
Heeters have thus asserted state-law claims against the City.

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As an Ohio political subdivision, the City of Columbus is entitled to § 2744.02’s “broad
grant of immunity” and therefore not liable for any of the Heeters’ state-law claims. Chester
v. Neyer, 477 F.3d 784, 796 (6th Cir. 2007). The Heeters do not challenge this conclusion.
Nevertheless, the district court denied the motion for summary judgment on “the state law claims
against both Defendants.” Op. & Order, R. 37, PageID 359. That was an error, and we reverse
and remand to the district court with instructions to grant summary judgment for Officer Bowers
in his official capacity and the Columbus Police Department on the state-law claims.
II. Municipal Employee Liability Under Ohio Rev. Code § 2744.03
Officer Bowers also claims that he is immune under Ohio Revised Code § 2744.03 from
the Heeters’ state-law claims against him in his individual capacity. Section 2744.03 immunizes
municipal employees from suit in their individual capacities unless they “acted with a malicious
purpose, in bad faith, or in a wanton or reckless manner.” Sabo, 657 F.3d at 337 (citing Ohio
Rev. Code § 2744.03(A)(6)(b)). This standard overlaps with our qualified immunity analysis
because officers act in a “wanton or reckless” manner when they violate an individual’s clearly
established constitutional rights. Hopper, 887 F.3d at 759–60 (citation omitted); see also id.
(quoting Chappell, 585 F.3d at 907 n.1) (“[W]e may review the state-law immunity defense
‘through the lens of the federal qualified immunity analysis.’”). Because Officer Bowers is not
entitled to qualified immunity from the Heeters’ constitutional claims, he is similarly not entitled
to summary judgment on his state-law municipal employee defense. See id. at 760
(“Defendants’ statutory immunity defense stands or falls with their federal qualified immunity
defense.”). We therefore affirm the district court in denying Officer Bowers immunity under
§ 2744.03 from suit in his individual capacity.
CONCLUSION
For the foregoing reasons: (1) we deny Heeters’ motion to dismiss the appeal and for
sanctions, (2) we affirm the judgment of the district court in all but one respect—(3) we reverse
the district court’s denial of municipal immunity under Ohio Rev. Code § 2744.02 and remand
with the instruction to grant the City (that is, Officer Bowers in his official capacity and the
Columbus Police Department) summary judgment.

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_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. The majority finds that we have jurisdiction to
consider the entirety of Defendants’ appeal, and affirms the district court’s decision in all but one
narrow respect. I agree with the majority only to the extent that it reverses the district court’s
denial of state law immunity to the Columbus Police Department and Officer Bowers in his
official capacity. On all other issues, however, Defendants continue to litigate factual disputes,
thus depriving us of jurisdiction over the remainder of this appeal. The majority casts aside these
factual disputes by either crediting Defendants’ inauthentic concession of the facts in the light
most favorable to Plaintiffs, or by simply ignoring Defendants’ factual disputes over crucial
matters. This approach contradicts our well-established rule that we have jurisdiction to hear
interlocutory qualified immunity appeals only when the defendant concedes the plaintiff’s view
of the facts. Because I would dismiss this appeal for lack of jurisdiction as it relates to the claims
brought against Officer Bowers, I respectfully dissent.
This case arises out of the shooting of Bill Heeter while officers were responding to a
mental health emergency. The majority largely summarizes the facts of this encounter
accurately. As it acknowledges, the body camera footage of the incident does not fully capture
Mr. Heeter’s movements just before Officer Bowers shot him, nor does it capture where Mr.
Heeter’s gun was located just before he was shot. These crucial moments are the basis for the
bulk of the factual disputes on appeal; however, the majority casts aside Defendants’ relentless
refusal to accept Plaintiffs’ version of these disputed facts. But it is this continuing dispute
concerning whether Plaintiffs can prove their case at trial that deprives us of jurisdiction.
Exercising jurisdiction over the claims against Officer Bowers in this appeal contravenes
the limits on our jurisdiction set by Congress and the Supreme Court. Generally, our jurisdiction
is limited by statute to only permit review of “final decisions” from a district court. 28 U.S.C.
§ 1291. Although some interlocutory appeals are permitted, the statute governing our
jurisdiction “recognizes that rules that permit too many interlocutory appeals can cause harm.”
Johnson v. Jones, 515 U.S. 304, 309 (1995). Specifically, too many interlocutory appeals can

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cause delays in litigation, making it more difficult for trial courts to “do their basic job.” Id.
Appeals of a denial of qualified immunity are an exception to this rule because qualified
immunity protects individuals from litigation itself, not just ultimate liability. Skousen v.
Brighton High Sch., 305 F.3d 520, 525 (6th Cir. 2002). However, because interlocutory appeals
have the potential to infringe on the district court’s role in supervising trial proceedings, the
Supreme Court has placed clear limits on our review of an interlocutory appeal of a denial of
qualified immunity. See Johnson, 515 U.S. at 315–317.
When reviewing an interlocutory appeal contesting the denial of qualified immunity, “we
have jurisdiction only to the extent that the defendant limits his argument to questions of law
premised on facts taken in the light most favorable to the plaintiff.” Gillispie v. Miami
Township, 18 F.4th 909, 915 (6th Cir. 2021) (cleaned up). The Supreme Court has told us that
“[w]e lack jurisdiction to consider ‘a district court’s summary judgment order insofar as that
order determines whether or not the pretrial record sets forth a “genuine” issue of fact for trial.’”
Moldowan v. City of Warren, 578 F.3d 351, 369–70 (6th Cir. 2009) (quoting Johnson, 515 U.S.
at 313).
We have recognized two exceptions to this rule. First, a defendant who challenges a
district court’s denial of qualified immunity on the basis that a genuine dispute of material fact
exists for trial “may invoke our jurisdiction by conceding the plaintiff’s version of the facts.”
Anderson-Santos v. Kent County, 94 F.4th 550, 554 (6th Cir. 2024). Importantly, however, this
concession must be genuine. Id. (“Because a concession in name only is no concession at all, we
hold that such concessions are insufficient to invoke our jurisdiction.”). If a defendant only
purports to concede the plaintiff’s version of the facts, this Court lacks jurisdiction. Id. Second,
a defendant may also invoke this Court’s jurisdiction by showing that the district court’s factual
determination is “blatantly contradicted by the record, so that no reasonable jury could believe
it.” Scott v. Harris, 550 U.S. 372, 380 (2007); see also Gillispie, 18 F.4th at 916. For the
reasons stated below, Defendants have not established our jurisdiction to hear this appeal under
either exception to the rule that we may not hear fact-based interlocutory appeals of a denial of
qualified immunity.

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I. Excessive Force
Defendants claim, and the majority agrees, that this Court has jurisdiction to consider
Defendants’ arguments on the Fourth Amendment excessive force claim. Although Defendants’
own theories of jurisdiction have evolved in their briefing, ultimately they attempt to claim
jurisdiction under both exceptions to the general rule that this Court lacks jurisdiction over fact-
based appeals of a denial of qualified immunity. That is, Defendants claim to have conceded the
facts in the light most favorable to Plaintiffs, and they claim that the video of the shooting
blatantly contradicts the district court’s factual findings. As an initial matter, I agree with the
majority’s rejection of the latter theory, as the record evidence does not blatantly contradict the
factual findings of the district court. Defendants attempt to argue that because there are gaps in
the video of the shooting, this Court must credit the affidavits of officers at the scene as setting
forth undisputed facts. This directly contradicts this Circuit’s precedent, which requires us to
“view any relevant gaps or uncertainties left by the videos in the light most favorable to the
Plaintiff.” Latits v. Phillips, 878 F.3d 541, 544 (6th Cir. 2017).
The majority, however, incorrectly concludes that we otherwise have jurisdiction to
review Defendants’ arguments relating to the excessive force claim. It reaches this conclusion
by claiming that Officer Bowers has conceded where Mr. Heeter’s gun was in the moments
before the shooting for purposes of appeal, calling this “the singular contested fact we cannot
discern from the video.” Maj. Op. at 12. However, because Defendants have not genuinely
conceded the location of the gun in the light most favorable to Plaintiffs, and because this is not
the “singular” fact that Defendants contest as it relates to the excessive force claim, I disagree
that we have jurisdiction to review this claim.
Throughout their briefing, Defendants impermissibly target their arguments at the
sufficiency of Plaintiffs’ evidence. Specifically, they repeatedly contest where Mr. Heeter’s gun
was located when Officer Bowers shot Mr. Heeter—namely, whether Mr. Heeter was pulling the
gun from his pocket just before he was shot. They point to multiple facts in the record that they
claim support finding that the gun was in Mr. Heeter’s pocket. For example, they note that the
gun was found next to Mr. Heeter’s right leg after he was shot, and that another officer stated
that the gun looked like it had been hit by a bullet, which Defendants argue supports their theory

