Petition for Writ of Certiorari — James Douglas Fox, Petitioner v. Mark Campbell, et ux.

Supreme Court briefMar 2, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion of the United States Court of

Appeals for the Sixth Circuit

(August 29, 2022) . . . . . . . . . . . . . App. 1

Appendix B Judgment of the United States Court

of Appeals for the Sixth Circuit

(August 29, 2022) . . . . . . . . . . . . App. 41

Appendix C Memorandum Opinion of the United

States District Court, Middle District

of Tennessee

(January 5, 2021) . . . . . . . . . . . . App. 43

Appendix D Order of the United States District

Court, Middle District of Tennessee

(January 5, 2021) . . . . . . . . . . . . App. 82

Appendix E Order Denying Petition for Rehearing

En Banc of the United States Court of

Appeals for the Sixth Circuit

(October 3, 2022) . . . . . . . . . . . . . App. 84

App. 1

APPENDIX A

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0204p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 21-5044

[Filed August 29, 2022]

____________________________________

MARK CAMPBELL; SHERRIE CAMPBELL, )

Plaintiffs-Appellees,

)

CHEATHAM COUNTY SHERIFF’S

)

DEPARTMENT, et al.,

)

Defendants,

)

JAMES DOUGLAS FOX,

Defendant-Appellant.

)

___________________________________ )

Appeal from the United States District Court for the

Middle District of Tennessee at Nashville.

No. 3:19-cv-00151—Waverly D. Crenshaw, Jr.,

District Judge.

Argued: May 4, 2022

Decided and Filed: August 29, 2022

App. 2

Before: BOGGS, GIBBONS, and NALBANDIAN,

Circuit Judges.

_________________

COUNSEL

ARGUED: Robyn Beale Williams, FARRAR & BATES

LLP, Nashville, Tennessee, for Appellant. John H.

Morris, NASHVILLE VANGUARD LAW PLLC,

Nashville, Tennessee, for Appellees. ON BRIEF:

Robyn Beale Williams, FARRAR & BATES LLP,

Nashville, Tennessee, for Appellant. John H. Morris,

NASHVILLE VANGUARD LAW PLLC, Nashville,

Tennessee, Andrew S. Lockert, LOCKERT LAW,

PLLC, Ashland City, Tennessee, for Appellees.

GIBBONS, J., delivered the opinion of the court in

which BOGGS, J., joined. NALBANDIAN, J.

(pp. 16–27), delivered a separate dissenting opinion

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Mark and

Sherrie Campbell filed a complaint under 42 U.S.C.

§ 1983 against the Cheatham County Sheriff’s

Department, the Municipal Government of Cheatham

County, Cheatham County Sheriff Mike Breedlove, and

Officers James Fox and Christopher Austin. The

district court granted summary judgment for all

defendants except Fox, concluding that Fox was not

entitled to qualified immunity on the Campbells’

excessive force claim against him. Fox appeals, and we

affirm.

App. 3

On August 21, 2018, around 9:15 p.m., Fox and

Austin were dispatched to the Campbells’ residence to

conduct a welfare check after a 9-1-1 dispatcher

received two hang-up calls from a phone located on the

property. They arrived at the Campbells’ home around

9:39 p.m. They did not activate the emergency lights on

their cars but kept their headlights pointed toward the

house.

Fox walked up onto the small porch and knocked on

the front door. He did not announce himself as law

enforcement. The district court compiled a useful table

of what occurred next, which we adopt here after

confirming its accuracy with video footage1 and the

other record evidence.

Seconds

Elapsed

Description of Event

0 Fox knocks three times

1–5 Fox walks down the steps and stands

next to Austin

10 Mark says, “You got a gun?” through the

closed door

12–17 Fox unholsters his gun and walks to the

other side of Austin while saying, “Mark

. . . come on out Mark, what’s up man?”

18 Mark again says, “You got a gun?”

The video footage includes both officers’ body cameras and the

dashboard camera in Fox’s vehicle.

App. 4

21 Fox says, “What’ going on Mark?”

23 Mark says, “I got one too.”

24–25 Fox draws his gun and turns his back to

the door as he walks behind Austin

26 Mark begins to open the door

27 Fox turns quickly back toward the door

28 Fox says, “Do what Mark?” and then

fires two shots toward the door in rapid

succession

29 Austin trips or jumps to the ground

30 Fox says, “You good?”

31 Fox fires six shots toward the door in

rapid succession

Campbell v. Cheatham Cnty. Sheriff’s Dep’t, 511 F.

Supp. 3d 809, 814 (M.D. Tenn. 2021) (footnotes

omitted).

The parties dispute what the officers saw when

Mark began to open the door, and the video footage

does not resolve the dispute. Mark says he may have

had a cell phone in his hand, but not a gun. Both

officers contend they thought Mark had a gun.

However, there is evidence that on the evening of the

incident, the officers did not know what, if anything,

Mark was holding.

Following Fox’s first shots, Mark fell to the floor

and kicked the door shut. He yelled to his wife, Sherrie,

to call 9-1-1 because somebody was shooting at them.

Sherrie was asleep in the bedroom, woke to gunshots,

and heard her husband yelling. She called 9-1-1.

App. 5

Although Fox fired eight shots at the home, no one was

hit.

After the shots, Fox and Austin made their way

behind Fox’s car as Fox reported over the radio that

shots were fired. Mark yelled profanities through the

closed door. A few minutes later, Mark walked onto his

porch holding a flat reflective rectangular item. Fox

and Austin yelled at Mark to get on the ground and

show his hands. Mark yelled that his phone was in his

hand and lifted his empty left hand. He yelled that he

was not getting on the ground, to shoot him, and

profanities, before returning inside his home. Mark

opened the door again a minute later and stood in the

doorway as he appeared to talk on the phone and

pointed at the officers. Again, Fox and Austin yelled at

Mark to show his hands. Mark yelled back and then

returned inside and shut the door.

Several other officers soon arrived at the Campbells’

home, and one of them apprehended Mark in the yard

of the home. After Mark’s arrest, Fox, Austin, and a

detective went inside the home. They told Sherrie, who

was still in the bedroom, to come out with her hands

visible. Sherrie complied, and the officers detained her

while they cleared the house. No firearms were found

in the home. Mark was charged with two counts of

aggravated assault, both of which were ultimately

dismissed.

The Campbells sued Fox in his individual capacity

for excessive use of force under 42 U.S.C. § 1983. Fox

argued that the statute of limitations barred the

Campbells’ § 1983 claim and that he was entitled to

qualified immunity because (1) he did not seize the

App. 6

Campbells within the meaning of the Fourth

Amendment, and (2) his use of force was objectively

reasonable. The district court disagreed with each of

these arguments. Fox appealed. We decline to exercise

jurisdiction over Fox’s statute of limitations argument,

and we affirm the district court’s denial of summary

judgment.

“We review de novo a district court’s denial of a

defendant’s motion for summary judgment on qualified

immunity grounds.” Stoudemire v. Mich. Dep’t of Corr.,

705 F.3d 560, 565 (6th Cir. 2013). Summary judgment

is appropriate only when there is no genuine issue of

material fact, and the moving party is entitled to

judgment as a matter of law. Celotex Corp. v. Catrett,

477 U.S. 317, 322–23 (1986); see Fed. R. Civ. P. 56(a).

We view the facts and reasonable factual inferences in

the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). Where there is video footage of an

incident, we view the facts in the light depicted by any

unambiguous footage. See Scott v. Harris, 550 U.S. 372,

378–81 (2007).

III

Fox contends that the district court erred in denying

him summary judgment because the Campbells’ § 1983

claim is barred by the statute of limitations and

because he is entitled to qualified immunity.

App. 7

Fox argues Tennessee’s one-year statute of

limitations applies to the Campbells’ § 1983 claim. We

lack jurisdiction to address this argument.

We have jurisdiction to review “final decisions” from

the district courts. 28 U.S.C § 1291. Under the

collateral order doctrine, however, some interlocutory

orders are immediately appealable, because they

amount to final decisions. United States v. Mandycz,

351 F.3d 222, 224 (6th Cir. 2003). Such orders include

only “decisions that are conclusive, that resolve

important questions separate from the merits, and that

are effectively unreviewable on appeal from the final

judgment in the underlying action.” Id. (quoting Swint

v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)). An

order must satisfy all three of these requirements to be

appealable under the collateral order doctrine. Id.

The district court determined the Campbells’ §1983

claim was timely under the applicable statute of

limitations. “A statute of limitations is not an

immunity from suit; it is a defense to liability.”

DeCrane v. Eckart, 12 F.4th 586, 601 (6th Cir. 2021).

Therefore, Fox’s argument on the statute of limitations

can be effectively reviewed after a final judgment. As

this issue does not satisfy the requirements under the

collateral order doctrine, we lack jurisdiction to review

it.2 See id. at 601–02.

We have exercised pendent appellate jurisdiction over issues that

are inextricably intertwined with qualified immunity. DeCrane, 12

F.4th at 602. We decline to do so here, as Fox has not invoked our

discretionary pendent appellate jurisdiction and his statute of

App. 8

We turn to qualified immunity. Unlike the statute

of limitations defense, qualified immunity enables a

defendant to avoid litigating a dispute. DeCrane, 12

F.4th at 601. We may “review the district court’s

interlocutory denial of qualified immunity only to the

extent that it turns on an issue of law.” Stoudemire,

705 F.3d at 564.

The Campbells alleged that Fox violated their

constitutional rights by using excessive force against

them. Fox, as a government official, is entitled to

qualified immunity from this claim unless the

Campbells can show that Fox violated a constitutional

right that was clearly established at the time of his

alleged misconduct. Id. at 567.

We start with the constitutional right. A § 1983

claim of excessive force implicates “either the Fourth

Amendment’s prohibition against unreasonable

seizures of the person, or the Eighth Amendment’s ban

on cruel and unusual punishments, which are the two

primary sources of constitutional protection against

physically abusive governmental conduct.” Graham v.

Connor, 490 U.S. 386, 394 (1989). Where, as here, “the

excessive force claim arises in the context of an arrest

or investigatory stop of a free citizen,” it invokes “the

protections of the Fourth Amendment, which

guarantees citizens the right ‘to be secure in their

limitations defense is not inextricably intertwined with qualified

immunity. Id.

App. 9

persons . . . against unreasonable . . . seizures’ of the

person.” Id. (quoting U.S. Const. amend. IV). Fox

contends the Campbells cannot establish a violation of

the Fourth Amendment because they were not seized.

A seizure can occur in one of two ways: (1) use of

force with the intent to restrain; or (2) show of

authority with acquisition of control. Torres v. Madrid,

141 S. Ct. 989, 998, 1001 (2021). The first type covers

uses of physical force, such as when an officer shoots an

individual. Id. at 999. Had Fox’s shots hit the

Campbells, then they would have been seized under

this category. Since Fox missed and there was no

physical contact, we look to the second

type—acquisition of control. As the Supreme Court has

explained, “[u]nlike a seizure by force, a seizure by

acquisition of control involves either voluntary

submission to a show of authority or the termination of

freedom of movement.” Id. at 1001. The parties do not

dispute that Fox showed authority by firing eight shots

into the Campbells’ home, but Fox contends that the

Campbells did not submit to this show of authority,

and thus were not seized.

What constitutes a submission to a show of

authority or a termination of freedom of movement? If

an officer rams a suspect’s car off the road or locks a

suspect in a room, the officer has terminated the

suspect’s freedom of movement and seized the suspect

under the Fourth Amendment. See id. Alternatively, if

an officer orders an individual to stop but the

individual continues running away, then there has

been no seizure, because there has been no submission

to authority or termination of movement. See

App. 10

California v. Hodari D., 499 U.S. 621, 626 (1991). As

the Supreme Court has recognized, “when an

individual’s submission to a show of governmental

authority takes the form of passive acquiescence, there

needs to be some test for telling when a seizure occurs

in response to authority, and when it does not.”

Brendlin v. California, 551 U.S. 249, 255 (2007). The

Court explained that “a seizure occurs if ‘in view of all

of the circumstances surrounding the incident, a

reasonable person would have believed that he was not

free to leave.’” Id. (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)). “Examples of

circumstances that might indicate a seizure” include

“the threatening presence of several officers [or] the

display of a weapon by an officer.” Mendenhall, 446

U.S. at 554.

In view of all the circumstances here, a reasonable

person would not believe that he or she was free to

leave a house while an officer repeatedly fired at the

front door.3 We considered a similar situation in

Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir.

2002). In Ewolski, John Lekan had a standoff with the

police at his home. Id. at 498–500. “The district court

concluded that Mr. Lekan was not seized, because by

barricading himself in his home he never submitted to

official authority.” Id. at 506. We held that this

The dissent states, “Mark evidently felt differently.” Dis. Op., at

18. But the test established in Mendenhall is objective: “Not

whether the citizen perceived that he was being ordered to restrict

his movement, but whether the officer’s words and actions would

have conveyed that to a reasonable person.” Hodari D., 499 U.S. at

628.

App. 11

conclusion was erroneous, because under the

circumstances, Lekan was not free to leave. Id. As we

explained, “although Mr. Lekan was never in police

custody, the police surrounded the house and paraded

an armored vehicle in front of the Lekans’ house.” Id.

“These actions qualify as an intentional application of

physical force and show of authority made with the

intent of acquiring physical control” and “this assertion

of force and authority succeeded in restraining Mr.

Lekan’s liberty to leave his home.” Id. In this case,

when Fox fired immediately and repeatedly upon Mark

opening the door, Fox terminated the Campbells’

movement and “a reasonable person would have

believed that he was not free to leave.” Brendlin, 551

U.S. at 255 (citation omitted). Therefore, the Campbells

were seized within the meaning of the Fourth

Amendment.

Fox attempts to analogize this case to cases in

which officers’ missed shots failed to stop a fleeing

suspect. We rejected this same argument in Ewolski,

explaining that “[u]nlike the fleeing suspects [in other

cases,] Mr. Lekan was not ‘on the loose.’” 287 F.3d at

506. Like Lekan, the Campbells were not “on the loose,”

but rather confined to their home because of Fox’s show

of authority. See id. The dissent distinguishes Ewolski,

emphasizing that Mark was on the loose because he

walked onto his front porch and yard. Dis. Op., at 20.

We find Mark’s limited range of movement onto the

curtilage of his home more in line with the facts of

Ewolski than the fleeing cases in which suspects ran

away from chasing officers.

