Rodriguez v. Passinault

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0076p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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REBECCA RODRIGUEZ,
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Plaintiff-Appellant,
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No. 09-1949
v.
,
>
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Defendant-Appellee. -
THOMAS PASSINAULT,
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N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-14537—Lawrence P. Zatkoff, District Judge.
Argued: July 29, 2010
Decided and Filed: March 25, 2011
Before: GILMAN and WHITE, Circuit Judges; WATSON, District Judge.*

_________________

COUNSEL
ARGUED: Hugh M. Davis, Jr., CONSTITUTIONAL LITIGATION ASSOCIATES,
P.C., Detroit, Michigan, for Appellant. Gail P. Massad, CUMMINGS, McCLOREY,
DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellee. ON BRIEF: Hugh M.
Davis, Jr., CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan,
for Appellant. Gail P. Massad, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C.,
Livonia, Michigan, for Appellee.
_________________

OPINION
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HELENE N. WHITE, Circuit Judge. Plaintiff Rebecca Rodriguez (Rodriguez)
appeals the district court’s grant of summary judgment to Shiawassee County Sheriff’s

*
The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.

1
No. 09-1949 Rodriquez v. Passinault Page 2

Deputy Thomas Passinault (Passinault) in this 42 U.S.C. § 1983 action alleging
excessive force under the Fourth and Fourteenth Amendments. We REVERSE the
district court’s determinations that no seizure occurred and that Passinault is entitled to
qualified immunity, and REMAND for further proceedings consistent with this opinion.

I.

The district court summarized the facts:

This case arises out of a tragic incident involving the fatal
shooting of Michael Murray (“Murray”) by Defendant, a Shiawassee
County deputy officer. On the night of September 5, 2003, after
attending a party, Murray and Plaintiff were dropped off at Murray’s
truck, which was parked at a local bar. Murray had offered to drive
Plaintiff home. While exiting the parking area, Murray spotted a police
cruiser. Having consumed alcohol in violation of his parole terms,
Murray attempted to elude the cruiser by maneuvering his vehicle
through alleys and driveways before pulling into an alley and shutting off
his engine and lights. Murray ducked down so as not to be seen and
instructed Plaintiff to do the same.
Defendant and fellow officer Jason Jenkins (“Jenkins”) had
noticed Murray’s suspicious driving and proceeded to the area where
Murray had parked. After Defendant and Jenkins began to search the
area around the truck on foot, Murray started his engine and attempted
to drive away. Defendant, allegedly fearing for his and his partner’s
safety, fired several shots at the vehicle. Murray was fatally struck, and
his truck subsequently crashed into a ditch.

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

The parties greatly dispute the proximity of Murray’s vehicle to
the officers, the speed and erratic nature of his driving, and whether the
officers were in danger of being struck by the vehicle. These differing
accounts are detailed in Murray-Ruhl v. Passinault, 246 Fed. Appx. 338,
340-42 (6th Cir. 2007), and need not be restated here, as these factual
differences are relevant to the reasonableness of Defendant’s actions –
an issue not analyzed in this opinion.

R. 26 at 2 n.1. The parties’ “differing accounts” are set forth in Murray-Ruhl:
No. 09-1949 Rodriquez v. Passinault Page 3

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

The defendants claim that after Murray started the truck, he
accelerated directly toward Passinault, who was standing next to a pole
barn approximately 165 feet north of the truck. Jenkins and Passinault
also assert that Passinault was ‘effectively trapped between the truck and
the pole barn.’ According to the defendants, Passinault repeatedly
ordered the driver of the truck to stop, but his orders were disregarded
and the driver . . . continued accelerating toward him. Passinault gave
conflicting accounts of how close the truck came as it passed him,
eventually testifying that it was between one and eight feet away from
where he was standing when he fired the first shot at the driver. But
immediately after the shooting and for some days afterward, he reported
that he had been hit by the truck and injured – even going so far as to
call for an ambulance to come to the scene because he needed medical
attention. However, that version of the facts turned out to be a complete
fabrication.
In truth, Passinault had not been hit by the truck and continued
shooting after it had passed him, claiming later that he believed that the
driver might be heading toward his partner, Jenkins, who was on foot
somewhere in the area. Passinault also asserts that he fired at the truck
as it was driven away from him because he was concerned for the safety
of other officers who had been summoned to the scene and for the public
in general. The vehicle was not being operated at a high rate of speed,
however, and there were no other officers or members of the public in the
area at the time of these events.
Later investigation revealed that Passinault had fired a total of 12
shots at the truck, at least two or three of which struck Murray. The
truck eventually came to a stop in a ditch some distance down the road,
with Murray slumped over the wheel, dead.