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that Mr. Heeter had the gun in his possession when he was shot. Moreover, they point to Officer
Bowers’ affidavit, which stated that he saw Mr. Heeter’s hand form a “grip” as if he was holding
a pistol just before Officer Bowers shot Mr. Heeter. Bowers Aff., R. 21-1, Page ID #146.
Defendants suggest that this Court should credit Officer Bowers’ affidavit as uncontradicted
evidence because the video does not clearly show whether Mr. Heeter had a gun in his hand
when he was shot.
All of these arguments amount to factual disputes that are unreviewable on this
interlocutory appeal. Defendants even admit this shortcoming in their briefing. For example, in
their reply brief, they describe the “core of Bowers’ arguments on appeal” as follows:
Bowers contends that Plaintiffs-Appellees have not met their burden of
demonstrating that Bowers is not entitled to qualified immunity on the excessive
force claim because they fail to identify specific facts in the record showing a
genuine issue of material fact for trial.
Reply Br., ECF No. 31, 16–17 (emphasis omitted); see also Def.’s Opp. Br., ECF No. 28, 10
(“Defendant Bowers asserts that the district court erred in finding that a genuine issue of material
fact exists for trial.”). Notwithstanding Defendants’ factual disputes, the majority claims that
Defendants have properly conceded the location of the gun for purposes of appeal. For this
conclusion, the majority relies on a statement in Defendants’ brief, as well as a statement from
Defendants’ counsel at oral argument. Neither statement constituted a proper concession.
First, although Defendants’ briefs purport to concede Plaintiffs’ version of the facts at
points, the briefs then immediately continue to recite a version of the facts that Plaintiffs do not
accept. For example, in their opening brief, after “assuming arguendo that Mr. Heeter’s gun was
on the table instead of in his pocket,” Defendants argue that, after Mr. Heeter was shot, the gun
“ended up on the ground and appeared to be hit by a bullet.” Def.’s Br., ECF No. 19, 45–46.
Thus, immediately after claiming to concede the fact that Mr. Heeter’s gun was on the table just
before he was shot, Defendants proceed to question that very fact. Defendants’ brief in response
to Plaintiffs’ motion to dismiss the appeal for lack of jurisdiction similarly lacks a genuine
concession, even while claiming to present a purely legal question for us to review. See Def.’s
Opp. Br., ECF No. 28, 16–18 (“Plaintiffs-Appellees fail to present any other evidence to

