Rodriguez v. Passinault

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0076p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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REBECCA RODRIGUEZ,

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Plaintiff-Appellant,

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No. 09-1949

v.

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Defendant-Appellee. -

THOMAS PASSINAULT,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-14537—Lawrence P. Zatkoff, District Judge.

Argued: July 29, 2010

Decided and Filed: March 25, 2011

Before: GILMAN and WHITE, Circuit Judges; WATSON, District Judge.*

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COUNSEL

ARGUED: Hugh M. Davis, Jr., CONSTITUTIONAL LITIGATION ASSOCIATES,

P.C., Detroit, Michigan, for Appellant. Gail P. Massad, CUMMINGS, McCLOREY,

DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellee. ON BRIEF: Hugh M.

Davis, Jr., CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan,

for Appellant. Gail P. Massad, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C.,

Livonia, Michigan, for Appellee.

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OPINION

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HELENE N. WHITE, Circuit Judge. Plaintiff Rebecca Rodriguez (Rodriguez)

appeals the district court’s grant of summary judgment to Shiawassee County Sheriff’s

*

The Honorable Michael H. Watson, United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 09-1949 Rodriquez v. Passinault Page 2

Deputy Thomas Passinault (Passinault) in this 42 U.S.C. § 1983 action alleging

excessive force under the Fourth and Fourteenth Amendments. We REVERSE the

district court’s determinations that no seizure occurred and that Passinault is entitled to

qualified immunity, and REMAND for further proceedings consistent with this opinion.

I.

The district court summarized the facts:

This case arises out of a tragic incident involving the fatal

shooting of Michael Murray (“Murray”) by Defendant, a Shiawassee

County deputy officer. On the night of September 5, 2003, after

attending a party, Murray and Plaintiff were dropped off at Murray’s

truck, which was parked at a local bar. Murray had offered to drive

Plaintiff home. While exiting the parking area, Murray spotted a police

cruiser. Having consumed alcohol in violation of his parole terms,

Murray attempted to elude the cruiser by maneuvering his vehicle

through alleys and driveways before pulling into an alley and shutting off

his engine and lights. Murray ducked down so as not to be seen and

instructed Plaintiff to do the same.

Defendant and fellow officer Jason Jenkins (“Jenkins”) had

noticed Murray’s suspicious driving and proceeded to the area where

Murray had parked. After Defendant and Jenkins began to search the

area around the truck on foot, Murray started his engine and attempted

to drive away. Defendant, allegedly fearing for his and his partner’s

safety, fired several shots at the vehicle. Murray was fatally struck, and

his truck subsequently crashed into a ditch.

R. 26/Dist. Ct. Op. at 2. The district court noted:

The parties greatly dispute the proximity of Murray’s vehicle to

the officers, the speed and erratic nature of his driving, and whether the

officers were in danger of being struck by the vehicle. These differing

accounts are detailed in Murray-Ruhl v. Passinault, 246 Fed. Appx. 338,

340-42 (6th Cir. 2007), and need not be restated here, as these factual

differences are relevant to the reasonableness of Defendant’s actions –

an issue not analyzed in this opinion.

R. 26 at 2 n.1. The parties’ “differing accounts” are set forth in Murray-Ruhl:

No. 09-1949 Rodriquez v. Passinault Page 3

The Defendants’ [Passinault’s and Jenkins’s] Version of the Facts

The defendants claim that after Murray started the truck, he

accelerated directly toward Passinault, who was standing next to a pole

barn approximately 165 feet north of the truck. Jenkins and Passinault

also assert that Passinault was ‘effectively trapped between the truck and

the pole barn.’ According to the defendants, Passinault repeatedly

ordered the driver of the truck to stop, but his orders were disregarded

and the driver . . . continued accelerating toward him. Passinault gave

conflicting accounts of how close the truck came as it passed him,

eventually testifying that it was between one and eight feet away from

where he was standing when he fired the first shot at the driver. But

immediately after the shooting and for some days afterward, he reported

that he had been hit by the truck and injured – even going so far as to

call for an ambulance to come to the scene because he needed medical

attention. However, that version of the facts turned out to be a complete

fabrication.

In truth, Passinault had not been hit by the truck and continued

shooting after it had passed him, claiming later that he believed that the

driver might be heading toward his partner, Jenkins, who was on foot

somewhere in the area. Passinault also asserts that he fired at the truck

as it was driven away from him because he was concerned for the safety

of other officers who had been summoned to the scene and for the public

in general. The vehicle was not being operated at a high rate of speed,

however, and there were no other officers or members of the public in the

area at the time of these events.

Later investigation revealed that Passinault had fired a total of 12

shots at the truck, at least two or three of which struck Murray. The

truck eventually came to a stop in a ditch some distance down the road,

with Murray slumped over the wheel, dead.

The Plaintiff’s [Murray’s estate] Version of the Facts

Because Rebecca Rodriguez was an eyewitness to what occurred,

the plaintiff was able to offer a significantly different version of events,

which must, of course, be viewed in the light most favorable to her.

