1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0074P (6th Cir.)File Name: 00a0074p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________PATRICIASCOTT,Plaintiff-Appellee,v.CLAYCOUNTY,TENNESSEE;CHINNANDERSON;BILLYPIERCE;MICHAELTHOMPSON,Defendants-Appellants.;>1No. 98-6157Appeal from the United States District Courtfor the Middle District of Tennessee at Cookeville.No. 95-00095—Thomas A. Wiseman, Jr., District Judge.Argued: August 10, 1999Decided and Filed: March 1, 2000Before: KRUPANSKY, BOGGS, and CLAY, CircuitJudges._________________COUNSELARGUED:Michael E. Evans, EVANS, TODD & FLOYD,Nashville, Tennessee, for Appellants. Richard M. Brooks,Carthage, Tennessee, for Appellee.ON BRIEF:Michael E.Evans, EVANS, TODD & FLOYD, Nashville, Tennessee, for2Scott v. Clay County, Tennessee, et al.No. 98-61571Section 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) heor 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, inwhich BOGGS, J., joined. CLAY, J. (pp. 21-23), delivereda separate dissenting opinion._________________OPINION_________________KRUPANSKY, Circuit Judge. The defendants-appellantsClay 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 1988,1which caused herNo. 98-6157Scott v. Clay County, Tennessee, et al.23The majority asserts that because Plaintiff has arguedviolations of her rights under the Fourth Amendment and notthe violation of her substantive due process rights under theFourteenth Amendment, the lesser standard of “objectiveunreasonableness” should apply. The granting of summaryjudgment under the circumstances of this case is improperregardless of whether the standard that should be applied inevaluating the officers’ conduct is the “conscience shocking”standard of the Fourteenth Amendment,see County ofSacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1717(1998), or the lesser standard of “objective unreasonableness”of the Fourth Amendment.See Garner, 471 U.S. at 16-17;see also Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.2000). Regardless of the appropriate standard, Defendants donot dispute, as made clear by the district court’s opinion, thatPlaintiff’s right to be free from excessive force under theFourth Amendment was a clearly established right at the timeof the incident in question. The question that should havebeen left for trial was whether excessive force was actuallyemployed against Plaintiff.This Circuit’s unfortunate practice of arrogating unto itselfthe role of resolving on appeal the factual disputes presentedby a qualified immunity defense in a § 1983 action, asrepresented by the majority opinion herein, continues thetroubling trend followed by this Court in the improperlydecided case ofClaybrook v. Birchwell.See199 F.3d at 358-61 (affirming the district court’s order granting summaryjudgment to the defendants on CountsIII and IV of theplaintiffs’ complaint). I therefore dissent.22Scott v. Clay County, Tennessee, et al.No. 98-6157subsequently 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 andharm 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. 98-6157Scott v. Clay County, Tennessee, et al.3Section 1988,inter alia, authorizes the court, in its discretion, toaward attorney fees to certain prevailing parties in section 1983 cases.2In accordance with long standing summary judgment norms, thisreviewing court has construed the record evidence most favorably for theplaintiff Patricia Scott as the litigant opposing summary judgment.E.g.,Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986). “Credibility determinations, the weighing of the evidence, and thedrawing of legitimate inferences from the facts are jury functions, notthose of a judge. . . . The evidence of the non-movant is to be believed,and all justifiable inferences are to be drawn in his favor.”Anderson v.Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted).See alsoEastman Kodak v. Image Technical Services, 504 U.S. 451, 456 (1992);Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir. 1994). For purposes ofthis appeal, the defendants-appellants either have relied upon facts whichwere conceded by the plaintiff-appellee or were proved beyond dispute;or have adopted the plaintiff’s version of contested material facts, asarticulated via her written response to the defendants’ Statement ofMaterial Fact Not in Dispute filed in support of their summary judgmentmotion.3Both Scotts had a history of cocaine abuse, although Robert assertedthat he had been attempting to overcome his cocaine dependency.serious bodily injury. She further contended that the County,and Anderson as County Sheriff, failed to properly