App. 12

In analyzing whether conduct constitutes

submission to a show of authority, we also look to

“what a person was doing before the show of authority:

a fleeing man is not seized until he is physically

overpowered, but one sitting in a chair may submit to

authority by not getting up to run away.” Brendlin, 551

U.S. at 262. When Fox shot at their front door, the

Campbells effectively submitted to his show of

authority by remaining in their home. Fox emphasizes

that Mark later came out to his front porch, yelled

profanities, and went out to his yard. This limited

range of movement is factually distinguishable from

the cases in which a suspect is fleeing by running or

driving away from officers. See Floyd v. City of Detroit,

518 F.3d 398, 405–06 (6th Cir. 2008); cf. Hodari D., 499

U.S. at 622–23; Adams v. City of Auburn Hills, 336

F.3d 515, 517, 518–20 (6th Cir. 2003). Moreover,

Mark’s subsequent actions on his porch and in his yard

are of little use in determining whether the Campbells

were seized at the time that Fox fired his weapon,

because a seizure is “a single act, and not a continuous

fact,” and an individual may be seized for a brief time

despite later demonstrating freedom of movement.

Torres, 141 S. Ct. at 1002 (quoting Hodari D., 49 U.S.

at 625). The dissent contends we fail to look at what

occurred after the gunshots, erasing the distinction

between seizures by control and seizures by force. Dis.

Op., at 17. We, of course, look to what the Campbells

did in response to Fox’s show of authority. They took

cover in their home. The dissent focuses on Mark’s

actions minutes later when he came onto his porch. But

the events immediately following the gunshots is of

greater value in determining whether the Campbells

were seized because a seizure is a discrete moment,

App. 13

and not a continuous chain of events. We do not ignore

what happened next. Rather, we emphasize that what

occurred immediately is more informative than what

occurred later in time. By remaining on their property

rather than leaving after shots were fired at their door,

the Campbells submitted to Fox’s show of authority

and were restricted in their movement.

It also makes no difference whether Fox knew

Sherrie was also inside the home. We have explained

that when an officer seizes one person by shooting at a

car, for example, the officer seizes everyone in the car,

even if the officer is unaware of the presence of

passengers. Rodriguez v. Passinault, 637 F.3d 675,

686–87 (6th Cir. 2011); Fisher v. City of Memphis, 234

F.3d 312, 318–19 (6th Cir. 2000); see also Brendlin, 551

U.S. at 254–59. The same logic extends to the home:

just as shooting at a car and causing it to stop

terminates the freedom of movement of everyone in the

car, so does shooting into a house in a manner that

prevents occupants from leaving constitutes a seizure

of the occupants. By shooting at the house, Fox seized

everyone inside, including Sherrie.4

In Ewolski, this court held Lekan’s wife and child, who were also

trapped in the home, were not seized because “[t]heir movement

was restrained by Mr. Lekan . . . not by the police.” 287 F.3d at

507. In fact, the police were attempting to “remove them from the

house and remove them from the control of Mr. Lekan.” Id. But in

this case, Fox’s gunshots, rather than Mark’s actions, confined

Sherrie to her home. The dissent disagrees and contends Mark

kept Sherrie in the house, because he told her to stay put. Dis. Op.,

at 22. But, of course, Mark told Sherrie not to move because Fox

was shooting at the home.

App. 14

The dissent analogizes this case to Bletz v. Gribble,

641 F.3d 743 (6th Cir. 2011). Dis. Op., at 22–23. In

Bletz, officers went to the Bletz family home to execute

a warrant for Zachary Bletz’s arrest. 641 F.3d at 747.

While waiting for Zachary to secure his dog, officers

waited in the breezeway of the home and saw a man

pointing a gun at them. Id. This was Zachary’s father,

Fred Bletz, who had poor vision and hearing. Id. at

748. Officers shot him. Id. Officers then moved into the

home where they handcuffed Zachary and his mother,

Kitti Bletz, before placing them in police cars. Id. Kitti

alleged her Fourth Amendment rights were violated.

Id. We held that “it is indisputable that Kitti was

seized within the meaning of the Fourth Amendment

when defendants handcuffed her and placed her inside

a locked police vehicle.” Id. at 754. The dissent

contends this shows that Kitti was not seized before

this moment. Dis. Op., at 22–23. Bletz did not engage

in any analysis of whether everyone in the house was

seized when the officers started shooting, so the same

issue was not before the court. But, regardless, unlike

our case, officers did not shoot multiple rounds at the

Bletz family home’s front door. Rather, officers were

already inside the breezeway of the home and shot

directly at one person in response to that person

pointing a weapon at them. Bletz does not address the

same seizure issues presented here.

“When an officer fires a gun at a person,” but “the

bullet does not hit the person, the ‘show of authority

. . . ha[s] the intended effect of contributing to [the

person]’s immediate restraint’” and under our caselaw

is a seizure.” Jacobs v. Alam, 915 F.3d 1028, 1042 (6th

Cir. 2019) (alterations in original) (quoting Thompson

App. 15

v. City of Lebanon, 831 F.3d 366, 371 (6th Cir. 2016)).

By firing at the Campbells’ home, Fox made a show of

authority. This show of authority restricted the

Campbells’ movement such that a reasonable person,

under these circumstances, would not feel free to

leave.5 Therefore, Fox seized the Campbells under the

Fourth Amendment.

Having established that Fox seized the Campbells,

we turn to whether a reasonable jury could conclude

that Fox’s use of force was excessive, in violation of the

Fourth Amendment. As this is an interlocutory appeal,

Fox “must be willing to concede the most favorable

view of the facts to the [Campbells] for purposes of the

appeal.” Jacobs, 915 F.3d at 1039 (citation omitted). If

Fox fails to do so, we may exercise jurisdiction only

over “the purely legal question of whether the facts

alleged support a claim of violation of clearly

established law.” Id. at 1039–40 (citation omitted).

“We have authorized the use of deadly force ‘only in

rare instances’” in which “the ‘officer has probable

cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to

others.’” Id. at 1040 (citations omitted). We look at the

circumstances of each case to determine the

reasonableness of the use of force, “including the

For this inquiry, it is irrelevant whether Mark or Sherrie knew

the individual shooting at the door was a law enforcement official,

because the inquiry is objective and does not “depend on the

subjective perceptions of the seized person.” Torres, 141 S. Ct. at

999.

App. 16

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.” Graham, 490

U.S. at 396. The Campbells had committed no crime

and were not evading arrest when Fox used deadly

force—leaving only the threat factor for our

consideration. The threat actor “is ‘a minimum

requirement for the use of deadly force,’ meaning

deadly force ‘may be used only if the officer has

probable cause to believe that the suspect poses a

threat of severe physical harm.’” Mullins v. Cyranek,

805 F.3d 760, 766 (6th Cir. 2015) (citation omitted); see

also Tennessee v. Garner, 471 U.S. 1, 12–13 (1985). We

make an objective assessment based on the perspective

of a reasonable officer in Fox’s position. See Jacobs, 915

F.3d at 1040–41.

Viewing the facts in the light most favorable to the

Campbells, Fox and Austin arrived at the Campbells’

home in the evening to conduct a welfare check. Fox,

without announcing himself as an officer, knocked on

the front door. Mark asked, “You got a gun?” Fox asked

Mark, “What’s going on?” Mark said, with the door still

closed, “I got one too.” Mark slightly opened the door

and Fox immediately began firing his weapon. Under

these facts, a reasonable officer would not have

believed deadly force was justified, as there was no

probable cause to believe that Mark posed a threat to

anyone’s safety simply by virtue of informing the

officers that he had a gun and then opening the door as

they asked him to do. See Floyd, 518 F.3d at 405–07;

Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir.

1996).

App. 17

Fox emphasizes that Mark said he had a gun. But

under our precedent, mere possession of a weapon is

not sufficient to justify the use of deadly force. Jacobs,

915 F.3d at 1040. Rather, there must be additional

indicia that the safety of the officer or others is at risk.

See, e.g., Hicks v. Scott, 958 F.3d 421, 435 (6th Cir.

2020) (individual pointed a rifle at the officer’s face);

Thomas v. City of Columbus, 854 F.3d 361, 365–66 (6th

Cir. 2017) (individual suspected of committing a

burglary ran with a gun in hand toward a lone officer

in a high-crime area). Fox nonetheless contends that

two of our cases support his use of deadly force as

reasonable: Pollard v. City of Columbus, 780 F.3d 395

(6th Cir. 2015) and Simmonds v. Genesee County, 682

F.3d 438 (6th Cir. 2012). In Pollard, we concluded that

an officer’s use of deadly force was objectively

reasonable where the suspect clasped his hands in a

shooting posture and pointed it at the officers after

engaging in a dangerous car chase and ignoring

multiple commands. 780 F.3d at 400, 403–04. In

Simmonds, we concluded that an officer’s use of deadly

force was reasonable where the suspect brandished a

silver object while yelling “I have a gun” after the

suspect threatened to kill others, ignored repeated

orders, and fled from officers. 682 F.3d at 445. Pollard

and Simmonds thus provide examples of circumstances

extending beyond mere possession of a weapon that

would lead a reasonable officer to believe there was a

threat to the safety of others. Without these additional

circumstances, the fact that an individual states that

he has a weapon, or even in fact possesses a weapon, is

not enough to justify the use of deadly force. See Lee v.

Russ, 33 F.4th 860, 863–66 (6th Cir. 2022); Jacobs, 915

F.3d at 1040; King v. Taylor, 694 F.3d 650, 663–64 (6th

App. 18

Cir. 2012); Bradenburg v. Cureton, 882 F.2d 211, 215

(6th Cir. 1989); see also Knowlton v. Richland Cnty.,

726 F. App’x 324, 326–27, 331 (6th Cir. 2018);

Woodcock v. City of Bowling Green, 679 F. App’x 419,

424–25 (6th Cir. 2017). Viewing the evidence in the

light most favorable to the Campbells, no additional

circumstances existed during the incident that would

lead a reasonable officer to believe that the Campbells

posed a safety risk to others.

Fox additionally contends that he believed Mark

was holding a gun when Mark began opening the door.

However, this is a genuine dispute of fact, as Mark

contends that he was not holding a gun6 and there is

evidence in the record that the officers did not know

what, if anything, Mark was holding. We lack

jurisdiction to resolve the factual dispute over what

Fox perceived that evening when Mark slightly opened

the door. See Jacobs, 915 F.3d at 1041; Floyd, 518 F.3d

at 404; Graves v. Malone, 810 F. App’x 414, 422–23 (6th

Cir. 2020). Accepting the Campbells’ version of the

facts, a reasonable jury could find that Fox’s use of

deadly force was objectively unreasonable. Therefore,

we turn to whether the right was clearly established.

An officer is not entitled to qualified immunity if he

violates a constitutional right “so clearly established

when the acts were committed that any officer in the

defendant’s position, measured objectively, would have

clearly understood that he was under an affirmative

No gun was found in the search of the Campbells’ home.

App. 19

duty to have refrained from such conduct.” Bouggess v.

Mattingly, 482 F.3d 886, 894 (6th Cir. 2007) (quoting

Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987)).

The use of excessive force in a seizure is a violation

of the Fourth Amendment. See Graham, 490 U.S. at

394. And “[i]t has been clearly established in this

circuit for some time that individuals have a right not

to be shot unless they are perceived as posing a threat

to officers or others.” Jacobs, 915 F.3d at 1040 (citation

omitted). In some “obvious” cases, these general

standards are sufficient to clearly establish that an

officer’s conduct is unconstitutional, even “without a

body of relevant case law.” Brosseau v. Haugen, 543

U.S. 194, 199 (2004) (per curiam). More often, however,

decisions at this level of generality are insufficient to

indicate whether the law clearly establishes that an

officers’ use of force is unreasonble. See Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam).

Instead, we look to the law at the time of the officer’s

conduct and identify the “existing precedent [that]

‘squarely governs’ the specific facts at issue.” Id. at

1153 (citation omitted). There need not be “a case

directly on point for a right to be clearly established,”

but “existing precedent must have placed the statutory

or constitutional question beyond debate.” Id. at 1152

(citation omitted). “Precedent involving similar facts

can help move a case beyond the otherwise ‘hazy border

between excessive and acceptable force’ and thereby

provide an officer notice that a specific use of force is

unlawful.” Id. at 1153 (citation omitted). “A clearly

established right is one that is ‘sufficiently clear that

every reasonable official would have understood that

App. 20

what he is doing violates that right.’” Mullenix v. Luna,

577 U.S. 7, 11 (2015) (per curiam) (citation omitted).

In the light most favorable to the Campbells, this

may be an obvious case in which the general rule on

use of deadly force, enunciated in Garner, provided

sufficient notice to Fox that his conduct was unlawful.

See Garner, 471 U.S. at 12–13. But we need not resolve

that issue because, viewing the record in the light most

favorable to the Campbells, Floyd, 518 F.3d at 398,

decided a decade before the incident here, clearly

establishes that Fox’s conduct was unconstitutional. In

Floyd, a dispute among neighbors resulted in a

complaint to the Detroit police. Id. at 401–02. Two

officers arrived at Floyd’s residence while Floyd was at

a barbeque. Id. at 402. The complaining neighbor told

the officers that Floyd had threatened him with a

shotgun earlier and had brandished a weapon. Id.

Floyd arrived home around 8:00 p.m. and parked in his

backyard. Id. He got out of his car and began walking

with his empty hands out in front of him when officers

suddenly ran toward him. Id. A split second later, the

officers began shooting at him without warning. Id. We

held that the officers’ use of deadly force under these

circumstances was objectively unreasonable and

therefore unconstitutional, because under Floyd’s

version of the facts, he did not pose a threat of serious

physical harm. Id. at 407.

Under the Campbells’ version of events, Floyd is

controlling. Mark was in his own home, unarmed, when

Fox knocked on his door late in the evening. Though

Mark did not make any threatening gestures indicating

a danger of physical harm to others, Fox began

App. 21

repeatedly shooting at him without warning. In both

cases, the officers had some reason to believe that the

suspect had a weapon. Despite this, we determined in

Floyd that the officers’ use of force was excessive. This

finding comports with our caselaw at the time of Fox’s

use of force, which made clear that merely possessing

a weapon, without more, is insufficient to justify the

use of deadly force against a suspect. See Bouggess, 482

F.3d at 896 (“[E]ven when a suspect has a weapon, but

the officer has no reasonable belief that the suspect

poses a danger of serious physical harm to him or

others, deadly force is not justified.”); King, 694 F.3d at

663–64 (concluding that, though an individual was

found with a gun after he was killed by an officer, “if

[the officer] shot King while he was lying on his couch

and not pointing a gun at the officers, [the officer]

violated King’s clearly-established right to be free from

deadly force”); Thomas, 854 F.3d at 366 (“To be clear,

we do not hold that an officer may shoot a suspect

merely because he has a gun in his hand. Whether a

suspect has a weapon constitutes just one consideration

in assessing the totality of the circumstances.”); see

also Knowlton, 726 F. App’x at 330–32; Woodcock, 679

F. App’x at 424–25. Given this clear precedent and the

analogous facts of Floyd, any reasonable officer in Fox’s

position would know that using deadly force, under the

circumstances that the Campbells have asserted, was

unconstitutional.

