          RECOMMENDED FOR FULL-TEXT PUBLICATION
               Pursuant to Sixth Circuit Rule 206                         2    Adams, et al. v. City of                   No. 02-1379
     ELECTRONIC CITATION: 2003 FED App. 0236P (6th Cir.)                       Auburn Hills, et al.
                  File Name: 03a0236p.06

                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                   ARGUED:        G. Gus Morris, COX, HODGMAN &
                    _________________                                     GIARMARCO, Troy, Michigan, for Appellant. H. Wallace
                                                                          Parker, BLOOMFIELD LAW CENTER, Bloomfield Hills,
                                                                          Michigan, for Appellees. ON BRIEF: G. Gus Morris, COX,
 KEVIN LAMAR ADAMS;               X                                       HODGMAN & GIARMARCO, Troy, Michigan, for
 BOBBIE ADAMS,                     -                                      Appellant. H. Wallace Parker, BLOOMFIELD LAW
          Plaintiffs-Appellees, -                                         CENTER, Bloomfield Hills, Michigan, for Appellees.
                                   -  No. 02-1379
                                   -                                                         _________________
            v.                      >
                                   ,                                                             OPINION
                                   -                                                         _________________
 CITY OF AUBURN HILLS, a           -
 municipal corporation, et al.,    -                                        JAMES G. CARR, District Judge. Kevin Lamar Adams
                   Defendants, -                                          claims that Auburn Hills, Michigan, police officer John
                                   -                                      Backstrom used excessive force against him in making a
                                   -                                      police stop. Officer Backstrom appeals from the district
 JOHN BACKSTROM ,
                                   -                                      court’s denial of his motion for summary judgment based on
         Defendant-Appellant. -
                                                                          qualified immunity. We hold that Adams has not made out a
                                  N                                       constitutional violation against Backstrom. We therefore
       Appeal from the United States District Court                       REVERSE the district court’s denial of qualified immunity
    for the Eastern District of Michigan at Ann Arbor.                    and REMAND to dismiss the complaint.
   No. 00-60443—Marianne O. Battani, District Judge.
                                                                                             I.   BACKGROUND
                      Argued: May 6, 2003
                                                                          A.   Factual Background
              Decided and Filed: July 21, 2003
                                                                            This case arises from a domestic dispute that resulted in
   Before: SUHRHEINRICH and COLE, Circuit Judges;                         Officer Backstrom’s shooting at the car Kevin Adams was
               CARR, District Judge.*                                     driving. On the evening of March 8, 1999, Kevin Adams
                                                                          rented a room at the Motel 6 in Auburn Hills, Michigan, with
                                                                          an old girlfriend. Adams drove a Ford Taurus to the motel.
                                                                          Earlier that year, Geisha Breckenridge, Adams’s ex-girlfriend,
    *
     The Honorab le James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
No. 02-1379                      Adams, et al. v. City of    3    4        Adams, et al. v. City of                           No. 02-1379
                                    Auburn Hills, et al.                   Auburn Hills, et al.

agreed to sell the Taurus to Adams. Breckenridge allowed          Backstrom that because he had not broken any laws, he was
Adams to use the car while he purchased it.                       leaving. Backstrom yelled for Adams to get out of the car
                                                                  three times and held his gun near the driver’s side window.
  In the early morning hours of March 9, 1999, Breckenridge       When Adams did not move, Adams claims Officer Backstrom
spotted the Taurus at the motel. Using a tire iron, she smashed   fired two shots into the driver’s side door. As Adams drove
in the window of the room in front of the Taurus.                 away, Backstrom fired two more shots at the Taurus’s left
Unbeknownst to Breckenridge, it was not the room occupied         rear wheel and mud flap.1
by Adams. Adams heard the commotion, however, and stayed
in his rented room.                                                  Though Officer Backstrom’s shots had struck the Taurus,
                                                                  Adams was able to drive to the home of his mother, Bobbie
  Motel 6 employees called the Auburn Hills police                Adams. Auburn Hills police issued a report regarding the
department. Sergeant Glenn Heath and Officer Brian Martin         Taurus. Pontiac, Michigan, police spotted the Taurus in front
responded to the call. They found Breckenridge in the back        of Bobbie Adams’s home. When police officers came to the
seat of her car in the motel parking lot. Breckenridge admitted   back door of the home, Kevin Adams ran out the front door.
breaking the window, and she told the officers she was there      Bobbie Adams told the officers that she had not seen her son,
because Adams was with another woman. Breckenridge also           and she would not allow the officers to search the home. The
said she wanted to retrieve her keys to the Taurus, although      officers set up surveillance at the house. Later that morning,
she admitted allowing Adams to use the Taurus.                    Bobbie Adams allegedly consented to a search of her home.
                                                                  A yellow jacket that Kevin Adams reportedly wore at the
  After Breckenridge was in police custody, Officer John          motel was found inside the home. The police impounded the
Backstrom arrived at the scene. Sgt. Heath, as the higher-        Taurus. Kevin Adams subsequently surrendered with his
ranking officer, told Backstrom that his presence was not         attorney.
needed and that he could leave. As Backstrom was leaving, a
motel guest asked the officer for assistance unlocking his car.     The Oakland County Prosecutor’s Office charged Adams
                                                                  with driving with a suspended license and assault with intent
   Shortly thereafter, Sgt. Heath noticed that Adams was          to do great bodily harm for attempting to run down Officer
attempting to leave the motel in the Taurus. Sgt. Heath yelled    Backstrom. A jury convicted Adams on the suspended license
to Officer Backstrom -- who was across the parking lot near       charge but acquitted him on the assault charge.
the exit -- to stop the Taurus and retrieve Breckenridge’s
keys.                                                             B.       Procedural Background
   According to Adams, as he drove towards the motel exit,          In December, 2000, Adams and his mother filed a
Officer Backstrom walked in front of the Taurus with his gun      42 U.S.C. § 1983 claim in the United States District Court for
in one hand and his other hand up for Adams to stop. Adams
stopped the vehicle and stood halfway outside the vehicle
with his left hand on the top of the door and his right hand on        1
top of the car. Adams asked Backstrom if he had broken any             Officer Backstrom denies shooting into the door of the Taurus, and
law and the officer replied that he had not. Adams then told      no bullet holes w ere found in the driver’s side door. The only bullet holes
                                                                  were in the wheel and mud flap.
No. 02-1379                      Adams, et al. v. City of      5   6    Adams, et al. v. City of                     No. 02-1379
                                    Auburn Hills, et al.                Auburn Hills, et al.

the Eastern District of Michigan. Plaintiffs alleged the City of                        II.   DISCUSSION
Auburn Hills, Auburn Hills Police Department, Auburn Hills
Police Chief Doreen Olko, Lieutenant David P. Chase, Sgt.          A.   Standard of Review
Heath, and Officer Backstrom violated the Fourth, Fifth,
Eighth, and Fourteenth Amendments to the United States               Review of the denial of qualified immunity is de novo.
Constitution.                                                      Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir. 2002). As
                                                                   noted in Risbridger, “[a] district court’s decision rejecting an
  The defendants responded by seeking summary judgment             individual defendant’s claim to qualified immunity is
on the following bases: 1) defendants Auburn Hills and             immediately appealable to the extent that it raises a question
Auburn Hills Police Department did not have a policy,              of law, notwithstanding the absence of a final judgment.” Id.
custom, or procedure which caused a constitutional                 at 568 (citing Behrens v. Pelletier, 516 U.S. 299, 310-11
deprivation; 2) Chief Olko, Sgt. Heath, and Lt. Chase had no       (1996); Mitchell, 472 U.S. at 530).
direct involvement in the alleged acts of deprivation; and
3) Officer Backstrom was entitled to qualified immunity.           B.   Qualified Immunity

  The district court heard oral argument on defendants’               As the Supreme Court explained in Harlow v. Fitzgerald,
motion. Thereafter, the district judge, ruling from the bench,     457 U.S. 800, 818 (1982), “government officials performing
granted defendants’ motion for summary judgment on all             discretionary functions, generally are shielded from liability
counts except the Fourth Amendment claim against Officer           for civil damages insofar as their conduct does not violate
Backstrom. The court stated:                                       clearly established statutory or constitutional rights of which
                                                                   a reasonable person would have known.”
  The defendant argues here if it’s a mistake to shoot that
  tire and it’s reasonable for him, then the immunity                 Whether a defendant is entitled to qualified immunity
  defense of course would apply. But here there’s so many          depends on: “(1) whether the facts taken in the light most
  factual issues about did he shoot as the car was driving         favorable to plaintiff could establish a constitutional
  away, etc., and I think that those issues first have to be       violation; (2) whether the right was a ‘clearly established’
  resolved by a jury.                                              right of which any reasonable officer would have known; and
                                                                   (3) whether the official’s actions were objectively
J.A. 522.                                                          unreasonable in light of that clearly established right.”
                                                                   Risbridger, 275 F.3d at 569 (citing Williams v. Mehra, 186
  Backstrom filed an interlocutory appeal under Mitchell v.        F.3d 685, 690 (6th Cir. 1999)).
Forsyth, 472 U.S. 511 (1985).
                                                                     The sole issue in this appeal is whether Officer Backstrom,
                                                                   by shooting at Adams’s car, violated Adams’s Fourth
                                                                   Amendment rights.
                                                                     The Supreme Court held in Graham v. Connor, 490 U.S.
                                                                   386 (1989), that “all claims that law enforcement officers
No. 02-1379                        Adams, et al. v. City of      7    8     Adams, et al. v. City of                     No. 02-1379
                                      Auburn Hills, et al.                  Auburn Hills, et al.

have used excessive force -- deadly or not -- in the course of        violated, and consideration of the reasonableness of Officer
an arrest, investigatory stop, or other ‘seizure’ of a free citizen   Backstrom’s conduct is unnecessary.
should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a ‘substantive             A “seizure” triggering the Fourth Amendment’s protections
due process’ approach.” Id. at 395 (emphasis in original).            occurs only when government actors have, “by means of
                                                                      physical force or show of authority, . . . in some way
   The parties argue whether Officer Backstrom’s actions              restrained the liberty of a citizen.’” Terry v. Ohio, 392 U.S. 1,
were objectively reasonable in light of the facts and                 19 n.16 (1968).
circumstances surrounding the shooting. The Sixth Circuit has
looked to several factors in determining whether objective               In United States v. Mendenhall, 446 U.S. 544, 553 (1980),
reasonableness exists, including: 1) “the severity of the crime       the Supreme Court stated: “a person has been ‘seized’ within
at issue,” 2) “whether the subject pose[d] a threat to anyone,”       the meaning of the Fourth Amendment only if, in view of all
and 3) “whether the suspect [was] attempting to escape or . . .       of the circumstances surrounding the incident, a reasonable
resisting arrest.” Patrick v. City of Detroit, 906 F.2d 1108,         person would have believed that he was not free to leave.” See
1115 (6th Cir. 1990) (quoting Graham, 490 U.S. at 396).               also Brower v. County of Inyo, 489 U.S. 593, 597 (1989)
                                                                      (finding that a Fourth Amendment seizure occurs “when there
   Citing Graham and Tennessee v. Garner, 471 U.S. 1                  is a governmental termination of freedom of movement
(1985), Adams argues that a person has a clearly established          through means intentionally applied.”) (emphasis in original).
right not to be shot unless he or she poses a threat to the
police or to others. Accordingly, because Adams was                     In California v. Hodari D., 499 U.S. 621 (1991), the
unarmed and Officer Backstrom was not in the path of the              Supreme Court held that where police make a show of
Taurus, Adams argues it was not objectively reasonable for            authority but the subject does not yield, there is no seizure for
Officer Backstrom to shoot at him.                                    Fourth Amendment purposes. In Hodari, police chased a
                                                                      juvenile who discarded cocaine while fleeing, before he was
  Officer Backstrom argues that shooting at the tires of the          tackled by an officer. The Court ruled that the cocaine could
Taurus was not excessive force because Adams was “fleeing             be introduced in the criminal proceeding because the
and posed an immediate threat to the officer’s personal safety        defendant had not been seized before the officer took
and in addition posed a threat to members of the public               possession of the drugs. Because the defendant did not
because he was fleeing the scene in a rapid and reckless              comply with the order to stop, “he was not seized until he was
fashion.” Br. at 17-18. Shooting at the tire in an attempt to         tackled.” Id. at 629. The word “seizure,” according to the
disable it was, Backstrom argues, a reasonable application of         Court, does not apply “to the prospect of a policeman yelling
force.                                                                ‘Stop, in the name of the law!’ at a fleeing form that continues
                                                                      to flee.” Id. at 626.
  The parties in this case have skipped a preliminary
question. Before the reasonableness of Backstrom’s use of               This court specifically has held that shooting at a fleeing
force can be analyzed, we must first determine whether there          felon, but missing, is not a “seizure.” In Cameron v. City of
was a seizure for purposes of the Fourth Amendment. If                Pontiac, 813 F.2d 782 (6th Cir. 1987), the mother of the
Adams was not seized, the Fourth Amendment has not been               deceased fleeing suspect filed a § 1983 action against an
No. 02-1379                       Adams, et al. v. City of        9   10   Adams, et al. v. City of                    No. 02-1379
                                     Auburn Hills, et al.                  Auburn Hills, et al.

officer for unjustifiably using deadly force in attempting to         officer shot the tires of plaintiff’s car in an unsuccessful
apprehend her son, a burglary suspect. Police chased the              pursuit); Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993)
suspect and shot at him several times, but never hit him. The         (“[T]he shots that were fired at the truck and that did not hit
suspect ran onto a busy expressway and was fatally struck by          [plaintiff] were not seizures because they too failed to
a motor vehicle.                                                      produce a stop.”); McAllister v. New York City Police Dept.,
                                                                      49 F. Supp. 2d 688, 698-99 (S.D.N.Y. 1999) (granting
  We explained:                                                       defendant-officers’ motion for summary judgment on
                                                                      plaintiff’s excessive force-shooting claim because plaintiff
  Cameron was not seized by [officer defendants].                     suffered no damage when police fired into the car but the
  Cameron elected to flee, not to be restrained. The                  plaintiff was not hit or hurt); Palmer v. Williamson, 717 F.
  officers’ show of authority by firing their weapons, while          Supp. 1218, 1223 (W.D. Tex. 1989) (“[M]ere firing does not
  designed to apprehend Cameron, did not stop or in any               establish a ‘seizure’ within the meaning of the Fourth
  way restrain him. “Just as clearly, when the pursuit                Amendment. . . . [E]ven if [the officer] meant to stop [the
  terminated in an accident [causing the death of] the                plaintiff] by firing his gun at the car as it pulled away, [the
  minor plaintiff, he was not restrained by, or as a result of,       plaintiff] was not stopped.”).
  the officer’s show of authority.” Cameron’s freedom of
  movement was restrained only because he killed himself                 In this case, Officer Backstrom’s firing at the automobile
  by electing to run onto a heavily traveled, high speed              did not impair Adams’s movement. Adams was not hit by
  freeway.                                                            Officer Backstrom’s bullets and was able to leave the scene
                                                                      unharmed despite Backstrom’s use of his firearm. Even
  The use of deadly force standing alone does not                     though the tire of the Taurus was hit, it appears that the car
  constitute a seizure, and absent an actual physical                 still was operable and Adams reached his destination, his
  restraint or physical seizure, the alleged                          mother’s house.
  unreasonableness of the officers’ conduct cannot serve as
  a basis for a § 1983 cause of action anchored in the                  Hence, Adams never was seized, and our holding that no
  Fourth Amendment. Consequently, the reasonableness of               seizure occurred makes the discussion of the reasonableness
  the officers’ use of their weapons in attempting to                 of Backstrom’s conduct unnecessary. Because the Fourth
  apprehend Cameron cannot be challenged under § 1983.                Amendment is not implicated, Adams has not alleged a
                                                                      constitutional violation to support a § 1983 claim. Without an
Id. at 785 (citing Galas v. McKee, 801 F.2d 200, 202 (6th Cir.        underlying constitutional violation, the question of whether
1986)).                                                               Backstrom is entitled to qualified immunity is moot.
  Courts outside the Sixth Circuit also have addressed                                      CONCLUSION
whether shooting at a car -- but not hitting or stopping the
individuals inside of it -- is a violation of the Fourth                For the foregoing reasons, we REVERSE the judgment of
Amendment. See e.g., Latta v. Keryte, 118 F.3d 693, 699-700           the district court and REMAND for further proceedings in
(10th Cir. 1997) (finding that the plaintiff was “seized” only        accordance with this decision.
when he stopped at a roadblock and not when the defendant-
