Scott v. Clay Cnty TN

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0074P (6th Cir.)

File Name: 00a0074p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



PATRICIA SCOTT,



Plaintiff-Appellee,





No. 98-6157

v.



>

CLAY COUNTY, TENNESSEE; 



PIERCE; MICHAEL THOMPSON, 

CHINN ANDERSON; BILLY

Defendants-Appellants. 



1

Appeal from the United States District Court

for the Middle District of Tennessee at Cookeville.

No. 95-00095—Thomas A. Wiseman, Jr., District Judge.

Argued: August 10, 1999

Decided and Filed: March 1, 2000

Before: KRUPANSKY, BOGGS, and CLAY, Circuit

Judges.

_________________

COUNSEL

ARGUED: Michael E. Evans, EVANS, TODD & FLOYD,

Nashville, Tennessee, for Appellants. Richard M. Brooks,

Carthage, Tennessee, for Appellee. ON BRIEF: Michael E.

Evans, EVANS, TODD & FLOYD, Nashville, Tennessee, for

1

2 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 23

Appellants. Richard M. Brooks, Carthage, Tennessee, for The majority asserts that because Plaintiff has argued

Appellee. violations of her rights under the Fourth Amendment and not

the violation of her substantive due process rights under the

KRUPANSKY, J., delivered the opinion of the court, in Fourteenth Amendment, the lesser standard of “objective

which BOGGS, J., joined. CLAY, J. (pp. 21-23), delivered unreasonableness” should apply. The granting of summary

a separate dissenting opinion. judgment under the circumstances of this case is improper

regardless of whether the standard that should be applied in

_________________ evaluating the officers’ conduct is the “conscience shocking”

standard of the Fourteenth Amendment, see County of

OPINION Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1717

_________________ (1998), or the lesser standard of “objective unreasonableness”

of the Fourth Amendment. See Garner, 471 U.S. at 16-17;

KRUPANSKY, Circuit Judge. The defendants-appellants see also Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.

Clay County, Tennessee (“the County”), Sheriff Cecil 2000). Regardless of the appropriate standard, Defendants do

“Chinn” Anderson (“Anderson”), Deputy Billy Pierce not dispute, as made clear by the district court’s opinion, that

(“Pierce”), and Deputy Michael Thompson (“Thompson”) Plaintiff’s right to be free from excessive force under the

have contested the district court’s denial of their motion, Fourth Amendment was a clearly established right at the time

anchored in qualified immunity, for Fed. R. Civ. P. 56 of the incident in question. The question that should have

summary adjudication of the federal civil rights claims of the been left for trial was whether excessive force was actually

plaintiff-appellee Patricia Scott (“Patricia” or “the plaintiff”). employed against Plaintiff.

The plaintiff alleged in her single-count complaint that Clay

County Sheriff’s Department officers Anderson, Pierce, and This Circuit’s unfortunate practice of arrogating unto itself

Thompson used excessive force to effect her arrest, in the role of resolving on appeal the factual disputes presented

violation of 42 U.S.C. §§ 1983 and 1988,1 which caused her by a qualified immunity defense in a § 1983 action, as

represented by the majority opinion herein, continues the

troubling trend followed by this Court in the improperly

1

Section 1983 provides, in pertinent segment: decided case of Claybrook v. Birchwell. See 199 F.3d at 358-

61 (affirming the district court’s order granting summary

Every person who, under color of any statute, ordinance, judgment to the defendants on Counts III and IV of the

regulation, custom, or usage, of any State . . . subjects, or causes plaintiffs’ complaint). I therefore dissent.

to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress[.]

In any action under section 1983, the plaintiff must prove that (1) he

or she has been deprived of a right secured by the United States

constitution or laws, (2) the defendants who allegedly caused that

deprivation acted under color of state law, and (3) the deprivation

occurred without due process of law. O'Brien v. City of Grand Rapids,

23 F.3d 990, 995 (6th Cir. 1994).

22 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 3

subsequently occurred during the chase and the shooting; serious bodily injury. She further contended that the County,

whether the deputies observed Plaintiff riding as a passenger and Anderson as County Sheriff, failed to properly train

in the vehicle and fired at her, or for that matter, whether the and/or supervise the defendant deputies, and failed to develop

officers observed both the driver and the passenger and fired and implement appropriate official departmental policy

at both of them in disregard for the rights and safety of restraints against the unjustifiable exertion of potentially

Plaintiff; and whether excessive force was used against lethal force, thus violating constitutional rights redressible by

Plaintiff by shooting at her and effectuating a “seizure” of her § 1983. Patricia also asserted pendent state law claims.

person for purposes of the Fourth Amendment. See Tennessee

v. Garner, 471 U.S. 1, 16-17 (1985). Although witness unanimity is absent regarding various

factual details, the essential controlling material facts of this

As indicated by the district court’s opinion in this matter, case are not in substantial dispute.2 During the late evening

the officers were in touch with one another by radio of April 28 and early morning of April 29, 1995, Patricia

throughout the chase and the shooting. Rather than resolve all Scott had been a willing passenger in her own automobile, a

of the inferences that could be drawn from the contested facts four-door 1978 Chevrolet Caprice, traveling on the dark

and circumstances in favor of Plaintiff, as the Court is country roadways of Clay County. She had permitted her ex-

required to do on a motion for summary judgment, the husband, Robert Scott (“Robert”), to drive the vehicle.

majority has improperly undertaken in its opinion to resolve Moments earlier, her former spouse had retrieved 3her from a

against Plaintiff all the issues of whether Defendants acted nearby narcotics den known locally as “Chet’s.” Patricia

with excessive force and violated Plaintiff’s clearly

established rights. In so doing, the majority has also resolved

against Plaintiff the issues of whether Defendants observed or

had reason to know that excessive force would be or was Section 1988, inter alia, authorizes the court, in its discretion, to

award attorney fees to certain prevailing parties in section 1983 cases.

about to be employed, or whether Defendants had the

opportunity and means to prevent the harm to Plaintiff. 2

In accordance with long standing summary judgment norms, this

Again, those issues should have been left for resolution at reviewing court has construed the record evidence most favorably for the

trial. plaintiff Patricia Scott as the litigant opposing summary judgment. E.g.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88

This Plaintiff, who suffered grievous personal injury and (1986). “Credibility determinations, the weighing of the evidence, and the

harm in the incident which is the subject of this litigation, drawing of legitimate inferences from the facts are jury functions, not

should have been permitted to subject the officers’ testimony those of a judge. . . . The evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.” Anderson v.

to the truth seeking device of cross-examination at trial, and Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted). See also

should have been afforded the opportunity to present direct Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456 (1992);

and circumstantial evidence from which Plaintiff could argue Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir. 1994). For purposes of

to the court and jury that her clearly established constitutional this appeal, the defendants-appellants either have relied upon facts which

rights were violated by what constituted, under the were conceded by the plaintiff-appellee or were proved beyond dispute;

or have adopted the plaintiff’s version of contested material facts, as

circumstances, the officers’ excessive use of force for which articulated via her written response to the defendants’ Statement of

one or more of Defendants were not entitled to the benefits of Material Fact Not in Dispute filed in support of their summary judgment

qualified immunity. motion.

3

Both Scotts had a history of cocaine abuse, although Robert asserted

that he had been attempting to overcome his cocaine dependency.

4 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 21

knew that her activities at the drug house had infuriated _________________

Robert; he testified that he “was probably the maddest I ever

was in my life.” Moreover, Patricia knew that Robert had DISSENT

proximately ingested a significant volume4 of alcohol coupled _________________

with additional psychoactive substances; possessed no valid

motor vehicle operator’s permit because his license had been CLAY, Circuit Judge, dissenting. I respectfully dissent for

judicially revoked pursuant to his conviction for driving while the reasons set out in the district court’s well-reasoned and

intoxicated; and had, in the past, recklessly fled from law persuasive opinion denying Defendants’ motion for summary

enforcement authorities at high speeds. Forthwith, the judgment. I believe the district court was correct in finding

emotionally agitated, and chemically impaired, couple that Defendants are not immune from suit.

engaged in a passionate argument inside the moving vehicle.

Contrary to the representations of the majority opinion, this

Flouting a traffic sign, Robert failed to stop at the is a case in which factual disputes, which should preclude the

intersection of Neely’s Creek Road and Highway 53. granting of summary judgment, abound. In my opinion, the

Sheriff’s Deputy Michael Thompson, on routine highway majority, contrary to the well-established dictates of law

patrol, observed the Scott vehicle race erratically through that governing the granting of summary judgment, can only arrive

intersection with its tires squealing, then momentarily weave at its conclusion that there are no factual disputes by deciding

off the pavement as it recklessly turned, at a hazardous all of the contested issues of fact against Plaintiff. Not only

velocity, onto Walker Ridge Road. Thompson, concerned for does the majority opinion assert disputed facts to constitute

public safety, commenced tailing that motorcar. undisputed facts, but in its anxiousness to deny Plaintiff her

day in court, the majority reaches some of its factual

The speed of the Scott automobile dangerously rose while conclusions by stating, as objectively established facts, what

on Walker Ridge Road, rocketing past, and narrowly missing, the majority supposes was in the minds of the deputies at the

Sheriff Chinn Anderson’s unmarked service cruiser which he time of the events surrounding the shooting. The deputies’

had parked near the roadside, as well as the sheriff himself, explanation for their conduct, much of which could be viewed

who had been sitting nearby. In response, Thompson, with in the context of the factual circumstances to constitute after

his vehicle’s siren sounding and blue lights flashing, pursued the fact speculation about the motivation of the officers, is

the Caprice at high speed.5 Because he lacked a valid driver’s asserted as uncontrovertibly true by the majority. Such

license, Robert intended to evade apprehension by fleeing to determinations would best be left to the finder of fact at the

his mother’s residence. An experienced “road runner,” time of trial.

Robert had successfully eluded the police in past high-speed

Plaintiff and the officers have described vastly conflicting

versions of what occurred on the evening of April 28, 1995.

4 What is missing from the one-sided account of the events

Robert testified that he had recently consumed between five and described by the majority opinion is any consideration of

seven beers, in tandem with prescription pharmaceuticals including “nerve

medicine” and “muscle relaxants,” which had produced a drug-induced Plaintiff’s allegations or version of the events. This case

mood alteration. presents questions of whether the deputies acted reasonably

in pursuing an individual who had allegedly initially

5 committed a minor traffic violation; whether the deputies

At deposition, Thompson could not recall whether he activated his

unit’s siren and lights shortly before, or momentarily after, the Scott embellished or exaggerated their version of the events which

vehicle sped perilously close to the sheriff and his vehicle.

20 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 5

appellant Clay County, further directs that the plaintiff’s chases. Robert conceded that, during his ensuing flight, he

federal claims against it shall be dismissed.22 See Brennan v. forced at least one fellow motorist off the roadway, and that

Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir. he “might have been across the yellow line or could have been

1996). sliding across the yellow line,” which conduct patently risked

the physical safety of civilian motorists and pedestrians,

Finally, following remand, the district court shall initially pursuing patrolmen, Robert’s passenger, and himself.

determine, in its sound discretion, whether to dismiss the

plaintiff’s remaining state law claims without prejudice, or to Patrol cruisers driven by Anderson and Deputy Sheriff Billy

exercise supplemental federal jurisdiction over them. 28 Pierce momentarily joined Deputy Thompson’s pursuit of the

U.S.C. § 1367(a) & (c)(3); Carnegie-Mellon University v. speeding Chevrolet. After the three sheriff’s office units had

Cohill, 484 U.S. 343, 348-50 (1988); Rosado v. Wyman, 397 chased the Scott car for over twenty minutes, at speeds

U.S. 397, 403-05 (1970); Musson Theatrical, Inc. v. Federal ranging between 85 to 100 miles per hour, Robert lost control

Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). of his vehicle while attempting a sharp turn at 75 to 80 miles

per hour. The Caprice skidded for several hundred feet,

This reviewing court has carefully considered each glided off the thoroughfare, and crashed into a roadside guard

argument submitted by the plaintiff, but finds none rail, which brought the fugitive vehicle to an abrupt halt.

persuasive, either individually or collectively. Accordingly,

the district court’s order of July 28, 1998 denying qualified Deputy Pierce, whose patrol vehicle had led the erstwhile

immunity to defendants Anderson, Pierce, and Thompson is chase, initially reached the immobilized motorcar. At some

REVERSED. All claims against all defendants anchored in point, a collision transpired between the Scott automobile and

42 U.S.C. §§ 1983 and 1988 are DISMISSED WITH Pierce’s departmental vehicle; Robert asserted that Pierce’s

PREJUDICE. This case is REMANDED to the district car struck the stationary Caprice from the rear, whereas Pierce

court for such necessary further orders and proceedings as are posited that Robert backed the Caprice into his squad cruiser

consistent with this opinion, including disposition of the after he (Pierce) had exited it. In any event, no dispute exists

plaintiff’s pendent state law claims. that Deputy Pierce parked and exited his patrol car, produced

his sixteen-round, nine-millimeter Ruger service arm, and

cautiously moved toward the now-stationary Chevrolet.

Suddenly, the Chevrolet rapidly accelerated forward,

compelling Pierce to leap out of its path in self-defense.

Then, in an apparent bid by its driver to return to the highway,

the Caprice proceeded directly towards Deputy Thompson’s

22 approaching vehicle. Robert recalled that, although he had

Even if this review had declined to exercise its discretionary

pendent party jurisdiction over the County, its ruling that none of the three observed at least one firearm-toting deputy approaching the

individual defendants had violated any constitutional right of the plaintiff Caprice, and knew that additional armed law enforcement

would constitute the law of the case which, under the mandate rule, would officers were approaching, he nevertheless intended to escape

compel the district court, following remand, also to dismiss the federal by driving in the direction from which the supporting units

claims against the County. See 28 U.S.C. § 2106; Vendo Co. v. Lektro- would be arriving.

Vend Corp., 434 U.S. 425, 427-28 (1978); United States v. Moored, 38

F.3d 1419, 1421 (6th Cir. 1994); In re General Motors Corp., 3 F.3d 980,

984 n. 2 (6th Cir. 1993); Guidry v. Sheet Metal Wkrs. Intern. Ass’n, 10 At the moment that the Chevrolet was racing once again

F.3d 700, 705-06 (10th Cir. 1993); Piambino v. Bailey, 757 F.2d 1112, onto the public motorway, Deputy Pierce believed that its

1119-20 (11th Cir. 1985).

6 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 19

operator had earlier tried to run down Sheriff Anderson,6 had automatically excuse a municipality or county from

attempted to drive over him (Pierce) only moments constitutional liability, even where the municipal or county

previously, and posed a grave immediate menace to the lives actors were personally absolved by qualified immunity, if

and limbs of his approaching colleagues as well as innocent those agents in fact had invaded the plaintiff’s constitutional

highway travelers. The plaintiff has not contested Pierce’s rights. Leatherman v. Tarrant County Narcotics Unit, 507

avowal that he did not know that a passenger was also inside U.S. 163, 166-67 (1993); Garner v. Memphis Police Dept., 8

the vehicle. Confronted with a momentous, split-second, life- F.3d 358, 365 (6th Cir. 1993). “An official capacity claim

or-death decision, defendant Pierce initially reacted by firing filed against a public employee is equivalent to a lawsuit

five bullets towards the Chevrolet’s driver;7 he then directed against the public entity which that agent represents.”