The dissent takes a different approach to the

“clearly established” question, focusing on whether Fox

was on notice that he seized the Campbells. Dis. Op., at

23–24. When Fox fired his weapon, he knew one of two

things would occur: either he would hit someone, or he

App. 22

would not. If he did shoot someone, then there is

clearly established law that this is a seizure. See

Bouggess, 482 F.3d at 889. If he missed, then it was

clearly established that a seizure occurs if a reasonable

person would have believed he was not free to leave in

response to Fox’s gunshots. See Brendlin, 551 U.S. at

255. As discussed, Ewolski, decided sixteen years

before this incident, established that a reasonable

person would not feel free to leave in response to police

surrounding his home. See 287 F.3d at 506. Therefore,

Fox was on fair notice that by shooting at the

Campbell’s home, he effectuated a seizure. Therefore,

Fox is not entitled to qualified immunity at the

summary judgment stage.

Accepting the Campbells’ version of events, as we

must in this interlocutory appeal, Fox used deadly force

while conducting a welfare check, shooting eight times

into the home of two unarmed nonthreatening

individuals without warning. The “fortuity that [Fox’s]

shot[s] failed to strike [the Campbells]” does not take

this case out of the Fourth Amendment’s protection

against unreasonable seizures. Floyd, 518 F.3d at 407.

The Campbells were seized when Fox shot at their

house, thereby restricting their freedom to leave. There

remains a genuine dispute of material fact regarding

how Mark appeared to officers that night, but in the

light most favorable to the Campbells, Fox’s use of

deadly force was clearly excessive and unconstitutional.

The district court properly determined Fox was not

entitled to qualified immunity at the summary

judgment stage. We affirm.

App. 23

_________________

DISSENT

_________________

NALBANDIAN, Circuit Judge, dissenting. This

excessive-force case involving qualified immunity

presents a threshold question: Did Officer Fox seize

Mark and Sherrie Campbell under the Fourth

Amendment when he fired his gun at Mark eight times,

thankfully striking no one? Under current law,

including the Supreme Court’s recent decision in Torres

v. Madrid, 141 S. Ct. 989 (2021), I believe the answer

is no. And regardless, neither the Campbells nor the

majority points to an on-point case that gave Officer

Fox notice that his conduct constituted a seizure.

Next, even if Officer Fox seized the Campbells, he

acted reasonably given that Mark announced he had a

gun and then quickly opened the door at point-blank

range with something in his hand. And, in any event,

no case exists that would have put Officer Fox on notice

that his conduct violated a clearly established

constitutional right.

I would grant Officer Fox qualified immunity, so I

respectfully dissent.1

The § 1983 claim of excessive force here implicates

the Fourth Amendment’s prohibition of unreasonable

I do, however, agree with the majority that we cannot review

Officer Fox’s statute-of-limitations argument.

App. 24

seizures of a person. See Graham v. Connor, 490 U.S.

386, 394 (1989). But before we evaluate whether Officer

Fox violated the Campbells’ Fourth Amendment rights,

we must make sure that Officer Fox’s conduct

implicated the Fourth Amendment in the first place.

After all, the “Fourth Amendment protects against

‘unreasonable seizures,’ not unreasonable or even

outrageous conduct in general.” Galas v. McKee, 801

F.2d 200, 202 (6th Cir. 1986).

An officer can seize someone by force or by control.

See Torres, 141 S. Ct. at 1001. I agree with the majority

that seizure by force is not at issue. See Maj. Op. at 6.

To seize someone by control “involves either voluntary

submission to a show of authority or the termination of

freedom of movement.” Torres, 141 S. Ct. at 1001.

Arguing that he should receive qualified immunity,

Officer Fox contends that Mark never submitted to

authority and that Officer Fox did not terminate

Mark’s freedom of movement. I agree.

Voluntary Submission. Mark did not voluntarily

submit to Officer Fox’s authority. Just watch the tape.

As the majority notes, Mark felt free enough to

reemerge onto his front porch and yell profanities at

the officers, asking them to shoot him. What’s more,

Mark declined to follow the officers’ orders to get on the

ground and show his hands. So even though Officer Fox

tried to seize Mark, his show of authority failed. Mark

submitted to authority (and was thus seized) only when

a different officer arrested him in his backyard. See

California v. Hodari D., 499 U.S. 621, 629 (1991).

App. 25

The majority suggests that Torres supports

disregarding Mark’s subsequent actions in the yard

because a seizure, as it was in Torres, is “a single act,

and not a continuous fact.” See Maj. Op. at 8. I

disagree. In Torres, the seizure was “a single act”

because the officers shot Torres. 141 S. Ct. at 1002

(quoting Hodari D., 499 U.S. at 625). For seizures by

force, which is what Torres was, there is likely a single

act of force plus an intent to restrain at that moment.

Id. at 998. But in Hodari D., the Court explained that

for seizures by show of authority, a seizure does not

occur when the subject does not yield at an officer’s call

to halt. 499 U.S. at 626.

Instead, for shows of authority, the seizure occurs

only when the suspect submits to that authority, or

when his movement is terminated, which did not

happen in Hodari D. or here. Torres did not disturb

Hodari D.’s analysis as it relates to seizures by control.

So by posing the question as “whether the Campbells

were seized at the time that Fox fired his weapon,”

Maj. Op. at 8, the majority “erases the distinction

between seizures by control and seizures by force.”

Torres 141 S. Ct. at 1001. How can you tell whether

firing a gun that doesn’t strike a suspect led that

suspect to submit to authority or terminated his

freedom of movement without looking at what comes

next? Simply put, you cannot. So looking at Mark’s

actions after the shooting is necessary to determine

whether Officer Fox seized the Campbells. And the

majority’s emphasis on “what occurred immediately”

rather “than what occurred later in time,” Maj. Op. at

8, is misplaced. A suspect can show signs of submitting

to authority but then decline to do so. See United States

App. 26

v. Jeter, 721 F.3d 746, 752–53 (6th Cir. 2013) (rejecting

an argument that a “momentary pause can . . . be

considered a submission to authority” when the suspect

later fled).

Termination of Movement. Did Officer Fox

terminate Mark’s ability to freely move around? The

Supreme Court’s guidance on the question is that the

termination of movement is absolute. See Scott v.

Harris, 550 U.S. 372, 385 (2007) (ramming a car off the

road); Brower v. County of Inyo, 489 U.S. 593, 598–99

(1989) (stopping a person successfully with a police

roadblock); Williams v. Jones, 95 Eng. Rep. 193, 194

(KB 1736) (locking a person in a room). So the question

becomes, did Officer Fox absolutely terminate Mark’s

ability to move? Again, I think not.

For starters, the majority seems to think that

Mark’s behavior falls into a kind of “passive

acquiescence” between fleeing and submission. See

Brendlin v. California, 551 U.S. 249, 255 (2007). In

those cases, the Supreme Court has suggested that “a

seizure occurs” when “a reasonable person would have

believed that he was not free to leave.” Id. (quoting

United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

So here the majority concludes that a reasonable

person would not feel free to leave after a police officer

fired eight shots at him. And I agree. But that’s not the

end of our inquiry. For one thing, Mark evidently felt

differently by going in and out of his house multiple

times, screaming at the officers, and disobeying orders.

And for another, the Supreme Court has explained

before that the “so-called Mendenhall test” “states a

necessary, but not a sufficient, condition for seizure . . .

App. 27

effected through a ‘show of authority.’” Hodari D., 499

U.S. at 627–28; see also Torres, 141 S. Ct. at 1001

(using Brendlin as an example of when the Court had

“not always been attentive to [the] distinction [between

seizures by control and seizures by force] when a case

did not implicate the issue”). Brendlin was a case about

whether a passenger of a car pulled over for a traffic

stop was seized. 551 U.S. at 253—54. But the car

stayed put, therefore indicating that those inside were

submitting to authority. Id. at 262. It would be a

different case had the car sped off.

Take the facts of Hodari D., for instance. A fleeing

youth was not seized when the officers gave chase, nor

when he saw an officer almost upon him. 499 U.S. at

623, 629. Instead, the officer seized the youth only

when he tackled him. Id. at 629. Was the youth “free to

leave” during the chase? Of course not. Yet the seizure

occurred only when his movement in fact stopped. So

the reliance on Brendlin doesn’t get the majority all the

way there. Although the majority is correct that the

standard under Mendenhall and Brendlin is objective,

see Maj. Op. at 7 n.3, when a suspect fails to submit to

a show of authority, like in Hodari D. and here, that

objective standard cannot by itself turn an attempted

seizure into a seizure. See Hodari D., 499 U.S. at 629;

see also Torres, 141 S. Ct. at 1001 (“[A]ctual control is

a necessary element for [a seizure by acquisition of

control.]”).

How do the Campbells fill in the gap? They don’t.

But the majority says that Ewolski v. City of

Brunswick, 287 F.3d 492 (6th Cir. 2002), is the best

case to show that Officer Fox seized Mark by

App. 28

terminating his movement. In Ewolski, John Lekan

barricaded himself, his wife, and his son in their home

during a two-day armed standoff with police. See id. at

498–99. During the standoff, Mr. Lekan exchanged

gunfire with officers multiple times, and the police

tried various breaches that included crashing an

armored vehicle through the living room. Id. at 499.

The district court decided that none of the Lekans were

seized during the standoff, see id. at 505, but we

reversed as to Mr. Lekan, see id. at 506.

The district court held that Mr. Lekan wasn’t seized

because, by barricading himself in his home, he never

submitted to authority. Id. The district court

analogized Mr. Lekan to a fleeing suspect who had not

submitted to authority, but we disagreed. Instead, we

found the situation more like Brower, a different

fleeing case. Id. In Brower, police set up a roadblock

that a fleeing suspect fatally crashed into. 489 U.S. at

594. The Supreme Court held that such action was a

seizure because it was a governmental termination of

freedom of movement through means intentionally

applied. Id. at 599. Seizing on this, we concluded that

“Mr. Lekan was not free to leave.” Ewolski, 287 F.3d at

506. Just like the driver in Brower, Mr. Lekan was

never in police custody. But the police actions in both

cases still intentionally applied force and authority to

restrain movement. So we said that Mr. Lekan wasn’t

“on the loose” like the fleeing suspect in Hodari D. Id.

Instead, we reasoned that the police’s actions were as

if they had nailed all of Lekan’s doors and windows

shut, trapping him inside. Id.

App. 29

The majority thinks the same reasoning applies

here, but I see it differently. When it comes to whether

Officer Fox seized Mark, Ewolski is distinguishable on

both the facts and the law. Above all, in Ewolski, Mr.

Lekan was both not free to move and unable to leave.

After multiple gunfire exchanges and breach attempts,

Mr. Lekan was not free to leave his home given police

action, and in fact he did not leave his home. On the

other hand, Mark was free to leave his home, and we

know this because he in fact did. First, when he yelled

at the officers from his front porch and disobeyed

orders to get on the ground, and then again when he

exited the rear of his house “to see who was shooting at

[him] and maybe get a jump on them.” (R. 71-6, Mark

Campbell Dep., PageID 408–09.) During Mark’s

backyard jaunt, he “walked right on past these two

officers in these vehicles.” (Id. at 409.) It’s clear to me

that Mark was “on the loose” like the suspect in Hodari

D. See Ewolski, 287 F.3d at 506. So unlike Mr. Lekan,

Officer Fox’s “intentional application of physical force

and show of authority” did not “succeed[] in

restraining” Mark’s “liberty to leave his home.” Id. “The

distinguishing feature of a seizure is the restraint of

. . . his . . . freedom to walk away.” Id. at 507. Mark did

just that. In sum, Officer Fox did not seize Mark.

Finally, the Supreme Court’s decision in Torres does

not change my conclusion. In Torres, officers shot a

suspect that sped off after they tried to stop her car and

speak with her. 141 S. Ct. at 994. The bullets didn’t

stop Torres though. She drove off, stole a car, and made

it to a new town before being airlifted to a hospital to

treat her gunshot wounds. Id. Authorities arrested

Torres at the hospital the next day. Id. Torres later

App. 30

brought an excessive-force claim against the officers

under § 1983. The district court granted summary

judgment to the officers, and the Tenth Circuit

affirmed, reasoning that Torres’s continued flight

meant no seizure occurred. Id.

The Supreme Court vacated and remanded. First,

the Court identified that the case was about the

application of physical force, not a show of authority.

Id. at 995. Then, after surveying the common law, the

Court held that the officers seized Torres during the

shooting because they “applied physical force to her

body and objectively manifested an intent to restrain

her from driving away.” Id. at 999. Addressing

opposing arguments, the Court talked about seizures

by control and explained that, unlike seizures by force,

seizures by control require that “an officer succeeds in

gaining control” over a suspect by “either voluntary

submission to a show of authority or the termination of

freedom of movement.”2 Id. at 1001.

Because the seizure was “just the first step in the

analysis,” the Court remanded the case without

deciding the reasonableness of the seizure and whether

the officers were entitled to qualified immunity. Id. at

1003. On remand, the magistrate judge granted the

officers qualified immunity because it wasn’t clear to

an officer at the time of the shooting that their conduct

constituted a seizure. Torres v. Madrid,

Because the three dissenting Justices agreed that to seize

someone through a “show of authority” “occurs only if the suspect

submits to an officer’s possession,” Torres, 141 S. Ct. at 1014

(Gorsuch, J., dissenting), all eight Justices on the case agreed on

this point.

App. 31

No. 1:16-cv-01163, 2021 WL 6196994, at *4 (D. N.M.

Dec. 30, 2021).

Torres clarified that the rule is this: “A failed

attempt to restrain a suspect is not a ‘seizure’ within

the meaning of the Fourth Amendment unless there is

some application of physical force.” Steed ex rel. Steed

v. Mo. State Highway Patrol, 2 F.4th 767, 770 (8th Cir.

2021) (citing Torres, 141 S. Ct. at 995). Of course, many

understood that rule before Torres. Dissenting in

Hodari D., Justice Stevens understood the majority’s

decision to mean that a police officer firing his weapon

at a suspect would “not implicate the Fourth

Amendment—as long as he misses his target.” Hodari

D., 499 U.S. at 630 (Stevens, J., dissenting). So applied

here, when Officer Fox shot at Mark, he attempted to

seize him. But “[a]ttempted seizures of a person are

beyond the scope of the Fourth Amendment.” County of

Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998). Had

Officer Fox in fact shot Mark, he would have been

seized even if he remained in his house or roaming

around his backyard. See Torres, 141 S. Ct. at 999. But

without the force, a seizure by acquisition of control

“requires that ‘a person be stopped by the very

instrumentality set in motion or put in place in order

to achieve that result.’” Id. at 1001 (quoting Brower,

489 U.S. at 599).

That didn’t happen here. Both under the law at the

time of Officer Fox’s conduct, and especially after

Torres, it’s clear that Officer Fox did not seize Mark.

App. 32

Nor did Officer Fox seize Sherrie. Ewolski helps

explain why. There, we held that the wife and child

trapped in the home were not seized by police because

Mr. Lekan, not the police, restrained their movement.

287 F.3d at 507. The officers here and in Ewolski both

shot into the house, but in Ewolski that wasn’t enough

to seize the people not targeted by the gunfire. Id. Like

Ewolski, here there “are no facts alleged that would

suggest” Officer Fox in any way restrained Sherrie’s

movement. Id. In fact, the record shows that Sherrie

stayed put because after the shooting had ended, Mark

told her “not to move, to stay where [she was] at.”

(R. 71-7, Sherrie Campbell Dep., PageID 413.) So if

anything, Mark kept Sherrie in the house, not Officer

Fox.

The district court’s reliance on Rodriguez v.

Passinault, 637 F.3d 675 (6th Cir. 2011), and Fisher v.

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

misplaced. Both cases involved police shooting at cars,

not homes, and both involved an officer’s intentional

exertion of force against the passenger.

In Fisher, an officer shot at the driver of a car but

hit the passenger instead. 234 F.3d at 315. We held

that the officer seized the passenger because he shot

her while intending to shoot at the car. Id. at 318–19.

And in Rodriguez, an officer shot and killed the driver

of a fleeing vehicle and injured a passenger. 637 F.3d at

677–78. We denied qualified immunity because a

dispute of fact existed about which version of the

events to believe and how the passenger received her

injury. Id. at 687–89.

App. 33

Neither case is enough like this one to justify the

majority’s reliance. Instead, I think the closest

analogue is Ewolski or Bletz v. Gribble, 641 F.3d 743

(6th Cir. 2011). In Bletz, two police officers executed an

arrest warrant for a man who lived with his parents.

641 F.3d at 747. The officers went inside the home with

Bletz so he could change clothes under their

supervision. Id. at 748. But once inside, the officers

came upon Bletz’s father with a gun drawn. Id. The

parties disputed some of what happened next, but it’s

undisputed that one of the officers shot and killed

Bletz’s father. Id. After the shooting, the officers moved

to secure the home, handcuffing and detaining Bletz

and his mother for several hours. Id. Bletz’s mother

claimed the officers violated her Fourth Amendment

rights, but we held that the officers seized Bletz’s

mother “within the meaning of the Fourth Amendment

when defendants handcuffed her and placed her inside

a locked police vehicle,” not when the shooting

occurred. Id. at 754.

The two cases most like this one, Ewolski and Bletz,

involved officers shooting or shooting at an individual

at home, and we held that the third party was not

seized at the time of the shooting. The two cases the

majority relies on, Fisher and Rodriguez, both involved

injuries to the passengers from the officers’ intentional

application of force with the intent to restrain. So it’s

clear to me that following the more analogous caselaw,

Officer Fox did not seize Sherrie.

As for the “clearly established” question, I think the

discussion above shows, at a minimum, that no case

App. 34

exists that could have put Officer Fox on notice that he

seized the Campbells. “The doctrine of qualified

immunity shields officials from civil liability so long as

their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Mullenix v. Luna, 577 U.S.

7, 11 (2015) (per curiam) (cleaned up). “[Q]ualified

immunity is appropriate unless the officer in question

had ‘fair notice’ that h[is] conduct was unlawful.”

Trozzi v. Lake County, 29 F.4th 745, 761 (6th Cir. 2022)

(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

(per curiam)). To provide fair notice, the “scope of the

constitutional right must be ‘sufficiently clear that

every reasonable official would have understood’” that

their conduct violated that right. Id. (quoting RivasVillegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per

curiam)). That the “scope of the constitutional right”

must be clear enough to shape future conduct means,

to me, the whole right. So even though we usually focus

most of the “clearly established” inquiry on the

violation of the right, the same reasoning applies to the

implication of the right itself.

So we have examined whether it was clearly

established that conduct constituted a seizure in the

first place. See Haywood v. Hough, 811 F. App’x 952,

961 (6th Cir. 2020) (“At the time of [the Plaintiff’s]

initial detention, it was clearly established that

confining a person to a room constituted a seizure

. . . .”); see also Gutierrez v. Cobos, 841 F.3d 895, 907

(10th Cir. 2016) (“Because Plaintiffs did not proffer

clearly established authority that [the Plaintiff] was

seized, they did not carry their burden to rebut

qualified immunity on this illegal seizure claim.”);

App. 35

Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir.

2004) (using the clearly established standard for

whether a seizure occurred).

Here, neither the Campbells nor the majority

“identified any Supreme Court case that addresses

facts like the ones at issue here.” Rivas-Villegas, 142

S. Ct. at 8. And “[e]ven assuming that Circuit

precedent can clearly establish law for the purposes of

§ 1983,” the cases the majority relies on—primarily

Ewolski—are “materially distinguishable and thus do[]

not govern the facts of this case.” Id. And the

Campbells admit as much. During oral argument, the

Campbells’ counsel conceded that “there is no case that

addresses this particular scenario” when asked which

case clearly established that a seizure occurred. (Oral

Arg. at 16:04-16:30; see also id. at 23:58-24:04 (“I

extensively researched this and came up at a loss to

find anything truly on-point.”).)

II.

Because I don’t believe that Officer Fox seized

either of the Campbells, I would stop here and grant

qualified immunity. But even if Officer Fox did seize

them, his conduct was reasonable. To decide whether

Officer Fox’s use of force was reasonable, we must

balance Officer Fox’s use of force with the threat that

Mark posed to Officer Fox and his partner. See

Graham, 490 U.S. at 396. Our assessment is objective,

so it “must be made from the perspective of a

reasonable officer.” Jacobs v. Alam, 915 F.3d 1028,

1041 (6th Cir. 2019). Like all excessive-force

evaluations, we consider a totality of the circumstances

App. 36

without relying on “the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396.

“If you were a police officer, what risk of getting

shot would you be willing to face before” firing your

weapon at a suspect who announced he had a gun,

then, without warning, opened a door mere feet away

from you? Browning v. Edmonson County, 18 F.4th

516, 536 (6th Cir. 2021) (Murphy, J., concurring in part

and dissenting in part). That’s the choice Officer Fox

faced here. And I believe that he made a reasonable

one.

Our caselaw shows that a reasonable officer would

have thought that Mark had a gun. In Simmonds v.

Genesee County, police officers shot a suspect who

yelled that he had a gun and then leaned out of his car

with an object in his hand that the officers thought was

a gun. 682 F.3d 438, 441–42 (6th Cir. 2012). We

affirmed a grant of qualified immunity, finding that

“the officers were permitted to use deadly force in light

of the uncontested statement by [the suspect] that ‘I

have a gun.’” Id. at 446. Next, in Pollard v. City of

Columbus, officers shot a suspect after his car crashed

following an unsuccessful flee attempt. 780 F.3d 395,

399–400 (6th Cir. 2015). As officers approached the car,

the suspect reached down to the floor of his car and

then pointed his hands at the officers in a clasped

shooting posture. Id. at 400. We affirmed the grant of

qualified immunity, holding that the officers

reasonably thought the suspect had a gun and could

reasonably consider him a threat. Id. at 404.

Here, Mark announced that he had a gun. And this

statement must be viewed in context. The porch was lit

App. 37

and had a security camera. Although Mark later

testified that the camera was a fake, installed to deter

neighbors, the officers believed that Mark knew they

were police when he announced that he had a gun and

as he opened the door. Someone willing to tell an officer

at his door that he has a gun is threatening. As soon as

Mark said, “I got one too,” Officer Fox immediately

unholstered his gun. So like the officers in Simmonds

and Pollard, Officer Fox had reason to believe that

Mark had a gun.

True, whether Mark had a gun, a cellphone, or

nothing in his hand is not dispositive. As the majority

points out, “merely possessing a weapon is not

enough—the officer must reasonably believe he

individual poses a danger of serious physical harm.”

Jacobs, 915 F.3d at 1040 (cleaned up). But the officers’

perception that the individual has a weapon, combined

with other circumstances that give the reasonable

officer reason to believe that there is a danger of

serious harm, can be dispositive.

Here, the officers testified that they thought that

Mark had something in his hand after he had said that

he had a gun and after he opened the door. (R. 71-1,

Austin Decl., PageID 377 (“I believed, and still believe,

that Mr. Campbell had a gun[.]”); R. 71-2, Fox Decl.,

PageID 388 (“I . . . had only a second or two to observe

a silver or gun-metal gray object, which I believe to

have been a gun[.]”).) Mark did not contradict that

testimony. In fact, Mark testified that he thought he

“had [his] cellphone in [his] hand.” (R. 71-6, Mark

Campbell Dep., PageID 401.) But he never denied that

he had something in his hand, and in fact told the

App. 38

officers that he had a gun. So nothing in the record

refutes the officers’ perception that, at a minimum,

Mark had something in his hand. See Hicks v. Scott,

958 F.3d 421, 437 n.2 (6th Cir. 2020).

Beyond his perceived possession of a weapon,

Mark’s close proximity to the officers is enough of an

additional circumstance to warrant the use of deadly

force. See Hicks, 958 F.3d at 436 (reasoning that an

officer’s “close proximity” to an armed suspect

“compounded” the perceived threat); see also Chappell

v. City of Cleveland, 585 F.3d 901, 911 (6th Cir. 2009)

(“[I]t is apparent that if the detectives had hesitated

one instant, i.e., long enough to allow [the suspect] to

take even one more step, they would have been within

his arm’s reach and vulnerable to serious or even fatal

injury.”). In Thomas v. City of Columbus, for instance,

we found that 40 feet was a close enough distance to

warrant deadly force. 854 F.3d 361, 366 (6th Cir. 2017).

We reasoned that, at that range, “a suspect could raise

and fire a gun with little or no time for an officer to

react.” Id. So we held the officer’s decision to fire his

gun, even though the suspect never raised his, to be

objectively reasonable. Id.

As seen from the body-camera footage, Mark was

much closer to the officers than the 40 feet in Thomas.

At that distance, it would take only a second or two for

someone to point, aim, and fire. These kinds of splitsecond decisions are ripe for second-guessing, but we

must resist that temptation. See Graham, 490 U.S. at

396–97; see also Williams v. City of Grosse Pointe Park,

496 F.3d 482, 487 (6th Cir. 2007) (emphasizing “the

need to assess the reasonableness of an officer’s

App. 39

conduct in view of uncertain and rapidly developing

circumstances”).

From these cases, it’s clear that when officers are

close to a suspect and have reason to believe he’s

armed, either because of his statement or other

gestures, the use of deadly force is reasonable. The

facts, even in the light most favorable to the

Campbells, show that reasonable officers would’ve felt

that Mark posed an imminent threat to their safety.

“Sometimes, the time or space available to an officer

may mean that the reasonable thing to do is to monitor

the suspect, issue a warning, or take cover.” Thomas,

854 F.3d at 366–67. But this wasn’t one of those times.

Given the totality of the circumstances, Officer Fox

acted reasonably.

III.

Moreover, even if Officer Fox seized the Campbells,

the law didn’t provide him sufficient notice that his

conduct was unlawful. “A right is clearly established

when it is ‘sufficiently clear that every reasonable

official would have understood that what he is doing

violates that right.’” Rivas-Villegas, 142 S. Ct. at 7

(quoting Mullenix, 577 U.S. at 11). In non-obvious cases

like this one, the Campbells must identify a case that

put Officer Fox on notice that his specific conduct was

unlawful. See id. at 8.

The Campbells land on Floyd v. City of Detroit as

that case. There, we affirmed a denial of qualified

immunity to two officers who shot an unarmed man.

Floyd, 518 F.3d 398, 402, 409 (6th Cir. 2008). But Floyd

App. 40

is “materially distinguishable and thus does not govern

the facts of this case.” Rivas-Villegas, 142 S. Ct. at 8.

Above all, the officers in Floyd had much less reason

to feel threatened by Floyd than Officer Fox did by

Mark. Those officers were responding to a call about a

dispute from more than an hour before regarding a

suspect with a weapon. See Floyd, 518 F.3d at 402. And

although the first officer who fired did so without

hearing from Floyd first, Floyd testified that he yelled

that he didn’t have a gun before the second officer fired,

striking him. Id. Mark himself announced that he had

a gun just seconds before opening the door. What’ more,

Floyd’s hands were empty and extended out in front of

his body. Id. at 407. It’s clear that shooting an unarmed

man with his hands out based on a stale tip is

markedly different from shooting at someone feet away

who announced they had a gun and opened a door

without warning. Floyd is thus materially distinct and

an improper case for providing Officer Fox notice that

his conduct was unlawful.

IV.

For these reasons, I would grant qualified immunity

and I respectfully dissent.

App. 41

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 21-5044

[Filed August 29, 2022]

__________________________________________

MARK CAMPBELL; SHERRIE CAMPBELL )

Plaintiffs - Appellees,

)

CHEATHAM COUNTY SHERIFF’S

)

DEPARTMENT, et al.,

)

Defendants,

)

JAMES DOUGLAS FOX,

)

Defendant - Appellant.

)

_________________________________________ )

Before: BOGGS, GIBBONS, and NALBANDIAN,

Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED

that the judgment of the district court is AFFIRMED.

App. 42

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

App. 43

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NO. 3:19-cv-00151

[Filed January 5, 2021]

____________________________________

MARK CAMPBELL and

)

SHERRIE CAMPBELL,

)

Plaintiffs,

)

CHEATHAM COUNTY SHERIFF’S )

DEPARTMENT, et al.,

)

Defendants.

)

___________________________________ )

MEMORANDUM OPINION

Mark and Sherrie Campbell1 filed this action under

42 U.S.C. § 1983 against the Cheatham County

Sheriff’s Department (“Sheriff’s Department”), the

Cheatham County Municipal Government, Cheatham

County Sheriff Mike Breedlove in his official capacity,

and James Fox and Christopher Austin in their

individual capacities as officers for the Sheriff’s

For clarity and brevity, the Court may refer to Plaintiffs by their

first names below.

App. 44

Department. Before the Court are two Motions for

Summary Judgment: one filed by the Sheriff’s

Department, the Cheatham County Municipal

Government, and Sheriff Breedlove (collectively, the

“County”) (Doc. No. 65); and one filed by Officers Fox

and Austin (the “Officers”) (Doc. No. 69). Plaintiffs filed

a Response to each Motion, (Doc. No. 75 (Response to

the County); Doc. No. 78 (Response to the Officers)),

and the Officers filed a Reply (Doc. No. 80). For the

following reasons, the County’s Motion will be granted,

and the Officers’ Motion will be granted in part and

denied in part.

Background

A. Shooting at the Campbell Residence

Around 9:15 p.m. on August 21, 2018, Officers Fox

and Austin were dispatched to the Campbell residence

af ter the Cheatham County Emergenc y

Communications Center received three 9-1-1 hang-up

calls that it associated with Plaintiffs’ address. (Doc.

No. 71-1 at 5–6; Doc. No. 78-1 ¶ 2.) Plaintiffs deny any

connection to the phone or phone number associated

with these calls. (Doc. No. 75-1 ¶¶ 1, 3.) Nonetheless,

the parties agree that the Officers drove to Plaintiffs’

residence to perform a “welfare check.” (Doc. No. 78-1

¶ 4.)

Around 9:39 p.m., the Officers arrived at Plaintiffs’

residence in marked patrol cars equipped with

dashboard cameras, wearing uniforms equipped with

body cameras. (Doc. No. 75-1 ¶¶ 2, 4–5.) Plaintiffs (Doc.

Nos. 8, 27) and the Officers (Doc. No. 73) submitted

App. 45

footage of the ensuing events from Fox’s dash-cam and

each Officers’ body-cam.2

The Officers did not activate the emergency lights

on their cars, but their headlights remained on and

pointed toward Plaintiffs’ residence as they approached

the residence on foot. (Doc. No. 75-1 ¶ 6.) A porch light

controlled by a heat sensor turned on as the Officers

approached. (Doc. No. 78-1 ¶ 7; M. Campbell Dep.3 at

40.) Austin remained on the ground in front of the

porch as Fox walked up four steps to a small landing to

knock on the door. (Fox dash-cam; Fox body-cam;

Austin body-cam.) Fox claims that he observed a

security camera on the porch (Doc. No. 71-2 ¶ 3), and

Mark testified that he has a fake security camera on

the porch to deter neighbors (M. Campbell Dep. at 54).

Based on the three videos supplied by the parties,

the Court has established the following timeline of

events, beginning with Fox’s knock and concluding

with Fox firing his gun. The “seconds elapsed” reflects

the approximate time of an event after the first knock:

The Officers also submitted an audio recording of a 9-1-1 call

from Sherrie beginning shortly after the shooting and lasting

approximately 24 and a half minutes. (See Doc. Nos. 73, 114.) The

Court will refer to this recording as “Sherrie 9-1-1 Call.”

The Court will refer to the following deposition transcripts, using

each deposition’s internal pagination, as: Doc. Nos. 67-4, 71-6, 75-2

at 24–39 (“M. Campbell Dep.”); Doc. No. 75-2 at 40–44 (“S.

Campbell Dep.”); Doc. Nos. 67-1, 75-2 at 18–23 (“Fox Dep.”);

Doc. No. 67-2 (“Austin Dep.”); Doc. Nos. 67-3, 75-2 at 4–17

(“Breedlove Dep.”).

App. 46

Seconds

Elapsed

Description of Event

Fox knocks three times

1–5

Fox walks down the steps and stands

next to Austin

Mark says, “You got a gun?” through the

closed door

12–17

Fox unholsters his gun4 and walks to the

other side of Austin while saying, “Mark

. . . come on out Mark, what’s up man?”

Mark again says, “You got a gun?”5

Fox says, “What’ going on Mark?”

Mark says, “I got one too.”6

This act is not visible from the footage, but Fox claims as much

in his declaration. (Doc. No. 71-2 ¶ 4.)

Fox claims that, at this point, he believed that Mark “knew that

law enforcement was outside the residence” because of Fox’s prior

interactions with Mark, Mark’s “security lights and camera being

on the porch, and [Mark’s] questioning.” (Doc. No. 71-2 ¶ 4.) The

Officers also point to Sherrie’s 9-1-1 call, which includes her

isolated statement that Mark “woke [her] up screaming, saying

something about the police shot into the house.” (Doc. No. 75-1

¶ 29; Sherrie 9-1-1 Call.) Mark, on the other hand, testified that he

did not know that law enforcement was outside until later when he

went out his back door to “find out who was shooting at [him]” and

saw police vehicles in the yard and driveway. (M. Campbell Dep.

at 79–80.)

Both Officers claim they feared for their safety at this point. (Doc.

No. 71-1 ¶ 3; Doc. No. 71-2 ¶ 4.)

App. 47

24–25

Fox draws his gun and turns his back to

the door as he walks behind Austin

Mark begins to open the door

Fox turns quickly back toward the door

Fox says, “Do what Mark?” and then

fires two shots toward the door in rapid

succession7

Austin trips or jumps to the ground

Fox says, “You good?”

Fox fires six shots toward the door in

rapid succession

(Fox dash-cam; Fox body-cam; Austin body-cam.) After

the first two shots, Mark fell to the floor inside the

house, kicked the door shut, and yelled for Sherrie to

call 9-1-1 because “somebody” was shooting at them.

(M. Campbell Dep. at 50; S. Campbell Dep. at 33–34).

Sherrie was in the bedroom at the time. (S. Campbell

Dep. at 33.) The shots did not hit anyone, and law

enforcement did not locate a weapon in a subsequent

search of the residence. (Doc. No. 75-1 ¶¶ 35–36.)

The Officers then made their way behind a patrol

car as Fox reported “shots fired” over the radio. Almost

a minute later, Mark yelled profanities at Fox and

Austin through the closed door. A few minutes later,

Both Officers claim they believe Mark had a gun when he opened

the door. (Doc. No. 71-1 ¶ 5; Doc. No. 71-2 ¶ 4.) Fox testified that

he fired his weapon because he “perceived what [he] observed . . .

to [be] a firearm.” (Fox Dep. at 25–26.) Mark, however, testified

that he did not have a gun and that he thinks he had his cell phone

in his hand. (M. Campbell Dep. at 45, 48, 72).

App. 48

Mark opened the door and stood on the porch, holding

up a flat, reflective, rectangular item in his right hand.

Fox and Austin yelled at him to get on the ground and

show his hands. Mark yelled that his phone was in his

hand. Mark lifted his empty left hand, yelled he was

not getting on the ground, yelled for Fox and Austin to

shoot him, yelled profanities, and then went inside and

shut the door. About a minute later, Mark again

opened the door and stood in the doorway, appearing to

talk on the phone and point at Fox and Austin. Fox and

Austin yelled at him to show his hands. Mark yelled

back and then went inside and shut the door. (Fox

dash-cam; Fox body-cam; Austin body-cam.)

Meanwhile, after the Officers returned to the patrol

car, they made several statements reflecting that they

did not know what, if anything, Mark has holding when

he opened the door. For instance, Fox asked, “What did

he point at us?” and Austin replied, “I don’t know, he

just came out the door and pointed something, so I

ducked.” Fox also reported over the radio that Mark

“came out the door with something in his hands.”

Austin later asked what Mark came “out the door

with,” and Fox replied, “I don’t know, he had something

in his hand and he raised it up.” Austin responded, “He

came out the door with his hand raised, that’s where I

heard you shooting, I just backed up.” (Fox body-cam;

Austin body-cam.)

Several other officers responded to the area, one of

whom apprehended and arrested Mark in the backyard

about 9 minutes after Mark’s last interaction with Fox

and Austin. (Fox dash-cam; Fox body-cam; Austin

body-cam.) On three separate occasions, Fox explained

App. 49

the shooting to other officers on the scene. Each time,

Fox stated that he fired after Mark asked if Fox and

Austin had a gun, said that he had a gun, opened the

door, and “lift[ed] something up.” During one of these

explanations, Austin stated that Mark “came to the

door, had a gun,” before trailing off. (Fox body-cam;

Austin body-cam.)

After Mark’s arrest, Fox and Austin accompanied a

Detective to “clear the house.” Sherrie was still in the

bedroom with the door closed and still on the phone

with 9-1-1. Austin and another officer directed Sherrie

to come out with her hands visible, and she complied.

Austin cuffed and detained Sherrie for about 3.5

minutes while other officers finished clearing the

house. The Detective questioned Sherrie, directed

Austin to uncuff her, continued questioning her, and

then directed her to complete a written statement.

Sherrie was crying off and on for much of this

interaction until she was taken to complete a

statement. (Fox body-cam; Austin body-cam.)

App. 50

B. Cheatham

Customs8

County’s

Practices

and

New hires for the Cheatham County Sheriff’s

Department receive 12 to 14 weeks of training through

the Tennessee Law Enforcement Training Academy,

during which they “learn all the basic skills,” including

constitutional law, use of force, physical fitness, and

shooting. (Doc. No. 78-1 ¶ 27; Breedlove Dep. at 21.)

After this training, new hires are placed on a one-year

probation, but they may “start riding within six weeks

or two months” based on the evaluation of a supervisor.

(Breedlove Dep. at 21.)

All Sheriff’s Department officers are required to

complete 40 annual hours of “in-service” training,

which includes training on the use of deadly force

Plaintiffs object to the format of the County’s Statement of

Undisputed Material Facts. (Doc. No. 78-1 at 1–2.) The Court

agrees that the County presented several categories of non-factual

statements as statements of fact, including allegations (id. ¶¶ 1–2,

9, 17–18), summarized or quoted deposition testimony (id. ¶¶ 8,

13–15, 19–39, 42–43), and legal conclusions (id. ¶¶ 40–41, 44). This

format is improper because a party moving for summary judgment

should set forth each fact “in a separate, numbered paragraph”

that is “supported by specific citation to the record.” Local Rule

56.01(b). Regardless, “Rule 56(c)(1)(A) permits a party seeking

summary judgment to rely on,” among other things, “‘depositions’

. . . in the record.” Mount Vernon Fire Ins. Co. v. Liem Constr.,

Inc., No. 3:16-cv-00689, 2017 WL 1489082, at *2 (M.D. Tenn.

Apr. 26, 2017). Thus, for the purpose of ruling on the pending

summary judgment motions, the Court will consider any assertions

of fact within the deposition testimony cited in the County’s

Statement of Undisputed Material Facts. However, the Court will

not consider any extraneous, non-material statements within this

testimony.

App. 51

under state law, firearms, emergency vehicles,

domestic violence cases, and other areas. (Id. at 23,

25–28.) Officers Fox and Austin each testified that they

received training on the use of force. (Fox. Dep. at 16;

Austin Dep. at 11.)

It is Sheriff’s Department policy to respond to all

9-1-1 hang-up calls, and the response is typically

considered a “welfare check.” (Breedlove Dep. at 33.) It

is not departmental policy for officers to immediately

identify themselves as law enforcement when they

knock on the door of a residence. (Id. at 37.) Sheriff

Breedlove testified that “[i]t depends on the situation

itself and the nature of the call,” and that for welfare

checks, the process typically goes as follows: “[W]e

come, we knock on the door, and mostly in all cases

somebody on the other end is going to go, ‘who is it?’

‘Sheriff’s office.’ Or they’re going to look out the window

and see that the sheriff’s office is here.” (Id. at 37–38.)

Fox testified that he was trained to announce himself

as law enforcement when executing a search warrant.

(Fox. Dep. at 10.)

Sheriff Breedlove also personally maintains a

Facebook page for the Cheatham County Sheriff’s

Department. (Breedlove Dep. at 72.) He claims that the

purpose of the page is to inform the public about crimes

and the Department’s efforts to deter them, develop a

relationship with the community, and enlist the

public’s help in locating individuals with outstanding

arrest warrants. (Id. at 72–73.) Breedlove testified that

he writes “snippets and stories” about criminal activity

using “humor [and] seriousness.” (Id. at 73–74.) He also

testified that he has used the page to “shame[]

App. 52

criminals” to deter criminals and drug dealers. (Id. at

75–76.)

C. This Lawsuit

On February 16, 2019, Plaintiffs filed this lawsuit

asserting four claims. In Count I, Plaintiffs assert that

Officer Fox used excessive force against them. (Doc.

No. 1 ¶¶ 47–58.) In Count II, Plaintiffs assert that

Officer Austin failed to protect them from Fox’s use of

force. (Id. ¶¶ 59–69.) In Count III, Plaintiffs assert a

claim of municipal liability against the County. (Id.

¶¶ 70–81.) And in Count IV, Plaintiffs assert that all

Defendants are liable for the Tennessee tort of

intentional (or negligent) infliction of emotional

distress. (Id. ¶¶ 82–98.) The Officers and the County

move for summary judgment on all claims.

II.

Legal Standard

The Court will grant summary judgment to a

moving party that shows “there is no genuine dispute

as to any material fact” and that it is “entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A

genuine dispute of material fact exists ‘if the evidence

is such that a reasonable jury could return a verdict for

the nonmoving party.’” Peffer v. Stephens, 880 F.3d

256, 262 (6th Cir. 2018) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court “must

ultimately decide ‘whether the evidence presents a

sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must

prevail as a matter of law.’” Burgess v. Fischer, 735

F.3d 462, 471 (6th Cir. 2013) (quoting Anderson, 477

U.S. at 251–52). In doing so, the Court “draw[s] all

App. 53

reasonable inferences in the light most favorable to the

non-moving party.” Davis v. Gallagher, 951 F.3d 743,

747 (6th Cir. 2020) (citing Anderson, 477 U.S. at

251–52). “But where, as here, there is ‘a videotape

capturing the events in question,’ the court must

‘view[] the facts in the light depicted by the videotape.’”

Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir.

2012) (quoting Scott v. Harris, 550 U.S. 372, 378–81

(2007)).

III.

Analysis

A. Fourth Amendment Claims against the

Officers

Counts I and II are asserted on behalf of both

Plaintiffs. That is, both Mark and Sherrie assert that

Officer Fox used excessive force against them, and that

Officer Austin failed to protect them from that use of

force. These claims arise under the Fourth

Amendment. See Graham v. Connor, 490 U.S. 386, 395

(1989) (“[A]ll claims that law enforcement officers have

used excessive force—deadly or not—in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard.”);

Pineda v. Hamilton Cnty., Ohio, 977 F.3d 483, 493 (6th

Cir. 2020) (collecting cases) (“[A] nearby officer who

does not actively participate in the use of excessive

force may still violate the Fourth Amendment if the

officer fails to intervene to stop a fellow officer’s use of

such force.”) The Court will address two preliminary

arguments raised by the Officers before turning to their

qualified immunity defense.

App. 54

1. Statute of Limitations

The Officers contend that Plaintiffs’ Section 1983

claim against Officer Fox is barred by the statute of

limitations because they did not serve Fox in a timely

manner. (Doc. No. 70 at 21–23.) Plaintiffs disagree.

(Doc. No. 75 at 15–18.) The Court concurs with

Plaintiffs.

For Section 1983 claims, state law determines “the

length of the limitations period,” as well as the “closely

related” issue of how to apply the statute of limitations.

