        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0074P (6th Cir.)
                File Name: 00a0074p.06


UNITED STATES COURT OF APPEALS
               FOR THE SIXTH CIRCUIT
                 _________________


                                  ;
                                   
 PATRICIA SCOTT,
                                   
            Plaintiff-Appellee,
                                   
                                   
                                       No. 98-6157
            v.
                                   
                                    >
 CLAY COUNTY, TENNESSEE;           
                                   
 PIERCE; MICHAEL THOMPSON, 
 CHINN ANDERSON; BILLY

        Defendants-Appellants. 
                                   
                                  1
       Appeal from the United States District Court
    for the Middle District of Tennessee at Cookeville.
 No. 95-00095—Thomas A. Wiseman, Jr., District Judge.
                Argued: August 10, 1999
            Decided and Filed: March 1, 2000
  Before: KRUPANSKY, BOGGS, and CLAY, Circuit
                   Judges.
                  _________________
                       COUNSEL
ARGUED: 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, for

                            1
2        Scott v. Clay County, Tennessee, et al.            No. 98-6157      No. 98-6157      Scott v. Clay County, Tennessee, et al.     23

Appellants. Richard M. Brooks, Carthage, Tennessee, for                         The majority asserts that because Plaintiff has argued
Appellee.                                                                    violations of her rights under the Fourth Amendment and not
                                                                             the violation of her substantive due process rights under the
   KRUPANSKY, J., delivered the opinion of the court, in                     Fourteenth Amendment, the lesser standard of “objective
which BOGGS, J., joined. CLAY, J. (pp. 21-23), delivered                     unreasonableness” should apply. The granting of summary
a separate dissenting opinion.                                               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
                             OPINION                                         Sacramento 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;
  KRUPANSKY, Circuit Judge. The defendants-appellants                        see also Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.
Clay County, Tennessee (“the County”), Sheriff Cecil                         2000). Regardless of the appropriate standard, Defendants do
“Chinn” Anderson (“Anderson”), Deputy Billy Pierce                           not dispute, as made clear by the district court’s opinion, that
(“Pierce”), and Deputy Michael Thompson (“Thompson”)                         Plaintiff’s right to be free from excessive force under the
have contested the district court’s denial of their motion,                  Fourth Amendment was a clearly established right at the time
anchored in qualified immunity, for Fed. R. Civ. P. 56                       of the incident in question. The question that should have
summary adjudication of the federal civil rights claims of the               been left for trial was whether excessive force was actually
plaintiff-appellee Patricia Scott (“Patricia” or “the plaintiff”).           employed against Plaintiff.
The plaintiff alleged in her single-count complaint that Clay
County Sheriff’s Department officers Anderson, Pierce, and                      This Circuit’s unfortunate practice of arrogating unto itself
Thompson used excessive force to effect           her arrest, in             the role of resolving on appeal the factual disputes presented
violation of 42 U.S.C. §§ 1983 and 1988,1 which caused her                   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
    1
        Section 1983 provides, in pertinent segment:                         decided case of Claybrook v. Birchwell. See 199 F.3d at 358-
                                                                             61 (affirming the district court’s order granting summary
         Every person who, under color of any statute, ordinance,            judgment to the defendants on Counts III and IV of the
    regulation, custom, or usage, of any State . . . subjects, or causes     plaintiffs’ complaint). I therefore dissent.
    to be subjected, any citizen of the United States or other person
    within 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 in
    equity, or other proper proceeding for redress[.]
    In any action under section 1983, the plaintiff must prove that (1) he
or she has been deprived of a right secured by the United States
constitution or laws, (2) the defendants who allegedly caused that
deprivation acted under color of state law, and (3) the deprivation
occurred without due process of law. O'Brien v. City of Grand Rapids,
23 F.3d 990, 995 (6th Cir. 1994).
22    Scott v. Clay County, Tennessee, et al.      No. 98-6157      No. 98-6157        Scott v. Clay County, Tennessee, et al.              3