discharged an additional four rounds at that vehicle’s tires, Claybrook, 199 F.3d at 355 n.4 (citing Kentucky v. Graham,

causing it to skid to a stop for the second, and final, time. 473 U.S. 159, 165 (1985)). Accordingly, despite the

Pierce’s hail of bullets had failed to injure the driver, Robert dismissal of Anderson, Pierce, and Thompson in their

Scott. Unfortunately, however, two of his shots had personal capacities, a procedurally proper case has been stated

inadvertently struck plaintiff Patricia Scott, whose presence against defendant Clay County, Tennessee, by virtue of the

as a passenger was unknown to Pierce. plaintiff’s specification, in her complaint, that Clay County,

as well as the three defendant county agents in their official

Immediately following the Chevrolet’s incapacitation, capacities, infringed her constitutional rights.

additional officers, including Anderson and Thompson,

arrived at the scene. Robert and Patricia were then removed Nevertheless, our conclusion that no officer-defendant had

from the vehicle and manacled. However, instantly upon deprived the plaintiff of any constitutional right a fortiori

perceiving that Patricia had been wounded, they radioed for defeats the claim against the County as well. See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If

a person has suffered no constitutional injury at the hands of

6

Pierce had learned of Robert’s near collision with Anderson via

the individual police officer, the fact that the departmental

radio transmissions from Anderson and Thompson. The three defendants regulations might have authorized the use of

had maintained radio contact throughout the chase. unconstitutionally excessive force is quite beside the point.”)

(emphasis the Court’s); Monday v. Oullette, 118 F.3d 1099,

7 1105 (6th Cir. 1997). Ergo, this court, in its discretionary

Pierce testified that he did not intend to kill the driver; rather, he

simply “intended to neutralize the situation.” exercise of pendent party appellate jurisdiction over the

Beyond contradiction, Robert’s pattern of wanton misdeeds posed a

serious and imminent threat of death or other dire irreparable

consequences, which necessitated an immediate and decisive Haverstick Enterprises v. Financial Federal Credit, 32 F.3d 989, 996 n.

counteraction. In addition to the evidence evolved above, the record 8 (6th Cir. 1994) (“section 1983 actions against municipalities [or

reflected that, on November 4, 1996, the Criminal Court of Clay County, counties] carry certain special elements, including proof (1) that the City

Tennessee, convicted Robert, following his guilty pleas, on two counts of [or county] pursued an official custom or policy of failing to adequately

felony reckless endangerment, one count of felony aggravated assault, and train, supervise, or discipline its officers in a particular matter, and (2) that

one count of misdemeanor evasion of arrest, stemming from his actions such official policy or custom was adopted by the official makers of

on the morning of April 29, 1995. Furthermore, at deposition on February policy with `deliberate indifference’ towards the constitutional rights of

18, 1997, Robert confirmed his unstable mental state on the implicated persons affected by the policy or custom.”) (brackets added) (citing City

morning; when queried if, during the high speed chase, he had considered of Canton v. Harris, 489 U.S. 378, 387-88 (1989)). See also Collins v.

that if he continued to flee that a pursuing officer might shoot, Robert City of Harker Heights, 503 U.S. 115, 120-24 (1992); Monell v.

replied, “At the time, I didn’t care if I lived or died.” Department of Social Services, 436 U.S. 658, 690-95 (1978).

18 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 7

Hence, defendants Pierce, Anderson, and Thompson, as a a medical evacuation helicopter. The rescue aircraft rushed

matter of law, have committed no Fourth Amendment Patricia to Vanderbilt University Hospital, where doctors

infraction against Patricia Scott,20 and therefore are insulated discovered one bullet lodged inside her skull and a second

against personal exposure to further litigation under 42 U.S.C. gunshot imbedded within her right shoulder. Patricia has

§§ 1983 and 1988. alleged that she has suffered significant physical damage,

including lifelong adverse health consequences, caused by her

As previously indicated, the doctrine of qualified immunity injuries and by the permanent presence of the bullet in her

safeguards only certain natural person defendants in their skull. Patricia Scott states that the bullet cannot be surgically

individual capacities. E.g. Painter, 185 F.3d at 566 n.12. By removed.

contrast, if the legal requirements of municipal or county civil

rights liability are satisfied,21 qualified immunity will not On November 29, 1995, Patricia instigated her instant

complaint, in which she advanced claims under the Fourth,

Fifth, and Fourteenth Amendments to the United States

20

The plaintiff’s alternate contention that the defendant officers Constitution,8 as enforced by 42 U.S.C. §§ 1983 and 1988

somehow offended her constitutional privileges by allegedly initiating the (see note 1 above), alleging that Pierce, Thompson, and

high speed chase is facially misconceived, because she had not been Anderson, in their personal as well as official capacities, had

injured in an automotive collision or other fortuitous calamity during the committed, participated in, and/or failed to prevent, the

chase. Cf. County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998) unconstitutional use of excessive force to seize her; and that

