dissenting.
I respectfully dissent for the reasons set out in the district court’s well-reasoned and persuasive opinion denying Defendants’ motion for summary judgment. I believe the district court was correct in finding that Defendants are not immune from suit.
Contrary to the representations of the majority opinion, this is a case in which factual disputes, which should preclude the granting of summary judgment, abound. In my opinion, the majority, contrary to the well-established dictates of law governing the granting of summary judgment, can only arrive at its conclusion that there are no factual disputes by deciding all of the contested issues of fact against Plaintiff. Not only does the majority opinion assert disputed facts to constitute undisputed facts, but in its anxiousness to deny Plaintiff her day in court, the majority reaches some of its factual conclusions by stating, as objectively established facts, what the majority supposes was in the minds of the deputies at the time of the events surrounding the shooting. The deputies’ explanation for their conduct, much of which could be viewed in the context of the factual circumstances to constitute after the fact speculation about the motivation of the officers, is asserted as uncontrovertibly true by the majority. Such determinations would best be left to the finder of fact at the time of trial.
Plaintiff and the officers have described vastly conflicting versions of what occurred on the evening of April 28, 1995. What is missing from the one-sided account of the events described by the majority opinion is any consideration of Plaintiffs allegations or version of the events. This case presents questions of whether the deputies acted reasonably in pursuing an individual who had allegedly initially committed a minor traffic violation; whether the deputies embellished or exaggerated their version of the events which subsequently occurred during the chase and the shooting; whether the deputies observed Plaintiff riding as a passenger in the vehicle and fired at her, or for that matter, whether the officers observed both the driver and the passenger and fired at both of them in *881disregard for the rights and safety of Plaintiff; and whether excessive force was used against Plaintiff by shooting at her and effectuating a “seizure” of her person for purposes of the Fourth Amendment. See Tennessee v. Garner, 471 U.S. 1, 16-17, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
As indicated by the district court’s opinion in this matter, the officers were in touch with one another by radio throughout the chase and the shooting. Rather than resolve all of the inferences that could be drawn from the contested facts and circumstances in favor of Plaintiff, as the Court is required to do on a motion for summary judgment, the majority has improperly undertaken in its opinion to resolve against Plaintiff all the issues of whether Defendants acted with excessive force and violated Plaintiffs clearly established rights. In so doing, the majority has also resolved against Plaintiff the issues of whether Defendants observed or had reason to know that excessive force would be or was about to be employed, or whether Defendants had the opportunity and means to prevent the harm to Plaintiff. Again, those issues should have been left for resolution at trial.
This Plaintiff, who suffered grievous personal injury and harm in the incident which is the subject of this litigation, should have been permitted to subject the officers’ testimony to the truth seeking device of cross-examination at trial, and should have been afforded the opportunity to present direct and circumstantial evidence from which Plaintiff could argue to the court and jury that her clearly established constitutional rights were violated by what constituted, under the circumstances, the officers’ excessive use of force for which one or more of Defendants were not entitled to the benefits of qualified immunity.
The majority asserts that because Plaintiff has argued violations of her rights under the Fourth Amendment and not the violation of her substantive due process rights under the Fourteenth Amendment, the lesser standard of “objective unreasonableness” should apply. The granting of summary judgment under the circumstances of this case is improper regardless of whether the standard that should be applied in evaluating the officers’ conduct is the “conscience shocking” standard of the Fourteenth Amendment, see County of Sacramento v. Lewis, 528 U.S. 833, 118 S.Ct. 1708, 1717, 140 L.Ed.2d 1043 (1998), or the lesser standard of “objective unreasonableness” of the Fourth Amendment. See Garner, 471 U.S. at 16-17, 105 S.Ct. 1694; see also Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.2000). Regardless of the appropriate standard, Defendants do not dispute, as made clear by the district court’s opinion, that Plaintiffs right to be free from excessive force under the Fourth Amendment was a clearly established right at the time of the incident in question. The question that should have been left for trial was whether excessive force was actually employed against Plaintiff.
This Circuit’s unfortunate practice of arrogating unto itself the role of resolving on appeal the factual disputes presented by a qualified immunity defense in a § 1983 action, as represented by the majority opinion herein, continues the troubling trend followed by this Court in the improperly decided case of Claybrook v. Birchwell. See 199 F.3d at 358-61 (affirming the district court’s order granting summary judgment to the defendants on Counts III and IV of the plaintiffs’ complaint). I therefore dissent.