subsequently occurred during the chase and the shooting;            serious bodily injury. She further contended that the County,
whether the deputies observed Plaintiff riding as a passenger       and Anderson as County Sheriff, failed to properly train
in the vehicle and fired at her, or for that matter, whether the    and/or supervise the defendant deputies, and failed to develop
officers observed both the driver and the passenger and fired       and implement appropriate official departmental policy
at both of them in disregard for the rights and safety of           restraints against the unjustifiable exertion of potentially
Plaintiff; and whether excessive force was used against             lethal force, thus violating constitutional rights redressible by
Plaintiff by shooting at her and effectuating a “seizure” of her    § 1983. Patricia also asserted pendent state law claims.
person for purposes of the Fourth Amendment. See Tennessee
v. Garner, 471 U.S. 1, 16-17 (1985).                                  Although witness unanimity is absent regarding various
                                                                    factual details, the essential controlling material facts of this
   As indicated by the district court’s opinion in this matter,     case are not in substantial dispute.2 During the late evening
the officers were in touch with one another by radio                of April 28 and early morning of April 29, 1995, Patricia
throughout the chase and the shooting. Rather than resolve all      Scott had been a willing passenger in her own automobile, a
of the inferences that could be drawn from the contested facts      four-door 1978 Chevrolet Caprice, traveling on the dark
and circumstances in favor of Plaintiff, as the Court is            country roadways of Clay County. She had permitted her ex-
required to do on a motion for summary judgment, the                husband, Robert Scott (“Robert”), to drive the vehicle.
majority has improperly undertaken in its opinion to resolve        Moments earlier, her former spouse had retrieved 3her from a
against Plaintiff all the issues of whether Defendants acted        nearby narcotics den known locally as “Chet’s.” Patricia
with excessive force and violated Plaintiff’s 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                 Section 1988, inter alia, authorizes the court, in its discretion, to
                                                                    award attorney fees to certain prevailing parties in section 1983 cases.
about to be employed, or whether Defendants had the
opportunity and means to prevent the harm to Plaintiff.                 2
                                                                          In accordance with long standing summary judgment norms, this
Again, those issues should have been left for resolution at         reviewing court has construed the record evidence most favorably for the
trial.                                                              plaintiff Patricia Scott as the litigant opposing summary judgment. E.g.,
                                                                    Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
   This Plaintiff, who suffered grievous personal injury and        (1986). “Credibility determinations, the weighing of the evidence, and the
harm in the incident which is the subject of this litigation,       drawing of legitimate inferences from the facts are jury functions, not
should have been permitted to subject the officers’ testimony       those 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.
to the truth seeking device of cross-examination at trial, and      Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted). See also
should have been afforded the opportunity to present direct         Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456 (1992);
and circumstantial evidence from which Plaintiff could argue        Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir. 1994). For purposes of
to the court and jury that her clearly established constitutional   this appeal, the defendants-appellants either have relied upon facts which
rights were violated by what constituted, under the                 were conceded by the plaintiff-appellee or were proved beyond dispute;
                                                                    or have adopted the plaintiff’s version of contested material facts, as
circumstances, the officers’ excessive use of force for which       articulated via her written response to the defendants’ Statement of
one or more of Defendants were not entitled to the benefits of      Material Fact Not in Dispute filed in support of their summary judgment
qualified immunity.                                                 motion.
                                                                        3
                                                                          Both Scotts had a history of cocaine abuse, although Robert asserted
                                                                    that he had been attempting to overcome his cocaine dependency.
4       Scott v. Clay County, Tennessee, et al.          No. 98-6157        No. 98-6157      Scott v. Clay County, Tennessee, et al.     21

knew that her activities at the drug house had infuriated                                       _________________
Robert; he testified that he “was probably the maddest I ever
was in my life.” Moreover, Patricia knew that Robert had                                            DISSENT
proximately ingested a significant volume4 of alcohol coupled                                   _________________
with additional psychoactive substances; possessed no valid
motor vehicle operator’s permit because his license had been                  CLAY, Circuit Judge, dissenting. I respectfully dissent for
judicially revoked pursuant to his conviction for driving while             the reasons set out in the district court’s well-reasoned and
intoxicated; and had, in the past, recklessly fled from law                 persuasive opinion denying Defendants’ motion for summary
enforcement authorities at high speeds. Forthwith, the                      judgment. I believe the district court was correct in finding
emotionally agitated, and chemically impaired, couple                       that Defendants are not immune from suit.
engaged in a passionate argument inside the moving vehicle.
                                                                               Contrary to the representations of the majority opinion, this
  Flouting a traffic sign, Robert failed to stop at the                     is a case in which factual disputes, which should preclude the
intersection of Neely’s Creek Road and Highway 53.                          granting of summary judgment, abound. In my opinion, the
Sheriff’s Deputy Michael Thompson, on routine highway                       majority, contrary to the well-established dictates of law
patrol, observed the Scott vehicle race erratically through that            governing the granting of summary judgment, can only arrive
intersection with its tires squealing, then momentarily weave               at its conclusion that there are no factual disputes by deciding
off the pavement as it recklessly turned, at a hazardous                    all of the contested issues of fact against Plaintiff. Not only
velocity, onto Walker Ridge Road. Thompson, concerned for                   does the majority opinion assert disputed facts to constitute
public safety, commenced tailing that motorcar.                             undisputed facts, but in its anxiousness to deny Plaintiff her
                                                                            day in court, the majority reaches some of its factual
   The speed of the Scott automobile dangerously rose while                 conclusions by stating, as objectively established facts, what
on Walker Ridge Road, rocketing past, and narrowly missing,                 the majority supposes was in the minds of the deputies at the
Sheriff Chinn Anderson’s unmarked service cruiser which he                  time of the events surrounding the shooting. The deputies’
had parked near the roadside, as well as the sheriff himself,               explanation for their conduct, much of which could be viewed
who had been sitting nearby. In response, Thompson, with                    in the context of the factual circumstances to constitute after
his vehicle’s siren sounding and blue lights flashing, pursued              the fact speculation about the motivation of the officers, is
the Caprice at high speed.5 Because he lacked a valid driver’s              asserted as uncontrovertibly true by the majority. Such
license, Robert intended to evade apprehension by fleeing to                determinations would best be left to the finder of fact at the
his mother’s residence. An experienced “road runner,”                       time of trial.
Robert had successfully eluded the police in past high-speed
                                                                              Plaintiff and the officers have described vastly conflicting
                                                                            versions of what occurred on the evening of April 28, 1995.
    4                                                                       What is missing from the one-sided account of the events
     Robert testified that he had recently consumed between five and        described by the majority opinion is any consideration of
seven beers, in tandem with prescription pharmaceuticals including “nerve
medicine” and “muscle relaxants,” which had produced a drug-induced         Plaintiff’s allegations or version of the events. This case
mood alteration.                                                            presents questions of whether the deputies acted reasonably
                                                                            in pursuing an individual who had allegedly initially
    5                                                                       committed a minor traffic violation; whether the deputies
      At deposition, Thompson could not recall whether he activated his
unit’s siren and lights shortly before, or momentarily after, the Scott     embellished or exaggerated their version of the events which
vehicle sped perilously close to the sheriff and his vehicle.
20     Scott v. Clay County, Tennessee, et al.              No. 98-6157         No. 98-6157      Scott v. Clay County, Tennessee, et al.      5