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contradict Officer Bowers’ account of Mr. Heeter pulling what Officer Bowers reasonably
believed to be a gun from his pocket.”).
Second, counsel’s purported concession at oral argument was similarly ineffective. At
oral argument, the panel pressed Defendants’ counsel as to whether Defendants conceded the
location of the gun. In response to this questioning, Defendants’ counsel continued to dispute
the facts by telling the panel that “actually, what it really does boil down to is you can’t see what
Mr. Heeter is doing with his right hand on the” video. Oral Arg. Rec. at 10:48–10:55. Only after
more pressing from the panel did counsel claim that Bowers was entitled to qualified immunity
even if the gun was on the table when he shot Mr. Heeter. But crediting this brief statement
made at oral argument as genuine would force us to disregard counsel’s own clear statement that
this appeal “really . . . boil[s] down to” a factual dispute as to where the video depicts the gun
before Mr. Heeter was shot. Oral Arg. Rec. at 10:48–10:55. Furthermore, counsel’s purported
concession—which was immediately preceded by an express factual disagreement—resembles
the same ineffective concessions made in Defendants’ briefs ahead of argument. That counsel
may have claimed to concede Plaintiffs’ version of the facts for purposes of this appeal in
response to direct and pointed questions does not override the repeated failure to do so in
Defendants’ briefs or during the majority of oral argument.
Moreover, both of these purported concessions about where the gun was located just
before the shooting do not concede every factual dispute on appeal. Specifically, Defendants
continue to dispute how Mr. Heeter behaved just before he was shot, and particularly dispute
what type of movement he made. This factual dispute is evident from the record. As the
majority acknowledges, the body camera video is “partially obscured” and does not clearly show
what Mr. Heeter did in the moments before he was shot. Maj. Op. at 5. And in their affidavits,
the officers offered different accounts of Mr. Heeter’s movements just before he was shot. One
officer stated that Mr. Heeter “lunged,” Bruce Aff., R. 21-6, Page ID #175, whereas another
stated that Mr. Heeter “made a movement, like he was going to lean forward,” Gibson Aff., R.
21-8, Page ID #178.
On appeal, Defendants have not conceded this factual dispute. Instead, they argue that
“the district court erroneously found that ‘the video evidence suggests that Mr. Heeter only

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leaned slightly forward with nothing in his hand’” because “Mr. Heeter’s right side, including his
right hand, are not visible in the body worn camera footage, and his movements are not fully
captured.” Def.’s Br., ECF No. 19, 40 (emphasis omitted). This, again, directly challenges
whether the district court properly concluded that a genuine dispute of fact existed for trial. As a
result, this Court does not have jurisdiction to resolve this appeal. See Moldowan, 578 F.3d at
370.
The majority’s decision to find jurisdiction over Defendants’ excessive force arguments
is all the more confusing when considering our precedent. This case appears to directly resemble
Berryman v. Rieger, in which we dismissed an appeal for lack of jurisdiction because the
defendants “contradicted [the plaintiff’s] version of the facts at every turn.” 150 F.3d 561, 564
(6th Cir. 1998). In Berryman, even after the defendants purported to concede the plaintiff’s
version of the facts for purposes of appeal, we concluded that, after argument, “it is now obvious
that their appeal boils down to credibility determinations we cannot make.” Id. This case
similarly presents contested factual disputes as Defendants have admitted time and again in their
briefing and at oral argument. In Defendants’ counsel’s own words, their argument on appeal
“really . . . boil[s] down to” where the gun was located just before Officer Bowers shot Mr.
Heeter. Oral Arg. Rec. at 10:48–10:55. We should take counsel at her word. When a defendant
does not truly concede the version of the facts in the light most favorable to the plaintiff and
continues to litigate factual disputes, we have consistently dismissed the appeal for lack of
jurisdiction. See Anderson-Santos, 94 F.4th at 555; Booher v. N. Kent. Univ. Bd. of Regents, 163
F.3d 395, 396–37 (6th Cir. 1998); Berryman, 150 F.3d at 564–65. I respectfully dissent from the
majority’s refusal to do so in this case.
II. Deliberate Indifference to Medical Treatment
The majority further errs by concluding that we have jurisdiction to review the
Fourteenth Amendment deliberate indifference claim raised on appeal. To be sure, Defendants
have attempted to present a pure legal question for this Court’s review as to this claim; however,
despite their best efforts, they continue to inject factual disputes into what otherwise could have
been a purely legal argument. Because Defendants’ arguments have “drift[ed] from the purely

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legal into the factual realm” on this claim as well, we lack jurisdiction to consider it. Berryman,
150 F.3d at 564.
Defendants primarily argue that Officer Bowers only needed to promptly call for
paramedics to avoid being liable for deliberate indifference to medical treatment. They rely on a
general statement from a previous, factually dissimilar opinion from this Court to support this
claim. See Wilkerson v. City of Akron, 906 F.3d 477, 483 (6th Cir. 2018) (“When police injure a
person while apprehending him, they generally satisfy the Fourteenth Amendment by
summoning medical care and not intentionally or recklessly delaying his access to it.”).
Although I would not reach the merits of this argument, I note that, under these circumstances, it
is inconsistent with our prior precedent to claim that Officer Bowers constitutionally did not need
to provide any basic aid to Mr. Heeter while he lay bleeding on the floor because another officer
called the paramedics. See, e.g., Jones v. City of Cincinnati, 521 F.3d 555, 558, 560 (6th Cir.
2008); Est. of Owensby v. City of Cincinnati, 414 F.3d 596, 600–601, 603 (6th Cir. 2005).
Despite making this legal argument their primary focus, Defendants still litigate the
factual dispute of whether rendering basic first aid would have been futile, stating: “Plaintiffs-
Appellees have not presented any evidence supporting their contention that basic first aid would
have helped Mr. Heeter.” Def.’s Br., ECF No. 19, 52. This Court has previously found that
when rendering aid would have been futile to assist an injured person, an officer’s failure to
promptly provide medical care may be excused. See Hicks v. Scott, 958 F.3d 421, 439–40 (6th
Cir. 2020); Stevens-Rucker v. City of Columbus, 739 F. App’x 834, 846 (6th Cir. 2018). The
majority disregards this dispute, and, instead, chooses to construe this fact in the light most
favorable to Plaintiffs—that is, that rendering aid would not have been futile. But this approach
is generally appropriate only when the factual disputes are not “crucial” to a defendant’s
arguments on appeal. Adams v. Blount County, 946 F.3d 940, 951 (6th Cir. 2020) (“If, however,
disputed factual issues are crucial to a defendant’s interlocutory qualified immunity appeal, we
may not simply ignore such disputes; we remain obliged to dismiss the appeal for lack of
jurisdiction.” (cleaned up)).
As the majority’s analysis confirms, the resolution of this dispute is crucial to holding
that Officer Bowers is not entitled to qualified immunity at this stage. The majority

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acknowledges that if Officer Bowers had reasonably believed that personal intervention would
not have helped Mr. Heeter, he would not have been deliberately indifferent in failing to render
any basic first aid under our precedent. Because this particular fact is crucial to the majority’s
analysis, Defendants’ continued dispute of it cannot be ignored. Id. Instead, because Defendants
continue to litigate factual disputes in their arguments addressing whether Officer Bowers was
deliberately indifferent to Mr. Heeter’s serious medical needs, “we remain obliged to dismiss the
appeal for lack of jurisdiction.”1 Id. (cleaned up).
III. CONCLUSION
Defendants have presented us with a classic example of the types of evidence-sufficiency
arguments that this Court has consistently declined to review on an interlocutory appeal. The
majority ignores Defendants’ own acknowledgements in their briefing and at oral argument that
this appeal “boil[s] down” to an argument that Plaintiffs cannot prove their case at trial. Oral
Arg. Rec. at 10:48–10:55. Because we do not have jurisdiction to review the factual disputes
Defendants present, I respectfully dissent from the majority’s choice to find jurisdiction in this
case. We should dismiss this qualified immunity appeal for lack of jurisdiction.
1For the same reasons stated above, we also lack jurisdiction over the state law claims made against Officer
Bowers in his individual capacity. The factual basis for these claims is the same as that for Plaintiffs’ constitutional
claims, and they should therefore also be dismissed for lack of jurisdiction. Moldowan, 578 F.3d at 398.

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