trainand/or supervise the defendant deputies, and failed to developand implement appropriate official departmental policyrestraints against the unjustifiable exertion of potentiallylethal force, thus violating constitutional rights redressible by§ 1983. Patricia also asserted pendent state law claims.Although witness unanimity is absent regarding variousfactual details, the essential controlling material facts of thiscase are not in substantial dispute.2During the late eveningof April 28 and early morning of April 29, 1995, PatriciaScott had been a willing passenger in her own automobile, afour-door 1978 Chevrolet Caprice, traveling on the darkcountry roadways of Clay County. She had permitted her exhusband, Robert Scott (“Robert”), to drive the vehicle.Moments earlier, her former spouse had retrieved her from anearby narcotics den known locally as “Chet’s.”3Patricia4Scott v. Clay County, Tennessee, et al.No. 98-61574Robert testified that he had recently consumed between five andseven 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 hisunit’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;4possessed 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 theintersection 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 whileon 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.5Because 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-speedNo. 98-6157Scott v. Clay County, Tennessee, et al.21_________________DISSENT_________________CLAY, Circuit Judge, dissenting. I respectfully dissent forthe reasons set out in the district court’s well-reasoned andpersuasive opinion denying Defendants’ motion for summaryjudgment. I believe the district court was correct in findingthat Defendants are not immune from suit.Contrary to the representations of the majority opinion, thisis a case in which factual disputes, which should preclude thegranting of summary judgment, abound. In my opinion, themajority, contrary to the well-established dictates of lawgoverning the granting of summary judgment, can only arriveat its conclusion that there are no factual disputes by decidingall of the contested issues of fact against Plaintiff. Not onlydoes the majority opinion assert disputed facts to constituteundisputed facts, but in its anxiousness to deny Plaintiff herday in court, the majority reaches some of its factualconclusions by stating, as objectively established facts, whatthe majority supposes was in the minds of the deputies at thetime of the events surrounding the shooting. The deputies’explanation for their conduct, much of which could be viewedin the context of the factual circumstances to constitute afterthe fact speculation about the motivation of the officers, isasserted as uncontrovertibly true by the majority. Suchdeterminations would best be left to the finder of fact at thetime of trial.Plaintiff and the officers have described vastly conflictingversions of what occurred on the evening of April 28, 1995.What is missing from the one-sided account of the eventsdescribed by the majority opinion is any consideration ofPlaintiff’s allegations or version of the events. This casepresents questions of whether the deputies acted reasonablyin pursuing an individual who had allegedly initiallycommitted a minor traffic violation; whether the deputiesembellished or exaggerated their version of the events which20Scott v. Clay County, Tennessee, et al.No. 98-615722Even if this review had declined to exercise its discretionarypendent 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.See28 U.S.C. § 2106;Vendo Co. v. LektroVend Corp., 434 U.S. 425, 427-28 (1978);United States v. Moored, 38F.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, 10F.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.22See Brennan v.Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir.1996).Finally, following remand, the district court shall initiallydetermine, 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 eachargument 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 areDISMISSED WITHPREJUDICE. This case isREMANDEDto the districtcourt for such necessary further orders and proceedings as areconsistent with this opinion, including disposition of theplaintiff’s pendent state law claims.No. 98-6157Scott v. Clay County, Tennessee, et al.5chases. Robert conceded that, during his ensuing flight, heforced at least one fellow motorist off the roadway, and thathe “might have been across the yellow line or could have beensliding across the yellow line,” which conduct patently riskedthe physical safety of civilian motorists and pedestrians,pursuing patrolmen, Robert’s passenger, and himself.Patrol cruisers driven by Anderson and Deputy Sheriff BillyPierce momentarily joined Deputy Thompson’s pursuit of thespeeding Chevrolet. After the three sheriff’s office units hadchased the Scott car for over twenty minutes, at speedsranging between 85 to 100 miles per hour, Robert lost controlof his vehicle while attempting a sharp turn at 75 to 80 milesper hour. The Caprice skidded for several hundred feet,glided off the thoroughfare, and crashed into a roadside guardrail, which brought the fugitive vehicle to an abrupt halt.Deputy Pierce, whose patrol vehicle had led the erstwhilechase, initially reached the immobilized motorcar. At somepoint, a collision transpired between the Scott automobile andPierce’s departmental vehicle; Robert asserted that Pierce’scar struck the stationary Caprice from the rear, whereas Pierceposited that Robert backed the Caprice into his squad cruiserafter he (Pierce) had exited it. In any event, no dispute existsthat Deputy Pierce parked and exited his patrol car, producedhis sixteen-round, nine-millimeter Ruger service arm, andcautiously moved toward the now-stationary Chevrolet.Suddenly, the Chevrolet rapidly accelerated forward,compelling Pierce to leap out of its path in self-defense.Then, in an apparent bid by its driver to return to the highway,the Caprice proceeded directly towards Deputy Thompson’sapproaching vehicle. Robert recalled that, although he hadobserved at least one firearm-toting deputy approaching theCaprice, and knew that additional armed law enforcementofficers were approaching, he nevertheless intended to escapeby driving in the direction from which the supporting unitswould be arriving.At the moment that the Chevrolet was racing once againonto the public motorway, Deputy Pierce believed that its6Scott v. Clay County, Tennessee, et al.No. 98-61576Pierce had learned of Robert’s near collision with Anderson viaradio 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, hesimply “intended to neutralize the situation.”Beyond contradiction, Robert’s pattern of wanton misdeeds posed aserious 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,6hadattempted 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;7he 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 forNo. 98-6157Scott v. Clay County, Tennessee, et al.19Haverstick Enterprises v. Financial Federal Credit, 32 F.3d 989, 996 n.8 (6th Cir. 1994) (“section 1983 actions against municipalities [orcounties] carry certain special elements, including proof (1) that the City[or county] pursued an official custom or policy of failing to adequatelytrain, supervise, or discipline its officers in a particular matter, and (2) thatsuch official policy or custom was adopted by the official makers ofpolicy with `deliberate indifference’ towards the constitutional rights ofpersons affected by the policy or custom.”) (brackets added) (citing Cityof Canton v. Harris, 489 U.S. 378, 387-88 (1989)).See also Collins v.City of Harker Heights,503 U.S. 115, 120-24 (1992);Monell v.Department of Social Services, 436 U.S. 658, 690-95 (1978).automatically excuse a municipality or county fromconstitutional liability, even where the municipal or countyactors were personally absolved by qualified immunity,ifthose agentsin facthad invaded the plaintiff’s constitutionalrights.Leatherman v. Tarrant County Narcotics Unit, 507U.S. 163, 166-67 (1993);Garner v. Memphis Police Dept., 8F.3d 358, 365 (6th Cir. 1993). “An official capacity claimfiled against a public employee is equivalent to a lawsuitdirected against the public entity which that agent represents.”Claybrook, 199 F.3d at 355 n.4 (citing Kentucky v. Graham,473 U.S. 159, 165 (1985)). Accordingly, despite thedismissal of Anderson, Pierce, and Thompson in theirpersonal capacities, a procedurally proper case has been statedagainst defendant Clay County, Tennessee, by virtue of theplaintiff’s specification, in her complaint, that Clay County,as well as the three defendant county agents in their officialcapacities, infringed her constitutional rights.Nevertheless, our conclusion that no officer-defendant haddeprived the plaintiff of any constitutional righta fortioridefeats the claim against the County as well.See City of LosAngeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“Ifa person has suffered no constitutional injury at the hands ofthe individual police officer, the fact that the departmentalregulations might haveauthorizedthe use ofunconstitutionally excessive force is quite beside the point.”)(emphasis the Court’s);Monday v. Oullette, 118 F.3d 1099,1105 (6th Cir. 1997).Ergo, this court, in its discretionaryexercise of pendent party appellate jurisdiction over the18Scott v. Clay County, Tennessee, et al.No. 98-615720The plaintiff’s alternate contention that the defendant officerssomehow 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 tolitigationunder 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 amatter of law, have committed no Fourth Amendmentinfraction against Patricia Scott,20and therefore are insulatedagainst personal exposure to further litigation under 42 U.S.C.§§ 1983 and 1988.As previously indicated, the doctrine of qualified immunitysafeguards only certainnatural persondefendants in theirindividual capacities.E.g. Painter, 185 F.3d at 566 n.12. Bycontrast, if the legal requirements ofmunicipalorcountycivilrights liability are satisfied,21qualified immunity willnotNo. 98-6157Scott v. Clay County, Tennessee, et al.78The Fourth Amendment posits, in relevant part, that “The right ofthe people to be secure in their persons . . . against unreasonable . . .seizures, shall not be violated[.]” U.S. Const. amend. IV.The Fifth Amendment states, in material part, that “No person shall. . . be deprived of life, liberty, or property, without due process of law[.]”U.S. Const. amend. V.The Fourteenth Amendment stipulates, in pertinent segment, that “Nostate shall . . . deprive any person of life, liberty, or property, without dueprocess of law[.]” U.S. Const. amend. XIV, § 1.The Fourteenth Amendment’s Due Process Clause restricts theactivities of the states and their instrumentalities; whereas the FifthAmendment’s Due Process Clause circumscribes only the actions of thefederal government.See generally Sturgell v. Creasy,640 F.2d 843, 850(6th Cir. 1981);Walker v. Hughes, 558 F.2d 1247, 1257 (6th Cir. 1977).Ergo, the instant complainant’s citation to the Fifth Amendment DueProcess Clause was a nullity, and redundant of her invocation of theFourteenth Amendment Due Process Clause.a medical evacuation helicopter. The rescue aircraft rushedPatricia to Vanderbilt University Hospital, where doctorsdiscovered one bullet lodged inside her skull and a secondgunshot imbedded within her right shoulder. Patricia hasalleged that she has suffered significant physical damage,including lifelong adverse health consequences, caused by herinjuries and by the permanent presence of the bullet in herskull. Patricia Scott states that the bullet cannot be surgicallyremoved.On November 29, 1995, Patricia instigated her instantcomplaint, in which she advanced claims under the Fourth,Fifth, and Fourteenth Amendments to the United StatesConstitution,8as enforced by 42 U.S.C. §§ 1983 and 1988(seenote 1 above), alleging that Pierce, Thompson, andAnderson, in their personal as well as official capacities, hadcommitted, participated in, and/or failed to prevent, theunconstitutional use of excessive force to seize her; and thatSheriff Anderson and the County had failed to properly trainand/or supervise the defendant deputies in, and/or devise andimplement appropriate policies defining, the lawful8Scott v. Clay County, Tennessee, et al.No. 98-61579“Qualified or `good faith’ immunity is an affirmative defense thatis 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 theplaintiffto show that the defendants arenotentitled to qualified immunity.”Id. at 1095 (emphases added). TheSixth Circuit,en banc, has recently defined the components of thequalified immunity defense:Government officials performing discretionary functionsgenerally 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, 457U.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 stateapplication 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 defendantsjointly 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,9the defendants argued that the evinced facts, evenNo. 98-6157Scott v. Clay County, Tennessee, et al.17inexplicably failed to address it in its judgment denying their qualifiedimmunity motion.19As aptly observed by theLewisCourt:[T]he police on an occasion calling for fast action haveobligations that tend to tug against each other. Their duty is torestore and maintain lawful order, while not exacerbatingdisorder more than necessary to do their jobs. They aresupposed to act decisively and to show restraint at the samemoment, and their decisions have to be made in haste, underpressure, and frequently without the luxury of a second chance.County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (quotationsand citations omitted).Accordingly, as a matter of law, defendant Pierce’s faultedactions were objectively reasonable, and thus did not violatethe Fourth Amendment. Pierce permissibly discharged hisprofessional duty to restore and maintain lawful order throughthe most effective instrumentality readily available, namelygunfire.19Pierce justifiably fired at the fleeing vehicle inorder to seize its occupant(s); his actions therefore could notviolate the Fourth Amendment rights of any unknownpassenger who may have been injured by his actions. Thus,Pierce is entitled to qualified immunity because he did notimpinge the plaintiff’s constitutional rights.In turn, the remaining two individual defendants, Andersonand Thompson, are likewise shielded by qualified immunity,because their alleged complicity in Pierce’slawfuluse ofdeadly coercion patently could not offend the plaintiff’sFourth Amendment protections.See Turner v. Scott, 119F.3d 425, 429 (6th Cir. 1997) (explaining that an officer can,under certain circumstances, be deemed personallyresponsible forunconstitutionalcompulsion applied by afellow agent if that officer, at minimum, either "(1) activelyparticipated in the use of excessive force, (2) supervised theofficer who used excessive force, or (3) owed the victim aduty of protection against the use of excessive force.")(citations omitted).16Scott v. Clay County, Tennessee, et al.No. 98-615717Additionally, the target’s persistent high-risk attempts to evadecapture 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).18TheFrelandpanel commented:[U]nderGraham [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 ofFreland, and thepatent significance of that precedent to the subject action, the trial courtactively resisting arrest by eluding representatives of thecriminal justice system.17Moreover, an antecedent mandate by this circuit hasdirectly 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. InSmith 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.18Id. at 346-48.No. 98-6157Scott v. Clay County, Tennessee, et al.9governmental personnel by qualified immunity sweeps broadly, affordingthem “`ample room for mistaken judgments’ by protecting `all but theplainly incompetent or those who knowingly violate the law.’”Sova v.City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998) (quoting Hunterv. Bryant, 502 U.S. 224, 229 (1991)).See also Megenity v. Stenger, 27F.3d 1120, 1124 (6th Cir. 1994) (“If we conclude that a reasonable publicofficial would not have been aware that he was committing a [federal civilrights] violation, we then afford immunity.”) (brackets added).when construed most favorably for the claimant, could not, asa matter of law, support the conclusion that any defendant hadviolated any federal constitutionally-protected right; or,alternatively, assumingarguendothat the evidence adverse tothe movants was legally sufficient to sustain a hypotheticalrational jury’s finding of a constitutional infraction, thedefendant law enforcers should nevertheless be shielded frompersonal liability because the offended right was not “clearlyestablished” on April 29, 1995.See, e.g., Painter v.Robinson, 185 F.3d 557, 566-67 (6th Cir. 1999).On July 28, 1998, the trial court denied the subject motion,ruling that material issues of fact remained, for jurorresolution, regarding the Fourth Amendment“reasonableness” of the plaintiff’s seizure (evolved below);and, if the seizure was unreasonable, whether the precisecontributing actions of each individual defendant wereobjectively unreasonable under the dictates of law which wasclearly established on the incident date. On August 24, 1998,the defendants noticed a timely appeal to this reviewingbench.Ordinarily, a trial forum’s rejection of a summary judgmentmotion is not subject to appellate scrutiny, irrespective ofwhether that motion had ultimately posed a legal or a factualquestion. However, a district court’s dismissal of a civilrights defendant’s summary disposition applicationanchoredin qualified immunitywill be immediately appealableifnopredicate finding of an essential material fact remains for jurydetermination, and thus the lynchpin issue is purely legal.Behrens v. Pelletier, 516 U.S. 299, 313 (1996);Johnson v.10Scott v. Clay County, Tennessee, et al.No. 98-615710TheAndersonCourt explained:As to materiality, the substantive law will identify whichfacts 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 “animmunity fromsuitrather than a mere defense to [ultimate] liability.”Mitchell v.Forsyth, 472 U.S. 511, 526 (1985) (italics in original;brackets added).In the causesub judice, although the adversaries disputedmultiple factual issues in the trial court, none of thosedisputed facts wereessentialto the qualified