Markowitz v. Harper, 197 F. App’x 387, 389 (6th Cir.

2006) (quoting Harris v. United States, 422 F.3d 322,

331 (6th Cir. 2005)). In Tennessee, the limitations

period is one year. Jordan v. Blount Cnty., 885 F.3d

413, 415 (6th Cir. 2018) (citing Tenn. Code Ann.

§ 28-3-104(a)). Meanwhile, under federal law, the

limitations period starts running “when the plaintiff

knows or has reason to know of the injury which is the

basis of his action.” Johnson v. Memphis Light Gas &

Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (quoting

Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir.

2005)).

Here, the shooting incident at Plaintiffs’ residence

occurred on August 21, 2018, so Plaintiffs had one year

from that date to file any Section 1983 claim related to

the shooting. Plaintiffs initiated this action well within

this deadline by filing the complaint on February 16,

2019. (Doc. No. 1.) The Officers nonetheless argue that

Plaintiffs’ Section 1983 claim against Officer Fox is

untimely because Plaintiffs did not comply with

Tennessee Rule of Civil Procedure 3, which establishes

that “timely service of process is essential to the

App. 55

commencement of an action such that the statute of

limitations is satisfied.” Dolan v. United States, 514

F.3d 587, 595 (6th Cir. 2008) (applying Tennessee Rule

of Civil Procedure 3 to Bivens claims).

Tennessee Rule of Civil Procedure 3 provides:

All civil actions are commenced by filing a

complaint with the clerk of the court. An action

is commenced within the meaning of any statute

of limitations upon such filing of a complaint,

whether process be issued or not issued and

whether process be returned served or unserved.

If process remains unissued for 90 days or is not

served within 90 days from issuance, regardless

of the reason, the plaintiff cannot rely upon the

original commencement to toll the running of a

statute of limitations unless the plaintiff

continues the action by obtaining issuance of new

process within one year from issuance of the

previous process or, if no process is issued,

within one year of the filing of the complaint.

Tenn. R. Civ. P. 3 (emphasis added).

Here, process issued for Fox (and the other

Defendants) on February 19, 2019. (Doc. No. 5 at 4.)

But Plaintiffs did not serve Fox within 90 days of that

date. Thus, to satisfy the statute of limitations under

Tennessee law, Plaintiffs were required to “obtain[]

issuance of new process within one year from”

February 19, 2019. See Tenn. R. Civ. P. 3. And

Plaintiffs did just that, by obtaining issuance of an

alias summons for Fox on January 2, 2020. (Doc.

No. 39.) The record reflects that Fox was personally

App. 56

served the next day. (Doc. No. 40 at 2.) Accordingly, by

the express terms of Tennessee Rule of Civil Procedure

3, Plaintiffs may “rely upon the original

commencement” of the action on February 16, 2019, for

purposes of the statute of limitations.

The Officers argue that Plaintiffs served Fox “an

invalid summons” because they had yet to be granted

an extension of time to serve Fox under Federal Rule of

Civil Procedure 4(m). (Doc. No. 70 at 23.) But the

question of timely service under Rule 4(m) is distinct

from the question of timeliness under the Tennessee

statute of limitations. See Farivar v. Lawson,

No. 3:14-CV-76-TAV-HBG, 2017 WL 149970, at *6

(E.D. Tenn. Jan. 13, 2017) (quoting Sydney v. Columbia

Sussex Corp., No. 3:13-CV-312-TAV-CCS, 2014 WL

7156953, at *5 (E.D. Tenn. Dec. 15, 2014)) (“It’s not the

failure to serve within the 120 days . . . that has

undone the plaintiff here. It is state law, which must be

satisfied in addition to the Rule 4(m) requirement.”).

Non-compliance with Rule 4(m) only affects a state

statute of limitations where “the failure to serve

process causes the district court to dismiss the action.”

Sydney, 2014 WL 7156953, at *6 (quoting Mann v. Am.

Airlines, 324 F.3d 1088, 1091 (9th Cir. 2003)). That is

not the case here, as the Magistrate Judge ultimately

granted Plaintiffs’ motion for an extension of time to

serve Fox under Rule 4(m). (Doc. No. 45.) Thus,

Plaintiffs’ Section 1983 claims against Fox are not

subject to dismissal as untimely under the applicable

statute of limitations.

App. 57

2. Seizure of Mark and Sherrie

Next, the Officers argue that Plaintiffs’ Fourth

Amendment claims fail as a matter of law because

neither Mark nor Sherrie were “seized” when Fox fired

at Mark and missed. Although Plaintiffs do not directly

respond to these arguments, the Court finds summary

judgment to be inappropriate on this basis.

A citizen has standing to bring a Fourth

Amendment claim when he or she is “seized” by a law

enforcement officer. See Smoak v. Hall, 460 F.3d 768,

778 (6th Cir. 2005) (quoting United States v.

Richardson, 949 F.2d 851, 855 (6th Cir. 1991)) (“The[]

safeguards of the Fourth Amendment, ‘with respect to

police/citizen contact, vest only after [a] citizen has

been seized.’”). “A seizure occurs where, ‘in view of all

the circumstances surrounding the incident, a

reasonable person would have believed that he was not

free to leave.’” Id. (quoting United States v.

Mendenhall, 446 U.S. 544, 544 (1980)).

a. Mark

The Officers contend that they did not seize Mark

within the meaning of the Fourth Amendment because

Fox’s shots did not strike Mark or cause him to submit

to the Officers’ authority. (Doc. No. 70 at 9–10.) Even

though Mark was not hit by the gunfire, however, a

reasonable person in Mark’s circumstances would not

have believed that he was free to leave the premises.

See Floyd v. City of Detroit, 518 F.3d 398, 405–06 (6th

Cir. 2008) (rejecting officer’s argument he could not

have violated a citizen’s Fourth Amendment rights by

shooting at and missing the citizen); see also Rodriguez

App. 58

v. Passinault, 637 F.3d 675, 687 (6th Cir. 2011)

(citations omitted) (stating that it “goes against

established law” to believe that a citizen cannot

“maintain an excessive force/unreasonable seizure

Fourth Amendment claim without having been shot”).

The dash- and body-cam footage reflects that Fox

knocked on Plaintiffs’ front door, responded to Mark’s

question through the closed door with a command to

“come on out,” and soon thereafter fired two shots

toward Mark as Mark opened the door. Fox fired

another six shots at Mark about 3 seconds later. Fox

and Austin retreated behind the police cars in the front

yard but remained on the scene. And Mark was aware

of their continued presence, as reflected by his

intermittent exchanges with Fox and Austin through

the closed door and from the front porch. Based on this

evidence, Fox’s shots “ha[d] the intended effect of

contributing to [Mark’s] immediate restraint” within

the residence. See Jacobs v. Alam, 915 F.3d 1028, 1042

(6th Cir. 2019) (quoting Thompson v. City of Lebanon,

831 F.3d 366, 371 (6th Cir. 2016)) (finding seizure

where officer shot at and missed a plaintiff within a

house who, according to plaintiff, retreated to another

part of the residence and only later learned it was law

enforcement who shot at him). Accordingly, Mark was

seized for Fourth Amendment purposes.9

That is not to say that a seizure necessarily occurs every time an

officer fires his weapon. As the Officers point out, the Sixth Circuit

has twice concluded that an officer did not seize a citizen by

shooting and missing. (Doc. No. 70 at 9 (citing Cameron v. City of

Pontiac, 813 F.2d 782, 785 (6th Cir. 1987) and Adams v. City of

Auburn Hills, 336 F.3d 515, 519 (6th Cir. 2003)). But the Sixth

Circuit has also clarified that “the key distinction” of these two

App. 59

b. Sherrie

The Officers also argue that Sherrie was not

“seized” because Fox did not know she was in the

residence when Fox fired at Mark. (Doc. No. 70 at

17–18.) A seizure occurs “when there is a governmental

termination of freedom of movement through means

intentionally applied.” Rodriguez, 637 F.3d at 680

(quoting Brower v. Cnty. of Inyo, 489 U.S. 596–97

(1989) (emphasis in original)). In other words, an

officer must “willfull[y]” apply the means by which he

terminates a citizen’s freedom of movement, but a

seizure may “occur[] even when an unintended person

or thing is the object of the detention or taking.” Id. at

681 (quoting Brower, 489 U.S. at 596).

In Fisher v. City of Memphis, for example, the Sixth

Circuit held that “an officer’s intentionally applied

exertion of force directed at a vehicle to stop it

effectuates a seizure of all occupants therein,”

regardless of “whether the police were aware of [a]

passenger’s presence in the vehicle.” Rodriguez, 637

F.3d at 686 (citing Fisher, 534 F.3d 312, 318–19 (6th

Cir. 2000)). The Sixth Circuit reasoned that, “[b]y

shooting at the driver of the moving car, [the officer]

intended to stop the car, effectively seizing everyone

inside, including the [passenger].” Id. at 687 (quoting

Fisher, 234 F.3d at 318). And in Rodriguez v.

Passinault, the Sixth Circuit held that Fisher applies

cases is that they “involved police firing errant shots at a fleeing

suspect,” Floyd, 518 F.3d at 405 (emphasis in original), something

not present here.

App. 60

even where the passenger is not struck by the officer’s

gunfire. Id.

Here, following the Sixth Circuit’s guidance in

Fisher and Rodriguez, the Court concludes that Sherrie

was “seized” for Fourth Amendment purposes. It is

undisputed that Fox intentionally fired at Mark as

Mark opened the front door. Thus, Plaintiffs’ residence

“was the intended target of [Fox’s] intentionally applied

exertion of force.” Rodriguez, 637 F.3d at 683 (quoting

Fisher, 234 F.3d at 318). And by shooting at Mark, Fox

intended to acquire physical control over the residence,

“effectively seizing everyone inside, including” Sherrie.

See id. (quoting Fisher, 234 F.3d at 318–19).

Accordingly, even though the Officers were not aware

of Sherrie’s presence, she was also seized under the

Fourth Amendment.

3. Qualified Immunity

The Officers next argue that they are entitled to

qualified immunity on Plaintiffs’ Section 1983 claims.

(Doc. No. 70 at 6–17.) The Court analyzes “a

defendant’s assertion of qualified immunity in two

steps: (1) determining whether the defendant violated

a constitutional right and (2) deciding whether that

right was clearly established at the time of the

incident.” Fazica v. Jordan, 926 F.3d 283, 289 (6th Cir.

2019) (citing Shreve v. Franklin Cnty., 743 F.3d 126,

134 (6th Cir. 2014)). As explained below, qualified

immunity will be denied on Plaintiffs’ excessive force

claim against Officer Fox but granted on their failureto-protect claim against Officer Austin.

App. 61

a. Excessive Force

I. Constitutional Violation

To determine if Officer Fox’s “use of force was

excessive and thus in violation of the Fourth

Amendment,” the Court considers “‘whether [his]

actions [we]re objectively reasonable in light of the

facts and circumstances confronting [hi]m, without

regard to . . . underlying intent or motivation.’” Bard

v. Brown Cnty., Ohio, 970 F.3d 738, 753 (6th Cir. 2020)

(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

Where, as here, an officer uses deadly force, that

use of force “is only constitutionally permissible if ‘the

officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

officer or to others . . . .’” Livermore ex rel. Rohm v.

Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (quoting

Tennessee v. Garner, 471 U.S. 1, 11 (1985)). There are

“three non-exclusive factors that lower courts should

consider in determining the reasonableness of force

used: (1) the severity of the crime at issue; (2) whether

the suspect posed an immediate threat to the safety of

the police officers or others; and (3) whether the

suspect actively resisted arrest or attempted to evade

arrest by flight.” Jacobs, 915 F.3d at 1040 (quoting

Livermore, 476 F.3d at 404).

Accepting the facts depicted by the dash- and bodycams, and accepting Plaintiffs’ version of facts that are

not clear from the footage, a reasonable jury could

conclude that Fox’s use of force was objectively

unreasonable. The Officers do not attempt to argue

that the first or third factors mentioned above weigh in

App. 62

their favor, and for good reason. When Fox fired at

Mark as he opened the front door, Plaintiffs were not

committing a crime; indeed, they were not suspected of

being involved in criminal activity of any kind, as it is

undisputed that the Officers were dispatched to

Plaintiffs’ residence for a “welfare check” triggered by

9-1-1 hang-up calls. Plaintiffs also were not resisting

arrest or fleeing at the time; Mark was met with

gunfire within about two seconds of opening the front

door part-way.

Rather, it is the second factor that is in dispute. “In

excessive force cases, the threat factor is ‘a minimum

requirement for the use of deadly force,’ meaning

deadly force ‘may be used only if the officer has

probable cause to believe that the suspect poses a

threat of severe physical harm.’” Mullins v. Cyranek,

805 F.3d 760, 766 (6th Cir. 2015) (quoting Untalan v.

City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)).

The Officers argue that they “feared for their lives

and considered [Mark] a threat” because Mark

“advis[ed them] that he had a gun and then proceeded

to open his front door with something believed to be a

gun in his hand.” (Doc. No. 70 at 14.) Given the totality

of the circumstances, however, it was not reasonable

for Fox to perceive Mark as posing an immediate threat

of severe physical harm.

First, while it is undisputed that Mark stated he

had a gun, it is important to put that statement in

context. To recap, Fox knocked on Plaintiffs’ door at

9:30 at night without comment, meaning that the

Officers did not announce that they were law

enforcement. About 10 seconds later, Mark said, “You

App. 63

got a gun?” through the closed door. Fox responded,

while unholstering his gun, “Mark . . . come on out

Mark, what’s up man?” Mark then repeated, “You got

a gun?” Fox said, “What’s going on Mark?” And at that

point, with the door still closed, Mark stated, “I got one

too.”10 Viewing these facts in a light favorable to

Plaintiffs, Mark’s statement was defensive and did not

give Fox and Austin reason to think that Mark

intended to use a gun imminently. See Woodcock v.

City of Bowling Green, 679 F. App’x 419, 424–25 (6th

Cir. 2017) (concluding it was objectively unreasonable

for an officer to shoot an individual who “had told the

police over the phone that he had a gun”).

Moreover, it is not reasonable for an officer to use

deadly force on an individual just because he believes

that the individual possesses a gun. “[M]erely

possessing a weapon is not enough—the officer must

reasonably believe the individual poses a danger of

serious physical harm to himself or others to justify

deadly force.” Jacobs, 915 F.3d at 1040 (citing Bouggess

v. Mattingly, 482 F.3d 886, 896 (6th Cir. 2007)); see

also Thomas v. City of Columbus, Ohio, 854 F.3d 361,

366 (6th Cir. 2017) (“[W]e do not hold that an officer

may shoot a suspect merely because he has a gun in his

hand. Whether a suspect has a weapon constitutes just

one consideration in assessing the totality of the

circumstances.”). As explained by the Sixth Circuit,

“the reasonableness of an officer’s asserted fear” of an

To be clear, Mark testified that he did not, in fact, have a gun at

that time, but he did not know who had just knocked on his door

and lied about having a gun to deter them from coming inside. (M.