(concerning the constitutional claim of the estate of a motorcycle Sheriff Anderson and the County had failed to properly train

passenger who expired in a vehicular mishap during a high speed police

chase). Rather, as illustrated herein, the salient issue was whether Pierce and/or supervise the defendant deputies in, and/or devise and

was constitutionally authorized, under the circumstances, to shoot at the implement appropriate policies defining, the lawful

errant Chevrolet in an attempt to end its endangerment of peace officers

and civilians. Whether Robert would have driven the Chevrolet less

hazardously if the defendants had not pursued it, which in turn may have

mitigated or eliminated the ultimate need for firepower to disable that 8

The Fourth Amendment posits, in relevant part, that “The right of

vehicle, is entirely irrelevant, because Robert in no event possessed any the people to be secure in their persons . . . against unreasonable . . .

legal justification or excuse for his felonious life-threatening operation of seizures, shall not be violated[.]” U.S. Const. amend. IV.

the Chevrolet. As the Seventh Circuit has commented:

The Fifth Amendment states, in material part, that “No person shall

Other than random attacks, all such cases [involving the use of . . . be deprived of life, liberty, or property, without due process of law[.]”

force by criminal justice personnel] begin with the decision of a U.S. Const. amend. V.

police officer to do something, to help, to arrest, to inquire. If

the officer had decided to do nothing, then no force would have The Fourteenth Amendment stipulates, in pertinent segment, that “No

been used. In this sense, the police officer always causes the state shall . . . deprive any person of life, liberty, or property, without due

trouble. But it is trouble which the police officer is sworn to process of law[.]” U.S. Const. amend. XIV, § 1.

cause, which society pays him to cause and which, if kept within

constitutional limits, society praises the officer for causing. The Fourteenth Amendment’s Due Process Clause restricts the

activities of the states and their instrumentalities; whereas the Fifth

Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994). See also Amendment’s Due Process Clause circumscribes only the actions of the

Claybrook v. Birchwell, 199 F.3d 350, 360 n.13 (6th 2000). federal government. See generally Sturgell v. Creasy, 640 F.2d 843, 850

21 (6th Cir. 1981); Walker v. Hughes, 558 F.2d 1247, 1257 (6th Cir. 1977).

Municipalities and counties are “persons” exposed to litigation Ergo, the instant complainant’s citation to the Fifth Amendment Due

under sections 1983 and 1988, if the legal requisites are fulfilled. Process Clause was a nullity, and redundant of her invocation of the

Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997). See, e.g., Fourteenth Amendment Due Process Clause.

8 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 17

application of force to effect an arrest. Additionally, the Accordingly, as a matter of law, defendant Pierce’s faulted

plaintiff joined pendent Tennessee constitutional and tort law actions were objectively reasonable, and thus did not violate

claims. Patricia has sought $10 million in compensatory the Fourth Amendment. Pierce permissibly discharged his

damages, an additional $5 million in punitive damages, professional duty to restore and maintain lawful order through

attorney fees and other litigation expenses, an injunction the most19effective instrumentality readily available, namely

restricting the defendants’ forcible arrest practices, and other gunfire. Pierce justifiably fired at the fleeing vehicle in

appropriate relief. order to seize its occupant(s); his actions therefore could not

violate the Fourth Amendment rights of any unknown

Following discovery, on June 1, 1998, the four defendants passenger who may have been injured by his actions. Thus,

jointly petitioned the district court for a summary judgment Pierce is entitled to qualified immunity because he did not

under Fed. R. Civ. P. 56 dismissing the plaintiff’s federal civil impinge the plaintiff’s constitutional rights.

rights claims, as well as the dismissal, for want of federal

subject matter jurisdiction, of her pendent Tennessee law In turn, the remaining two individual defendants, Anderson

claims. Basing their motion on the doctrine of qualified and Thompson, are likewise shielded by qualified immunity,

immunity,9 the defendants argued that the evinced facts, even because their alleged complicity in Pierce’s lawful use of

deadly coercion patently could not offend the plaintiff’s

Fourth Amendment protections. See Turner v. Scott, 119

9

“Qualified or `good faith’ immunity is an affirmative defense that F.3d 425, 429 (6th Cir. 1997) (explaining that an officer can,

is available to government officials performing discretionary functions.” under certain circumstances, be deemed personally

Rich v. City of Mayfield Hts., 955 F.2d 1092, 1094 (6th Cir. 1992). “The responsible for unconstitutional compulsion applied by a

ultimate burden of proof is on the plaintiff to show that the defendants are fellow agent if that officer, at minimum, either "(1) actively

not entitled to qualified immunity.” Id. at 1095 (emphases added). The

Sixth Circuit, en banc, has recently defined the components of the participated in the use of excessive force, (2) supervised the

qualified immunity defense: officer who used excessive force, or (3) owed the victim a

duty of protection against the use of excessive force.")

Government officials performing discretionary functions (citations omitted).