According to this account of the facts, when Murray started the truck in

order to escape from the alley, he accelerated not toward Passinault but

rather toward the only exit available to him. Because the officers’ patrol

car blocked the truck in the alley from behind, “Murray had only one

option, which was to drive forward past the position of the Deputies” in

order to get away. The plaintiff concedes that Murray’s truck went by

No. 09-1949 Rodriquez v. Passinault Page 4

Passinault at a distance of about eight feet, but asserts that he took this

path only because he could not get out of the alley any other way.

Rodriguez testified that she heard Passinault yell at Murray to

stop the truck only once, as opposed to the repeated orders that the

defendants claim Passinault made. According to Rodriguez, after

ordering Murray to stop, Passinault did not wait for a response but

immediately fired his weapon. Moreover, the record tends to show that

Passinault fired only that first shot before the truck passed him and was

moving away, because forensic evidence fails to reflect that even one

bullet struck the front of the truck or the windshield. Instead, according

to Rodriguez, Passinault fired the remaining shots after the truck had

already turned and driven past him. She testified, in fact, that she saw

Passinault running after the truck as he continued shooting at it.

The plaintiff also contends that the fatal shot could not have been

fired in self-defense because, according to the autopsy report, the shot

that killed Murray would also have paralyzed his legs, yet he was able to

operate the truck’s gas pedal for some distance after passing Passinault.

In addition, the autopsy report indicates that the bullet moved from the

back of Murray’s body toward the front, indicating that he was shot from

behind.

The plaintiff calls into question Passinault’s alleged concern for

the safety of others. Although Passinault claimed that he continued

shooting after the truck had passed him because he believed it was

bearing down on his partner, Jenkins indicated that he was not in the

truck’s path and that he never felt in danger of being struck by the

vehicle. The plaintiff also asserts that the officers lacked reason to

believe Murray posed an ultimate threat to the general public because,

despite the officers’ suspicions that he might have committed a crime of

some sort, the most serious offense they actually saw him commit was a

traffic violation.

Murray-Ruhl v. Passinault, 246 F. App’x 338, 340-42 (6th Cir. 2007).

II. PROCEDURAL HISTORY

In the companion case, Murray-Ruhl, Murray’s estate filed a § 1983 action

against Passinault and Jenkins, alleging that the deputies acted unreasonably in using

deadly force against Murray, violating his Fourth Amendment rights. Murray-Ruhl v.

Cnty. of Shiawassee, et al., 2:04-cv-72615-LPZ-MKM (complaint filed July 15, 2004).

Rodriguez filed an action against the deputies on September 2, 2005. Rodriguez v.

No. 09-1949 Rodriquez v. Passinault Page 5

Passinault, et al. (Rodriguez I), 2:05-cv-73416-LPZ-MKM. The same district court

judge presided over both cases.

In Murray-Ruhl, the district court granted the defendants summary judgment on

qualified- immunity grounds. After Murray-Ruhl appealed, the parties in Rodriguez I

stipulated that Rodriquez would voluntarily dismiss her case without prejudice, and that

she “shall have 30 days” to re-file from the date the Sixth Circuit decides Murray-Ruhl.

R. 18, Rodriguez I.

On Murray-Ruhl’s appeal, this Court affirmed the grant of summary judgment

to Jenkins and reversed as to Passinault. The Court reasoned that, under the plaintiff’s

version of the facts, 1) “a jury could find that no reasonably competent officer would

have shot the victim, thus satisfying the first prong in Saucier’s1 two-pronged qualified

immunity analysis,” Murray-Ruhl, 246 F. App’x at 346, and 2) “a reasonable jury could

conclude that Murray posed no danger to the officers or the general public . . . and [in

such circumstances] Tennessee v. Garner[, 471 U.S. 1 (1985),] provides a ‘clearly

established’ right that fulfills the second prong of the qualified immunity analysis.” Id.

at 347. The mandate affirming Jenkins’s dismissal and reversing as to Passinault issued

September 26, 2007.

On October 23, 2007, Rodriguez re-filed her complaint, naming only Passinault2

as a defendant, and alleging violations of the Fourth and Fourteenth Amendments under

§ 1983.3

1

Saucier v. Katz, 533 U.S. 194 (2001).

2

Passinault’s counsel filed a Suggestion of Death on December 11, 2007, stating that Passinault

passed away on May 30, 2007 (i.e., months before Rodriguez re-filed her complaint).

3

Passinault asserts that this court should affirm the grant of summary judgment on the alternative

ground that Rodriguez’s re-filed complaint was untimely because it was filed outside the 30-day deadline.

Passinault maintains that the 30 days started running on August 29, 2007, the date this court’s unpublished

decision issued in Murray-Ruhl, while Rodriguez maintains that the Murray-Ruhl mandate dated

September 26, 2007 started the clock running. The district court’s opinion noted the parties’ divergent

arguments in this regard and concluded that it would treat Rodriguez’s re-filed complaint as timely for

purposes of the summary judgment motion. R. 26 at 3 n.2.

We reject Passinault’s argument for several reasons. Sixth Circuit Internal Operating Procedure

41 provides that the mandate “is the document by which this court relinquishes jurisdiction and authorizes

the originating district court . . . to enforce the judgment of this court.” Also, as Rodriguez argues, it was

reasonable for her to assume that the Murray-Ruhl defendants might move for rehearing, and they had until

No. 09-1949 Rodriquez v. Passinault Page 6

The district court granted Passinault summary judgment and dismissed Rodriguez

II, concluding that Rodriguez was not seized within the meaning of the Fourth

Amendment because Passinault did not know that she was a passenger in Murray’s

truck, because she was not actually shot, and, in any event, because Passinault was

entitled to qualified immunity. This appeal ensued.

III.

We review the district court’s grant of summary judgment de novo. Miller v.

Sanilac Cnty., 606 F.3d 240, 246 (6th Cir. 2010). The Fourth Amendment protects

“[t]he right of the people to be secure in their persons . . . against unreasonable . . .

seizures.” U.S. CONST. amend. IV. “[A] Fourth Amendment seizure does not occur

whenever there is a governmentally caused termination of an individual’s freedom of

movement . . . , nor even whenever there is a governmentally caused and governmentally

desired termination of an individual’s freedom of movement . . . , but only when there

is a governmental termination of freedom of movement through means intentionally

applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original);

see also Slusher v. Carson, 540 F.3d 449, 454 (6th Cir. 2008) (quoting Graham v.

Connor, 490 U.S. 386, 395 n.10 (1989) (“[a] ‘seizure’ triggering the Fourth

Amendment’s protections occurs only when government actors have, by means of

physical force or show of authority, in some way restrained the liberty of a citizen.”)

(alterations and quotations omitted.)4

September 12, 2007, to do so. Further, Passinault answered Rodriguez’s re-filed complaint in December

2007, and the parties thereafter engaged in consensual scheduling, conferences with the district court,

discovery, and expert evaluations, without Passinault raising the claim that Rodriguez failed to timely re-

file her complaint. We thus reject Passinault’s argument that he was entitled to summary judgment on this

ground.

4

Where a plaintiff complains of an unreasonable seizure, the claim is more properly analyzed

under the Fourth Amendment than the Fourteenth Amendment’s substantive due process provision, since

the former is a “more explicit textual source of constitutional protection.” Graham, 490 U.S. at 395. See

also Phelps v. Coy, 286 F.3d 295, 299-300 (6th Cir. 2002) (“Which amendment applies depends on the

status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in

between . . . . If the plaintiff was a free person . . . and the use of force occurred in the course of an arrest

or other seizure . . . [then] the plaintiff’s claim arises under the Fourth Amendment and its reasonableness

standard.” (internal citations omitted)).

No. 09-1949 Rodriquez v. Passinault Page 7

A claim of excessive force under the Fourth Amendment requires that a plaintiff

demonstrate that a seizure occurred, and that the force used in effecting the seizure was

objectively unreasonable. Graham, 490 U.S. at 394-95. We review the district court’s

determination that no seizure occurred de novo, and its underlying factual findings for

clear error. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995).

A.

The district court in the instant case concluded that no seizure occurred, declining

to apply this Court’s decision in Fisher v. City of Memphis, 234 F.3d 312 (6th Cir.

2000). Rodriguez asserts that Fisher is controlling and that under Fisher, she was

seized. She further maintains that this Court’s decision in the companion case of

Murray-Ruhl determined that Passinault’s actions were unreasonable. Passinault argues

that the district court correctly declined to apply Fisher and relied instead on Troupe v.

Sarasota Cnty., Fla., 419 F.3d 1160 (11th Cir. 2005).

B. Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989).

Both Fisher and Troupe relied on language in Brower, a frequently-cited Fourth

Amendment excessive-force case in which a fleeing driver was “killed when the stolen

car that he had been driving at high speeds for approximately 20 miles in an effort to

elude pursuing police crashed into a police roadblock.” 480 U.S. at 594. The decedent’s

heirs brought suit under 42 U.S.C. § 1983, alleging that the respondent officers used

excessive, unreasonable and unnecessary force in establishing the roadblock and thus

effected an unreasonable seizure of Brower. The district court granted the respondents’

motion to dismiss for failure to state a claim, concluding that establishing a roadblock

was not unreasonable under the circumstances. A divided Ninth Circuit affirmed on the

basis that no seizure had occurred. The Supreme Court reversed:

In Tennessee v. Garner, 471 U.S. 1 [] (1985), all Members of the

Court agreed that a police officer’s fatal shooting of a fleeing suspect

constituted a Fourth Amendment “seizure.” See id., at 7 []; id., at 25 []

(O’Connor, J., dissenting). We reasoned that “[w]henever an officer

restrains the freedom of a person to walk away, he has seized that

person.” Id., at 7 []. While acknowledging Garner, the Court of Appeals

No. 09-1949 Rodriquez v. Passinault Page 8

here concluded that no “seizure” occurred when Brower collided with the

police roadblock because “[p]rior to his failure to stop voluntarily, his

freedom of movement was never arrested or restrained” and because

“[h]e had a number of opportunities to stop his automobile prior to the

impact.” 817 F.2d, at 546. Essentially the same thing, however, could

have been said in Garner. Brower’s independent decision to continue the

chase can no more eliminate respondents’ responsibility for the

termination of his movement effected by the roadblock than Garner’s

independent decision to flee eliminated the Memphis police officer’s

responsibility for the termination of his movement effected by the bullet.

The Court of Appeals was impelled to its result by consideration

of what it described as the “analogous situation” of a police chase in

which the suspect unexpectedly loses control of his car and crashes. See

Galas v. McKee, 801 F.2d 200, 202-203 (CA6 1986) (no seizure in such

circumstances). We agree that no unconstitutional seizure occurs there,

but not for a reason that has any application to the present case.

Violation of the Fourth Amendment requires an intentional acquisition

of physical control. A seizure occurs even when an unintended person

or thing is the object of the detention or taking, see Hill v. California,

401 U.S. 797, 802-805 [] (1971); cf. Maryland v. Garrison, 480 U.S. 79,

85-89 [] (1987), but the detention or taking itself must be willful. This

is implicit in the word “seizure,” which can hardly be applied to an

unknowing act. . . .

Thus, if a parked and unoccupied police car slips its brake and

pins a passerby against a wall, it is likely that a tort has occurred, but not

a violation of the Fourth Amendment. And the situation would not

change if the passerby happened, by lucky chance, to be a serial murderer

for whom there was an outstanding arrest warrant – even if, at the time

he was thus pinned, he was in the process of running away from two

pursuing constables. It is clear, in other words, that a Fourth Amendment

seizure does not occur whenever there is a governmentally caused and

governmentally desired termination of an individual’s freedom of

movement (the fleeing felon), but only where there is a governmental

termination of freedom of movement through means intentionally

applied. That is the reason there was no seizure in the hypothetical

situation that concerned the Court of Appeals. The pursuing police car

sought to stop the suspect only by the show of authority represented by

flashing lights and continuing pursuit; and though he was in fact stopped,

he was stopped by a different means – his loss of control of his vehicle

and the subsequent crash. If, instead of that, the police cruiser had pulled

alongside the fleeing car and sideswiped it, producing the crash, then the

termination of the suspect’s freedom of movement would have been a

seizure.

No. 09-1949 Rodriquez v. Passinault Page 9

....

[A] roadblock is not just a significant show of authority to induce a

voluntary stop, but is designed to produce a stop by physical impact if

voluntary compliance does not occur. It may well be that respondents

here preferred, and indeed earnestly hoped, that Brower would stop on

his own, without striking the barrier, but we do not think it practicable to

conduct an inquiry into subjective intent. . . . Nor do we think it possible,

in determining whether there has been a seizure in a case such as this, to

distinguish between a roadblock that is designed to give the oncoming

driver the option of a voluntary stop (e.g., one at the end of a long

straightaway), and a roadblock that is designed precisely to produce a

collision (e.g., one located just around a bend). In determining whether

the means that terminates the freedom of movement is the very means

that the government intended we cannot draw too fine a line, or we will

be driven to saying that one is not seized who has been stopped by the

accidental discharge of a gun with which he was meant only to be

bludgeoned, or by a bullet in the heart that was meant only for the leg.

We think it enough for a seizure that a person be stopped by the very

instrumentality set in motion or put in place in order to achieve that

result. It was enough here, therefore, that according to the allegations of

the complaint, Brower was meant to be stopped by the physical obstacle

of the roadblock – and that he was so stopped.

Brower, 489 U.S. at 595-99 (some emphasis added).

C. Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000).

Fisher’s facts and procedural history are succinctly stated therein:

On March 24, 1996, Officer William Taylor of the Memphis

Police Department stopped to speak to two young women. As they spoke

in the middle of Speed Street, they noticed a vehicle driven by Demetria

Becton (“Becton”) approaching in their direction. To avoid being hit, the

two women jumped onto the curb, and the Officer jumped onto the hood

of his police car, simultaneously firing his gun at the car. The bullet

went through the driver’s side window and hit the passenger, Elitia

Fisher.

As a result of this incident, Ms. Fisher filed suit against Officer

Taylor in federal district court pursuant to 42 U.S.C. § 1983, alleging

deprivations of her Fourth, Eighth, and Fourteenth Amendment rights.

Defendant moved for summary judgment . . . . The court . . . denied the

motion as to the Fourth Amendment claim, finding an issue of material

No. 09-1949 Rodriquez v. Passinault Page 10

fact as to whether Defendant’s actions were reasonable under the Fourth

Amendment. . . .

At trial, the jury reached a verdict for Plaintiff, and awarded her

[damages].

Fisher, 234 F.3d at 315. On appeal, Officer Taylor argued that the district court should

have instructed the jury that Fisher’s wounding was accidental and thus not actionable

under § 1983 or, alternatively, that the district court should have analyzed Fisher’s claim

as arising under the Fourteenth, rather than the Fourth, Amendment. This Court rejected

both arguments:

Defendant is correct in noting that to state a claim under 42 U.S.C.

§ 1983, a Plaintiff must demonstrate more than just mere negligence.

However, the intent in question is the intent to commit the act, not the

intent that a certain result be achieved. Therefore, Officer Taylor’s act

of firing the gun was intentional, even if the result was not one he sought

to achieve. Instructing the jury that more than negligence was required

would likely confuse the jury as to the intent question . . . .

Defendant’s alternative argument is that the district court erred

by analyzing his actions under the Fourth Amendment . . . [; he]

specifically argues that this court should apply a “shock the conscience”

standard . . . under the Fourteenth Amendment . . . .