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

Because Rebecca Rodriguez was an eyewitness to what occurred,
the plaintiff was able to offer a significantly different version of events,
which must, of course, be viewed in the light most favorable to her.
According to this account of the facts, when Murray started the truck in
order to escape from the alley, he accelerated not toward Passinault but
rather toward the only exit available to him. Because the officers’ patrol
car blocked the truck in the alley from behind, “Murray had only one
option, which was to drive forward past the position of the Deputies” in
order to get away. The plaintiff concedes that Murray’s truck went by
No. 09-1949 Rodriquez v. Passinault Page 4

Passinault at a distance of about eight feet, but asserts that he took this
path only because he could not get out of the alley any other way.
Rodriguez testified that she heard Passinault yell at Murray to
stop the truck only once, as opposed to the repeated orders that the
defendants claim Passinault made. According to Rodriguez, after
ordering Murray to stop, Passinault did not wait for a response but
immediately fired his weapon. Moreover, the record tends to show that
Passinault fired only that first shot before the truck passed him and was
moving away, because forensic evidence fails to reflect that even one
bullet struck the front of the truck or the windshield. Instead, according
to Rodriguez, Passinault fired the remaining shots after the truck had
already turned and driven past him. She testified, in fact, that she saw
Passinault running after the truck as he continued shooting at it.
The plaintiff also contends that the fatal shot could not have been
fired in self-defense because, according to the autopsy report, the shot
that killed Murray would also have paralyzed his legs, yet he was able to
operate the truck’s gas pedal for some distance after passing Passinault.
In addition, the autopsy report indicates that the bullet moved from the
back of Murray’s body toward the front, indicating that he was shot from
behind.
The plaintiff calls into question Passinault’s alleged concern for
the safety of others. Although Passinault claimed that he continued
shooting after the truck had passed him because he believed it was
bearing down on his partner, Jenkins indicated that he was not in the
truck’s path and that he never felt in danger of being struck by the
vehicle. The plaintiff also asserts that the officers lacked reason to
believe Murray posed an ultimate threat to the general public because,
despite the officers’ suspicions that he might have committed a crime of
some sort, the most serious offense they actually saw him commit was a
traffic violation.

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

II. PROCEDURAL HISTORY

In the companion case, Murray-Ruhl, Murray’s estate filed a § 1983 action
against Passinault and Jenkins, alleging that the deputies acted unreasonably in using
deadly force against Murray, violating his Fourth Amendment rights. Murray-Ruhl v.
Cnty. of Shiawassee, et al., 2:04-cv-72615-LPZ-MKM (complaint filed July 15, 2004).
Rodriguez filed an action against the deputies on September 2, 2005. Rodriguez v.
No. 09-1949 Rodriquez v. Passinault Page 5

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

In Murray-Ruhl, the district court granted the defendants summary judgment on
qualified- immunity grounds. After Murray-Ruhl appealed, the parties in Rodriguez I
stipulated that Rodriquez would voluntarily dismiss her case without prejudice, and that
she “shall have 30 days” to re-file from the date the Sixth Circuit decides Murray-Ruhl.
R. 18, Rodriguez I.

On Murray-Ruhl’s appeal, this Court affirmed the grant of summary judgment
to Jenkins and reversed as to Passinault. The Court reasoned that, under the plaintiff’s
version of the facts, 1) “a jury could find that no reasonably competent officer would
have shot the victim, thus satisfying the first prong in Saucier’s1 two-pronged qualified
immunity analysis,” Murray-Ruhl, 246 F. App’x at 346, and 2) “a reasonable jury could
conclude that Murray posed no danger to the officers or the general public . . . and [in
such circumstances] Tennessee v. Garner[, 471 U.S. 1 (1985),] provides a ‘clearly
established’ right that fulfills the second prong of the qualified immunity analysis.” Id.
at 347. The mandate affirming Jenkins’s dismissal and reversing as to Passinault issued
September 26, 2007.

On October 23, 2007, Rodriguez re-filed her complaint, naming only Passinault2
as a defendant, and alleging violations of the Fourth and Fourteenth Amendments under
§ 1983.3

1
Saucier v. Katz, 533 U.S. 194 (2001).
2
Passinault’s counsel filed a Suggestion of Death on December 11, 2007, stating that Passinault
passed away on May 30, 2007 (i.e., months before Rodriguez re-filed her complaint).
3
Passinault asserts that this court should affirm the grant of summary judgment on the alternative
ground that Rodriguez’s re-filed complaint was untimely because it was filed outside the 30-day deadline.
Passinault maintains that the 30 days started running on August 29, 2007, the date this court’s unpublished
decision issued in Murray-Ruhl, while Rodriguez maintains that the Murray-Ruhl mandate dated
September 26, 2007 started the clock running. The district court’s opinion noted the parties’ divergent
arguments in this regard and concluded that it would treat Rodriguez’s re-filed complaint as timely for
purposes of the summary judgment motion. R. 26 at 3 n.2.
We reject Passinault’s argument for several reasons. Sixth Circuit Internal Operating Procedure
41 provides that the mandate “is the document by which this court relinquishes jurisdiction and authorizes
the originating district court . . . to enforce the judgment of this court.” Also, as Rodriguez argues, it was
reasonable for her to assume that the Murray-Ruhl defendants might move for rehearing, and they had until
No. 09-1949 Rodriquez v. Passinault Page 6

The district court granted Passinault summary judgment and dismissed Rodriguez
II, concluding that Rodriguez was not seized within the meaning of the Fourth
Amendment because Passinault did not know that she was a passenger in Murray’s
truck, because she was not actually shot, and, in any event, because Passinault was
entitled to qualified immunity. This appeal ensued.

III.

We review the district court’s grant of summary judgment de novo. Miller v.
Sanilac Cnty., 606 F.3d 240, 246 (6th Cir. 2010). The Fourth Amendment protects
“[t]he right of the people to be secure in their persons . . . against unreasonable . . .
seizures.” U.S. CONST. amend. IV. “[A] Fourth Amendment seizure does not occur
whenever there is a governmentally caused termination of an individual’s freedom of
movement . . . , nor even whenever there is a governmentally caused and governmentally
desired termination of an individual’s freedom of movement . . . , but only when there
is a governmental termination of freedom of movement through means intentionally
applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original);
see also Slusher v. Carson, 540 F.3d 449, 454 (6th Cir. 2008) (quoting Graham v.
Connor, 490 U.S. 386, 395 n.10 (1989) (“[a] ‘seizure’ triggering the Fourth
Amendment’s protections occurs only when government actors have, by means of
physical force or show of authority, in some way restrained the liberty of a citizen.”)
(alterations and quotations omitted.)4

September 12, 2007, to do so. Further, Passinault answered Rodriguez’s re-filed complaint in December
2007, and the parties thereafter engaged in consensual scheduling, conferences with the district court,
discovery, and expert evaluations, without Passinault raising the claim that Rodriguez failed to timely re-
file her complaint. We thus reject Passinault’s argument that he was entitled to summary judgment on this
ground.
4
Where a plaintiff complains of an unreasonable seizure, the claim is more properly analyzed
under the Fourth Amendment than the Fourteenth Amendment’s substantive due process provision, since
the former is a “more explicit textual source of constitutional protection.” Graham, 490 U.S. at 395. See
also Phelps v. Coy, 286 F.3d 295, 299-300 (6th Cir. 2002) (“Which amendment applies depends on the
status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in
between . . . . If the plaintiff was a free person . . . and the use of force occurred in the course of an arrest
or other seizure . . . [then] the plaintiff’s claim arises under the Fourth Amendment and its reasonableness
standard.” (internal citations omitted)).
No. 09-1949 Rodriquez v. Passinault Page 7

A claim of excessive force under the Fourth Amendment requires that a plaintiff
demonstrate that a seizure occurred, and that the force used in effecting the seizure was
objectively unreasonable. Graham, 490 U.S. at 394-95. We review the district court’s
determination that no seizure occurred de novo, and its underlying factual findings for
clear error. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995).

A.

The district court in the instant case concluded that no seizure occurred, declining
to apply this Court’s decision in Fisher v. City of Memphis, 234 F.3d 312 (6th Cir.
2000). Rodriguez asserts that Fisher is controlling and that under Fisher, she was
seized. She further maintains that this Court’s decision in the companion case of
Murray-Ruhl determined that Passinault’s actions were unreasonable. Passinault argues
that the district court correctly declined to apply Fisher and relied instead on Troupe v.
Sarasota Cnty., Fla., 419 F.3d 1160 (11th Cir. 2005).

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

Both Fisher and Troupe relied on language in Brower, a frequently-cited Fourth
Amendment excessive-force case in which a fleeing driver was “killed when the stolen
car that he had been driving at high speeds for approximately 20 miles in an effort to
elude pursuing police crashed into a police roadblock.” 480 U.S. at 594. The decedent’s
heirs brought suit under 42 U.S.C. § 1983, alleging that the respondent officers used
excessive, unreasonable and unnecessary force in establishing the roadblock and thus
effected an unreasonable seizure of Brower. The district court granted the respondents’
motion to dismiss for failure to state a claim, concluding that establishing a roadblock
was not unreasonable under the circumstances. A divided Ninth Circuit affirmed on the
basis that no seizure had occurred. The Supreme Court reversed:

In Tennessee v. Garner, 471 U.S. 1 [] (1985), all Members of the
Court agreed that a police officer’s fatal shooting of a fleeing suspect
constituted a Fourth Amendment “seizure.” See id., at 7 []; id., at 25 []
(O’Connor, J., dissenting). We reasoned that “[w]henever an officer
restrains the freedom of a person to walk away, he has seized that
person.” Id., at 7 []. While acknowledging Garner, the Court of Appeals
No. 09-1949 Rodriquez v. Passinault Page 8