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established [federal]

statutory or constitutional rights of which a reasonable person

would have known. The procedure for evaluating claims of

qualified immunity is tripartite: First, we determine whether a inexplicably failed to address it in its judgment denying their qualified

constitutional violation has occurred; second, we determine immunity motion.

whether the right that was violated was a clearly established right 19

of which a reasonable person would have known; finally, we As aptly observed by the Lewis Court:

determine whether the plaintiff has alleged sufficient facts, and

supported the allegations by sufficient evidence, to indicate that [T]he police on an occasion calling for fast action have

what the official allegedly did was objectively unreasonable in obligations that tend to tug against each other. Their duty is to

light of the clearly established constitutional rights. restore and maintain lawful order, while not exacerbating

disorder more than necessary to do their jobs. They are

Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc) supposed to act decisively and to show restraint at the same

(quotations omitted; brackets added) (citing Harlow v. Fitzgerald, 457 moment, and their decisions have to be made in haste, under

U.S. 800, 818 (1982); Dickerson v. McClellan, 101 F.3d 1151, 1157-58 pressure, and frequently without the luxury of a second chance.

(6th Cir. 1996)).

County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (quotations

The insulation from federal civil rights litigation bestowed upon state and citations omitted).

16 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 9

actively resisting arrest17by eluding representatives of the when construed most favorably for the claimant, could not, as

criminal justice system. a matter of law, support the conclusion that any defendant had

violated any federal constitutionally-protected right; or,

Moreover, an antecedent mandate by this circuit has alternatively, assuming arguendo that the evidence adverse to

directly instructed that a constable who fired into the the movants was legally sufficient to sustain a hypothetical

passenger compartment of a moving vehicle, under rational jury’s finding of a constitutional infraction, the

circumstances remarkably similar to those presently on defendant law enforcers should nevertheless be shielded from

review, did not violate the Fourth Amendment. In Smith v. personal liability because the offended right was not “clearly

Freland, 954 F.2d 343 (6th Cir. 1992), an automobile sped established” on April 29, 1995. See, e.g., Painter v.

out of a parking lot and violated a posted stop sign. A patrol Robinson, 185 F.3d 557, 566-67 (6th Cir. 1999).

cruiser followed that vehicle, which culminated in a chase at

speeds reaching 90 miles per hour in residential districts. On July 28, 1998, the trial court denied the subject motion,

After the violator had twice attempted to collide with the ruling that material issues of fact remained, for juror

occupied police vehicle, the squad car cornered the fugitive resolution, regarding the Fourth Amendment

motorist. However, the culprit accelerated his automobile “reasonableness” of the plaintiff’s seizure (evolved below);

into the lawman’s cruiser, and then drove towards the public and, if the seizure was unreasonable, whether the precise

street. The officer fired a fatal round at the mobile offender. contributing actions of each individual defendant were

Id. at 344. The Sixth Circuit affirmed summary judgment for objectively unreasonable under the dictates of law which was

the shooter, ruling that his 18 actions were constitutionally clearly established on the incident date. On August 24, 1998,

reasonable as a matter of law. Id. at 346-48. the defendants noticed a timely appeal to this reviewing

bench.

17 Ordinarily, a trial forum’s rejection of a summary judgment

Additionally, the target’s persistent high-risk attempts to evade motion is not subject to appellate scrutiny, irrespective of

capture created an objectively reasonable suspicion that he may have whether that motion had ultimately posed a legal or a factual

perpetrated unknown additional serious offenses, thereby reinforcing the

weight of the first “reasonableness” factor as supporting Pierce’s actions. question. However, a district court’s dismissal of a civil

See Illinois v. Wardlow, 120 S. Ct. 673, 675-77 ( 2000). rights defendant’s summary disposition application anchored

in qualified immunity will be immediately appealable if no

18 predicate finding of an essential material fact remains for jury

The Freland panel commented:

determination, and thus the lynchpin issue is purely legal.

[U]nder Graham [v. Connor, supra], we must avoid substituting Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v.

our personal notions of proper police procedure for the

instantaneous decision of the officer at the scene. We must

never allow the theoretical, sanitized world of our imagination

to replace the dangerous and complex world that policemen face

every day. What constitutes "reasonable" action may seem quite governmental personnel by qualified immunity sweeps broadly, affording

different to someone facing a possible assailant than to someone them “`ample room for mistaken judgments’ by protecting `all but the

analyzing the question at leisure. plainly incompetent or those who knowingly violate the law.’” Sova v.

City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998) (quoting Hunter

Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) (brackets added). v. Bryant, 502 U.S. 224, 229 (1991)). See also Megenity v. Stenger, 27

F.3d 1120, 1124 (6th Cir. 1994) (“If we conclude that a reasonable public

Despite the instant defendants’ timely invocation of Freland, and the official would not have been aware that he was committing a [federal civil

patent significance of that precedent to the subject action, the trial court rights] violation, we then afford immunity.”) (brackets added).