In addition, the United States Supreme Court has stated that a Fourth

Amendment seizure occurs when governmental termination of freedom

is through means intentionally applied. Brower v. County of Inyo, 489

U.S. 593, 596 [] (1989). Therefore, violation of the Fourth Amendment

requires an intentional acquisition of physical control. As a result, a

seizure occurs even when an unintended person or thing is the object of

the detention or taking, so long as the detention or taking itself is willful.

Id.

In its recent decision in Claybrook v. Birchwell, 199 F.3d 350

(6th Cir. 2000), this Circuit applied Brower in determining whether a

victim of an errant bullet in a shootout fell within the scope of Fourth

Amendment seizure. While recognizing that the Fourth Amendment

does not apply to § 1983 claims “which seek remuneration for physical

injuries inadvertently inflicted upon an innocent party by police officers’

use of force while attempting to seize a perpetrator,” Claybrook

emphasized that police officers do seize any person who is a “deliberate

object of their exertion of force.” Id. at 359. Here, Becton’s car was the

intended target of Defendant’s intentionally applied exertion of force.

No. 09-1949 Rodriquez v. Passinault Page 11

By shooting at the driver of the moving car, he intended to stop the car,

effectively seizing everyone inside, including the Plaintiff. Thus,

because the Defendant “seized” the Plaintiff by shooting at the car, the

district court did not err in analyzing the Defendant’s actions under the

Fourth Amendment.

Fisher, 234 F.3d at 317-19.

D. Scott v. Clay Cnty., Tenn., 205 F.3d 867 (6th Cir. 2000).

The parties and the district court each cited Scott, in which police gunfire

inadvertently struck Patricia Scott, a passenger in a vehicle fleeing from police whose

presence was unknown to Pierce, the defendant officer who shot at the vehicle. Police

had observed Robert Scott race erratically through a stop sign at high speed, and pursued

the Scott car at high speeds for over twenty minutes. Several other police cruisers joined

the chase. After the pursued vehicle crashed, Pierce arrived at the car first. A collision

between the two occurred, after which Pierce exited his patrol car. The pursued vehicle

then accelerated toward Pierce, causing him to jump out of the way, and proceeded

directly toward another officer’s approaching vehicle, racing to return to the highway:

At the moment that the Chevrolet was racing once again onto the

public motorway, Deputy Pierce believed that its operator had earlier

tried to run down Sheriff Anderson, had attempted to drive over him

(Pierce) only moments previously, and posed a grave immediate menace

to the lives and limbs of his approaching colleagues as well as innocent

highway travelers. The plaintiff has not contested Pierce’s avowal that

he did not know that a passenger was also inside the vehicle. Confronted

with a momentous, split-second, life-or death decision, defendant Pierce

initially reacted by firing five bullets towards the Chevrolet’s driver; he

then discharged an additional four rounds at that vehicle’s tires, causing

it to skid to a stop for the second, and final, time. Pierce’s hail of bullets

had failed to injure the driver, Robert Scott. Unfortunately however, two

of his shots had inadvertently struck plaintiff Patricia Scott, whose

presence as a passenger was unknown to Pierce.

....

[U]pon perceiving that Patricia had been wounded, they radioed for a

medical evacuation helicopter . . . . [D]octors discovered one bullet

lodged inside her skull and a second gunshot imbedded within her right

shoulder.

No. 09-1949 Rodriquez v. Passinault Page 12

Scott, 205 F.3d at 872-73. Patricia Scott filed suit under § 1983, claiming that the

defendants used excessive force to seize her, as well as violations under the Fourth and

Fourteenth Amendments. The district court denied the defendant officers summary

judgment on qualified-immunity grounds, assuming for summary-judgment purposes

“that Patricia, as a voluntary cohort of Robert’s whom, following the shooting, the

defendant officers forcibly removed from the inoperative Chevrolet and immediately

handcuffed, was an intended target of an official seizure,” id. at 876, and ruled that

material issues of fact remained regarding the reasonableness of Patricia Scott’s seizure,

and “whether the defendants were objectively unreasonable under the dictates of law

which was clearly established on the incident date.” Id. at 874. The defendants

appealed.

This court held that, as a matter of law, Pierce’s “faulted actions were objectively

reasonable, and thus did not violate the Fourth Amendment. Pierce justifiably fired at

the fleeing vehicle in order to seize its occupant(s); his actions therefore could not

violate the Fourth Amendment rights of any unknown passenger who may have been

injured by his actions. Thus, Pierce is entitled to qualified immunity.” Id. at 878.

In the cause sub judice, the district court presumed, for summary

judgment purposes, that Patricia, as a voluntary cohort of Robert’s

whom, following the shooting, the defendant officers forcibly removed

from the inoperative Chevrolet, and immediately handcuffed, was an

intended target of an official seizure at all times pertinent, [footnote

quoted below] thereby triggering the Fourth Amendment’s comparatively

relaxed “objective unreasonableness” standard of proof . . . On appeal,

the defendants-appellants have conceded that their summary judgment

motion should be assessed under the Fourth Amendment, rather than the

Fourteenth Amendment.

Scott, 205 F.3d at 876. In a footnote, Scott stated:

Accordingly, this review need not resolve whether a factual issue would

otherwise exist for trial regarding whether, at the time that Pierce

discharged his weapon into the moving Chevrolet’s passenger

compartment, the defendants intended to seize any passenger in that

vehicle other than the driver, which in turn would determine which

constitutional proviso would control the plaintiff’s charges. See

No. 09-1949 Rodriquez v. Passinault Page 13

Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (explaining that the

constitutional tort action of a citizen who had been inadvertently

wounded while inside a parked automobile during a police shoot-out with

an armed felony suspect in the parking lot must be scrutinized under

Fourteenth Amendment standards because the record proof was

uncontested that the defendant peace constables had been unaware that

anyone had been inside that vehicle and did not intend to seize anyone

who might be inside that car).

Scott, 205 F.3d at 876 n.15.

E. Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160 (11th Cir. 2005).

In Troupe, a 17-member SWAT team was assigned to serve a felony drug arrest

warrant for Ryan Hart and a search warrant for Hart’s residence. The SWAT team was

told that Hart had 40 previous arrests, 19 convictions, and “was out on bond for

attempted murder and was known to run from the police and for his violent tendencies.”

419 F.3d at 1163. While the SWAT team was en route, Hart and two other males – later

identified as Robinson and Waiters – left Hart’s house and got into a vehicle. The

SWAT team surrounded the vehicle with guns drawn and yelled commands for Hart and

the passengers to open the doors and surrender. Hart, the driver, revved the engine and

moved the car in jerking motions. The vehicle made a hard left so that it was facing the

road, at which time one of the defendant officers, Gooding, “fired a single shot at a low

angle, aiming for the lower portion of the tire.” 419 F.3d at 1164. “The shot missed the

tire and, apparently, did not strike anyone or anything.” Id. Another defendant officer,

Bauer, saw the car coming directly at him, fired two shots at the driver, and jumped out

of the car’s way as it swept past him. One bullet struck the driver’s door and the other

hit Hart in the back. None of the shots hit Robinson or Waiters. Hart accelerated, left

the yard, turned onto a road and drove over 0.3 miles, including through an intersection

without slowing. The car then “approached an officer’s unmarked vehicle, slowed

down, made a sharp move to the right to avoid oncoming traffic . . . and went onto the

grass and sidewalk, crashing into a concrete wall.” 419 F.3d at 1164-65. Hart and

Robinson were pronounced dead at the scene. Waiters sustained blunt force trauma

injuries to the skull. Id. at 1165.

No. 09-1949 Rodriquez v. Passinault Page 14

The plaintiffs in the consolidated cases were Troupe (Robinson’s personal

representative) and Waiters. The district court granted the defendants summary

judgment. The 11th Circuit agreed with the district court’s determinations that the

defendants were not the proximate cause of the plaintiffs’ injuries (concluding that it was

Hart’s reckless driving, and not Bauer’s decision to use deadly force, that caused the

death and injury of the plaintiffs), that the defendants’ use of deadly force was

reasonable under § 1983, and that the defendants were entitled to qualified immunity.

However, the Troupe court disagreed with the district court’s determination that the

plaintiffs had been seized, noting that an attempted seizure does not constitute a seizure

and that “stopping a vehicle’s driver does not constitute seizure of the passengers.”

Troupe, 419 F.3d at 1167.

F. The district court’s decision

The district court in the instant case discussed and distinguished Fisher, and

declined to “sua sponte broaden” Fisher’s holding. The court concluded that Scott did

“not compel a finding that an unknown passenger is seized when an officer fires at a

moving vehicle, and in any event, the [Scott] plaintiff[] . . . [was] struck by the officer’s

gunfire, unlike [Rodriguez.]” The district court found the Eleventh Circuit’s decision

in Troupe, 419 F.3d 1160, persuasive:

Plaintiff was neither a hostage nor an innocent bystander, but

rather an unknown – and intentionally concealed – passenger in Murray’s

vehicle. Fisher is silent as to whether the officer was aware of the

presence of passengers in the car. While some courts have questioned,

in dicta, whether an unknown passenger might be seized, see, e.g., Scott

v. Clay County, Tenn., 205 F.3d 867, [876] n.15 (6th Cir. 2000); Herman

v. City of Shannon, MS, 296 F. Supp.2d 709, 712 n.3 (N.D. Miss. 2003),

aff’d, 104 Fed. Appx. 398 (5th Cir. 2004), other courts have suggested

that an unknown passenger would not be seized. See, e.g., Edenfeld,

2006 WL 1041724, at *10; Tubar, 453 F. Supp. 2d at 1256. Scott and

Herman do not compel a finding that an unknown passenger is seized

when an officer fires at a moving vehicle, and in any event, the plaintiffs

in both cases were struck by the officer’s gunfire, unlike Plaintiff.

....

The Court finds Troupe persuasive. Like the plaintiffs in Troupe,

Plaintiff was not shot and was injured only in the subsequent crash.

No. 09-1949 Rodriquez v. Passinault Page 15

Whereas the Troupe plaintiffs were known passengers, Plaintiff was not,

which further compels a finding that she was not seized. While Plaintiff

maintains that, despite Troupe, a seizure may be effectuated in a fleeing

vehicle case without the target actually being shot, such cases discuss the

seizure of the vehicle’s driver and do not discuss an unknown passenger.

See Flores v. City of Palacios, 381 F.3d 391, 396-97 (5th Cir. 2004);

Carlson v. Lunsford, No. 05-1025, 2007 WL 470437, at *5 (W.D. Tenn.

Feb. 8, 2007).

Plaintiff has not identified a single case holding that an unknown

passenger, who was not shot, is seized under circumstances analogous to

the present.

R. 26/Dist. Ct. Op. at 7-10.

IV. ANALYSIS

We do not agree with the district court that applying Fisher to the instant case

would extend Fisher’s holding. Under Fisher, an officer’s intentionally applied exertion

of force directed at a vehicle to stop it effectuates a seizure of all occupants therein. 234

F.3d at 318-19. Factually, the instant case is like Fisher in that it involved an officer’s

shooting at a moving vehicle in order to stop it, resulting in injury to the passenger. That

Fisher does not mention whether the police were aware of the passenger’s presence in

the vehicle does not render Fisher inapplicable to the instant case.

Troupe, on the other hand, bears little resemblance to the instant case. Here, after

two or more of Passinault’s shots struck Murray in the back, one of which paralyzed

Murray, the truck continued moving for a brief time and crashed into a ditch, with

Murray dead at the wheel. In Troupe, the fleeing vehicle continued its flight for more

than .3 miles and crashed into a concrete wall only after sharply veering to avoid

oncoming traffic. Although a bullet struck the driver, it did not effect a seizure of the

vehicle; it was the vehicle’s later crash that stopped the vehicle and caused the death of

the driver and a passenger, and injury to the other passenger. That is, the gunfire in

Troupe did not cause the vehicle to stop, and there was thus no seizure. To be sure, the

Troupe court did say, in the course of discussing whether there had been a seizure:

No. 09-1949 Rodriquez v. Passinault Page 16

[S]topping a vehicle’s driver does not constitute a seizure of a passenger.

See County of Sacramento v. Lewis, 523 U.S. 833, 844 [] (1998), citing

Brower, 489 U.S. at 596-97 []. Thus, when Bauer shot Hart that did not

constitute a seizure of the passengers.

419 F.3d at 1167. But that statement was made without any analysis, and the

cited case, County of Sacramento, does not so hold. Other cases, however, do stand for

the proposition that seizure of a car to protect a hostage does not constitute seizure of the

hostage.5 These cases are fairly distinguishable on the basis that in a hostage situation

there is no intentional acquisition of physical control of the hostage; rather the intention

of the officer is manifestly not to seize, but rather to liberate, the hostage.

Here the intent to stop the vehicle was the same as in Fisher, and Fisher controls:

By shooting at the driver of the moving car, he intended to stop the car,

effectively seizing everyone inside, including the Plaintiff. Thus,

because the Defendant “seized” the Plaintiff by shooting at the car, the

district court did not err in analyzing the Defendant’s actions under the

Fourth Amendment.

Fisher, 234 F.3d at 318. Nor does the fact that the passenger in Fisher was struck by

police gunfire, while Rodriguez was not, render Fisher inapplicable here. The district

5

The district court noted these cases. Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir.

2000) (hostages); Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (undetected passenger); Medeiros

v. O’Connell, 150 F.3d 164 (2d Cir. 1998) (hostage); Rucker v. Harford Cnty., 946 F.2d 278 (4th Cir.

1991) (bystander); Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir. 1990) (hostage). These cases are

generally based on Brower’s statement distinguishing intentional acts from unintended consequences:

The Fourth Amendment “addresses misuse of power, . . . not the accidental effects of

otherwise lawful government conduct.” Landol-Rivera, 906 F.2d at 795 (quoting

Brower, 489 U.S. at 596) (internal quotation marks omitted) (alterations in original).

The claim presented in this case vindicates no interest protected by the Fourth

Amendment. So far from seeking to restrain Joshua’s freedom, the troopers’ every

effort was bent on delivering all the hostages from deadly peril. See Medeiros v. Town

of South Kingstown, 821 F.Supp. 823, 827 (D.R.I. 1993) (rejecting the Fourth

Amendment claim of a passenger who asserted that he was imprisoned in the fleeing car

by the police officers’ high speed chase, stating that “the police did not intend to restrict

the movement of the passenger by causing the driver to flee at high speeds. In fact, their

intent was the exact opposite . . . .”).

. . . . But where the hostage is hit by a bullet intended for the hostage-taker, the mishap

is the “unintended consequence[ ] of government action,” and the governing principle

is that such consequences cannot “form the basis for a fourth amendment violation.”

Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir. 1991).

Medeiros, 150 F.3d at 168-69.

No. 09-1949 Rodriquez v. Passinault Page 17

court’s apparent belief that Rodriguez could not maintain an excessive

force/unreasonable seizure Fourth Amendment claim without having been shot goes

against established law, i.e., that under the Fourth Amendment’s reasonableness

standard, excessive force claims generally require at least de minimis physical injury.

See Morrison v. Green Tp. Bd. Of Trustees, 583 F.3d 394, 406-07 (6th Cir. 2009);

Carpenter v. Bowling, 276 F. App’x 423, 427 (6th Cir. 2008) (unpublished). Although

the district court properly determined that Rodriguez was not struck by gunfire, it did not

take into account that Rodriguez testified on deposition that she was injured by flying

glass caused by the gunfire. Thus, a genuine issue of material fact remained whether

Passinault’s gunfire resulted in physical injury to Rodriguez. Additionally, in contrast

to Troupe, the vehicle here crashed due to Murray being shot, not his careless driving.

Thus, as in Fisher, the injury was sustained due to the seizure of the vehicle.

Given Fisher, the district court should not have looked outside the Sixth Circuit

for guidance.

V.

Rodriguez argues that “the unreasonableness of [Passinault’s] action was decided

by this Court in the companion case of the driver, Murray-Ruhl v. Passinault, et al., . . .

which found a justiciable issue as to Defendant Deputy Passinault’s actions.” Pl.’s Br.

at 10. Passinault argues that the law-of-the-case doctrine does not apply here because

Murray-Ruhl decided only that there were questions of fact as to whether Passinault used

excessive force against Murray, the fleeing suspect driver. The district court here did

not purport to address the reasonableness of Passinault’s use of force in the context of

the Fourth Amendment.

The Supreme Court in Graham explained:

Determining whether the force used to effect a particular seizure

is “reasonable” under the Fourth Amendment requires a careful balancing

of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests

at stake. Our Fourth Amendment jurisprudence has long recognized that

the right to make an arrest or investigatory stop necessarily carries with

No. 09-1949 Rodriquez v. Passinault Page 18

it the right to use some degree of physical coercion or threat thereof to

effect it. Because the test of reasonableness is not capable of precise

definition or mechanical application, however, its proper application

requires careful attention to the facts and circumstances of each particular

case, including the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by

flight.

The “reasonableness” of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight. . . . With respect to a claim of excessive

force, the same standard of reasonableness at the moment applies: Not

every push or shove, even if it may later seem unnecessary in the peace

of a judge’s chambers, violates the Fourth Amendment. The calculus of

reasonableness must embody allowance for the fact that police officers

are often forced to make split-second judgments – in circumstances that

are tense, uncertain, and rapidly evolving – about the amount of force

that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the

“reasonableness” inquiry in an excessive force case is an objective one:

the question is whether the officers’ actions are “objectively reasonable”

in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation. An officer’s evil intentions will

not make a Fourth Amendment violation out of an objectively reasonable

use of force; nor will an officer’s good intentions make an objectively

unreasonable use of force constitutional.

Graham, 490 U.S. at 396-97. See also Scott, 205 F.3d at 876-77.

Murray-Ruhl, 246 F. App’x at 340, concluded that because the record reflected

genuine disputes of material fact concerning the reasonableness of Passinault’s action,

summary judgment on qualified immunity grounds was inappropriate:

[I]f Passinault had fired a single shot as the truck came at him – or even

as it passed close to him – the district court’s findings of fact . . . might

be subject to deference on appeal. But one fact glaringly obvious from

the record is that Passinault emptied his weapon at the vehicle, reloaded

it, and fired at Murray perhaps as many as a dozen times even after the

truck had passed him and, thus, after Passinault could reasonably believe

that it imposed a threat to himself or – if Deputy Jenkins is to be believed

– to his partner. It was one of these “after shots” that proved to be fatal.

No. 09-1949 Rodriquez v. Passinault Page 19

At the very least, this record creates a dispute of fact concerning

whether events unfolded as the defendants claim in contending that they

are entitled to qualified immunity and whether their actions can be said

to have been objectively reasonable under those circumstances. Indeed,

the reasonableness of the use of deadly force turns entirely on which

version of the facts one accepts.

Murray-Ruhl, 246 F. App’x at 344.

Although the law-of-the-case doctrine may be inapplicable here,6 the parties’

disparate factual accounts clearly demonstrate that questions of fact remain whether

Passinault’s acts were objectively reasonable in light of the facts and circumstances

confronting him. Graham, 490 U.S. at 396-97.

VI.

This court reviews the district court’s grant of qualified immunity de novo.

Carver v. City of Cincinnati, 474 F.3d 283, 285 (6th Cir. 2007). The plaintiff bears the

ultimate burden of demonstrating that the defendant is not entitled to qualified immunity.

Baker v. City of Hamilton, Ohio, 471 F.3d 601, 605 (6th Cir. 2006).

If the legal question of immunity is completely dependent on which view of the

facts the jury accepts, the district court should not grant summary judgment on the issue.

Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. 1989); see also Sova v. City of

Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998) (“[S]ummary judgment is inappropriate

where there are contentious factual disputes over the reasonableness of the use of deadly

force.”).

We agree with Rodriguez and the Murray-Ruhl panel that Passinault’s

entitlement to qualified immunity depends on which party’s version of the facts a jury

6

Rodriguez I and/or Rodriguez II were not consolidated with Murray-Ruhl; they were separate

cases. Thus, technically, the law-of-the-case doctrine is not applicable here. Even if the cases had been

consolidated, consolidation under Fed. R. Civ. P. 42 does not render rulings in one case applicable to a

consolidated action. See, e.g., Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir.

1982) (“Consolidation . . . does not merge the suits into a single cause, or change the rights of the parties

or make those who are parties in one suit parties in another.”).

No. 09-1949 Rodriquez v. Passinault Page 20

accepts, and therefore disagree with the district court’s determination that Passinault was

entitled to summary judgment on qualified immunity grounds.

VII.

For the foregoing reasons, we REVERSE the district court’s grant of summary

judgment and REMAND for further proceedings consistent with this opinion.