here concluded that no “seizure” occurred when Brower collided with the
police roadblock because “[p]rior to his failure to stop voluntarily, his
freedom of movement was never arrested or restrained” and because
“[h]e had a number of opportunities to stop his automobile prior to the
impact.” 817 F.2d, at 546. Essentially the same thing, however, could
have been said in Garner. Brower’s independent decision to continue the
chase can no more eliminate respondents’ responsibility for the
termination of his movement effected by the roadblock than Garner’s
independent decision to flee eliminated the Memphis police officer’s
responsibility for the termination of his movement effected by the bullet.
The Court of Appeals was impelled to its result by consideration
of what it described as the “analogous situation” of a police chase in
which the suspect unexpectedly loses control of his car and crashes. See
Galas v. McKee, 801 F.2d 200, 202-203 (CA6 1986) (no seizure in such
circumstances). We agree that no unconstitutional seizure occurs there,
but not for a reason that has any application to the present case.
Violation of the Fourth Amendment requires an intentional acquisition
of physical control. A seizure occurs even when an unintended person
or thing is the object of the detention or taking, see Hill v. California,
401 U.S. 797, 802-805 [] (1971); cf. Maryland v. Garrison, 480 U.S. 79,
85-89 [] (1987), but the detention or taking itself must be willful. This
is implicit in the word “seizure,” which can hardly be applied to an
unknowing act. . . .
Thus, if a parked and unoccupied police car slips its brake and
pins a passerby against a wall, it is likely that a tort has occurred, but not
a violation of the Fourth Amendment. And the situation would not
change if the passerby happened, by lucky chance, to be a serial murderer
for whom there was an outstanding arrest warrant – even if, at the time
he was thus pinned, he was in the process of running away from two
pursuing constables. It is clear, in other words, that a Fourth Amendment
seizure does not occur whenever there is a governmentally caused and
governmentally desired termination of an individual’s freedom of
movement (the fleeing felon), but only where there is a governmental
termination of freedom of movement through means intentionally
applied. That is the reason there was no seizure in the hypothetical
situation that concerned the Court of Appeals. The pursuing police car
sought to stop the suspect only by the show of authority represented by
flashing lights and continuing pursuit; and though he was in fact stopped,
he was stopped by a different means – his loss of control of his vehicle
and the subsequent crash. If, instead of that, the police cruiser had pulled
alongside the fleeing car and sideswiped it, producing the crash, then the
termination of the suspect’s freedom of movement would have been a
seizure.
No. 09-1949 Rodriquez v. Passinault Page 9

....
[A] roadblock is not just a significant show of authority to induce a
voluntary stop, but is designed to produce a stop by physical impact if
voluntary compliance does not occur. It may well be that respondents
here preferred, and indeed earnestly hoped, that Brower would stop on
his own, without striking the barrier, but we do not think it practicable to
conduct an inquiry into subjective intent. . . . Nor do we think it possible,
in determining whether there has been a seizure in a case such as this, to
distinguish between a roadblock that is designed to give the oncoming
driver the option of a voluntary stop (e.g., one at the end of a long
straightaway), and a roadblock that is designed precisely to produce a
collision (e.g., one located just around a bend). In determining whether
the means that terminates the freedom of movement is the very means
that the government intended we cannot draw too fine a line, or we will
be driven to saying that one is not seized who has been stopped by the
accidental discharge of a gun with which he was meant only to be
bludgeoned, or by a bullet in the heart that was meant only for the leg.
We think it enough for a seizure that a person be stopped by the very
instrumentality set in motion or put in place in order to achieve that
result. It was enough here, therefore, that according to the allegations of
the complaint, Brower was meant to be stopped by the physical obstacle
of the roadblock – and that he was so stopped.

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

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

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

On March 24, 1996, Officer William Taylor of the Memphis
Police Department stopped to speak to two young women. As they spoke
in the middle of Speed Street, they noticed a vehicle driven by Demetria
Becton (“Becton”) approaching in their direction. To avoid being hit, the
two women jumped onto the curb, and the Officer jumped onto the hood
of his police car, simultaneously firing his gun at the car. The bullet
went through the driver’s side window and hit the passenger, Elitia
Fisher.
As a result of this incident, Ms. Fisher filed suit against Officer
Taylor in federal district court pursuant to 42 U.S.C. § 1983, alleging
deprivations of her Fourth, Eighth, and Fourteenth Amendment rights.
Defendant moved for summary judgment . . . . The court . . . denied the
motion as to the Fourth Amendment claim, finding an issue of material
No. 09-1949 Rodriquez v. Passinault Page 10

fact as to whether Defendant’s actions were reasonable under the Fourth
Amendment. . . .
At trial, the jury reached a verdict for Plaintiff, and awarded her
[damages].

Fisher, 234 F.3d at 315. On appeal, Officer Taylor argued that the district court should
have instructed the jury that Fisher’s wounding was accidental and thus not actionable
under § 1983 or, alternatively, that the district court should have analyzed Fisher’s claim
as arising under the Fourteenth, rather than the Fourth, Amendment. This Court rejected
both arguments:

Defendant is correct in noting that to state a claim under 42 U.S.C.
§ 1983, a Plaintiff must demonstrate more than just mere negligence.
However, the intent in question is the intent to commit the act, not the
intent that a certain result be achieved. Therefore, Officer Taylor’s act
of firing the gun was intentional, even if the result was not one he sought
to achieve. Instructing the jury that more than negligence was required
would likely confuse the jury as to the intent question . . . .
Defendant’s alternative argument is that the district court erred
by analyzing his actions under the Fourth Amendment . . . [; he]
specifically argues that this court should apply a “shock the conscience”
standard . . . under the Fourteenth Amendment . . . .
In addition, the United States Supreme Court has stated that a Fourth
Amendment seizure occurs when governmental termination of freedom
is through means intentionally applied. Brower v. County of Inyo, 489
U.S. 593, 596 [] (1989). Therefore, violation of the Fourth Amendment
requires an intentional acquisition of physical control. As a result, a
seizure occurs even when an unintended person or thing is the object of
the detention or taking, so long as the detention or taking itself is willful.
Id.
In its recent decision in Claybrook v. Birchwell, 199 F.3d 350
(6th Cir. 2000), this Circuit applied Brower in determining whether a
victim of an errant bullet in a shootout fell within the scope of Fourth
Amendment seizure. While recognizing that the Fourth Amendment
does not apply to § 1983 claims “which seek remuneration for physical
injuries inadvertently inflicted upon an innocent party by police officers’
use of force while attempting to seize a perpetrator,” Claybrook
emphasized that police officers do seize any person who is a “deliberate
object of their exertion of force.” Id. at 359. Here, Becton’s car was the
intended target of Defendant’s intentionally applied exertion of force.
No. 09-1949 Rodriquez v. Passinault Page 11

By shooting at the driver of the moving car, he intended to stop the car,
effectively seizing everyone inside, including the Plaintiff. Thus,
because the Defendant “seized” the Plaintiff by shooting at the car, the
district court did not err in analyzing the Defendant’s actions under the
Fourth Amendment.

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

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

The parties and the district court each cited Scott, in which police gunfire
inadvertently struck Patricia Scott, a passenger in a vehicle fleeing from police whose
presence was unknown to Pierce, the defendant officer who shot at the vehicle. Police
had observed Robert Scott race erratically through a stop sign at high speed, and pursued
the Scott car at high speeds for over twenty minutes. Several other police cruisers joined
the chase. After the pursued vehicle crashed, Pierce arrived at the car first. A collision
between the two occurred, after which Pierce exited his patrol car. The pursued vehicle
then accelerated toward Pierce, causing him to jump out of the way, and proceeded
directly toward another officer’s approaching vehicle, racing to return to the highway:

At the moment that the Chevrolet was racing once again onto the
public motorway, Deputy Pierce believed that its operator had earlier
tried to run down Sheriff Anderson, had attempted to drive over him
(Pierce) only moments previously, and posed a grave immediate menace
to the lives and limbs of his approaching colleagues as well as innocent
highway travelers. The plaintiff has not contested Pierce’s avowal that
he did not know that a passenger was also inside the vehicle. Confronted
with a momentous, split-second, life-or death decision, defendant Pierce
initially reacted by firing five bullets towards the Chevrolet’s driver; he
then discharged an additional four rounds at that vehicle’s tires, causing
it to skid to a stop for the second, and final, time. Pierce’s hail of bullets
had failed to injure the driver, Robert Scott. Unfortunately however, two
of his shots had inadvertently struck plaintiff Patricia Scott, whose
presence as a passenger was unknown to Pierce.
....
[U]pon perceiving that Patricia had been wounded, they radioed for a
medical evacuation helicopter . . . . [D]octors discovered one bullet
lodged inside her skull and a second gunshot imbedded within her right
shoulder.
No. 09-1949 Rodriquez v. Passinault Page 12

Scott, 205 F.3d at 872-73. Patricia Scott filed suit under § 1983, claiming that the
defendants used excessive force to seize her, as well as violations under the Fourth and
Fourteenth Amendments. The district court denied the defendant officers summary
judgment on qualified-immunity grounds, assuming for summary-judgment purposes
“that Patricia, as a voluntary cohort of Robert’s whom, following the shooting, the
defendant officers forcibly removed from the inoperative Chevrolet and immediately
handcuffed, was an intended target of an official seizure,” id. at 876, and ruled that
material issues of fact remained regarding the reasonableness of Patricia Scott’s seizure,
and “whether the defendants were objectively unreasonable under the dictates of law
which was clearly established on the incident date.” Id. at 874. The defendants
appealed.

This court held that, as a matter of law, Pierce’s “faulted actions were objectively
reasonable, and thus did not violate the Fourth Amendment. Pierce justifiably fired at
the fleeing vehicle in order to seize its occupant(s); his actions therefore could not
violate the Fourth Amendment rights of any unknown passenger who may have been
injured by his actions. Thus, Pierce is entitled to qualified immunity.” Id. at 878.

In the cause sub judice, the district court presumed, for summary
judgment purposes, that Patricia, as a voluntary cohort of Robert’s
whom, following the shooting, the defendant officers forcibly removed
from the inoperative Chevrolet, and immediately handcuffed, was an
intended target of an official seizure at all times pertinent, [footnote
quoted below] thereby triggering the Fourth Amendment’s comparatively
relaxed “objective unreasonableness” standard of proof . . . On appeal,
the defendants-appellants have conceded that their summary judgment
motion should be assessed under the Fourth Amendment, rather than the
Fourteenth Amendment.

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

Accordingly, this review need not resolve whether a factual issue would
otherwise exist for trial regarding whether, at the time that Pierce
discharged his weapon into the moving Chevrolet’s passenger
compartment, the defendants intended to seize any passenger in that
vehicle other than the driver, which in turn would determine which
constitutional proviso would control the plaintiff’s charges. See
No. 09-1949 Rodriquez v. Passinault Page 13

Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (explaining that the
constitutional tort action of a citizen who had been inadvertently
wounded while inside a parked automobile during a police shoot-out with
an armed felony suspect in the parking lot must be scrutinized under
Fourteenth Amendment standards because the record proof was
uncontested that the defendant peace constables had been unaware that
anyone had been inside that vehicle and did not intend to seize anyone
who might be inside that car).

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

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

In Troupe, a 17-member SWAT team was assigned to serve a felony drug arrest
warrant for Ryan Hart and a search warrant for Hart’s residence. The SWAT team was
told that Hart had 40 previous arrests, 19 convictions, and “was out on bond for
attempted murder and was known to run from the police and for his violent tendencies.”
419 F.3d at 1163. While the SWAT team was en route, Hart and two other males – later
identified as Robinson and Waiters – left Hart’s house and got into a vehicle. The
SWAT team surrounded the vehicle with guns drawn and yelled commands for Hart and
the passengers to open the doors and surrender. Hart, the driver, revved the engine and
moved the car in jerking motions. The vehicle made a hard left so that it was facing the
road, at which time one of the defendant officers, Gooding, “fired a single shot at a low
angle, aiming for the lower portion of the tire.” 419 F.3d at 1164. “The shot missed the
tire and, apparently, did not strike anyone or anything.” Id. Another defendant officer,
Bauer, saw the car coming directly at him, fired two shots at the driver, and jumped out
of the car’s way as it swept past him. One bullet struck the driver’s door and the other
hit Hart in the back. None of the shots hit Robinson or Waiters. Hart accelerated, left
the yard, turned onto a road and drove over 0.3 miles, including through an intersection
without slowing. The car then “approached an officer’s unmarked vehicle, slowed
down, made a sharp move to the right to avoid oncoming traffic . . . and went onto the
grass and sidewalk, crashing into a concrete wall.” 419 F.3d at 1164-65. Hart and
Robinson were pronounced dead at the scene. Waiters sustained blunt force trauma
injuries to the skull. Id. at 1165.
No. 09-1949 Rodriquez v. Passinault Page 14

The plaintiffs in the consolidated cases were Troupe (Robinson’s personal
representative) and Waiters. The district court granted the defendants summary
judgment. The 11th Circuit agreed with the district court’s determinations that the
defendants were not the proximate cause of the plaintiffs’ injuries (concluding that it was
Hart’s reckless driving, and not Bauer’s decision to use deadly force, that caused the
death and injury of the plaintiffs), that the defendants’ use of deadly force was
reasonable under § 1983, and that the defendants were entitled to qualified immunity.
However, the Troupe court disagreed with the district court’s determination that the
plaintiffs had been seized, noting that an attempted seizure does not constitute a seizure
and that “stopping a vehicle’s driver does not constitute seizure of the passengers.”
Troupe, 419 F.3d at 1167.

F. The district court’s decision

The district court in the instant case discussed and distinguished Fisher, and
declined to “sua sponte broaden” Fisher’s holding. The court concluded that Scott did
“not compel a finding that an unknown passenger is seized when an officer fires at a
moving vehicle, and in any event, the [Scott] plaintiff[] . . . [was] struck by the officer’s
gunfire, unlike [Rodriguez.]” The district court found the Eleventh Circuit’s decision
in Troupe, 419 F.3d 1160, persuasive:

Plaintiff was neither a hostage nor an innocent bystander, but
rather an unknown – and intentionally concealed – passenger in Murray’s
vehicle. Fisher is silent as to whether the officer was aware of the
presence of passengers in the car. While some courts have questioned,
in dicta, whether an unknown passenger might be seized, see, e.g., Scott
v. Clay County, Tenn., 205 F.3d 867, [876] n.15 (6th Cir. 2000); Herman
v. City of Shannon, MS, 296 F. Supp.2d 709, 712 n.3 (N.D. Miss. 2003),
aff’d, 104 Fed. Appx. 398 (5th Cir. 2004), other courts have suggested
that an unknown passenger would not be seized. See, e.g., Edenfeld,
2006 WL 1041724, at *10; Tubar, 453 F. Supp. 2d at 1256. Scott and
Herman do not compel a finding that an unknown passenger is seized
when an officer fires at a moving vehicle, and in any event, the plaintiffs
in both cases were struck by the officer’s gunfire, unlike Plaintiff.
....
The Court finds Troupe persuasive. Like the plaintiffs in Troupe,
Plaintiff was not shot and was injured only in the subsequent crash.
No. 09-1949 Rodriquez v. Passinault Page 15

Whereas the Troupe plaintiffs were known passengers, Plaintiff was not,
which further compels a finding that she was not seized. While Plaintiff
maintains that, despite Troupe, a seizure may be effectuated in a fleeing
vehicle case without the target actually being shot, such cases discuss the
seizure of the vehicle’s driver and do not discuss an unknown passenger.
See Flores v. City of Palacios, 381 F.3d 391, 396-97 (5th Cir. 2004);
Carlson v. Lunsford, No. 05-1025, 2007 WL 470437, at *5 (W.D. Tenn.
Feb. 8, 2007).