immunitydefense.SeeFed. R. Civ. P. 56(c) (directing that summaryjudgment “shall be rendered forthwith if the pleadings,depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show that there is nogenuineissue as to anymaterialfact and that the movingparty is entitled to a judgment as a matter of law.”) (emphasesadded). “By its very terms, this standard provides that themere existence ofsomealleged factual dispute between theparties will not defeat an otherwise properly supported motionfor summary judgment; the requirement is that there be nogenuineissue ofmaterialfact.”10Anderson v. Liberty Lobby,477 U.S. 242, 247-48 (1986) (emphases in original).Accordingly, a lower court’s determination that defendantstate employees were not shielded by qualified immunity,with reference to a set of undisputed operative facts, is aNo. 98-6157Scott v. Clay County, Tennessee, et al.1516As a general proposition, “[w]here the officer has probable causeto believe that the suspect poses a threat of serious physical harm, eitherto the officer or to others, it is not constitutionally unreasonable to preventescape by using deadly force.”Garner, 471 U.S. at 11. “`Probablecause’ denotes facts and circumstances within the officer’s knowledgethat are sufficient to warrant a prudent person, or one of reasonablecaution, in believing, in the circumstances shown, that the suspect hascommitted, is committing, or is about to commit an offense. If thecircumstances, viewed objectively, support a finding of probable cause,the arresting officer’s actual motives are irrelevant.”Painter v.Robertson, 185 F.3d 557, 569 (6th Cir. 1999) (quotations and citationsomitted).“Whereas the implicated circumstances comprise factual issues, theultimate probable cause determination is a mixed issue of law and fact.”Id. at 570 (citation omitted). Mixed questions of law and fact, andultimate factual determinations based upon the application of law tosubsidiary facts, are subject to plenary ascertainment on appeal.Williamsv. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Consequently,when the undisputed material facts, or the plaintiff’s version of disputedmaterial facts, manifest that a reasonable officer in the defendant’sposture would have objectively believed that probable cause existed, theexistence of that factor may be determined as a matter of law on summaryjudgment.See Painter, 185 F.3d at 571-72.In the case in controversy, the testimonial proof, encapsulated herein,would warrant a reasonable officer in Pierce’s circumstances to concludethat the culprit posed a serious risk of injury to others, which, standingalone, reconciled his use of force with Fourth Amendment strictures.a hypothetical reasonable officer would not have known thathis actions, under the circumstances, were objectivelyunreasonable.See Sova v. City of Mt. Pleasant, 142 F.3d 898,902-03 (6th Cir. 1998). The testimonial record before theinstant review, even when construed most favorably for theplaintiff, overwhelmingly manifested that each of the threeGrahamconsiderations, highlighted above, militated insupport of the incontrovertible conclusion that the defendants’actions were objectively reasonable. First, Robert hadcommitted serious, life-threatening crimes in the presence ofthe defendant officers. Second, the record proof demonstratedthat the fleeing motorist’s ongoing felonious misconductposed an immediate threat to the safety of officers as well asinnocent civilians.16Third, the vehicular perpetrator was14Scott v. Clay County, Tennessee, et al.No. 98-6157Determining whether the force used to effect aparticular 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 mustbe 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” inquiryis 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 thatNo. 98-6157Scott v. Clay County, Tennessee, et al.1111All legal conclusions by lower courts, including those posited inresolving a summary judgment motion anchored in qualified immunity,are scrutinizedde novo.E.g., Grider v. Abramson, 180 F.3d 739, 746 n.7(6th Cir.),cert. denied, 120 S. Ct. 528 (1999);Brennan v. Township ofNorthville, 78 F.3d 1152, 1154, 1156 (6th Cir. 1996).12The Sixth Circuit has recently clarified the factors which inform anappellate court’s jurisdiction to review a district court’s denial of qualifiedimmunization on summary judgment:If the defendant does not dispute the facts alleged by the plaintifffor purposes of the appeal, our jurisdiction is clear. If, instead,the defendant disputes the plaintiff’s version of the story, thedefendant must nonetheless be willing to concede the mostfavorable view of the facts to the plaintiff for purposes of theappeal. Only if the undisputed facts or the evidence viewed inthe light most favorable to the plaintiff fail to establish aprimafacieviolation of clear constitutional law may we decide that thedefendant is entitled to qualified immunity on an interlocutoryappeal.Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (citations omitted).“final decision” of law,11and thus is immediately appealableunder 28 U.S.C. § 1291.12Mitchell, 472 U.S. at 530. Thatprinciple controls even if the trial judge had erroneouslyconcluded that genuine issues of material fact had to beinitially resolved by the trier of fact to assess the qualifiedimmunity defense.See Williams v. Mehra, 186 F.3d 685,689-90 (6th Cir. 1999) (en banc) (“regardless of the districtcourt’s reasonsfor denying qualified immunity, we mayexercise jurisdiction over the appeal to the extent it raisesquestions of law.”) (italics in original; ellipse omitted)(quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6thCir. 1996)).Constitutional tort claims against state actors undergirdedby allegations of excessive force exerted to consummate aperson’s seizure are properly assessed under FourteenthAmendment due process guarantees if the plaintiff had beenanon-targeted innocent third partycollaterally injured by anassertion of official force; in such instances, the defendant12Scott v. Clay County, Tennessee, et al.No. 98-615713This 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 injuriesinadvertentlyinflicted uponan innocent third partyby police officers’ use of forcewhile 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 thanFourth Amendment “reasonableness” imperatives, confine exertions ofstate power whichaccidentallyimpact 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.SeeCounty 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.”13County 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 apremeditatedtargetof 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 causesub judice, the district court presumed,forsummary 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 intendedNo. 98-6157Scott v. Clay County, Tennessee, et al.1314See Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“Whenever anofficer restrains the freedom of a person to walk away, he hasseizedthatperson.”) (emphasis added; citation omitted);Smith v. Freland, 954 F.2d343 (6th Cir. 1992) (resolving that an intended arrestee was “seized” bymeans of a fatal police bullet);see also Brower v County of Inyo, 489U.S. 593, 596 (1989) (ruling that an intended target of an arrest who hadbeen killed by crashing into a police roadblock had been “seized,”andcommenting that “[v]iolation of the Fourth Amendment requires anintentional acquisition of physical control.”);Hill v. California, 401 U.S.797, 802-05 (1971) (resolving that the plaintiff, an arrestee who had beenthe victim of mistaken identity, had been “seized” even though the policehad intended to confine another man, because the plaintiff nonethelesshad been the object of a willful official detention).15Accordingly, this review need not resolve whether a factual issuewould otherwise exist for trial regarding whether, at the time that Piercedischarged his weapon into the moving Chevrolet’s passengercompartment, the defendants intended to seize any passenger in thatvehicle other than the driver, which in turn would determine whichconstitutional proviso would control the plaintiff’s charges.SeeClaybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (explaining that theconstitutional tort action of a citizen who had been inadvertently woundedwhile inside a parked automobile during a police shoot-out with an armedfelony suspect in the parking lot must be scrutinized under FourteenthAmendment standards because the record proof was uncontested that thedefendant peace constables had been unaware that anyone had been insidethat vehicle and did not intend to seize anyone who might be inside thatcar).target of an official seizure at all times pertinent,14therebytriggering the Fourth Amendment’s comparatively relaxed“objective unreasonableness” standard of proof (and hencethe paradigm most favorable to the plaintiff), as juxtaposedagainst the more exacting “shocks the conscience” evidentiaryrequisites of the Fourteenth Amendment. On appeal, thedefendants-appellants have conceded that their summaryjudgment motion should be assessed under the FourthAmendment, rather than the Fourteenth Amendment.15The Supreme Court has defined the boundaries of FourthAmendment “reasonableness” by adoption of an objective“balancing” query: