In support of his argument, Bailey cites our opinion in
Robinette v. Barnes, 854 F.2d 909, 914 (6th Cir.1988), in which we stated in dicta that when a police officer was searching for a burglary suspect hiding in an unfamiliar area at night, the officer “was justified in using whatever force was necessary, even deadly force, to protect himself and the other officers and to apprehend the suspect.” The
Robinette dicta cannot be read as an open invitation for law enforcement to shoot any burglary suspect hiding in an enclosed, unfamiliar area at night regardless of the threat posed to the officers.
See id. (suggesting that officers use trained police dogs to apprehend such suspects because they do not have “the risks attendant [with] the use of firearms in the darkness, thus, frequently enhancing the safety of the officers, bystanders and the suspect”). Instead, the language in
Robinette linked the use of deadly force directly to the safety of the officers.
See id. (explaining that “this is a case where an officer was forced to explore an enclosed unfamiliar area in which he knew a man was hiding”). Our dicta in
Robinette recognized the inherent dangers facing police officers searching for a suspect who is hiding from them. In such a situation, officers have an unquestionable right to protect themselves from a possible ambush. Once a suspect has been found, however, and the police have weapons directed at him, as in this case, the inherent danger to the officers resulting from a hidden suspect in an enclosed, unfamiliar area at night is diminished.
See Dickerson, 101 F.3d at 1163 (holding that a suspect walking towards the police in an unfamiliar area at night with his hands at his side does not justify the use of deadly force). No reasonable police officer would think that once the suspect has been found, it is still constitutionally permissible to shoot the suspect absent a serious threat to the officers or others. Indeed, once Bailey had both his gun and flashlight trained on Sample, there is no factual distinction between this case and any other one in which the police officers confront a suspect to effect an arrest. Therefore, there is nothing about the factual context of this case which would justify a reasonable officer in believing that the well-established
Robinson rule did not apply. Thus, we conclude that the contours of the constitutional right were sufficiently clear in this situation so that a reasonable officer would have known that Sample had a right not be shot unless he was perceived as a threat to the officers or to others.