appellant Clay County, further directs that      the plaintiff’s                chases. Robert conceded that, during his ensuing flight, he
federal claims against it shall be dismissed.22 See Brennan v.                  forced at least one fellow motorist off the roadway, and that
Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir.                         he “might have been across the yellow line or could have been
1996).                                                                          sliding across the yellow line,” which conduct patently risked
                                                                                the physical safety of civilian motorists and pedestrians,
  Finally, following remand, the district court shall initially                 pursuing patrolmen, Robert’s passenger, and himself.
determine, in its sound discretion, whether to dismiss the
plaintiff’s remaining state law claims without prejudice, or to                   Patrol cruisers driven by Anderson and Deputy Sheriff Billy
exercise supplemental federal jurisdiction over them. 28                        Pierce momentarily joined Deputy Thompson’s pursuit of the
U.S.C. § 1367(a) & (c)(3); Carnegie-Mellon University v.                        speeding Chevrolet. After the three sheriff’s office units had
Cohill, 484 U.S. 343, 348-50 (1988); Rosado v. Wyman, 397                       chased the Scott car for over twenty minutes, at speeds
U.S. 397, 403-05 (1970); Musson Theatrical, Inc. v. Federal                     ranging between 85 to 100 miles per hour, Robert lost control
Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996).                           of his vehicle while attempting a sharp turn at 75 to 80 miles
                                                                                per hour. The Caprice skidded for several hundred feet,
  This reviewing court has carefully considered each                            glided off the thoroughfare, and crashed into a roadside guard
argument submitted by the plaintiff, but finds none                             rail, which brought the fugitive vehicle to an abrupt halt.
persuasive, either individually or collectively. Accordingly,
the district court’s order of July 28, 1998 denying qualified                     Deputy Pierce, whose patrol vehicle had led the erstwhile
immunity to defendants Anderson, Pierce, and Thompson is                        chase, initially reached the immobilized motorcar. At some
REVERSED. All claims against all defendants anchored in                         point, a collision transpired between the Scott automobile and
42 U.S.C. §§ 1983 and 1988 are DISMISSED WITH                                   Pierce’s departmental vehicle; Robert asserted that Pierce’s
PREJUDICE. This case is REMANDED to the district                                car struck the stationary Caprice from the rear, whereas Pierce
court for such necessary further orders and proceedings as are                  posited that Robert backed the Caprice into his squad cruiser
consistent with this opinion, including disposition of the                      after he (Pierce) had exited it. In any event, no dispute exists
plaintiff’s pendent state law claims.                                           that Deputy Pierce parked and exited his patrol car, produced
                                                                                his sixteen-round, nine-millimeter Ruger service arm, and
                                                                                cautiously 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’s
     22                                                                         approaching vehicle. Robert recalled that, although he had
       Even if this review had declined to exercise its discretionary
pendent party jurisdiction over the County, its ruling that none of the three   observed at least one firearm-toting deputy approaching the
individual defendants had violated any constitutional right of the plaintiff    Caprice, and knew that additional armed law enforcement
would constitute the law of the case which, under the mandate rule, would       officers were approaching, he nevertheless intended to escape
compel the district court, following remand, also to dismiss the federal        by driving in the direction from which the supporting units
claims against the County. See 28 U.S.C. § 2106; Vendo Co. v. Lektro-           would be arriving.
Vend Corp., 434 U.S. 425, 427-28 (1978); United States v. Moored, 38
F.3d 1419, 1421 (6th Cir. 1994); In re General Motors Corp., 3 F.3d 980,
984 n. 2 (6th Cir. 1993); Guidry v. Sheet Metal Wkrs. Intern. Ass’n, 10           At the moment that the Chevrolet was racing once again
F.3d 700, 705-06 (10th Cir. 1993); Piambino v. Bailey, 757 F.2d 1112,           onto the public motorway, Deputy Pierce believed that its
1119-20 (11th Cir. 1985).
6       Scott v. Clay County, Tennessee, et al.            No. 98-6157        No. 98-6157          Scott v. Clay County, Tennessee, et al.                 19

