Background
On October 22, 2022, Desman LaDuke told his girlfriend he intended to kill himself. His aunt, Melissa Marks, called 911 and reported that LaDuke was suicidal and in possession of a firearm. Officers from the Nicholasville Police Department (NPD) responded and, after LaDuke refused to exit his home or surrender identification, activated the department’s Special Response Team (SRT). Seven SRT officers, including Officer Joseph Horton, surrounded LaDuke’s residence with weapons raised. Throughout a multi-hour standoff, a senior officer coached LaDuke’s aunt through FaceTime calls in an attempt to de-escalate the situation.
Shortly after 1:00 p.m., LaDuke appeared at a rear window holding a firearm. Officers repeatedly ordered him to drop the gun. According to Officer Horton and SRT Commander Lieutenant Jason Fraddosio, LaDuke was holding two guns, pointed them in the direction of officers, and then began lowering them toward the window and the officers below. Officer Horton shot LaDuke once; LaDuke later died from the wound. Captain Marshall, standing nearby, gave a slightly different account — he saw LaDuke wave only one gun and never observed a direct point at officers, though he moved behind cover approximately three seconds before the shot was fired.
John Norman, as court-appointed administrator of LaDuke’s estate, sued Officers Horton and Fraddosio under 42 U.S.C. § 1983 for excessive use of force and excessive show of force in violation of the Fourth Amendment, an official-capacity Monell claim against Fraddosio based on alleged deficiencies in SRT training and crisis response policy, and Kentucky state tort claims for assault and battery, negligence, and wrongful death. The U.S. District Court for the Eastern District of Kentucky granted summary judgment for the defendants on all counts, and Norman appealed.
The Court’s Holding
The Sixth Circuit affirmed summary judgment across the board. On the excessive use of force claim, the court bypassed the threshold constitutional question and held that qualified immunity applied because no clearly established rule prohibited shooting an armed individual who was refusing police commands, waving a firearm, and making aggressive, taunting gestures toward officers in the moments before being shot. The court distinguished Heeter v. Bowers, 99 F.4th 900 (6th Cir. 2024) — which recognized a right not to be shot while standing with hands raised and no gun visibly in hand — because LaDuke was actively brandishing a weapon at the time of the shooting. On the show of force claim, the court similarly found no clearly established rule prohibiting officers from surrounding an armed, uncooperative subject with weapons drawn, noting that circuit precedent affirmatively permits guns-drawn approaches when officers face a reasonable fear for their safety.
The official-capacity Monell claim against Fraddosio failed on a procedural ground: Norman’s opening brief on appeal addressed only whether a constitutional violation occurred and made no argument concerning municipal policy or custom — the second required element of a Monell claim. The court held that this omission constituted waiver under Hardrick v. City of Detroit, 876 F.3d 238 (6th Cir. 2017). Judge Nalbandian concurred in the result but wrote separately to question whether Hardrick’s waiver rule properly requires appellants to preemptively brief alternative affirmance grounds that the appellee has not yet raised, noting tension with First, Ninth, and Tenth Circuit authority.
On the state law claims, the court held that the district court properly refused to consider a newly introduced “failure to follow departmental policy” negligence theory that Norman raised for the first time in his opposition to the summary judgment motion. The theory — premised on officers’ alleged noncompliance with NPD’s Persons of Diminished Capacity policy — materially altered the factual and legal basis of the pleaded claims and would have prejudiced defendants by denying them the opportunity to develop a defense or take relevant discovery. The court likewise affirmed the denial of Norman’s post-judgment motion for leave to file a third amended complaint, citing undue delay, two prior amendment opportunities, and significant prejudice to defendants.
Key Takeaways
- Qualified immunity protects officers who shoot an armed, noncompliant individual who is actively brandishing a weapon at police, even in a mental-health-crisis context, where no prior case established that such force was unconstitutional at the requisite level of specificity.
- The clearly established right recognized in Heeter v. Bowers — protecting a suicidal person from being shot while visibly unarmed — does not extend to situations where the subject is holding and waving a firearm at the time of the shooting.
- A plaintiff asserting a Monell claim on appeal must brief both the constitutional-violation element and the municipal-policy element in the opening brief, or risk waiving the Monell argument entirely — even when the district court ruled only on the first element.
- A plaintiff cannot introduce a new theory of negligence liability at the summary judgment stage; raising a “failure to follow departmental policy” theory for the first time in opposition to a summary judgment motion, after discovery has closed, constitutes an impermissible mid-litigation shift that prejudices the opposing party.
- Post-judgment motions for leave to amend are disfavored and will be denied when the plaintiff was aware of the new theory throughout litigation, failed to plead it across multiple amendment opportunities, and cannot justify the delay.
Why It Matters
This decision reinforces the high bar plaintiffs face in § 1983 excessive force cases involving armed individuals, particularly in the mental health crisis context. Even where there are genuine factual disputes — here, whether LaDuke held one or two guns and whether he actually pointed them at officers — courts applying qualified immunity need not resolve those disputes if no clearly established precedent would have put officers on notice that their specific conduct was unconstitutional. Defense counsel in similar cases should take note of the court’s careful parsing of what “clearly established” means in fact-specific force scenarios, and plaintiff’s counsel should anticipate the need to identify binding precedent that closely tracks the precise circumstances of the challenged encounter.
The opinion also carries a practical procedural warning for civil rights litigants: every element of every federal claim must be briefed on appeal, and creative state law theories cannot be held in reserve for the summary judgment opposition. Attorneys handling § 1983 wrongful death cases should conduct early, comprehensive pleading audits to ensure all intended theories of liability — including policy-based negligence claims — are clearly articulated in the complaint and preserved throughout the litigation.