1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

PATRICIA SCOTT,

Plaintiff-Appellee,

v.

CLAY COUNTY, TENNESSEE;

CHINN ANDERSON; BILLY

PIERCE; MICHAEL THOMPSON,

Defendants-Appellants.

Appeal from the United St

for the Middle District of Ten

No. 95-00095—Thomas A. Wise

Argued: August 

Decided and Filed: M

Before: KRUPANSKY, BOGG

Judges.

____________

COUNSE

ARGUED: Michael E. Evans, EVNashville, Tennessee, for AppellaCarthage, Tennessee, for Appellee

Evans, EVANS, TODD & FLOYD
2 Scott v. Clay County, Tennessee, et al. No. 98-6157

1Section 1983 provides, in pertinent segment:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or causesto be subjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of any rights,privileges, or immunities secured by the Constitution and laws,shall be liable to the party injured in an action at law, suit inequity, or other proper proceeding for redress[.]In any action under section 1983, the plaintiff must prove that (1) he

or she has been deprived of a right secured by the United Statesconstitution or laws, (2) the defendants who allegedly caused thatdeprivation acted under color of state law, and (3) the deprivationoccurred without due process of law. O'Brien v. City of Grand Rapids,23 F.3d 990, 995 (6th Cir. 1994).Appellants. Richard M. Brooks, Carthage, Tennessee, forAppellee.

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

which BOGGS, J., joined. CLAY, J. (pp. 21-23), delivereda separate dissenting opinion.

_________________

OPINION

_________________

KRUPANSKY, Circuit Judge. The defendants-appellants

Clay County, Tennessee (“the County”), Sheriff Cecil“Chinn” Anderson (“Anderson”), Deputy Billy Pierce(“Pierce”), and Deputy Michael Thompson (“Thompson”)have contested the district court’s denial of their motion,anchored in qualified immunity, for Fed. R. Civ. P. 56summary adjudication of the federal civil rights claims of theplaintiff-appellee Patricia Scott (“Patricia” or “the plaintiff”).The plaintiff alleged in her single-count complaint that ClayCounty Sheriff’s Department officers Anderson, Pierce, andThompson used excessive force to effect her arrest, inviolation of 42 U.S.C. §§ 1983 and 1988,1 which caused her

No. 98-6157 Scott v. Clay Coun

The majority asserts that beca

violations of her rights under the Fthe violation of her substantive duFourteenth Amendment, the lessunreasonableness” should apply. judgment under the circumstanceregardless of whether the standard evaluating the officers’ conduct is standard of the Fourteenth AmSacramento v. Lewis, 523 U.S. 83(1998), or the lesser standard of “obof the Fourth Amendment. See Gsee also Claybrook v. Birchwell, 12000). Regardless of the approprianot dispute, as made clear by the dPlaintiff’s right to be free from eFourth Amendment was a clearly eof the incident in question. The been left for trial was whether exemployed against Plaintiff.

This Circuit’s unfortunate practi

the role of resolving on appeal the by a qualified immunity defense represented by the majority opintroubling trend followed by this decided case of Claybrook v. Birch

61 (affirming the district court’s judgment to the defendants on Cplaintiffs’ complaint). I therefore 
22 Scott v. Clay County, Tennessee, et al. No. 98-6157

subsequently occurred during the chase and the shooting;whether the deputies observed Plaintiff riding as a passengerin the vehicle and fired at her, or for that matter, whether theofficers observed both the driver and the passenger and firedat both of them in disregard for the rights and safety ofPlaintiff; and whether excessive force was used againstPlaintiff by shooting at her and effectuating a “seizure” of herperson for purposes of the Fourth Amendment. See Tennesseev. Garner, 471 U.S. 1, 16-17 (1985).

As indicated by the district court’s opinion in this matter,

the officers were in touch with one another by radiothroughout the chase and the shooting. Rather than resolve allof the inferences that could be drawn from the contested factsand circumstances in favor of Plaintiff, as the Court isrequired to do on a motion for summary judgment, themajority has improperly undertaken in its opinion to resolveagainst Plaintiff all the issues of whether Defendants actedwith excessive force and violated Plaintiff’s clearlyestablished rights. In so doing, the majority has also resolvedagainst Plaintiff the issues of whether Defendants observed orhad reason to know that excessive force would be or wasabout to be employed, or whether Defendants had theopportunity and means to prevent the harm to Plaintiff.Again, those issues should have been left for resolution attrial.