operator had earlier tried to run down Sheriff Anderson,6 had                 automatically excuse a municipality or county from
attempted to drive over him (Pierce) only moments                             constitutional liability, even where the municipal or county
previously, and posed a grave immediate menace to the lives                   actors were personally absolved by qualified immunity, if
and limbs of his approaching colleagues as well as innocent                   those agents in fact had invaded the plaintiff’s constitutional
highway travelers. The plaintiff has not contested Pierce’s                   rights. Leatherman v. Tarrant County Narcotics Unit, 507
avowal that he did not know that a passenger was also inside                  U.S. 163, 166-67 (1993); Garner v. Memphis Police Dept., 8
the vehicle. Confronted with a momentous, split-second, life-                 F.3d 358, 365 (6th Cir. 1993). “An official capacity claim
or-death decision, defendant Pierce initially reacted  by firing              filed against a public employee is equivalent to a lawsuit
five bullets towards the Chevrolet’s driver;7 he then                         directed against the public entity which that agent represents.”
discharged an additional four rounds at that vehicle’s tires,                 Claybrook, 199 F.3d at 355 n.4 (citing Kentucky v. Graham,
causing it to skid to a stop for the second, and final, time.                 473 U.S. 159, 165 (1985)). Accordingly, despite the
Pierce’s hail of bullets had failed to injure the driver, Robert              dismissal of Anderson, Pierce, and Thompson in their
Scott. Unfortunately, however, two of his shots had                           personal capacities, a procedurally proper case has been stated
inadvertently struck plaintiff Patricia Scott, whose presence                 against defendant Clay County, Tennessee, by virtue of the
as a passenger was unknown to Pierce.                                         plaintiff’s specification, in her complaint, that Clay County,
                                                                              as well as the three defendant county agents in their official
  Immediately following the Chevrolet’s incapacitation,                       capacities, infringed her constitutional rights.
additional officers, including Anderson and Thompson,
arrived at the scene. Robert and Patricia were then removed                     Nevertheless, our conclusion that no officer-defendant had
from the vehicle and manacled. However, instantly upon                        deprived the plaintiff of any constitutional right a fortiori
perceiving that Patricia had been wounded, they radioed for                   defeats the claim against the County as well. See City of Los
                                                                              Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If
                                                                              a person has suffered no constitutional injury at the hands of
    6
      Pierce had learned of Robert’s near collision with Anderson via
                                                                              the individual police officer, the fact that the departmental
radio transmissions from Anderson and Thompson. The three defendants          regulations might have authorized the use of
had maintained radio contact throughout the chase.                            unconstitutionally excessive force is quite beside the point.”)
                                                                              (emphasis the Court’s); Monday v. Oullette, 118 F.3d 1099,
    7                                                                         1105 (6th Cir. 1997). Ergo, this court, in its discretionary
     Pierce testified that he did not intend to kill the driver; rather, he
simply “intended to neutralize the situation.”                                exercise of pendent party appellate jurisdiction over the
     Beyond contradiction, Robert’s pattern of wanton misdeeds posed a
serious and imminent threat of death or other dire irreparable
consequences, which necessitated an immediate and decisive                    Haverstick Enterprises v. Financial Federal Credit, 32 F.3d 989, 996 n.
counteraction. In addition to the evidence evolved above, the record          8 (6th Cir. 1994) (“section 1983 actions against municipalities [or
reflected that, on November 4, 1996, the Criminal Court of Clay County,       counties] carry certain special elements, including proof (1) that the City
Tennessee, convicted Robert, following his guilty pleas, on two counts of     [or county] pursued an official custom or policy of failing to adequately
felony reckless endangerment, one count of felony aggravated assault, and     train, supervise, or discipline its officers in a particular matter, and (2) that
one count of misdemeanor evasion of arrest, stemming from his actions         such official policy or custom was adopted by the official makers of
on the morning of April 29, 1995. Furthermore, at deposition on February      policy with `deliberate indifference’ towards the constitutional rights of
18, 1997, Robert confirmed his unstable mental state on the implicated        persons affected by the policy or custom.”) (brackets added) (citing City
morning; when queried if, during the high speed chase, he had considered      of Canton v. Harris, 489 U.S. 378, 387-88 (1989)). See also Collins v.
that if he continued to flee that a pursuing officer might shoot, Robert      City of Harker Heights, 503 U.S. 115, 120-24 (1992); Monell v.
replied, “At the time, I didn’t care if I lived or died.”                     Department of Social Services, 436 U.S. 658, 690-95 (1978).
18     Scott v. Clay County, Tennessee, et al.              No. 98-6157         No. 98-6157          Scott v. Clay County, Tennessee, et al.                 7

  Hence, defendants Pierce, Anderson, and Thompson, as a                        a medical evacuation helicopter. The rescue aircraft rushed
matter of law, have committed         no Fourth Amendment                       Patricia to Vanderbilt University Hospital, where doctors
infraction against Patricia Scott,20 and therefore are insulated                discovered one bullet lodged inside her skull and a second
against personal exposure to further litigation under 42 U.S.C.                 gunshot imbedded within her right shoulder. Patricia has
§§ 1983 and 1988.                                                               alleged that she has suffered significant physical damage,
                                                                                including lifelong adverse health consequences, caused by her
   As previously indicated, the doctrine of qualified immunity                  injuries and by the permanent presence of the bullet in her
safeguards only certain natural person defendants in their                      skull. Patricia Scott states that the bullet cannot be surgically
individual capacities. E.g. Painter, 185 F.3d at 566 n.12. By                   removed.
contrast, if the legal requirements of municipal or county civil
rights liability are satisfied,21 qualified immunity will not                     On November 29, 1995, Patricia instigated her instant
                                                                                complaint, in which she advanced claims under the Fourth,
                                                                                Fifth, and Fourteenth   Amendments to the United States
     20
        The plaintiff’s alternate contention that the defendant officers        Constitution,8 as enforced by 42 U.S.C. §§ 1983 and 1988
somehow offended her constitutional privileges by allegedly initiating the      (see note 1 above), alleging that Pierce, Thompson, and
high speed chase is facially misconceived, because she had not been             Anderson, in their personal as well as official capacities, had
injured in an automotive collision or other fortuitous calamity during the      committed, participated in, and/or failed to prevent, the
chase. Cf. County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998)                unconstitutional use of excessive force to seize her; and that
(concerning the constitutional claim of the estate of a motorcycle              Sheriff Anderson and the County had failed to properly train
passenger who expired in a vehicular mishap during a high speed police
chase). Rather, as illustrated herein, the salient issue was whether Pierce     and/or supervise the defendant deputies in, and/or devise and
was constitutionally authorized, under the circumstances, to shoot at the       implement appropriate policies defining, the lawful
errant Chevrolet in an attempt to end its endangerment of peace officers
and civilians. Whether Robert would have driven the Chevrolet less
hazardously if the defendants had not pursued it, which in turn may have
mitigated or eliminated the ultimate need for firepower to disable that             8
                                                                                      The Fourth Amendment posits, in relevant part, that “The right of
vehicle, is entirely irrelevant, because Robert in no event possessed any       the people to be secure in their persons . . . against unreasonable . . .
legal justification or excuse for his felonious life-threatening operation of   seizures, shall not be violated[.]” U.S. Const. amend. IV.
the Chevrolet. As the Seventh Circuit has commented:
                                                                                       The Fifth Amendment states, in material part, that “No person shall
     Other than random attacks, all such cases [involving the use of            . . . be deprived of life, liberty, or property, without due process of law[.]”
     force by criminal justice personnel] begin with the decision of a          U.S. Const. amend. V.
     police officer to do something, to help, to arrest, to inquire. If
     the officer had decided to do nothing, then no force would have                 The Fourteenth Amendment stipulates, in pertinent segment, that “No
     been used. In this sense, the police officer always causes the             state shall . . . deprive any person of life, liberty, or property, without due
     trouble. But it is trouble which the police officer is sworn to            process of law[.]” U.S. Const. amend. XIV, § 1.
     cause, which society pays him to cause and which, if kept within
     constitutional limits, society praises the officer for causing.                 The Fourteenth Amendment’s Due Process Clause restricts the
                                                                                activities of the states and their instrumentalities; whereas the Fifth
Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994).             See also     Amendment’s Due Process Clause circumscribes only the actions of the
Claybrook v. Birchwell, 199 F.3d 350, 360 n.13 (6th 2000).                      federal government. See generally Sturgell v. Creasy, 640 F.2d 843, 850
     21                                                                         (6th Cir. 1981); Walker v. Hughes, 558 F.2d 1247, 1257 (6th Cir. 1977).
      Municipalities and counties are “persons” exposed to litigation           Ergo, the instant complainant’s citation to the Fifth Amendment Due
under sections 1983 and 1988, if the legal requisites are fulfilled.            Process Clause was a nullity, and redundant of her invocation of the
Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997). See, e.g.,              Fourteenth Amendment Due Process Clause.
8       Scott v. Clay County, Tennessee, et al.            No. 98-6157         No. 98-6157         Scott v. Clay County, Tennessee, et al.             17

application of force to effect an arrest. Additionally, the                      Accordingly, as a matter of law, defendant Pierce’s faulted
plaintiff joined pendent Tennessee constitutional and tort law                 actions were objectively reasonable, and thus did not violate
claims. Patricia has sought $10 million in compensatory                        the Fourth Amendment. Pierce permissibly discharged his
damages, an additional $5 million in punitive damages,                         professional duty to restore and maintain lawful order through
attorney fees and other litigation expenses, an injunction                     the most19effective instrumentality readily available, namely
restricting the defendants’ forcible arrest practices, and other               gunfire.    Pierce justifiably fired at the fleeing vehicle in
appropriate relief.                                                            order to seize its occupant(s); his actions therefore could not
                                                                               violate the Fourth Amendment rights of any unknown
   Following discovery, on June 1, 1998, the four defendants                   passenger who may have been injured by his actions. Thus,
jointly petitioned the district court for a summary judgment                   Pierce is entitled to qualified immunity because he did not
under Fed. R. Civ. P. 56 dismissing the plaintiff’s federal civil              impinge the plaintiff’s constitutional rights.
rights claims, as well as the dismissal, for want of federal
subject matter jurisdiction, of her pendent Tennessee law                        In turn, the remaining two individual defendants, Anderson
claims. Basing    their motion on the doctrine of qualified                    and Thompson, are likewise shielded by qualified immunity,
immunity,9 the defendants argued that the evinced facts, even                  because their alleged complicity in Pierce’s lawful use of
                                                                               deadly coercion patently could not offend the plaintiff’s
                                                                               Fourth Amendment protections. See Turner v. Scott, 119
    9
      “Qualified or `good faith’ immunity is an affirmative defense that       F.3d 425, 429 (6th Cir. 1997) (explaining that an officer can,
is available to government officials performing discretionary functions.”      under certain circumstances, be deemed personally
Rich v. City of Mayfield Hts., 955 F.2d 1092, 1094 (6th Cir. 1992). “The       responsible for unconstitutional compulsion applied by a
ultimate burden of proof is on the plaintiff to show that the defendants are   fellow agent if that officer, at minimum, either "(1) actively
not entitled to qualified immunity.” Id. at 1095 (emphases added). The
Sixth Circuit, en banc, has recently defined the components of the             participated in the use of excessive force, (2) supervised the
qualified immunity defense:                                                    officer who used excessive force, or (3) owed the victim a
                                                                               duty of protection against the use of excessive force.")
         Government officials performing discretionary functions               (citations omitted).
    generally are shielded from liability for civil damages insofar as
    their conduct does not violate clearly established [federal]
    statutory or constitutional rights of which a reasonable person
    would have known. The procedure for evaluating claims of
    qualified immunity is tripartite: First, we determine whether a            inexplicably failed to address it in its judgment denying their qualified
    constitutional violation has occurred; second, we determine                immunity motion.
    whether the right that was violated was a clearly established right            19
    of which a reasonable person would have known; finally, we                          As aptly observed by the Lewis Court:
    determine whether the plaintiff has alleged sufficient facts, and
    supported the allegations by sufficient evidence, to indicate that             [T]he police on an occasion calling for fast action have
    what the official allegedly did was objectively unreasonable in                obligations that tend to tug against each other. Their duty is to
    light of the clearly established constitutional rights.                        restore and maintain lawful order, while not exacerbating
                                                                                   disorder more than necessary to do their jobs. They are
Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)                     supposed to act decisively and to show restraint at the same
(quotations omitted; brackets added) (citing Harlow v. Fitzgerald, 457             moment, and their decisions have to be made in haste, under
U.S. 800, 818 (1982); Dickerson v. McClellan, 101 F.3d 1151, 1157-58               pressure, and frequently without the luxury of a second chance.
(6th Cir. 1996)).
                                                                               County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (quotations
    The insulation from federal civil rights litigation bestowed upon state    and citations omitted).
16     Scott v. Clay County, Tennessee, et al.             No. 98-6157         No. 98-6157        Scott v. Clay County, Tennessee, et al.              9

actively resisting arrest17by eluding representatives of the                   when construed most favorably for the claimant, could not, as
criminal justice system.                                                       a matter of law, support the conclusion that any defendant had
                                                                               violated any federal constitutionally-protected right; or,
   Moreover, an antecedent mandate by this circuit has                         alternatively, assuming arguendo that the evidence adverse to
directly instructed that a constable who fired into the                        the movants was legally sufficient to sustain a hypothetical
passenger compartment of a moving vehicle, under                               rational jury’s finding of a constitutional infraction, the
circumstances remarkably similar to those presently on                         defendant law enforcers should nevertheless be shielded from
review, did not violate the Fourth Amendment. In Smith v.                      personal liability because the offended right was not “clearly
Freland, 954 F.2d 343 (6th Cir. 1992), an automobile sped                      established” on April 29, 1995. See, e.g., Painter v.
out of a parking lot and violated a posted stop sign. A patrol                 Robinson, 185 F.3d 557, 566-67 (6th Cir. 1999).
cruiser followed that vehicle, which culminated in a chase at
speeds reaching 90 miles per hour in residential districts.                      On July 28, 1998, the trial court denied the subject motion,
After the violator had twice attempted to collide with the                     ruling that material issues of fact remained, for juror
occupied police vehicle, the squad car cornered the fugitive                   resolution, regarding the Fourth Amendment
motorist. However, the culprit accelerated his automobile                      “reasonableness” of the plaintiff’s seizure (evolved below);
into the lawman’s cruiser, and then drove towards the public                   and, if the seizure was unreasonable, whether the precise
street. The officer fired a fatal round at the mobile offender.                contributing actions of each individual defendant were
Id. at 344. The Sixth Circuit affirmed summary judgment for                    objectively unreasonable under the dictates of law which was
the shooter, ruling that his 18 actions were constitutionally                  clearly established on the incident date. On August 24, 1998,
reasonable as a matter of law. Id. at 346-48.                                  the defendants noticed a timely appeal to this reviewing
                                                                               bench.

     17                                                                           Ordinarily, a trial forum’s rejection of a summary judgment
        Additionally, the target’s persistent high-risk attempts to evade      motion is not subject to appellate scrutiny, irrespective of
capture created an objectively reasonable suspicion that he may have           whether that motion had ultimately posed a legal or a factual
perpetrated unknown additional serious offenses, thereby reinforcing the
weight of the first “reasonableness” factor as supporting Pierce’s actions.    question. However, a district court’s dismissal of a civil
See Illinois v. Wardlow, 120 S. Ct. 673, 675-77 ( 2000).                       rights defendant’s summary disposition application anchored
                                                                               in qualified immunity will be immediately appealable if no
     18                                                                        predicate finding of an essential material fact remains for jury
          The Freland panel commented:
                                                                               determination, and thus the lynchpin issue is purely legal.
     [U]nder Graham [v. Connor, supra], we must avoid substituting             Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v.
     our personal notions of proper police procedure for the
     instantaneous decision of the officer at the scene. We must
     never allow the theoretical, sanitized world of our imagination
     to replace the dangerous and complex world that policemen face
     every day. What constitutes "reasonable" action may seem quite            governmental personnel by qualified immunity sweeps broadly, affording
     different to someone facing a possible assailant than to someone          them “`ample room for mistaken judgments’ by protecting `all but the
     analyzing the question at leisure.                                        plainly incompetent or those who knowingly violate the law.’” Sova v.
                                                                               City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998) (quoting Hunter
Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) (brackets added).          v. Bryant, 502 U.S. 224, 229 (1991)). See also Megenity v. Stenger, 27
                                                                               F.3d 1120, 1124 (6th Cir. 1994) (“If we conclude that a reasonable public
    Despite the instant defendants’ timely invocation of Freland, and the      official would not have been aware that he was committing a [federal civil
patent significance of that precedent to the subject action, the trial court   rights] violation, we then afford immunity.”) (brackets added).
10     Scott v. Clay County, Tennessee, et al.             No. 98-6157    No. 98-6157          Scott v. Clay County, Tennessee, et al.               15

Jones, 515 U.S. 304, 309-12 (1995). That judicial exception               a hypothetical reasonable officer would not have known that
to the governing norm prevails because, if a defendant public             his actions, under the circumstances, were objectively
servant is personally immunized from monetary liability as a              unreasonable. See Sova v. City of Mt. Pleasant, 142 F.3d 898,
matter of law, he or she is entitled to “an immunity from suit            902-03 (6th Cir. 1998). The testimonial record before the
rather than a mere defense to [ultimate] liability.” Mitchell v.          instant review, even when construed most favorably for the
Forsyth, 472 U.S. 511, 526 (1985) (italics in original;                   plaintiff, overwhelmingly manifested that each of the three
brackets added).                                                          Graham considerations, highlighted above, militated in
                                                                          support of the incontrovertible conclusion that the defendants’
   In the cause sub judice, although the adversaries disputed             actions were objectively reasonable. First, Robert had
multiple factual issues in the trial court, none of those                 committed serious, life-threatening crimes in the presence of
disputed facts were essential to the qualified immunity                   the defendant officers. Second, the record proof demonstrated
defense. See Fed. R. Civ. P. 56(c) (directing that summary                that the fleeing motorist’s ongoing felonious misconduct
judgment “shall be rendered forthwith if the pleadings,                   posed an immediate16 threat to the safety of officers as well as
depositions, answers to interrogatories, and admissions on                innocent civilians.     Third, the vehicular perpetrator was
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”) (emphases               16
                                                                                  As a general proposition, “[w]here the officer has probable cause
added). “By its very terms, this standard provides that the               to believe that the suspect poses a threat of serious physical harm, either
mere existence of some alleged factual dispute between the                to the officer or to others, it is not constitutionally unreasonable to prevent
parties will not defeat an otherwise properly supported motion            escape by using deadly force.” Garner, 471 U.S. at 11. “`Probable
for summary judgment; the requirement         is that there be no         cause’ denotes facts and circumstances within the officer’s knowledge
                                                                          that are sufficient to warrant a prudent person, or one of reasonable
genuine issue of material fact.”10 Anderson v. Liberty Lobby,             caution, in believing, in the circumstances shown, that the suspect has
477 U.S. 242, 247-48 (1986) (emphases in original).                       committed, is committing, or is about to commit an offense. If the
                                                                          circumstances, viewed objectively, support a finding of probable cause,
   Accordingly, a lower court’s determination that defendant              the arresting officer’s actual motives are irrelevant.” Painter v.
state employees were not shielded by qualified immunity,                  Robertson, 185 F.3d 557, 569 (6th Cir. 1999) (quotations and citations
with reference to a set of undisputed operative facts, is a               omitted).
                                                                               “Whereas the implicated circumstances comprise factual issues, the
                                                                          ultimate probable cause determination is a mixed issue of law and fact.”
                                                                          Id. at 570 (citation omitted). Mixed questions of law and fact, and
                                                                          ultimate factual determinations based upon the application of law to
                                                                          subsidiary facts, are subject to plenary ascertainment on appeal. Williams
                                                                          v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Consequently,
     10                                                                   when the undisputed material facts, or the plaintiff’s version of disputed
          The Anderson Court explained:                                   material facts, manifest that a reasonable officer in the defendant’s
                                                                          posture would have objectively believed that probable cause existed, the
          As to materiality, the substantive law will identify which      existence of that factor may be determined as a matter of law on summary
     facts are material. Only disputes over facts that might affect the   judgment. See Painter, 185 F.3d at 571-72.
     outcome of the suit under the governing law will properly
     preclude the entry of summary judgment. Factual disputes that             In the case in controversy, the testimonial proof, encapsulated herein,
     are irrelevant or unnecessary will not be counted.                   would warrant a reasonable officer in Pierce’s circumstances to conclude
                                                                          that the culprit posed a serious risk of injury to others, which, standing
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (citation omitted).   alone, reconciled his use of force with Fourth Amendment strictures.
14   Scott v. Clay County, Tennessee, et al.      No. 98-6157      No. 98-6157          Scott v. Clay County, Tennessee, et al.               11

     Determining whether the force used to effect a                “final decision” of law,1112
                                                                                              and thus is immediately appealable
  particular seizure is "reasonable" under the Fourth              under 28 U.S.C. § 1291. Mitchell, 472 U.S. at 530. That
  Amendment requires a careful balancing of the nature             principle controls even if the trial judge had erroneously
  and quality of the intrusion on the individual's Fourth          concluded that genuine issues of material fact had to be
  Amendment interests against the countervailing                   initially resolved by the trier of fact to assess the qualified
  governmental interests at stake. . . . Because the test of       immunity defense. See Williams v. Mehra, 186 F.3d 685,
  reasonableness under the Fourth Amendment is not                 689-90 (6th Cir. 1999) (en banc) (“regardless of the district
  capable of precise definition or mechanical application,         court’s reasons for denying qualified immunity, we may
  however, its proper application requires careful attention       exercise jurisdiction over the appeal to the extent it raises
  to the facts and circumstances of each particular case,          questions of law.”) (italics in original; ellipse omitted)
  including [1] the severity of the crime at issue, [2]            (quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th
  whether the suspect poses an immediate threat to the             Cir. 1996)).
  safety of the officers or others, and [3] whether he is
  actively resisting arrest or attempting to evade arrest by         Constitutional tort claims against state actors undergirded
  flight. . . .                                                    by allegations of excessive force exerted to consummate a
                                                                   person’s seizure are properly assessed under Fourteenth
     The “reasonableness” of a particular use of force must        Amendment due process guarantees if the plaintiff had been
  be judged from the perspective of a reasonable officer on        a non-targeted innocent third party collaterally injured by an
  the scene, rather than with the 20/20 vision of                  assertion of official force; in such instances, the defendant
  hindsight. . . . The calculus of reasonableness must
  embody allowance for the fact that police officers are
  often forced to make split-second judgments – in                     11
  circumstances that are tense, uncertain, and rapidly                    All legal conclusions by lower courts, including those posited in
  evolving – about the amount of force that is necessary in        resolving a summary judgment motion anchored in qualified immunity,
                                                                   are scrutinized de novo. E.g., Grider v. Abramson, 180 F.3d 739, 746 n.7
  a particular situation.                                          (6th Cir.), cert. denied, 120 S. Ct. 528 (1999); Brennan v. Township of
                                                                   Northville, 78 F.3d 1152, 1154, 1156 (6th Cir. 1996).
    As in other Fourth Amendment contexts, however, the
  “reasonableness” inquiry in an excessive force case is an            12
                                                                          The Sixth Circuit has recently clarified the factors which inform an
  objective one: the question is whether the officers’             appellate court’s jurisdiction to review a district court’s denial of qualified
  actions are “objectively unreasonable” in light of the           immunization on summary judgment:
  facts and circumstances confronting them, without regard
  to their underlying intent or motivation.                            If the defendant does not dispute the facts alleged by the plaintiff
                                                                       for purposes of the appeal, our jurisdiction is clear. If, instead,
                                                                       the defendant disputes the plaintiff’s version of the story, the
Graham v. Connor, 490 U.S. 386, 396-97 (1989) (italics and             defendant must nonetheless be willing to concede the most
brackets added; citations and quotations omitted).                     favorable view of the facts to the plaintiff for purposes of the
                                                                       appeal. Only if the undisputed facts or the evidence viewed in
   Although the Fourth Amendment “reasonableness” inquiry              the light most favorable to the plaintiff fail to establish a prima
is largely fact-driven, summary judgment for defendant public          facie violation of clear constitutional law may we decide that the
servants founded in qualified immunity is nonetheless                  defendant is entitled to qualified immunity on an interlocutory
                                                                       appeal.
appropriate when the undisputed material facts, or the
plaintiff’s version of disputed material facts, demonstrate that   Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (citations omitted).
12    Scott v. Clay County, Tennessee, et al.             No. 98-6157        No. 98-6157         Scott v. Clay County, Tennessee, et al.             13

will be liable only if he or she had acted in a manner which                 target of an official seizure at all times pertinent,14 thereby
“shocks the conscience.”13 County of Sacramento v. Lewis,                    triggering the Fourth Amendment’s comparatively relaxed
118 S. Ct. 1708, 1714-21 (1998); Claybrook v. Birchwell, 199                 “objective unreasonableness” standard of proof (and hence
F.3d 350, 359 (6th Cir. 2000). By contrast, an excessive force               the paradigm most favorable to the plaintiff), as juxtaposed
claim asserted against public servants by a premeditated                     against the more exacting “shocks the conscience” evidentiary
target of official compulsion designed to consummate a                       requisites of the Fourteenth Amendment. On appeal, the
seizure are analyzed under Fourth Amendment                                  defendants-appellants have conceded that their summary
“reasonableness” strictures; the plaintiff need prove only that              judgment motion should be assessed under the 15          Fourth
the faulted official action was, under the implicated                        Amendment, rather than the Fourteenth Amendment.
circumstances, objectively “unreasonable.” Graham v.
Connor, 490 U.S. 386, 394-97 (1989); Tennessee v. Garner,                      The Supreme Court has defined the boundaries of Fourth
471 U.S. 1, 7-9 (1985); Claybrook, 199 F.3d at 359.                          Amendment “reasonableness” by adoption of an objective
                                                                             “balancing” query:
  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                         14
Chevrolet, and immediately handcuffed, was an intended                              See Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“Whenever an
                                                                             officer restrains the freedom of a person to walk away, he has seized that
                                                                             person.”) (emphasis added; citation omitted); Smith v. Freland, 954 F.2d
                                                                             343 (6th Cir. 1992) (resolving that an intended arrestee was “seized” by
                                                                             means of a fatal police bullet); see also Brower v County of Inyo, 489
                                                                             U.S. 593, 596 (1989) (ruling that an intended target of an arrest who had
                                                                             been killed by crashing into a police roadblock had been “seized,”and
                                                                             commenting that “[v]iolation of the Fourth Amendment requires an
                                                                             intentional acquisition of physical control.”); Hill v. California, 401 U.S.
     13                                                                      797, 802-05 (1971) (resolving that the plaintiff, an arrestee who had been
        This rule governs because Fourth Amendment prohibitions against
“unreasonable seizures,” developed below, cannot apply when the              the victim of mistaken identity, had been “seized” even though the police
plaintiff had not been purposefully “seized” by state lawmen. See            had intended to confine another man, because the plaintiff nonetheless
Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (“the Fourth       had been the object of a willful official detention).
Amendment `reasonableness’ standard does not apply to section 1983               15
claims which seek remuneration for physical injuries inadvertently                  Accordingly, this review need not resolve whether a factual issue
inflicted upon an innocent third party by police officers’ use of force      would otherwise exist for trial regarding whether, at the time that Pierce
while attempting to seize a perpetrator, because the authorities could not   discharged his weapon into the moving Chevrolet’s passenger
`seize’ any person other than one who was a deliberate object of their       compartment, the defendants intended to seize any passenger in that
exertion of force.”) (emphasis in original) (citing Brower v. County of      vehicle other than the driver, which in turn would determine which
Inyo, 489 U.S. 593, 596 (1989)).                                             constitutional proviso would control the plaintiff’s charges. See
                                                                             Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (explaining that the
     Similarly, Fourteenth Amendment due process bounds, rather than         constitutional tort action of a citizen who had been inadvertently wounded
Fourth Amendment “reasonableness” imperatives, confine exertions of          while inside a parked automobile during a police shoot-out with an armed
state power which accidentally impact even the intended subject of an        felony suspect in the parking lot must be scrutinized under Fourteenth
official seizure, such as where an inadvertent collision with a police       Amendment standards because the record proof was uncontested that the
vehicle injures an arrest target, because the state agents had not           defendant peace constables had been unaware that anyone had been inside
volitionally crafted the violence to facilitate an official seizure. See     that vehicle and did not intend to seize anyone who might be inside that
County of Sacramento v. Lewis, 118 S. Ct. 1708, 1715-16 (1998).              car).