Plaintiff has not identified a single case holding that an unknown
passenger, who was not shot, is seized under circumstances analogous to
the present.

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

IV. ANALYSIS

We do not agree with the district court that applying Fisher to the instant case
would extend Fisher’s holding. Under Fisher, an officer’s intentionally applied exertion
of force directed at a vehicle to stop it effectuates a seizure of all occupants therein. 234
F.3d at 318-19. Factually, the instant case is like Fisher in that it involved an officer’s
shooting at a moving vehicle in order to stop it, resulting in injury to the passenger. That
Fisher does not mention whether the police were aware of the passenger’s presence in
the vehicle does not render Fisher inapplicable to the instant case.

Troupe, on the other hand, bears little resemblance to the instant case. Here, after
two or more of Passinault’s shots struck Murray in the back, one of which paralyzed
Murray, the truck continued moving for a brief time and crashed into a ditch, with
Murray dead at the wheel. In Troupe, the fleeing vehicle continued its flight for more
than .3 miles and crashed into a concrete wall only after sharply veering to avoid
oncoming traffic. Although a bullet struck the driver, it did not effect a seizure of the
vehicle; it was the vehicle’s later crash that stopped the vehicle and caused the death of
the driver and a passenger, and injury to the other passenger. That is, the gunfire in
Troupe did not cause the vehicle to stop, and there was thus no seizure. To be sure, the
Troupe court did say, in the course of discussing whether there had been a seizure:
No. 09-1949 Rodriquez v. Passinault Page 16

[S]topping a vehicle’s driver does not constitute a seizure of a passenger.
See County of Sacramento v. Lewis, 523 U.S. 833, 844 [] (1998), citing
Brower, 489 U.S. at 596-97 []. Thus, when Bauer shot Hart that did not
constitute a seizure of the passengers.

419 F.3d at 1167. But that statement was made without any analysis, and the
cited case, County of Sacramento, does not so hold. Other cases, however, do stand for
the proposition that seizure of a car to protect a hostage does not constitute seizure of the
hostage.5 These cases are fairly distinguishable on the basis that in a hostage situation
there is no intentional acquisition of physical control of the hostage; rather the intention
of the officer is manifestly not to seize, but rather to liberate, the hostage.

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

By shooting at the driver of the moving car, he intended to stop the car,
effectively seizing everyone inside, including the Plaintiff. Thus,
because the Defendant “seized” the Plaintiff by shooting at the car, the
district court did not err in analyzing the Defendant’s actions under the
Fourth Amendment.

Fisher, 234 F.3d at 318. Nor does the fact that the passenger in Fisher was struck by
police gunfire, while Rodriguez was not, render Fisher inapplicable here. The district

5
The district court noted these cases. Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir.
2000) (hostages); Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (undetected passenger); Medeiros
v. O’Connell, 150 F.3d 164 (2d Cir. 1998) (hostage); Rucker v. Harford Cnty., 946 F.2d 278 (4th Cir.
1991) (bystander); Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir. 1990) (hostage). These cases are
generally based on Brower’s statement distinguishing intentional acts from unintended consequences:
The Fourth Amendment “addresses misuse of power, . . . not the accidental effects of
otherwise lawful government conduct.” Landol-Rivera, 906 F.2d at 795 (quoting
Brower, 489 U.S. at 596) (internal quotation marks omitted) (alterations in original).
The claim presented in this case vindicates no interest protected by the Fourth
Amendment. So far from seeking to restrain Joshua’s freedom, the troopers’ every
effort was bent on delivering all the hostages from deadly peril. See Medeiros v. Town
of South Kingstown, 821 F.Supp. 823, 827 (D.R.I. 1993) (rejecting the Fourth
Amendment claim of a passenger who asserted that he was imprisoned in the fleeing car
by the police officers’ high speed chase, stating that “the police did not intend to restrict
the movement of the passenger by causing the driver to flee at high speeds. In fact, their
intent was the exact opposite . . . .”).
. . . . But where the hostage is hit by a bullet intended for the hostage-taker, the mishap
is the “unintended consequence[ ] of government action,” and the governing principle
is that such consequences cannot “form the basis for a fourth amendment violation.”
Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir. 1991).
Medeiros, 150 F.3d at 168-69.
No. 09-1949 Rodriquez v. Passinault Page 17

court’s apparent belief that Rodriguez could not maintain an excessive
force/unreasonable seizure Fourth Amendment claim without having been shot goes
against established law, i.e., that under the Fourth Amendment’s reasonableness
standard, excessive force claims generally require at least de minimis physical injury.
See Morrison v. Green Tp. Bd. Of Trustees, 583 F.3d 394, 406-07 (6th Cir. 2009);
Carpenter v. Bowling, 276 F. App’x 423, 427 (6th Cir. 2008) (unpublished). Although
the district court properly determined that Rodriguez was not struck by gunfire, it did not
take into account that Rodriguez testified on deposition that she was injured by flying
glass caused by the gunfire. Thus, a genuine issue of material fact remained whether
Passinault’s gunfire resulted in physical injury to Rodriguez. Additionally, in contrast
to Troupe, the vehicle here crashed due to Murray being shot, not his careless driving.
Thus, as in Fisher, the injury was sustained due to the seizure of the vehicle.

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

V.

Rodriguez argues that “the unreasonableness of [Passinault’s] action was decided
by this Court in the companion case of the driver, Murray-Ruhl v. Passinault, et al., . . .
which found a justiciable issue as to Defendant Deputy Passinault’s actions.” Pl.’s Br.
at 10. Passinault argues that the law-of-the-case doctrine does not apply here because
Murray-Ruhl decided only that there were questions of fact as to whether Passinault used
excessive force against Murray, the fleeing suspect driver. The district court here did
not purport to address the reasonableness of Passinault’s use of force in the context of
the Fourth Amendment.

The Supreme Court in Graham explained:

Determining whether the force used to effect a particular seizure
is “reasonable” under the Fourth Amendment requires a careful balancing
of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests
at stake. Our Fourth Amendment jurisprudence has long recognized that
the right to make an arrest or investigatory stop necessarily carries with
No. 09-1949 Rodriquez v. Passinault Page 18

it the right to use some degree of physical coercion or threat thereof to
effect it. Because the test of reasonableness is not capable of precise
definition or mechanical application, however, its proper application
requires careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight.
The “reasonableness” of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. . . . With respect to a claim of excessive
force, the same standard of reasonableness at the moment applies: Not
every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers, violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments – in circumstances that
are tense, uncertain, and rapidly evolving – about the amount of force
that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the
“reasonableness” inquiry in an excessive force case is an objective one:
the question is whether the officers’ actions are “objectively reasonable”
in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation. An officer’s evil intentions will
not make a Fourth Amendment violation out of an objectively reasonable
use of force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.

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

Murray-Ruhl, 246 F. App’x at 340, concluded that because the record reflected
genuine disputes of material fact concerning the reasonableness of Passinault’s action,
summary judgment on qualified immunity grounds was inappropriate:

[I]f Passinault had fired a single shot as the truck came at him – or even
as it passed close to him – the district court’s findings of fact . . . might
be subject to deference on appeal. But one fact glaringly obvious from
the record is that Passinault emptied his weapon at the vehicle, reloaded
it, and fired at Murray perhaps as many as a dozen times even after the
truck had passed him and, thus, after Passinault could reasonably believe
that it imposed a threat to himself or – if Deputy Jenkins is to be believed
– to his partner. It was one of these “after shots” that proved to be fatal.
No. 09-1949 Rodriquez v. Passinault Page 19

At the very least, this record creates a dispute of fact concerning
whether events unfolded as the defendants claim in contending that they
are entitled to qualified immunity and whether their actions can be said
to have been objectively reasonable under those circumstances. Indeed,
the reasonableness of the use of deadly force turns entirely on which
version of the facts one accepts.

Murray-Ruhl, 246 F. App’x at 344.

Although the law-of-the-case doctrine may be inapplicable here,6 the parties’
disparate factual accounts clearly demonstrate that questions of fact remain whether
Passinault’s acts were objectively reasonable in light of the facts and circumstances
confronting him. Graham, 490 U.S. at 396-97.

VI.

This court reviews the district court’s grant of qualified immunity de novo.
Carver v. City of Cincinnati, 474 F.3d 283, 285 (6th Cir. 2007). The plaintiff bears the
ultimate burden of demonstrating that the defendant is not entitled to qualified immunity.
Baker v. City of Hamilton, Ohio, 471 F.3d 601, 605 (6th Cir. 2006).

If the legal question of immunity is completely dependent on which view of the
facts the jury accepts, the district court should not grant summary judgment on the issue.
Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. 1989); see also Sova v. City of
Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998) (“[S]ummary judgment is inappropriate
where there are contentious factual disputes over the reasonableness of the use of deadly
force.”).

We agree with Rodriguez and the Murray-Ruhl panel that Passinault’s
entitlement to qualified immunity depends on which party’s version of the facts a jury

6
Rodriguez I and/or Rodriguez II were not consolidated with Murray-Ruhl; they were separate
cases. Thus, technically, the law-of-the-case doctrine is not applicable here. Even if the cases had been
consolidated, consolidation under Fed. R. Civ. P. 42 does not render rulings in one case applicable to a
consolidated action. See, e.g., Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir.
1982) (“Consolidation . . . does not merge the suits into a single cause, or change the rights of the parties
or make those who are parties in one suit parties in another.”).
No. 09-1949 Rodriquez v. Passinault Page 20

accepts, and therefore disagree with the district court’s determination that Passinault was
entitled to summary judgment on qualified immunity grounds.

VII.

For the foregoing reasons, we REVERSE the district court’s grant of summary
judgment and REMAND for further proceedings consistent with this opinion.