10 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 15

Jones, 515 U.S. 304, 309-12 (1995). That judicial exception a hypothetical reasonable officer would not have known that

to the governing norm prevails because, if a defendant public his actions, under the circumstances, were objectively

servant is personally immunized from monetary liability as a unreasonable. See Sova v. City of Mt. Pleasant, 142 F.3d 898,

matter of law, he or she is entitled to “an immunity from suit 902-03 (6th Cir. 1998). The testimonial record before the

rather than a mere defense to [ultimate] liability.” Mitchell v. instant review, even when construed most favorably for the

Forsyth, 472 U.S. 511, 526 (1985) (italics in original; plaintiff, overwhelmingly manifested that each of the three

brackets added). Graham considerations, highlighted above, militated in

support of the incontrovertible conclusion that the defendants’

In the cause sub judice, although the adversaries disputed actions were objectively reasonable. First, Robert had

multiple factual issues in the trial court, none of those committed serious, life-threatening crimes in the presence of

disputed facts were essential to the qualified immunity the defendant officers. Second, the record proof demonstrated

defense. See Fed. R. Civ. P. 56(c) (directing that summary that the fleeing motorist’s ongoing felonious misconduct

judgment “shall be rendered forthwith if the pleadings, posed an immediate16 threat to the safety of officers as well as

depositions, answers to interrogatories, and admissions on innocent civilians. Third, the vehicular perpetrator was

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”) (emphases 16

As a general proposition, “[w]here the officer has probable cause

added). “By its very terms, this standard provides that the to believe that the suspect poses a threat of serious physical harm, either

mere existence of some alleged factual dispute between the to the officer or to others, it is not constitutionally unreasonable to prevent

parties will not defeat an otherwise properly supported motion escape by using deadly force.” Garner, 471 U.S. at 11. “`Probable

for summary judgment; the requirement is that there be no cause’ denotes facts and circumstances within the officer’s knowledge

that are sufficient to warrant a prudent person, or one of reasonable

genuine issue of material fact.”10 Anderson v. Liberty Lobby, caution, in believing, in the circumstances shown, that the suspect has

477 U.S. 242, 247-48 (1986) (emphases in original). committed, is committing, or is about to commit an offense. If the

circumstances, viewed objectively, support a finding of probable cause,

Accordingly, a lower court’s determination that defendant the arresting officer’s actual motives are irrelevant.” Painter v.

state employees were not shielded by qualified immunity, Robertson, 185 F.3d 557, 569 (6th Cir. 1999) (quotations and citations

with reference to a set of undisputed operative facts, is a omitted).

“Whereas the implicated circumstances comprise factual issues, the

ultimate probable cause determination is a mixed issue of law and fact.”

Id. at 570 (citation omitted). Mixed questions of law and fact, and

ultimate factual determinations based upon the application of law to

subsidiary facts, are subject to plenary ascertainment on appeal. Williams

v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Consequently,

10 when the undisputed material facts, or the plaintiff’s version of disputed

The Anderson Court explained: material facts, manifest that a reasonable officer in the defendant’s

posture would have objectively believed that probable cause existed, the

As to materiality, the substantive law will identify which existence of that factor may be determined as a matter of law on summary

facts are material. Only disputes over facts that might affect the judgment. See Painter, 185 F.3d at 571-72.

outcome of the suit under the governing law will properly

preclude the entry of summary judgment. Factual disputes that In the case in controversy, the testimonial proof, encapsulated herein,

are irrelevant or unnecessary will not be counted. would warrant a reasonable officer in Pierce’s circumstances to conclude

that the culprit posed a serious risk of injury to others, which, standing

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (citation omitted). alone, reconciled his use of force with Fourth Amendment strictures.

14 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 11

Determining whether the force used to effect a “final decision” of law,1112

and thus is immediately appealable

particular seizure is "reasonable" under the Fourth under 28 U.S.C. § 1291. Mitchell, 472 U.S. at 530. That

Amendment requires a careful balancing of the nature principle controls even if the trial judge had erroneously

and quality of the intrusion on the individual's Fourth concluded that genuine issues of material fact had to be

Amendment interests against the countervailing initially resolved by the trier of fact to assess the qualified

governmental interests at stake. . . . Because the test of immunity defense. See Williams v. Mehra, 186 F.3d 685,

reasonableness under the Fourth Amendment is not 689-90 (6th Cir. 1999) (en banc) (“regardless of the district

capable of precise definition or mechanical application, court’s reasons for denying qualified immunity, we may

however, its proper application requires careful attention exercise jurisdiction over the appeal to the extent it raises

to the facts and circumstances of each particular case, questions of law.”) (italics in original; ellipse omitted)

including [1] the severity of the crime at issue, [2] (quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th

whether the suspect poses an immediate threat to the Cir. 1996)).

safety of the officers or others, and [3] whether he is

actively resisting arrest or attempting to evade arrest by Constitutional tort claims against state actors undergirded

flight. . . . by allegations of excessive force exerted to consummate a

person’s seizure are properly assessed under Fourteenth

The “reasonableness” of a particular use of force must Amendment due process guarantees if the plaintiff had been

be judged from the perspective of a reasonable officer on a non-targeted innocent third party collaterally injured by an

the scene, rather than with the 20/20 vision of assertion of official force; in such instances, the defendant

hindsight. . . . The calculus of reasonableness must

embody allowance for the fact that police officers are

often forced to make split-second judgments – in 11

circumstances that are tense, uncertain, and rapidly All legal conclusions by lower courts, including those posited in

evolving – about the amount of force that is necessary in resolving a summary judgment motion anchored in qualified immunity,

are scrutinized de novo. E.g., Grider v. Abramson, 180 F.3d 739, 746 n.7

a particular situation. (6th Cir.), cert. denied, 120 S. Ct. 528 (1999); Brennan v. Township of

Northville, 78 F.3d 1152, 1154, 1156 (6th Cir. 1996).

As in other Fourth Amendment contexts, however, the

“reasonableness” inquiry in an excessive force case is an 12

The Sixth Circuit has recently clarified the factors which inform an

objective one: the question is whether the officers’ appellate court’s jurisdiction to review a district court’s denial of qualified

actions are “objectively unreasonable” in light of the immunization on summary judgment:

facts and circumstances confronting them, without regard

to their underlying intent or motivation. If the defendant does not dispute the facts alleged by the plaintiff

for purposes of the appeal, our jurisdiction is clear. If, instead,

the defendant disputes the plaintiff’s version of the story, the

Graham v. Connor, 490 U.S. 386, 396-97 (1989) (italics and defendant must nonetheless be willing to concede the most

brackets added; citations and quotations omitted). favorable view of the facts to the plaintiff for purposes of the

appeal. Only if the undisputed facts or the evidence viewed in

Although the Fourth Amendment “reasonableness” inquiry the light most favorable to the plaintiff fail to establish a prima

is largely fact-driven, summary judgment for defendant public facie violation of clear constitutional law may we decide that the

servants founded in qualified immunity is nonetheless defendant is entitled to qualified immunity on an interlocutory

appeal.

appropriate when the undisputed material facts, or the

plaintiff’s version of disputed material facts, demonstrate that Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (citations omitted).

12 Scott v. Clay County, Tennessee, et al. No. 98-6157 No. 98-6157 Scott v. Clay County, Tennessee, et al. 13

will be liable only if he or she had acted in a manner which target of an official seizure at all times pertinent,14 thereby

“shocks the conscience.”13 County of Sacramento v. Lewis, triggering the Fourth Amendment’s comparatively relaxed

118 S. Ct. 1708, 1714-21 (1998); Claybrook v. Birchwell, 199 “objective unreasonableness” standard of proof (and hence

F.3d 350, 359 (6th Cir. 2000). By contrast, an excessive force the paradigm most favorable to the plaintiff), as juxtaposed

claim asserted against public servants by a premeditated against the more exacting “shocks the conscience” evidentiary

target of official compulsion designed to consummate a requisites of the Fourteenth Amendment. On appeal, the

seizure are analyzed under Fourth Amendment defendants-appellants have conceded that their summary

“reasonableness” strictures; the plaintiff need prove only that judgment motion should be assessed under the 15 Fourth

the faulted official action was, under the implicated Amendment, rather than the Fourteenth Amendment.

circumstances, objectively “unreasonable.” Graham v.

Connor, 490 U.S. 386, 394-97 (1989); Tennessee v. Garner, The Supreme Court has defined the boundaries of Fourth

471 U.S. 1, 7-9 (1985); Claybrook, 199 F.3d at 359. Amendment “reasonableness” by adoption of an objective

“balancing” query:

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 14

Chevrolet, and immediately handcuffed, was an intended See Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“Whenever an

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

person.”) (emphasis added; citation omitted); Smith v. Freland, 954 F.2d

343 (6th Cir. 1992) (resolving that an intended arrestee was “seized” by

means of a fatal police bullet); see also Brower v County of Inyo, 489

U.S. 593, 596 (1989) (ruling that an intended target of an arrest who had

been killed by crashing into a police roadblock had been “seized,”and

commenting that “[v]iolation of the Fourth Amendment requires an

intentional acquisition of physical control.”); Hill v. California, 401 U.S.

13 797, 802-05 (1971) (resolving that the plaintiff, an arrestee who had been

This rule governs because Fourth Amendment prohibitions against

“unreasonable seizures,” developed below, cannot apply when the the victim of mistaken identity, had been “seized” even though the police

plaintiff had not been purposefully “seized” by state lawmen. See had intended to confine another man, because the plaintiff nonetheless

Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (“the Fourth had been the object of a willful official detention).

Amendment `reasonableness’ standard does not apply to section 1983 15

claims which seek remuneration for physical injuries inadvertently Accordingly, this review need not resolve whether a factual issue

inflicted upon an innocent third party by police officers’ use of force would otherwise exist for trial regarding whether, at the time that Pierce

while attempting to seize a perpetrator, because the authorities could not discharged his weapon into the moving Chevrolet’s passenger

`seize’ any person other than one who was a deliberate object of their compartment, the defendants intended to seize any passenger in that

exertion of force.”) (emphasis in original) (citing Brower v. County of vehicle other than the driver, which in turn would determine which

Inyo, 489 U.S. 593, 596 (1989)). constitutional proviso would control the plaintiff’s charges. See

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

Similarly, Fourteenth Amendment due process bounds, rather than constitutional tort action of a citizen who had been inadvertently wounded

Fourth Amendment “reasonableness” imperatives, confine exertions of while inside a parked automobile during a police shoot-out with an armed

state power which accidentally impact even the intended subject of an felony suspect in the parking lot must be scrutinized under Fourteenth

official seizure, such as where an inadvertent collision with a police Amendment standards because the record proof was uncontested that the

vehicle injures an arrest target, because the state agents had not defendant peace constables had been unaware that anyone had been inside

volitionally crafted the violence to facilitate an official seizure. See that vehicle and did not intend to seize anyone who might be inside that

County of Sacramento v. Lewis, 118 S. Ct. 1708, 1715-16 (1998). car).