Kilnapp

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JENNIFER KILNAPP, ) CASE NO. 1:22CV1225

)

Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO

)

vs. ) OPINION AND ORDER

)

CITY OF CLEVELAND, et al., )

)

Defendants. )

CHRISTOPHER A. BOYKO, J.:

This matter comes before the Court upon the Motion (ECF DKT #88) of Defendant

Bailey Gannon for Judgment on Plaintiff Jennifer Kilnapp’s Fourteenth Amendment Claim. For

the following reasons, Defendant’s Motion is granted and Defendant is entitled to qualified

immunity on the Fourteenth Amendment Claim.

I. BACKGROUND

In August of 2017, Plaintiff Jennifer Kilnapp became a police officer with the Cleveland

Division of Police (“CDP”). Defendant Bailey Gannon became a Cleveland police officer in

May of 2020 and began his one-year probationary period with the CDP. In the summer of 2020,

Plaintiff was assigned to partner with Defendant as his training officer and among other things, to

teach him the right protocol for handling calls. (Kilnapp Deposition, ECF DKT #60-1 at 26).

In the early morning hours of July 20, 2020, Plaintiff and Defendant responded to a call

from dispatch that a female reported a man had shot a hole into the floorboards in a boarding

house. When they arrived at the address, Plaintiff and Defendant encountered the female caller

outside a two-story house. They learned that a man, since identified as Darryl Borden and

nicknamed “Moose,” was upstairs. The building was completely dark. The officers entered with

their weapons in hand. Plaintiff’s firearm had an attached flashlight. Defendant had a flashlight

in his right hand and his firearm in his dominant left hand. The officers routinely activated their

body cameras at the same time upon arrival at the scene. (ECF DKT #60-1 at 70). On this

occasion Defendant’s went on; Plaintiff’s did not. (Id.).

The staircase had two flights: a set of stairs going one direction, a landing and then a

second set going the opposite direction. Defendant went upstairs first. Plaintiff felt this was a

“good training opportunity” for him. (ECF DKT #60-1 at 76). Plaintiff called out the nickname,

“Moose” on the way upstairs but received no response. Plaintiff does not remember announcing

that she was a police officer. (ECF DKT #60-1 at 58). Once upstairs, Plaintiff saw the door ajar

to Room 4, and she looked inside for the individual. The female downstairs shouted that he was

in the bathroom. Defendant pushed a door open, not knowing which room was a bathroom, and

then jumped back yelling. Defendant saw a man with a gun pointed directly at him in full

presentation, “firing range position.” (Gannon Deposition, ECF DKT #59-1 at 64). Defendant

frantically retreated down the stairs. Both Plaintiff and Defendant heard gunshots. (ECF DKT

#60-1 at 42; ECF DKT #59-1 at 69, 78-79, 81-82; Wearable Camera System (“WCS”) footage,

ECF DKT #72, Exhibit G). According to Defendant, Borden fired shots first. (ECF DKT #59-1

at 79). Defendant fired two gunshots in return; he says in an effort to protect himself and his

fellow officer. (ECF DKT #59-1 at 72). Defendant turned and fired his gun in Borden’s

direction. (ECF DKT #59-1 at 64). Then, Defendant ducked his head and wildly shot a round

that went into the molding or door frame. (ECF DKT #59-1 at 71-72).

Plaintiff was trailing behind Defendant down the stairs and exiting the building with him.

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(ECF DKT #59-1 at 128-129). While on the upper flight of stairs, Plaintiff felt pain and dropped

her gun. (ECF DKT #60-1 at 43-45). Both officers were concerned that Borden might come out

after them and continue shooting. (Id. at 48). While running, Plaintiff shouted: “I’m shot.”

(WCS footage, ECF DKT #72, Exhibit G; ECF DKT #59-1 at 148). A bullet went into and

through Plaintiff’s forearm, exited upward, hit her bicep, entered her right armpit and lodged in

her back. (ECF DKT #60-1 at 55-56).

Plaintiff brought the above-captioned Complaint under 42 U.S.C. § 1983 on July 13,

2022, alleging that Defendant Bailey Gannon used excessive force against her in violation of the

Fourth and Fourteenth Amendments. On September 22, 2022, Defendant moved for judgment

on the pleadings on the basis of qualified immunity, which this Court denied. That denial was

affirmed by the Sixth Circuit Court of Appeals on July 21, 2023.

Following discovery, Defendant moved for summary judgment in his favor (ECF DKT

#61), renewing his qualified-immunity arguments. The Court denied Defendant’s Motion

because there were factual disputes about the reasonableness of the use of deadly force which

were more appropriately left to a jury’s determination. Defendant appealed.

The Sixth Circuit ruled that Defendant is entitled to qualified immunity on Plaintiff’s

Fourth Amendment Claim because the law regarding the seizure of an unintended target was not

clearly established at the time of the shooting. This Court did not reach the alternative claim of a

Fourteenth Amendment violation; so, the Sixth Circuit vacated and remanded with instructions

to grant judgment in Defendant’s favor on the Fourth Amendment Claim and to address the

Fourteenth Amendment Claim.

Defendant filed his Motion for Judgment (ECF DKT #88) regarding qualified immunity

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on the Fourteenth Amendment Claim on April 27, 2026, and the Motion is fully briefed and ripe

for ruling.

II. LAW AND ANALYSIS

Civil Rule 56 Standard

A summary judgment shall be granted only if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See

Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show no genuine issue

of material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy. Inc. v.

Espy, 39 F. 3d 1339, 1347 (6th Cir. 1994). The moving party must do so by either pointing to

"particular parts of materials in the record, including depositions, documents, electronically

stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or

other materials” or by “showing that the materials cited ( by the adverse party ) do not establish

the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.” See Fed. R. Civ. P. 56(c)(I)(a), (b). A court considering a motion

for summary judgment must view the facts and all inferences in the light most favorable to the

nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Once the movant presents evidence to meet its burden, the nonmoving party may not rest on its

pleadings, but must come forward with some significant probative evidence to support its claim.

Celotex, 477 U.S. at 324; Lansing Dairy, 39 F. 3d at 1347.

This Court does not have the responsibility to search the record sua sponte for genuine

issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F. 3d 1079, 1087 (6th Cir.

1996); Guarino v. Brookfield Township Trustees, 980 F. 2d 399, 404-06 (6th Cir. 1992). The

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burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,” Bias

v. Advantage, 905 F.2d 1558, 1563 ( C.A.D.C., 1990); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986); and if the nonmoving party fails to make the necessary showing on an

element upon which it has the burden of proof, the moving party is entitled to summary

judgment. Celotex, 477 U.S. at 323. Whether summary judgment is appropriate depends upon

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Amway Distributors

Benefits Ass 'n v. Northfield Ins. Co., 323 F. 3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477

U.S. at 251-52).

42 U.S.C. § 1983

To sustain an action under 42 U.S.C. § 1983, a plaintiff must show that the conduct

complained of was committed by a person acting under color of state law; and that the conduct

deprived the plaintiff of a federal constitutional or statutory right. See Haines v. Saginaw Police

Dept., 35 F.3d 565 (6th Cir. 1994) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978)).

Deprivation of a plaintiff’s rights, privileges, or immunities secured by the Constitution and

federal laws is the threshold requirement of a Section 1983 action.

Constitutional Violation

The Fourteenth Amendment substantive due process guarantee protects against

government power arbitrarily and oppressively exercised. See, United States v. Salerno, 481

U.S. 739, 746 (1987) (“So-called ‘substantive due process' prevents the government from

engaging in conduct that ‘shocks the conscience,’ ... or interferes with rights ‘implicit in the

concept of ordered liberty’ ”). The Supreme Court has made it clear that the due process

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guarantee does not entail a body of constitutional law imposing liability whenever someone

cloaked with state authority causes harm. County of Sacramento v. Lewis, 523 U.S. 833, 848

(1988). Rather, “conduct intended to injure in some way unjustifiable by any government

interest is the sort of official action most likely to rise to the conscience-shocking level.” Lewis,

523 U.S. at 849. “As the very term ‘deliberate indifference’ implies, the standard is sensibly

employed only when actual deliberation is practical.” Id. at 851. “In contradistinction, in a

rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and

reflective pre-response deliberation, *** public servants’ reflexive actions ‘shock the conscience’

only if they involved force employed ‘maliciously and sadistically for the very purpose of

causing harm.’ ” Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000).

Qualified Immunity

Qualified immunity protects governmental officials from suit as long “as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In the Sixth Circuit,

courts apply a two-step analysis. First, “whether the facts, when taken in the light most favorable

to the party asserting the injury, show the officer’s conduct violated a constitutional right[.]”

Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015). Then, a court must determine whether

the right was “clearly established” at the time of the alleged violation such “that a reasonable

official would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S.

194, 201–02 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Clearly Established

Qualified immunity spares officers from “the time, expense and risk of money-damages

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actions” unless they violate clearly established constitutional rights. Moore v. Oakland County,

Michigan, 126 F.4th 1163, 1167 (6th Cir. 2025), citing Hagans v. Franklin Cnty. Sheriff's Off.,

695 F.3d 505, 508 (6th Cir. 2012). The Supreme Court warns against defining the constitutional

rights “at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179

L.Ed.2d 1149 (2011). A plaintiff must show that the right’s contours were “sufficiently clear”

such that “every reasonable official would have understood” that the officer’s actions violated it.

Id. at 741, 131 S.Ct. 2074 (quoting Anderson v. Creighton, 483 U.S. 635 at 640). That means a

plaintiff must identify a case with facts “similar enough that” it “squarely governs this one,” Lee

v. Russ, 33 F.4th 860, 863 (6th Cir. 2022), that is, what amounts to “on-point caselaw that would

bind a panel of this court.” Bell v. City of Southfield, 37 F.4th 362, 368 (6th Cir. 2022). In other

words, existing law must have placed the constitutionality of the officer's conduct “beyond

debate.” District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018); al–Kidd, 563 U.S. at 741,

131 S.Ct. 2074.

In the instant matter, Plaintiff insists that Defendant is not entitled to qualified immunity.

Plaintiff argues that few police actions could be more “arbitrary” than an officer, like Defendant,

blindly opening fire with innocent people nearby; especially where “nobody was firing at,

chasing, or even pointing a gun at the officer when he chose to start shooting.” (Plaintiff’s

Opposition, ECF DKT #89 at 1). The Court finds that this assertion is belied by Plaintiff’s own

sworn testimony. Plaintiff acknowledges on deposition that she heard shots fired. (ECF DKT

#60-1 at 42). Moreover, when she and Defendant were rushing out of the building, Plaintiff was

concerned that Borden would come out after them and keep shooting. (ECF DKT #60-1 at 48).

Plaintiff contends that Defendant violated the Fourteenth Amendment by deciding to

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shoot without the need to do so, without either looking or aiming where he was shooting and

despite knowing Plaintiff was in his line of fire. For his part, Defendant testifies that the intent of

his first shot was to stop the threat from Borden and to protect himself and Officer Kilnapp.

(ECF DKT #59-1 at 69, 132). It is true that Defendant admits that he could not see Borden nor

the bathroom once he descended the stairs and opened fire. (Requests for Admissions, ECF

DKT #69-4 at 5). While Plaintiff disputes that Borden posed a threat and pointed a gun at

Defendant, she concedes that she did not see Borden herself at any point and could not see into

the bathroom. (ECF DKT #60-1 at 59, 60).

Investigations by Internal Affairs and by the Force Review Board concluded that

Defendant opened fire without a verified and visible target and failed to consider his

surroundings (i.e., that Plaintiff was in the crossfire) before firing his weapon, in violation of

firearms safety regulations. In addition, Defendant cannot recall exactly what he saw when he

pulled the trigger or how he was holding his gun. (ECF DKT #59-1 at 134, 135-36).

Nevertheless, as cited in Russo v. City of Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992):

“[T]he Supreme Court has indicated that the violation of established procedure alone is

insufficient to overcome a qualified immunity claim.” See also, Latits v. Phillips, 878 F.3d 541,

553 (6th Cir. 2017) (“It must have been clearly established that the conduct at issue violates the

Constitution, not internal policies.”). Even if Defendant’s actions “violated departmental policy

or were otherwise negligent, no rational fact finder could conclude, even after considering the

evidence in the light most favorable to [plaintiff], that [Defendant] acted with

conscience-shocking malice or sadism toward the unintended shooting victim.” Claybrook, 199

F.3d at 360.

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[W]hile standard operating procedures may of course call for a higher or different

standard of care than does the Constitution, that does not supplant the

Constitution as the source of legal liability under § 1983. Congress made states

and localities liable for constitutional violations, not violations of state and local

policies. Napper v. Hankison, 617 F.Supp.3d 703, 748 (W.D. Kentucky 2022).

Though Plaintiff may argue that Defendant’s actions violated departmental policy or were

otherwise negligent or reckless, no reasonable jury, considering the evidence in a light most

favorable to Plaintiff, could find that Defendant acted with conscience-shocking malice or sadism

toward Plaintiff as an unintended shooting victim. See Claybrook, 199 F.3d at 360.

Plaintiff also contends that Defendant is not entitled to qualified immunity under the

“clearly established” analysis. Plaintiff posits that a “case directly on point” is not required and

that the key inquiry is whether Defendant had “fair warning” that his actions were

unconstitutional. Plaintiff quotes Hart v. Michigan, 138 F.4th 409, 423-24 (6th Cir. 2025) for

the proposition that “precedent makes clear that officers have fair warning that they may not use

deadly force where the suspect poses no immediate threat to the officer and no threat to others in

the area ... .” However, the Hart proposition of law is not applicable to the facts here which

illustrate that Borden posed an immediate threat to the two officers. As stated previously,

Plaintiff concedes that she heard shots fired by Borden and feared he would continue to shoot as

she and Defendant fled the building. (ECF DKT #60-1 at 42, 48).

Plaintiff concludes that Defendant was on notice that his conduct violated established law

despite the lack of binding precedent “where another officer took ‘unnecessary’ risks by shooting

blindly with their partner right behind them in the line of fire.” (ECF DKT #89 at 10). Plaintiff

insists that the constitutional violation is obvious. Although identical facts may not exist in Sixth

Circuit case law, Plaintiff nonetheless fails to satisfy her “burden to identify a closely analogous

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precedent with ‘facts like the ones at issue here’ that placed the constitutional question beyond

debate,’ [with] ‘on-point caselaw that would bind a panel of this court.’ ” Feagin v. Mansfield

Police Dep’t, 155 F.4th 595, 603 (6th Cir. 2025), quoting Rivas-Villegas v. Cortesluna, 595 U.S.

1, 6 (2021).

Defendant may receive the benefit of the qualified immunity defense “unless [he] could

have ‘read’ the relevant precedent beforehand and ‘know[n]’ that it proscribed [his] specific

conduct.” Zorn v. Linton, 607 U.S. —, 146 S.Ct. 926, 930 (2026); County of San Francisco v.

Sheehan, 575 U.S. 600, 616 (2015).

III. CONCLUSION

The Fourteenth Amendment’s “malicious or sadistic” test of conscience-shocking

behavior controls in the within case; but the facts do not rise to the level of this standard.

Defendant had no opportunity in this rapidly evolving situation to deliberate his reaction to

Borden’s dangerous and threatening actions and to formulate a malicious or sadistic intent to

injure. Claybrook, 199 F.3d at 360. Moreover, Plaintiff has not identified any clearly-

established precedent, controlling authority or “robust consensus of cases of persuasive

authority” which renders Defendant’s conduct unconstitutional beyond debate. See al-Kidd, 563

U.S. at 741-742. Therefore, the Motion (ECF DKT #88) of Defendant Bailey Gannon for

Judgment on Plaintiff Jennifer Kilnapp’s Fourteenth Amendment Claim is granted and

Defendant is entitled to qualified immunity on that Claim.

IT IS SO ORDERED.

DATE: July 17, 2026 s/Christopher A. Boyko

CHRISTOPHER A. BOYKO

United States District Judge

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