Campbell Dep. at 47–48.)

App. 64

individual who they reasonably believed to possess a

gun “will often turn on whether an armed suspect

pointed h[is] weapon at another person.” Hicks v. Scott,

958 F.3d 421, 435–36 (6th Cir. 2020) (collecting cases).

Here, a genuine dispute of fact exists on this point.

Of the three videos submitted by the parties, only

Officer Austin’s body-cam depicts Mark opening the

door, and only then for a split-second. (See Austin bodycam at 7:17.) This footage depicts an indistinct, shaded

figure opening the door part-way; it is unclear whether

Mark was holding anything in his hand, and if so, what

it looked like. (Id.) Fox testified that he perceived Mark

to be holding a gun when Mark opened the door. (Fox.

Dep. at 25–26, 29.) But in the immediate aftermath of

the shooting, at no point does Fox claim to have

perceived Mark as holding a gun, either when

discussing the incident with Austin or explaining what

happened to other law enforcement officials who

arrived on the scene. Law enforcement did not locate

any weapon when they searched the residence

following the incident. And Mark testified that he did

not have a weapon when he opened the door (M.

Campbell Dep. at 44–45), although he “think[s] [he]

had [his] cell phone in [his] hand” so he could call 9-1-1

if someone was breaking into his car (id. at 48). Given

the ambiguity of the video footage, and the conflicting

accounts of the parties, material factual disputes

preclude a finding that Fox’s use of lethal force was

objectively reasonable. See Hicks, 958 F.3d at 436

(collecting cases) (“[I]f a suspect possessed a gun, we

will generally deny qualified immunity only if there is

a genuine dispute of fact as to whether the gun was

pointed at someone.”).

App. 65

The two cases on which the Officers primarily rely

to argue to the contrary are distinguishable. (See Doc.

No. 70 at 13–14 (citing Pollard v. City of Columbus,

Ohio, 780 F.3d 395 (6th Cir. 2015) and Simmonds v.

Genesee Cnty, 682 F,3d 438 (6th Cir. 2012)). That is, in

both Pollard and Simmonds, “the officers’ belief that

they faced immediate danger did not rest only on

indications that [the shooting targets] were armed; the

belief also rested on [the targets’] menacing gestures,

which were reasonably interpreted as demonstrating

an intention to shoot.” Knowlton, 726 F. App’x at 331

(distinguishing Pollard and Simmonds). But here, as

explained above, genuine factual disputes exist as to

whether Mark made a “menacing gesture[] . . .

reasonably interpreted as demonstrating an intention

to shoot.” See id.

ii. Clearly Established Right

At the time Fox fired into Plaintiffs’ residence, it

was clearly established that “using deadly force against

a suspect who does not pose a threat to anyone and is

not committing a crime or attempting to evade arrest

violates the suspect’s Fourth Amendment rights.”

Thompson, 831 F.3d at 372 (citing Murray-Ruhl v.

Passinault, 246 F. App’x 338, 347 (6th Cir. 2007) and

Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir.

2006)); see also Jacobs, 915 F.3d at 1040 (quoting King

v. Taylor, 694 F.3d 650, 664 (6th Cir. 2012)) (“It has

been clearly established in this circuit for some time

that individuals have a right not to be shot unless they

are perceived as posing a threat to officers or others.”).

Of course, the Supreme Court has cautioned that such

general statements of the law “do not by themselves

App. 66

create clearly established law outside ‘an obvious

case.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(quoting Brosseau v. Haugen, 543 U.S. 194, 199

(2004)). Thus, the Court must consider whether it was

clearly established that Plaintiffs had a right to be free

from the use of lethal force “in ‘the specific context of

the case.’” Mullenix v. Luna, 577 U.S. 7, 16 (2015)

(quoting Brosseau, 543 U.S. at 198).

Considering the particularized facts of this case,

there is an important factual dispute about Mark’s

appearance to Fox when Mark opened the front door.

Accepting Plaintiffs’ version of the facts, he was not

holding a gun or a weapon of any kind; he testified that

he may have been holding a cell phone, but the

extremely brief and indistinct video footage of Mark

opening the door does not show him making a

menacing gesture or pointing anything at Fox and

Austin. On these facts, this case is sufficiently similar

to Floyd, a 2008 case in which the Sixth Circuit denied

qualified immunity to officers where there was a

dispute of fact about whether the shooting target was

armed and performed a threatening act before the

officers shot at him. See 518 F.3d 407 (“The officers’

contrary assertion that Floyd was in fact armed and

fired first is simply irrelevant . . . .”). As in Floyd, Fox

fired “without (1) announcing [himself] as [a] police

officer[], (2) ordering [Mark] to surrender, or

(3) pausing to determine whether [Mark] was actually

armed.” See 518 F.3d at 409. Thus, as in Floyd, the

Court concludes that Plaintiffs’ right to be free from the

use of lethal force was clearly established when

App. 67

construing the facts in their favor.11 Summary

judgment is therefore inappropriate on Plaintiffs’

excessive force claim.

b. Failure to Protect

Even accepting Plaintiffs’ version of the facts,

however, they have not demonstrated that Officer

Austin violated their constitutional rights. Plaintiffs

assert that Austin failed to protect them from Fox’s use

of force. To prove a constitutional violation by “a

nearby officer who d[id] not actively participate in the

use of excessive force,” a plaintiff must “establish that

‘(1) the officer observed or had reason to know that

excessive force would be or was being used, and (2) the

officer had both the opportunity and the means to

prevent the harm from occurring.’” Pineda, 977 F.3d at

493 (quoting Fazica v. Jordan, 926 F.3d 283, 289 (6th

Cir. 2019)). The footage submitted by the parties does

not support either showing.

First, in the short time period after Fox knocked on

the door and before Fox discharged his gun, Austin did

not have reason to know that Fox would fire. The

amount of time from first knock to first shot was about

28 seconds. During this time, Fox exchanged words

with Mark through the closed door, walked to the other

side of Austin, and walked behind Austin with his back

The Officers attempt to distinguish Floyd, in part, by arguing

that Floyd “claimed that he halted with his hands up and stated,

‘I don’t have a gun’ before being shot by unprovoked law

enforcement.” (Doc. No. 80 at 4 (emphasis added)). However, Floyd

claimed he made that statement only “after hearing the first shot,”

which missed. Floyd, 518 F.3d at 402 (emphasis added).

App. 68

to the door. Fox also drew his gun as he started

walking behind Austin, but that occurred only 3 or 4

seconds before Fox fired the first shot. Austin,

meanwhile, remained stationary, such that he was

standing between Fox and the door when Mark began

to open it. Thus, if Austin knew that Fox was about to

shoot toward the door, then Austin also voluntarily

stood in the line of fire. The Court will not draw that

unreasonable conclusion.

Second, Austin did not have the opportunity and

means to intervene in Fox’s use of force because the

incident did not last long enough for Austin “to both

perceive what was going on and intercede to stop it.”

See Burgess v. Fischer, 735 F.3d 462, 475–76 (6th Cir.

2013) (collecting cases). The amount of time between

Fox drawing his weapon and firing at Mark was about

3 or 4 seconds. No reasonable juror could find that

Austin committed a constitutional violation by failing

to prevent Fox from firing his weapon in this short

amount of time. See Bard, 970 F.3d at 753 (“The video

of this incident confirms that the other officers did not

have the opportunity to prevent any possible harm

from occurring, given that the use of force lasted

approximately three seconds.”). Austin then either

tripped or jumped to the ground, where he was in no

position to prevent Fox from firing the next six shots.

The entire sequence from Fox drawing his weapon to

taking his final shot lasted less than 10 seconds. Again,

this brief window of time does not reflect that Austin

committed a constitutional violation. See Pineda, 977

F.3d at 493 (quoting Alexander v. Carter for Boyd, 733

F. App’x 256, 265 (6th Cir. 2018)) (“[O]ur caselaw

suggests that ‘an excessive use of force lasting ten

App. 69

seconds or less does not give a defendant ‘enough time

to perceive the incident and intervene’ to stop such

force.’”).

Accordingly, the Officers will be granted summary

judgment on Plaintiffs’ failure-to-protect claim against

Officer Austin.

B. Municipal Liability Claim against the

County

Plaintiffs also assert a municipal liability claim

against the Cheatham County Municipal Government,

the Sheriff’s Department, and Sheriff Mike Breedlove

in his official capacity. To impose municipal liability

under Section 1983, Plaintiffs “must show (1) that they

suffered a constitutional violation and (2) that a

municipal policy or custom directly caused the

violation.” Hardrick v. City of Detroit, Mich., 876 F.3d

238, 243 (6th Cir. 2017) (citing Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658, 690–92 (1978)).

1. Redundant Party

Initially, the County contends that Plaintiff’s

official-capacity claims against Sheriff Breedlove

should be dismissed as redundant because they are

essentially claims against the County, and the County

itself is named as a Defendant. (Doc. No. 66 at 7.)

Plaintiffs do not respond to this argument, and the

Court agrees with the County. See Jackson v. Shelby

Cnty. Gov’t, No. 07-6356, 2008 WL 4915434, at *2 (6th

Cir. 2008 Nov. 10, 2008) (“[T]he district court properly

granted summary judgment to the defendants on the

claims against the sheriff in his official capacity

because those claims mirror the claims against the

App. 70

County, and are therefore redundant.”); see also Sagan

v. Sumner Cnty. Bd. of Educ., 726 F. Supp. 2d 868, 876

(M.D. Tenn. 2010) (“[A] claim against an individual in

her official capacity is tantamount to a claim against

the employer and . . . where, as here, the employer is

also sued, the official-capacity suit against the

employee is simply redundant and may be dismissed.”).

Because Plaintiffs bring only official capacity claims

against Sheriff Breedlove, he will be dismissed as a

party.12

2. Policy or Custom

Turning to the substance of this claim, the Court

has concluded that the Officers are not entitled to

summary judgment on Plaintiffs’ Fourth Amendment

excessive force claim against Fox. Thus, for Plaintiffs’

claims against the County to survive summary

judgment, they must demonstrate that the County had

a policy or custom that directly caused this asserted

constitutional violation.

“There are four methods of proving a municipality’s

illegal policy or custom: the plaintiff may prove ‘(1) the

existence of an illegal official policy or legislative

enactment; (2) that an official with final decision

Although the County does not move for summary judgment on

this ground, the Court also notes that Plaintiffs’ municipal liability

claim against the Sheriff’s Department is subject to dismissal

because “sheriff’s departments are not proper parties to a § 1983

suit.” See Mathes v. Metro. Gov’t of Nashville and Davidson Cnty.,

No. 3:10-cv-0496, 2010 WL 3341889, at *2 (M.D. Tenn. Aug. 25,

2010) (collecting cases). However, such a dismissal would not

restrict Plaintiffs’ ability to pursue their municipal liability claim

directly against the County.

App. 71

making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or

supervision; or (4) the existence of a custom of

tolerance or acquiescence of federal rights violations.’”

Wright v. City of Euclid, Ohio, 962 F.3d 852, 880 (6th

Cir. 2020) (quoting Jackson v. City of Cleveland, 925

F.3d 793, 828 (6th Cir. 2019)).

In the Complaint, Plaintiffs allege that: (1) Sheriff

Breedlove, the official “responsible for implementing

the County’s policies,” created “a culture and unwritten

policy within the Sheriff’s Department that encourages

disrespect, arrogance, malice and abuse” by

maintaining “a departmental Facebook page where it

is his regular practice to mock and ridicule citizens who

have been ACCUSED of crimes within the county”

(Doc. No. 1 ¶¶ 72–76, 78–79); and (2) the Sheriff’s

Department “has inadequately trained and/or

disciplined its employees in the proper use of deadly

force” (id. ¶ 77). As explained below, Plaintiffs have not

presented sufficient evidence to support a municipal

liability claim based on these allegations.

a. Facebook Page

As alleged in the Complaint, Sheriff Breedlove’s

maintenance of the departmental Facebook page

implicates two of the four methods for proving an

illegal policy or custom. That is, Plaintiffs allege that

the “ongoing existence” of the Facebook page

maintained by Sheriff Breedlove, an official with final

decision making authority, reflects that Breedlove has

ratified the unconstitutional acts of Sheriff’s

Department employees. (See Doc. No. 1 ¶ 75.) Plaintiffs

also allege that Breedlove’s maintenance of the

App. 72

Facebook page either created or contributed to a

custom of tolerance or acquiescence of federal rights

violations. (See id. ¶¶ 73, 78.)

Importantly, however, the record does not contain

any evidence regarding the specific contents of the

Facebook page, so the Court has no basis to conclude

that either theory of municipal liability is viable. In the

Complaint, Plaintiffs include a hyperlink to the

Facebook page with a few purported quotes from it. (Id.

¶ 74.) But Plaintiffs “cannot merely rely on the

allegations in their complaint to defeat summary

judgment.” Tullis v. UMB Bank, N.A., 423 F. App’x

567, 570 (6th Cir. 2011) (citation omitted).

Similarly, in their Response to the County’s

summary judgment Motion, Plaintiffs include a

hyperlink and invite the Court to undertake “a

contemporaneous viewing of the department’s

Facebook page” and the “public comments from

citizens.” (Doc. No. 78 at 11.) But the Court is not

required “to sift through the record in search of

evidence to support a party’s opposition to summary

judgment,” Jackson v. Tenn. Dep’t of Safety,

No. 3:05-CV-231, 2009 WL 1437570, at *15 (E.D. Tenn.

May 21, 2009) (quoting Fuentas v. Postmaster Gen. of

U.S. Postal Serv., 282 F. App’x 296, 300 (5th Cir.

2008))—much less sift through “inadmissible external

hyperlinks that lack a foundation in evidence,” see

F.T.C. v. OMICS Grp., 374 F. Supp. 3d 994, 1002 n.2

(D. Nev. 2019) (citing Fed. R. Evid. 901(a)). And

Plaintiffs do not request that the Court take judicial

notice of any specific content from the Sheriff’s

Department Facebook page.

App. 73

At his deposition, Sheriff Breedlove discussed his

maintenance of the Facebook page in general terms.

(See Breedlove Dep. at 72–76.) But without any specific

evidence of the Facebook page’s content in the record,

the Court cannot evaluate the extent to which it may or

may not have created or contributed to an illegal policy

or custom. Plaintiffs cannot rely on argument and

unsubstantiated assertions to present their Facebookbased theories of municipal liability to a jury. See

Jones v. City of Franklin, 677 F. App’x 279, 282 (6th

Cir. 2017) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888 (1990)) (“[C]onclusory allegations, speculation,

and unsubstantiated assertions are not evidence, and

are not sufficient to defeat a well-supported motion for

summary judgment.”). Accordingly, in considering

Plaintiffs’ municipal liability claims, the departmental

Facebook page does not factor into the Court’s analysis.

b. Failure to Train

Plaintiffs also allege that Officer Fox’s use of force

was directly caused by a policy of inadequate training.

(See Doc. No. 1 ¶ 77.) “In order to show that a

municipality is liable for a failure to train its

employees, a plaintiff must establish that: 1) the

[municipality’s] training program was inadequate for

the tasks that officers must perform; 2) the inadequacy

was the result of the [municipality’s] deliberate

indifference; and 3) the inadequacy was closely related

to or actually caused the injury.” Griffith v. Franklin

Cnty., Ky., 975 F.3d 554, 583 (6th Cir. 2020) (quoting

Jackson, 925 F.3d at 834).

Plaintiffs argue that the Sheriff’s Department

inadequately trained its officers “on the requirement to

App. 74

announce themselves at person’s homes even when

purportedly conducting ‘welfare checks’ on suspect’s

homes.” (Doc. No. 78 at 7.) They also generally argue

that “there was a failure of training with regard to the

shooting of unarmed plaintiffs.” (Id. at 9.)

As to the adequacy of the Sheriff Department’s

training program, Sheriff Breedlove testified that new

hires receive 12 to 14 weeks of training through the

state training academy on areas including

constitutional law and the use of force. Breedlove also

testified that all officers must complete 40 hours of

annual training on areas including the use of deadly

force under state law. Officers Fox and Austin each

testified that they received training on the use of force.

Plaintiffs do not point to any evidence creating a

genuine dispute of fact on these claims. But even

assuming, without deciding, that the County’s training

was inadequate in some way, Plaintiffs have not

demonstrated that any inadequacy was the result of

the County’s deliberate indifference. And because a

reasonable jury could not find that the County was

deliberately indifferent, the Court need not consider

whether any inadequacy was closely related to or

actually caused the injury. See Zavatson v. City of

Warren, Mich., 714 F. App’x 512, 527 n.1 (6th Cir.

2017).

“There are ‘at least two situations in which

inadequate training could be found to be the result of

deliberate indifference.’” Ouza v. City of Dearborn

Heights, Mich., 969 F.3d 265, 287 (6th Cir. 2020)

(quoting Cherrington v. Skeeter, 344 F.3d 631, 646 (6th

Cir. 2003)). “First, and most commonly, a plaintiff can

App. 75

demonstrate deliberate indifference by showing that

the municipality has failed to act ‘in response to

repeated complaints of constitutional violations by its

officers.’” Id. (quoting Cherrington, 344 F.3d at 646).

Second, “[i]n a ‘narrow range of circumstances,’” id.

(quoting Bd. of Cnty. Commrs. of Bryan Cnty. v.

Brown, 520 U.S. 397, 409 (1997)), “a plaintiff can show

deliberate indifference based on ‘single-incident

liability’ if the risk of the constitutional violation is so

obvious or foreseeable that it amounts to deliberate

indifference for the city to fail to prepare officers for it,”

id. (quoting Connick v. Thompson, 563 U.S. 51, 63

(2011)). Plaintiffs argue both theories of deliberate

indifference, and the Court will address each in turn.

The first type of deliberate indifference requires a

plaintiff to “show prior instances of unconstitutional

conduct demonstrating that the County has ignored a

history of abuse and was clearly on notice that the

training in this particular area was deficient and likely

to cause injury.” Miller v. Sanilac Cnty., 606 F.3d 240,

255 (6th Cir. 2010) (quoting Fisher v. Harden, 398 F.3d

837, 849 (6th Cir. 2005)). To that end, Plaintiffs point

to one prior instance of excessive force at the jail. (Doc.

No. 78 at 10–11.) But as with the departmental

Facebook page, there is not any specific evidence

regarding this asserted incident properly before the

Court. Rather, in their Response brief, Plaintiffs

include two “inadmissible external hyperlinks that lack

a foundation in evidence,” see OMICS Grp., 374

F. Supp. 3d at 1002 n.2 (citing Fed. R. Evid. 901(a)),

without requesting that the Court take judicial notice

of any specific information. (Doc. No. 78 at 10.)

Accordingly, the summary judgment record does not

App. 76

include evidence of any

unconstitutional conduct.13

prior

instances

Even considering the description of this incident in

Plaintiffs’ Response, moreover, it is not sufficiently

similar to Officer Fox’s asserted constitutional violation

to support a finding of “prior-instance” deliberate

indifference. Plaintiffs assert that, in a highly

publicized case, County employees at the jail tased an

inmate “at least four times, once for a period of more

than fifty seconds, while tied to a chair.” (Doc. No. 78 at

10–11 (footnote omitted)). But “prior examples of

wrongdoing must violate the same constitutional rights

and violate them in the same way.” Berry v. Delaware

Cnty. Sheriff’s Off., 796 F. App’x 857, 863 (6th Cir.

2019) (citing D’Ambrosio v. Marino, 747 F.3d 378, 388

(6th Cir. 2014)); see also Connick, 563 U.S. at 63

(footnote omitted) (“Because those incidents are not

similar to the violation at issue here, they could not

have put Connick on notice that specific training was

necessary to avoid this constitutional violation.”). And

a jailer’s use of excessive force on a restrained

inmate—troubling as it is—is simply not the same type

of constitutional violation as an officer’s use of

excessive force on a free citizen. See Coley v. Lucas

Cnty., Ohio, 799 F.3d 530, 537–38 (6th Cir. 2015)

(explaining the different standards for excessive force

The Court notes that Plaintiffs also cite to Sheriff Breedlove’s

supposed testimony generally discussing this incident on pages 14,

16, and 18 of his deposition transcript. (Doc. No. 78 at 10–11.) But

these pages are not included within the excerpts of Breedlove’s

deposition transcript submitted by the parties. (See Doc. Nos. 67-3,

71-4, 75-2 at 4–17, 78-2 at 4–10, 80-1.)

App. 77

claims brought under the Fourth, Eighth, and

Fourteenth Amendments on behalf of free citizens,

convicted prisoners, and pretrial detainees,

respectively). For all of these reasons, Plaintiffs fail to

establish the County’s deliberate indifference based on

pattern of similar constitutional violations.

Plaintiffs also fail to demonstrate the County’s

deliberate indifference based on a “single-incident”

theory. “‘Deliberate indifference’ is a stringent

standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of

his action.” Connick, 563 U.S. at 61 (quoting Bryan

Cnty., 520 U.S. at 410). “For liability to attach in the

instance of a single violation, the record must show ‘a

complete failure to train the police force, training that

is so reckless or grossly negligent that future police

misconduct is almost inevitable or would properly be

characterized as substantially certain to result.’”

Harvey v. Campbell Cnty., Tenn., 453 F. App’x 557, 567

(6th Cir. 2011) (quoting Hays v. Jefferson Cnty., 668

F.2d 869, 874 (6th Cir. 1982)).

The record reflects that Officer Fox received

training in the use of deadly force.14 Plaintiffs have not

come forward with evidence that, without providing

additional training to its officers, the County “was on

The Court notes that, in arguing that this training was

inadequate, Plaintiffs again cite to pages of Sheriff Breedloves’s

deposition transcript that are not within the record. (See Doc.

No. 78 at 9–10 (citing Breedlove Dep. at 53, 56.) To be clear,

however, even taking these context-less quotes at face value,

Plaintiffs have not put forth any evidence that the County was

deliberately indifferent to any inadequacy in training.

App. 78

notice that . . . it was so highly predictable that sheriff’s

deputies would misuse deadly force as to amount to

conscious disregard for citizens’ rights.” See Harvey,

453 F. App’x at 567. Plaintiffs also do not provide any

authority for the blanket proposition suggested by

much of their Response—that the constitution requires

an officer to announce himself as law enforcement

immediately when he knocks on the door of a citizen’s

residence for a welfare check. Accordingly, no

reasonable jury could find that the County was

deliberately indifferent to any inadequacy in the

Sheriff Department’s training, Plaintiffs’ failure-totrain claim fails, and Plaintiffs cannot impose liability

on the County for Fox’s asserted constitutional

violation.

C. State Law Claim

Finally, Plaintiffs assert a state law claim of

intentional (or negligent, in the alternative) infliction

of emotional distress against all Defendants. “In

Tennessee, ‘[t]he elements of an intentional infliction

of emotional distress claim are that the defendant’s

conduct was (1) intentional or reckless, (2) so

outrageous that it is not tolerated by civilized society,

and (3) resulted in serious mental injury to the

plaintiff.’” Fisher v. Nissan N. Am., Inc., 951 F.3d 409,

423 (6th Cir. 2020) (quoting Rogers v. Louisville Land

Co., 367 S.W.3d 196, 205 (Tenn. 2012)).

1. Against the County

The County argues that it is entitled to sovereign

immunity from Plaintiffs’ state-law claim under the

Tennessee Government Tort Liability Act because it

App. 79

arises out of the same circumstances as Plaintiffs’ civil

rights claims under Section 1983. (Doc. No. 66 at

20–23.) Plaintiffs do not respond to this argument, and

the Court concurs with the County. See Johnson v. City

of Memphis, 617 F.3d 864, 872 (6th Cir. 2010) (quoting

Tenn. Code Ann. § 29-20-205) (explaining that

sovereign immunity applies to claims based on injuries

arising “out of . . . civil rights,” including Section 1983

claims). For this reason, Plaintiffs’ claim of intentional

(or negligent) infliction of emotional distress against

the County will be dismissed as a matter of law.

2. Against the Officers

The Officers first argue that they are immune from

Plaintiffs’ alternatively pleaded claim for negligent

infliction of emotional distress. (Doc. No. 70 at 18 n.1.)

Plaintiffs do not respond to this argument, and the

Court agrees with the Officers. See Adams v. Diamond,

No. 3:18-cv-00976, 2019 WL 314569, at *4 (M.D. Tenn.

Jan. 24, 2019) (citing Sallee v. Barrett, 171 S.W.3d 822

(Tenn. 2005)) (noting the Tennessee Supreme Court’s

holding that a police officer is immune from a claim for

negligent infliction of emotional distress).

As the Officers recognize, however, they are not

immune from Plaintiffs’ claim for intentional infliction

of emotional distress (“IIED”). They nonetheless argue

that they are entitled to summary judgment because

Plaintiffs have not demonstrated the second and third

elements of this claim—outrageous conduct and serious

mental injury.15 (Doc. No. 70 at 21.) In Response,

The Court does not consider the Officers’ argument, raised for

the first time in their Reply, that Fox and Austin did not act

App. 80

Plaintiffs contend that they “can show all three

elements” (Doc. No. 75 at 14), but they have not

advanced even a cursory argument that they suffered

serious mental injuries.

Plaintiffs’ only reference to a mental or emotional

injury of any kind is in their Statement of Fact section,

where they quote Sherrie’s deposition testimony that

she suffered “severe anxiety” after the shooting

incident. (Doc. No. 75 at 4.) And Plaintiffs contend that

their IIED claims should be decided by a jury because

they are similar to an IIED claim that survived

summary judgment in Robinson v. City of Memphis,

340 F. Supp. 2d 864, 873–74 (E.D. Tenn. 2004). (Doc.

No. 75 at 14–15.) Although Robinson also involved a

police shooting, 340 F. Supp. 2d at 866, it is otherwise

readily distinguishable from this case. There, the

plaintiff claimed that a “decedent suffered severe

mental and emotional pain and anguish” from being

“hospitalized for six weeks, during which time he was

paralyzed, but also conscious and aware of his

surroundings.” 340 F. Supp. 2d at 873. Plaintiffs offer

no evidence of anything approaching such mental

injuries here. Accordingly, the Officers are entitled to

summary judgment on Plaintiffs’ IIED claims. See

Klein v. State Farm Fire & Cas., 250 F. App’x 150, 154

(6th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S.

intentionally or recklessly. (See Doc. No. 80 at 5); Traveler’s Prop.

Cas. Co. of Am. v. Hillerich & Bradsby Co., 598 F.3d 257, 275 (6th

Cir. 2010) (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546,

552–54 (6th Cir. 2008)) (“Arguments raised only in reply, and not

in the original pleadings, are not properly raised before the district

court . . . .”).

App. 81

317, 322–23 (1986)) (“[A] complete failure of proof

concerning an essential element of the nonmoving

party’s case necessarily renders all other facts

immaterial.”)

IV.

Conclusion

For these reasons, the County’s Motion for

Summary Judgment (Doc. No. 65) will be granted, and

the Officers’ Motion for Summary Judgment (Doc.

No. 69) will be granted in part and denied in part. The

only claim remaining for trial is Plaintiffs’ excessive

force claim against Officer Fox.

An appropriate Order is filed herewith.

/s/ Waverly D. Crenshaw, Jr.

WAVERLY D. CRENSHAW, JR.

CHIEF UNITED STATES DISTRICT JUDGE

App. 82

APPENDIX D

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NO. 3:19-cv-00151

[Filed January 5, 2021]

____________________________________

MARK CAMPBELL and

)

SHERRIE CAMPBELL,

)

Plaintiffs,

)

CHEATHAM COUNTY SHERIFF’S )

DEPARTMENT, et al.,

)

Defendants.

)

___________________________________ )

ORDER

In accordance with the accompanying Memorandum

Opinion, the County’s Motion for Summary Judgment

(Doc. No. 65) is GRANTED and the Officers’ Motion

for Summary Judgment (Doc. No. 69) is GRANTED IN

PART and DENIED IN PART. This case will proceed

to trial on Plaintiffs’ excessive-force claim against

Officer James Fox. Plaintiffs’ remaining claims are

DISMISSED.

IT IS SO ORDERED.

App. 83

/s/ Waverly D. Crenshaw, Jr.

WAVERLY D. CRENSHAW, JR.

CHIEF UNITED STATES DISTRICT JUDGE

App. 84

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 21-5044

[Filed October 3, 2022]

__________________________________________

MARK CAMPBELL; SHERRIE CAMPBELL )

Plaintiffs-Appellees,

)

CHEATHAM COUNTY SHERIFF’S

)

DEPARTMENT, ET AL.,

)

Defendants,

)

JAMES DOUGLAS FOX,

)

Defendant-Appellant.

)

_________________________________________ )

BEFORE:

BOGGS,

GIBBONS,

NALBANDIAN, Circuit Judges.

and

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. The petition then

was circulated to the full court. No judge has requested

a vote on the suggestion for rehearing en banc.

App. 85

Therefore, the petition is denied. Judge Nalbandian

would grant rehearing for the reasons stated in his

dissent.

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.