This Plaintiff, who suffered grievous personal injury and

harm in the incident which is the subject of this litigation,should have been permitted to subject the officers’ testimonyto the truth seeking device of cross-examination at trial, andshould have been afforded the opportunity to present directand circumstantial evidence from which Plaintiff could argueto the court and jury that her clearly established constitutionalrights were violated by what constituted, under thecircumstances, the officers’ excessive use of force for whichone or more of Defendants were not entitled to the benefits ofqualified immunity.

No. 98-6157 Scott v. Clay Coun

Section 1988, inter alia, authorizes 

award attorney fees to certain prevailing 

2In accordance with long standing 

reviewing court has construed the record eplaintiff Patricia Scott as the litigant oppoMatsushita Elec. Indus. Co. v. Zenith Rad(1986). “Credibility determinations, the wdrawing of legitimate inferences from ththose of a judge. . . . The evidence of thand all justifiable inferences are to be drLiberty Lobby, 477 U.S. 242, 255 (198

Eastman Kodak v. Image Technical ServAdams v. Metiva, 31 F.3d 375, 378-79 (6this appeal, the defendants-appellants eithwere conceded by the plaintiff-appellee oor have adopted the plaintiff’s version articulated via her written response to Material Fact Not in Dispute filed in suppmotion.

3Both Scotts had a history of cocaine 

that he had been attempting to overcome serious bodily injury. She further cand Anderson as County Sheriffand/or supervise the defendant depand implement appropriate offrestraints against the unjustifiabllethal force, thus violating constitu§ 1983. Patricia also asserted pen

Although witness unanimity is 

factual details, the essential controcase are not in substantial dispute.

of April 28 and early morning of Scott had been a willing passenger four-door 1978 Chevrolet Capriccountry roadways of Clay County. husband, Robert Scott (“RobertMoments earlier, her former spousnearby narcotics den known loca
4 Scott v. Clay County, Tennessee, et al. No. 98-6157

4Robert testified that he had recently consumed between five and

seven beers, in tandem with prescription pharmaceuticals including “nervemedicine” and “muscle relaxants,” which had produced a drug-inducedmood alteration.

5At deposition, Thompson could not recall whether he activated his

unit’s siren and lights shortly before, or momentarily after, the Scottvehicle sped perilously close to the sheriff and his vehicle.knew that her activities at the drug house had infuriatedRobert; he testified that he “was probably the maddest I everwas in my life.” Moreover, Patricia knew that Robert hadproximately ingested a significant volume of alcohol coupledwith additional psychoactive substances;4 possessed no validmotor vehicle operator’s permit because his license had beenjudicially revoked pursuant to his conviction for driving whileintoxicated; and had, in the past, recklessly fled from lawenforcement authorities at high speeds. Forthwith, theemotionally agitated, and chemically impaired, coupleengaged in a passionate argument inside the moving vehicle.

Flouting a traffic sign, Robert failed to stop at the

intersection of Neely’s Creek Road and Highway 53.Sheriff’s Deputy Michael Thompson, on routine highwaypatrol, observed the Scott vehicle race erratically through thatintersection with its tires squealing, then momentarily weaveoff the pavement as it recklessly turned, at a hazardousvelocity, onto Walker Ridge Road. Thompson, concerned forpublic safety, commenced tailing that motorcar.

The speed of the Scott automobile dangerously rose while

on Walker Ridge Road, rocketing past, and narrowly missing,Sheriff Chinn Anderson’s unmarked service cruiser which hehad parked near the roadside, as well as the sheriff himself,who had been sitting nearby. In response, Thompson, withhis vehicle’s siren sounding and blue lights flashing, pursuedthe Caprice at high speed.5 Because he lacked a valid driver’slicense, Robert intended to evade apprehension by fleeing tohis mother’s residence. An experienced “road runner,”Robert had successfully eluded the police in past high-speed

No. 98-6157 Scott v. Clay Coun

____________

DISSEN

____________

CLAY, Circuit Judge, dissenting

the reasons set out in the district persuasive opinion denying Defendjudgment. I believe the district cothat Defendants are not immune fr

Contrary to the representations o

is a case in which factual disputes, granting of summary judgment, abmajority, contrary to the well-esgoverning the granting of summary at its conclusion that there are no faall of the contested issues of fact adoes the majority opinion assert dundisputed facts, but in its anxiouday in court, the majority reacconclusions by stating, as objectivthe majority supposes was in the mtime of the events surrounding thexplanation for their conduct, much in the context of the factual circumthe fact speculation about the moasserted as uncontrovertibly true determinations would best be left time of trial.

Plaintiff and the officers have d

versions of what occurred on the eWhat is missing from the one-siddescribed by the majority opinioPlaintiff’s allegations or version presents questions of whether the in pursuing an individual who committed a minor traffic violatiembellished or exaggerated their v
20 Scott v. Clay County, Tennessee, et al. No. 98-6157

22Even if this review had declined to exercise its discretionary

pendent party jurisdiction over the County, its ruling that none of the threeindividual defendants had violated any constitutional right of the plaintiffwould constitute the law of the case which, under the mandate rule, wouldcompel the district court, following remand, also to dismiss the federalclaims against the County. See 28 U.S.C. § 2106; Vendo Co. v. LektroVend Corp., 434 U.S. 425, 427-28 (1978); United States v. Moored, 38

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

984 n. 2 (6th Cir. 1993); Guidry v. Sheet Metal Wkrs. Intern. Ass’n, 10

F.3d 700, 705-06 (10th Cir. 1993); Piambino v. Bailey, 757 F.2d 1112,1119-20 (11th Cir. 1985). 

appellant Clay County, further directs that the plaintiff’sfederal claims against it shall be dismissed.22 See Brennan v.Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir.1996). 

Finally, following remand, the district court shall initially

determine, in its sound discretion, whether to dismiss theplaintiff’s remaining state law claims without prejudice, or toexercise supplemental federal jurisdiction over them. 28U.S.C. § 1367(a) & (c)(3); Carnegie-Mellon University v.Cohill, 484 U.S. 343, 348-50 (1988); Rosado v. Wyman, 397U.S. 397, 403-05 (1970); Musson Theatrical, Inc. v. FederalExpress Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996).

This reviewing court has carefully considered each

argument submitted by the plaintiff, but finds nonepersuasive, either individually or collectively. Accordingly,the district court’s order of July 28, 1998 denying qualifiedimmunity to defendants Anderson, Pierce, and Thompson isREVERSED. All claims against all defendants anchored in42 U.S.C. §§ 1983 and 1988 are DISMISSED WITHPREJUDICE. This case is REMANDED to the districtcourt for such necessary further orders and proceedings as areconsistent with this opinion, including disposition of theplaintiff’s pendent state law claims. 

No. 98-6157 Scott v. Clay Counchases. Robert conceded that, duforced at least one fellow motorist he “might have been across the yellsliding across the yellow line,” whithe physical safety of civilian mpursuing patrolmen, Robert’s pass

Patrol cruisers driven by Anderso

Pierce momentarily joined Deputy speeding Chevrolet. After the threchased the Scott car for over twranging between 85 to 100 miles peof his vehicle while attempting a sper hour. The Caprice skidded glided off the thoroughfare, and crarail, which brought the fugitive ve

Deputy Pierce, whose patrol veh

chase, initially reached the immobpoint, a collision transpired betweePierce’s departmental vehicle; Rocar struck the stationary Caprice froposited that Robert backed the Capafter he (Pierce) had exited it. In athat Deputy Pierce parked and exithis sixteen-round, nine-millimetecautiously moved toward the nSuddenly, the Chevrolet rapidcompelling Pierce to leap out of Then, in an apparent bid by its drivthe Caprice proceeded directly towapproaching vehicle. Robert recaobserved at least one firearm-totinCaprice, and knew that additionaofficers were approaching, he neveby driving in the direction from wwould be arriving.

At the moment that the Chevro

onto the public motorway, Deput
6 Scott v. Clay County, Tennessee, et al. No. 98-6157

6Pierce had learned of Robert’s near collision with Anderson via

radio transmissions from Anderson and Thompson. The three defendantshad maintained radio contact throughout the chase.

7Pierce testified that he did not intend to kill the driver; rather, he

simply “intended to neutralize the situation.”

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

serious and imminent threat of death or other dire irreparableconsequences, which necessitated an immediate and decisivecounteraction. In addition to the evidence evolved above, the recordreflected that, on November 4, 1996, the Criminal Court of Clay County,Tennessee, convicted Robert, following his guilty pleas, on two counts offelony reckless endangerment, one count of felony aggravated assault, andone count of misdemeanor evasion of arrest, stemming from his actionson the morning of April 29, 1995. Furthermore, at deposition on February18, 1997, Robert confirmed his unstable mental state on the implicatedmorning; when queried if, during the high speed chase, he had consideredthat if he continued to flee that a pursuing officer might shoot, Robertreplied, “At the time, I didn’t care if I lived or died.”operator had earlier tried to run down Sheriff Anderson,6 hadattempted to drive over him (Pierce) only momentspreviously, and posed a grave immediate menace to the livesand limbs of his approaching colleagues as well as innocenthighway travelers. The plaintiff has not contested Pierce’savowal that he did not know that a passenger was also insidethe vehicle. Confronted with a momentous, split-second, lifeor-death decision, defendant Pierce initially reacted by firingfive bullets towards the Chevrolet’s driver;7 he thendischarged an additional four rounds at that vehicle’s tires,causing it to skid to a stop for the second, and final, time.Pierce’s hail of bullets had failed to injure the driver, RobertScott. Unfortunately, however, two of his shots hadinadvertently struck plaintiff Patricia Scott, whose presenceas a passenger was unknown to Pierce.

Immediately following the Chevrolet’s incapacitation,

additional officers, including Anderson and Thompson,arrived at the scene. Robert and Patricia were then removedfrom the vehicle and manacled. However, instantly uponperceiving that Patricia had been wounded, they radioed for

No. 98-6157 Scott v. Clay CounHaverstick Enterprises v. Financial Fede8 (6th Cir. 1994) (“section 1983 acticounties] carry certain special elements, i[or county] pursued an official custom or train, supervise, or discipline its officers in such official policy or custom was adopolicy with `deliberate indifference’ towpersons affected by the policy or customof Canton v. Harris, 489 U.S. 378, 387-City of Harker Heights, 503 U.S. 11Department of Social Services, 436 U.S. automatically excuse a municconstitutional liability, even wheractors were personally absolved those agents in fact had invaded thrights. Leatherman v. Tarrant CoU.S. 163, 166-67 (1993); Garner vF.3d 358, 365 (6th Cir. 1993). “Afiled against a public employee idirected against the public entity whClaybrook, 199 F.3d at 355 n.4 (c473 U.S. 159, 165 (1985)). dismissal of Anderson, Pierce, personal capacities, a procedurally against defendant Clay County, Tplaintiff’s specification, in her comas well as the three defendant coucapacities, infringed her constituti

Nevertheless, our conclusion tha

deprived the plaintiff of any condefeats the claim against the CounAngeles v. Heller, 475 U.S. 796, 79a person has suffered no constitutithe individual police officer, the regulations might have au

unconstitutionally excessive force (emphasis the Court’s); Monday v1105 (6th Cir. 1997). Ergo, this exercise of pendent party appel
18 Scott v. Clay County, Tennessee, et al. No. 98-6157

20The plaintiff’s alternate contention that the defendant officers

somehow offended her constitutional privileges by allegedly initiating thehigh speed chase is facially misconceived, because she had not beeninjured in an automotive collision or other fortuitous calamity during thechase. Cf. County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998)(concerning the constitutional claim of the estate of a motorcyclepassenger who expired in a vehicular mishap during a high speed policechase). Rather, as illustrated herein, the salient issue was whether Piercewas constitutionally authorized, under the circumstances, to shoot at theerrant Chevrolet in an attempt to end its endangerment of peace officersand civilians. Whether Robert would have driven the Chevrolet lesshazardously if the defendants had not pursued it, which in turn may havemitigated or eliminated the ultimate need for firepower to disable thatvehicle, is entirely irrelevant, because Robert in no event possessed anylegal justification or excuse for his felonious life-threatening operation ofthe Chevrolet. As the Seventh Circuit has commented:

Other than random attacks, all such cases [involving the use offorce by criminal justice personnel] begin with the decision of apolice officer to do something, to help, to arrest, to inquire. Ifthe officer had decided to do nothing, then no force would havebeen used. In this sense, the police officer always causes thetrouble. But it is trouble which the police officer is sworn tocause, which society pays him to cause and which, if kept withinconstitutional limits, society praises the officer for causing.

Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994). See alsoClaybrook v. Birchwell, 199 F.3d 350, 360 n.13 (6th 2000).

21Municipalities and counties are “persons” exposed to litigation

under sections 1983 and 1988, if the legal requisites are fulfilled.Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997). See, e.g.,

Hence, defendants Pierce, Anderson, and Thompson, as a

matter of law, have committed no Fourth Amendmentinfraction against Patricia Scott,20 and therefore are insulated

against personal exposure to further litigation under 42 U.S.C.§§ 1983 and 1988.

As previously indicated, the doctrine of qualified immunity

safeguards only certain natural person defendants in their

individual capacities. E.g. Painter, 185 F.3d at 566 n.12. Bycontrast, if the legal requirements of municipal or county civilrights liability are satisfied,21 qualified immunity will not

No. 98-6157 Scott v. Clay Coun

8The Fourth Amendment posits, in r

the people to be secure in their persons seizures, shall not be violated[.]” U.S. C

The Fifth Amendment states, in mat

. . . be deprived of life, liberty, or propertyU.S. Const. amend. V.

The Fourteenth Amendment stipulate

state shall . . . deprive any person of life, lprocess of law[.]” U.S. Const. amend. X

The Fourteenth Amendment’s Due 

activities of the states and their instruAmendment’s Due Process Clause circumfederal government. See generally Sturge

(6th Cir. 1981); Walker v. Hughes, 558 F

Ergo, the instant complainant’s citation Process Clause was a nullity, and reduFourteenth Amendment Due Process Cla

a medical evacuation helicopter. Patricia to Vanderbilt University discovered one bullet lodged insigunshot imbedded within her rigalleged that she has suffered sigincluding lifelong adverse health coinjuries and by the permanent preskull. Patricia Scott states that the removed.

On November 29, 1995, Patri

complaint, in which she advanced Fifth, and Fourteenth AmendmeConstitution,8 as enforced by 42 (see note 1 above), alleging thaAnderson, in their personal as welcommitted, participated in, and/unconstitutional use of excessive fSheriff Anderson and the County hand/or supervise the defendant depimplement appropriate policie
8 Scott v. Clay County, Tennessee, et al. No. 98-6157

9“Qualified or `good faith’ immunity is an affirmative defense that

is available to government officials performing discretionary functions.”Rich v. City of Mayfield Hts., 955 F.2d 1092, 1094 (6th Cir. 1992). “Theultimate burden of proof is on the plaintiff to show that the defendants are

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

Sixth Circuit, en banc, has recently defined the components of the

qualified immunity defense:

Government officials performing discretionary functions

generally are shielded from liability for civil damages insofar astheir conduct does not violate clearly established [federal]statutory or constitutional rights of which a reasonable personwould have known. The procedure for evaluating claims ofqualified immunity is tripartite: First, we determine whether aconstitutional violation has occurred; second, we determinewhether the right that was violated was a clearly established rightof which a reasonable person would have known; finally, wedetermine whether the plaintiff has alleged sufficient facts, andsupported the allegations by sufficient evidence, to indicate thatwhat the official allegedly did was objectively unreasonable inlight of the clearly established constitutional rights.

Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)

(quotations omitted; brackets added) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); Dickerson v. McClellan, 101 F.3d 1151, 1157-58(6th Cir. 1996)).

The insulation from federal civil rights litigation bestowed upon state

application of force to effect an arrest. Additionally, theplaintiff joined pendent Tennessee constitutional and tort lawclaims. Patricia has sought $10 million in compensatorydamages, an additional $5 million in punitive damages,attorney fees and other litigation expenses, an injunctionrestricting the defendants’ forcible arrest practices, and otherappropriate relief.

Following discovery, on June 1, 1998, the four defendants

jointly petitioned the district court for a summary judgmentunder Fed. R. Civ. P. 56 dismissing the plaintiff’s federal civilrights claims, as well as the dismissal, for want of federalsubject matter jurisdiction, of her pendent Tennessee lawclaims. Basing their motion on the doctrine of qualifiedimmunity,9 the defendants argued that the evinced facts, even

No. 98-6157 Scott v. Clay Couninexplicably failed to address it in its juimmunity motion. 

19As aptly observed by the Lewis C

[T]he police on an occasion callobligations that tend to tug against erestore and maintain lawful orderdisorder more than necessary to supposed to act decisively and to smoment, and their decisions have tpressure, and frequently without the 

County of Sacramento v. Lewis, 118 S. Ctand citations omitted).

Accordingly, as a matter of law, 

actions were objectively reasonablthe Fourth Amendment. Pierce pprofessional duty to restore and mathe most effective instrumentality gunfire.19 Pierce justifiably fired order to seize its occupant(s); his aviolate the Fourth Amendment passenger who may have been injuPierce is entitled to qualified immimpinge the plaintiff’s constitution

In turn, the remaining two indivi

and Thompson, are likewise shieldbecause their alleged complicity deadly coercion patently could nFourth Amendment protections. F.3d 425, 429 (6th Cir. 1997) (expunder certain circumstances, responsible for unconstitutional fellow agent if that officer, at minparticipated in the use of excessivofficer who used excessive force, duty of protection against the u(citations omitted).
16 Scott v. Clay County, Tennessee, et al. No. 98-6157

17Additionally, the target’s persistent high-risk attempts to evade

capture created an objectively reasonable suspicion that he may haveperpetrated unknown additional serious offenses, thereby reinforcing theweight of the first “reasonableness” factor as supporting Pierce’s actions.See Illinois v. Wardlow, 120 S. Ct. 673, 675-77 ( 2000). 

18The Freland panel commented:

[U]nder Graham [v. Connor, supra], we must avoid substitutingour personal notions of proper police procedure for theinstantaneous decision of the officer at the scene. We mustnever allow the theoretical, sanitized world of our imaginationto replace the dangerous and complex world that policemen faceevery day. What constitutes "reasonable" action may seem quitedifferent to someone facing a possible assailant than to someoneanalyzing the question at leisure.

Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) (brackets added).

Despite the instant defendants’ timely invocation of Freland, and the

patent significance of that precedent to the subject action, the trial court

actively resisting arrest by eluding representatives of thecriminal justice system.17

Moreover, an antecedent mandate by this circuit has

directly instructed that a constable who fired into thepassenger compartment of a moving vehicle, undercircumstances remarkably similar to those presently onreview, did not violate the Fourth Amendment. In Smith v.Freland, 954 F.2d 343 (6th Cir. 1992), an automobile spedout of a parking lot and violated a posted stop sign. A patrolcruiser followed that vehicle, which culminated in a chase atspeeds reaching 90 miles per hour in residential districts.After the violator had twice attempted to collide with theoccupied police vehicle, the squad car cornered the fugitivemotorist. However, the culprit accelerated his automobileinto the lawman’s cruiser, and then drove towards the publicstreet. The officer fired a fatal round at the mobile offender.Id. at 344. The Sixth Circuit affirmed summary judgment forthe shooter, ruling that his actions were constitutionallyreasonable as a matter of law.18 Id. at 346-48. 

No. 98-6157 Scott v. Clay Coungovernmental personnel by qualified immthem “`ample room for mistaken judgmplainly incompetent or those who knowiCity of Mt. Pleasant, 142 F.3d 898, 902 (v. Bryant, 502 U.S. 224, 229 (1991)). Se

F.3d 1120, 1124 (6th Cir. 1994) (“If we coofficial would not have been aware that he rights] violation, we then afford immunit

when construed most favorably for a matter of law, support the conclusviolated any federal constitutioalternatively, assuming arguendo tthe movants was legally sufficienrational jury’s finding of a condefendant law enforcers should nevpersonal liability because the offenestablished” on April 29, 1995Robinson, 185 F.3d 557, 566-67 (

On July 28, 1998, the trial court 

ruling that material issues of resolution, regarding the “reasonableness” of the plaintiff’s and, if the seizure was unreasoncontributing actions of each inobjectively unreasonable under the clearly established on the incident the defendants noticed a timely bench. 

Ordinarily, a trial forum’s rejecti

motion is not subject to appellatwhether that motion had ultimately question. However, a district corights defendant’s summary disposin qualified immunity will be immpredicate finding of an essential madetermination, and thus the lynchBehrens v. Pelletier, 516 U.S. 29
10 Scott v. Clay County, Tennessee, et al. No. 98-6157

10The Anderson Court explained:

As to materiality, the substantive law will identify which

facts are material. Only disputes over facts that might affect theoutcome of the suit under the governing law will properlypreclude the entry of summary judgment. Factual disputes thatare irrelevant or unnecessary will not be counted.

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (citation omitted).

Jones, 515 U.S. 304, 309-12 (1995). That judicial exceptionto the governing norm prevails because, if a defendant publicservant is personally immunized from monetary liability as amatter of law, he or she is entitled to “an immunity from suit

rather than a mere defense to [ultimate] liability.” Mitchell v.Forsyth, 472 U.S. 511, 526 (1985) (italics in original;brackets added). 

In the cause sub judice, although the adversaries disputed

multiple factual issues in the trial court, none of thosedisputed facts were essential to the qualified immunitydefense. See Fed. R. Civ. P. 56(c) (directing that summary

judgment “shall be rendered forthwith if the pleadings,depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”) (emphasesadded). “By its very terms, this standard provides that themere existence of some alleged factual dispute between theparties will not defeat an otherwise properly supported motionfor summary judgment; the requirement is that there be nogenuine issue of material fact.”10 Anderson v. Liberty Lobby,

477 U.S. 242, 247-48 (1986) (emphases in original).

Accordingly, a lower court’s determination that defendant

state employees were not shielded by qualified immunity,with reference to a set of undisputed operative facts, is a

No. 98-6157 Scott v. Clay Coun

16As a general proposition, “[w]here 

to believe that the suspect poses a threat to the officer or to others, it is not constituescape by using deadly force.” Garne

cause’ denotes facts and circumstances that are sufficient to warrant a prudent caution, in believing, in the circumstanccommitted, is committing, or is about circumstances, viewed objectively, suppthe arresting officer’s actual motives 

Robertson, 185 F.3d 557, 569 (6th Cir. omitted).

“Whereas the implicated circumstan

ultimate probable cause determination is Id. at 570 (citation omitted). Mixed qultimate factual determinations based usubsidiary facts, are subject to plenary ascv. Mehra, 186 F.3d 685, 689 (6th Cir. 1

when the undisputed material facts, or thmaterial facts, manifest that a reasonaposture would have objectively believed existence of that factor may be determinejudgment. See Painter, 185 F.3d at 571-

In the case in controversy, the testimo

would warrant a reasonable officer in Piethat the culprit posed a serious risk of inalone, reconciled his use of force with Fo

a hypothetical reasonable officer whis actions, under the circumsunreasonable. See Sova v. City of M902-03 (6th Cir. 1998). The testinstant review, even when construplaintiff, overwhelmingly manifesGraham considerations, highlighsupport of the incontrovertible concactions were objectively reasoncommitted serious, life-threatening the defendant officers. Second, the that the fleeing motorist’s ongoiposed an immediate threat to the sinnocent civilians.16 Third, the 
14 Scott v. Clay County, Tennessee, et al. No. 98-6157

Determining whether the force used to effect a

particular seizure is "reasonable" under the FourthAmendment requires a careful balancing of the natureand quality of the intrusion on the individual's FourthAmendment interests against the countervailinggovernmental interests at stake. . . . Because the test ofreasonableness under the Fourth Amendment is notcapable of precise definition or mechanical application,however, its proper application requires careful attentionto the facts and circumstances of each particular case,including [1] the severity of the crime at issue, [2]whether the suspect poses an immediate threat to thesafety of the officers or others, and [3] whether he isactively resisting arrest or attempting to evade arrest byflight. . . .

The “reasonableness” of a particular use of force must

be judged from the perspective of a reasonable officer onthe scene, rather than with the 20/20 vision ofhindsight. . . . The calculus of reasonableness mustembody allowance for the fact that police officers areoften forced to make split-second judgments – incircumstances that are tense, uncertain, and rapidlyevolving – about the amount of force that is necessary ina particular situation.

As in other Fourth Amendment contexts, however, the

“reasonableness” inquiry in an excessive force case is anobjective one: the question is whether the officers’actions are “objectively unreasonable” in light of thefacts and circumstances confronting them, without regardto their underlying intent or motivation.

Graham v. Connor, 490 U.S. 386, 396-97 (1989) (italics andbrackets added; citations and quotations omitted).

Although the Fourth Amendment “reasonableness” inquiry

is largely fact-driven, summary judgment for defendant publicservants founded in qualified immunity is nonethelessappropriate when the undisputed material facts, or theplaintiff’s version of disputed material facts, demonstrate that

No. 98-6157 Scott v. Clay Coun

11All legal conclusions by lower co

resolving a summary judgment motion aare scrutinized de novo. E.g., Grider v. A

(6th Cir.), cert. denied, 120 S. Ct. 528 (1Northville, 78 F.3d 1152, 1154, 1156 (6t

12The Sixth Circuit has recently clari

appellate court’s jurisdiction to review a dimmunization on summary judgment:

If the defendant does not dispute the ffor purposes of the appeal, our jurisdthe defendant disputes the plaintiff’defendant must nonetheless be wilfavorable view of the facts to the pappeal. Only if the undisputed facts the light most favorable to the plaintfacie violation of clear constitutional defendant is entitled to qualified imappeal.

Berryman v. Rieger, 150 F.3d 561, 563 (6t

“final decision” of law,11 and thus under 28 U.S.C. § 1291.12 Mitch

principle controls even if the triconcluded that genuine issues of initially resolved by the trier of fimmunity defense. See Williams 689-90 (6th Cir. 1999) (en banc) (court’s reasons for denying quaexercise jurisdiction over the appquestions of law.”) (italics in o(quoting Dickerson v. McClellan, Cir. 1996)). 

Constitutional tort claims again

by allegations of excessive force person’s seizure are properly asAmendment due process guarantea non-targeted innocent third party assertion of official force; in such 
12 Scott v. Clay County, Tennessee, et al. No. 98-6157

13This rule governs because Fourth Amendment prohibitions against

“unreasonable seizures,” developed below, cannot apply when theplaintiff had not been purposefully “seized” by state lawmen. SeeClaybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (“the FourthAmendment `reasonableness’ standard does not apply to section 1983claims which seek remuneration for physical injuries inadvertentlyinflicted upon an innocent third party by police officers’ use of force

while attempting to seize a perpetrator, because the authorities could not`seize’ any person other than one who was a deliberate object of theirexertion of force.”) (emphasis in original) (citing Brower v. County ofInyo, 489 U.S. 593, 596 (1989)).

Similarly, Fourteenth Amendment due process bounds, rather than

Fourth Amendment “reasonableness” imperatives, confine exertions ofstate power which accidentally impact even the intended subject of anofficial seizure, such as where an inadvertent collision with a policevehicle injures an arrest target, because the state agents had notvolitionally crafted the violence to facilitate an official seizure. See

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

will be liable only if he or she had acted in a manner which“shocks the conscience.”13 County of Sacramento v. Lewis,118 S. Ct. 1708, 1714-21 (1998); Claybrook v. Birchwell, 199F.3d 350, 359 (6th Cir. 2000). By contrast, an excessive forceclaim asserted against public servants by a premeditatedtarget of official compulsion designed to consummate aseizure are analyzed under Fourth Amendment“reasonableness” strictures; the plaintiff need prove only thatthe faulted official action was, under the implicatedcircumstances, objectively “unreasonable.” Graham v.Connor, 490 U.S. 386, 394-97 (1989); Tennessee v. Garner,471 U.S. 1, 7-9 (1985); Claybrook, 199 F.3d at 359.

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

summary judgment purposes, that Patricia, as a voluntarycohort of Robert’s whom, following the shooting, thedefendant officers forcibly removed from the inoperativeChevrolet, and immediately handcuffed, was an intended

No. 98-6157 Scott v. Clay Coun

14See Tennessee v. Garner, 471 U

officer restrains the freedom of a person 

person.”) (emphasis added; citation omitt343 (6th Cir. 1992) (resolving that an intmeans of a fatal police bullet); see also U.S. 593, 596 (1989) (ruling that an intenbeen killed by crashing into a police rocommenting that “[v]iolation of the Fointentional acquisition of physical contro797, 802-05 (1971) (resolving that the plathe victim of mistaken identity, had been had intended to confine another man, behad been the object of a willful official d

15Accordingly, this review need not 

would otherwise exist for trial regarding discharged his weapon into the mcompartment, the defendants intended vehicle other than the driver, which in constitutional proviso would control Claybrook v. Birchwell, 199 F.3d 350 (6th constitutional tort action of a citizen who hwhile inside a parked automobile during a felony suspect in the parking lot must bAmendment standards because the record defendant peace constables had been unawthat vehicle and did not intend to seize acar).

target of an official seizure at all triggering the Fourth Amendmen“objective unreasonableness” stanthe paradigm most favorable to thagainst the more exacting “shocks trequisites of the Fourteenth Amedefendants-appellants have concjudgment motion should be assAmendment, rather than the Fourt

The Supreme Court has defined 

Amendment “reasonableness” by “balancing” query: