Mark Campbell v. Cheatham County Sheriff's Dep't ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0204p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MARK CAMPBELL; SHERRIE CAMPBELL,
│
Plaintiffs-Appellees, │
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v. > No. 21-5044
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│
CHEATHAM COUNTY SHERIFF’S DEPARTMENT, et al., │
Defendants, │
│
│
JAMES DOUGLAS FOX, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:19-cv-00151—Waverly D. Crenshaw, Jr., District Judge.
Argued: May 4, 2022
Decided and Filed: August 29, 2022
Before: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Robyn Beale Williams, FARRAR & BATES LLP, Nashville, Tennessee, for
Appellant. John H. Morris, NASHVILLE VANGUARD LAW PLLC, Nashville, Tennessee, for
Appellees. ON BRIEF: Robyn Beale Williams, FARRAR & BATES LLP, Nashville,
Tennessee, for Appellant. John H. Morris, NASHVILLE VANGUARD LAW PLLC, Nashville,
Tennessee, Andrew S. Lockert, LOCKERT LAW, PLLC, Ashland City, Tennessee, for
Appellees.
GIBBONS, J., delivered the opinion of the court in which BOGGS, J., joined.
NALBANDIAN, J. (pp. 16–27), delivered a separate dissenting opinion.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 2
_________________
OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Mark and Sherrie Campbell filed a complaint
under 42 U.S.C. § 1983 against the Cheatham County Sheriff’s Department, the Municipal
Government of Cheatham County, Cheatham County Sheriff Mike Breedlove, and Officers
James Fox and Christopher Austin. The district court granted summary judgment for all
defendants except Fox, concluding that Fox was not entitled to qualified immunity on the
Campbells’ excessive force claim against him. Fox appeals, and we affirm.
I
On August 21, 2018, around 9:15 p.m., Fox and Austin were dispatched to the
Campbells’ residence to conduct a welfare check after a 9-1-1 dispatcher received two hang-up
calls from a phone located on the property. They arrived at the Campbells’ home around 9:39
p.m. They did not activate the emergency lights on their cars but kept their headlights pointed
toward the house.
Fox walked up onto the small porch and knocked on the front door. He did not announce
himself as law enforcement. The district court compiled a useful table of what occurred next,
which we adopt here after confirming its accuracy with video footage1 and the other record
evidence.
Seconds Elapsed Description of Event
0 Fox knocks three times
1–5 Fox walks down the steps and stands next to Austin
10 Mark says, “You got a gun?” through the closed door
Fox unholsters his gun and walks to the other side of Austin while saying,
12–17 “Mark . . . come on out Mark, what’s up man?”
18 Mark again says, “You got a gun?”
21 Fox says, “What’s going on Mark?”
1
The video footage includes both officers’ body cameras and the dashboard camera in Fox’s vehicle.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 3
23 Mark says, “I got one too.”
24–25 Fox draws his gun and turns his back to the door as he walks behind Austin
26 Mark begins to open the door
27 Fox turns quickly back toward the door
Fox says, “Do what Mark?” and then fires two shots toward the door in
28 rapid succession
29 Austin trips or jumps to the ground
30 Fox says, “You good?”
31 Fox fires six shots toward the door in rapid succession
Campbell v. Cheatham Cnty. Sheriff’s Dep’t, 511 F. Supp. 3d 809, 814 (M.D. Tenn. 2021)
(footnotes omitted).
The parties dispute what the officers saw when Mark began to open the door, and the
video footage does not resolve the dispute. Mark says he may have had a cell phone in his hand,
but not a gun. Both officers contend they thought Mark had a gun. However, there is evidence
that on the evening of the incident, the officers did not know what, if anything, Mark was
holding.
Following Fox’s first shots, Mark fell to the floor and kicked the door shut. He yelled to
his wife, Sherrie, to call 9-1-1 because somebody was shooting at them. Sherrie was asleep in
the bedroom, woke to gunshots, and heard her husband yelling. She called 9-1-1. Although Fox
fired eight shots at the home, no one was hit.
After the shots, Fox and Austin made their way behind Fox’s car as Fox reported over the
radio that shots were fired. Mark yelled profanities through the closed door. A few minutes
later, Mark walked onto his porch holding a flat reflective rectangular item. Fox and Austin
yelled at Mark to get on the ground and show his hands. Mark yelled that his phone was in his
hand and lifted his empty left hand. He yelled that he was not getting on the ground, to shoot
him, and profanities, before returning inside his home. Mark opened the door again a minute
later and stood in the doorway as he appeared to talk on the phone and pointed at the officers.
Again, Fox and Austin yelled at Mark to show his hands. Mark yelled back and then returned
inside and shut the door.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 4
Several other officers soon arrived at the Campbells’ home, and one of them apprehended
Mark in the yard of the home. After Mark’s arrest, Fox, Austin, and a detective went inside the
home. They told Sherrie, who was still in the bedroom, to come out with her hands visible.
Sherrie complied, and the officers detained her while they cleared the house. No firearms were
found in the home. Mark was charged with two counts of aggravated assault, both of which
were ultimately dismissed.
The Campbells sued Fox in his individual capacity for excessive use of force under
42 U.S.C. § 1983. Fox argued that the statute of limitations barred the Campbells’ § 1983 claim
and that he was entitled to qualified immunity because (1) he did not seize the Campbells within
the meaning of the Fourth Amendment, and (2) his use of force was objectively reasonable. The
district court disagreed with each of these arguments. Fox appealed. We decline to exercise
jurisdiction over Fox’s statute of limitations argument, and we affirm the district court’s denial
of summary judgment.
II
“We review de novo a district court’s denial of a defendant’s motion for summary
judgment on qualified immunity grounds.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560,
565 (6th Cir. 2013). Summary judgment is appropriate only when there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986); see Fed. R. Civ. P. 56(a). We view the facts and
reasonable factual inferences in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Where there is video footage
of an incident, we view the facts in the light depicted by any unambiguous footage. See Scott v.
Harris, 550 U.S. 372, 378–81 (2007).
III
Fox contends that the district court erred in denying him summary judgment because the
Campbells’ § 1983 claim is barred by the statute of limitations and because he is entitled to
qualified immunity.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 5
A
Fox argues Tennessee’s one-year statute of limitations applies to the Campbells’ § 1983
claim. We lack jurisdiction to address this argument.
We have jurisdiction to review “final decisions” from the district courts. 28 U.S.C
§ 1291. Under the collateral order doctrine, however, some interlocutory orders are immediately
appealable, because they amount to final decisions. United States v. Mandycz, 351 F.3d 222, 224
(6th Cir. 2003). Such orders include only “decisions that are conclusive, that resolve important
questions separate from the merits, and that are effectively unreviewable on appeal from the final
judgment in the underlying action.” Id. (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35,
42 (1995)). An order must satisfy all three of these requirements to be appealable under the
collateral order doctrine. Id.The district court determined the Campbells’ § 1983 claim was timely under the
applicable statute of limitations. “A statute of limitations is not an immunity from suit; it is a
defense to liability.” DeCrane v. Eckart, 12 F.4th 586, 601 (6th Cir. 2021). Therefore, Fox’s
argument on the statute of limitations can be effectively reviewed after a final judgment. As this
issue does not satisfy the requirements under the collateral order doctrine, we lack jurisdiction to
review it.2 See id. at 601–02.
B
We turn to qualified immunity. Unlike the statute of limitations defense, qualified
immunity enables a defendant to avoid litigating a dispute. DeCrane, 12 F.4th at 601. We may
“review the district court’s interlocutory denial of qualified immunity only to the extent that it
turns on an issue of law.” Stoudemire, 705 F.3d at 564.
The Campbells alleged that Fox violated their constitutional rights by using excessive
force against them. Fox, as a government official, is entitled to qualified immunity from this
2
We have exercised pendent appellate jurisdiction over issues that are inextricably intertwined with
qualified immunity. DeCrane, 12 F.4th at 602. We decline to do so here, as Fox has not invoked our discretionary
pendent appellate jurisdiction and his statute of limitations defense is not inextricably intertwined with qualified
immunity. Id.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 6
claim unless the Campbells can show that Fox violated a constitutional right that was clearly
established at the time of his alleged misconduct. Id. at 567.
1
We start with the constitutional right. A § 1983 claim of excessive force implicates
“either the Fourth Amendment’s prohibition against unreasonable seizures of the person, or the
Eighth Amendment’s ban on cruel and unusual punishments, which are the two primary sources
of constitutional protection against physically abusive governmental conduct.” Graham v.
Connor, 490 U.S. 386, 394 (1989). Where, as here, “the excessive force claim arises in the
context of an arrest or investigatory stop of a free citizen,” it invokes “the protections of the
Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against
unreasonable . . . seizures’ of the person.” Id. (quoting U.S. Const. amend. IV). Fox contends
the Campbells cannot establish a violation of the Fourth Amendment because they were not
seized.
A seizure can occur in one of two ways: (1) use of force with the intent to restrain; or
(2) show of authority with acquisition of control. Torres v. Madrid, 141 S. Ct. 989, 998, 1001
(2021). The first type covers uses of physical force, such as when an officer shoots an
individual. Id. at 999. Had Fox’s shots hit the Campbells, then they would have been seized
under this category. Since Fox missed and there was no physical contact, we look to the second
type—acquisition of control. As the Supreme Court has explained, “[u]nlike a seizure by force,
a seizure by acquisition of control involves either voluntary submission to a show of authority or
the termination of freedom of movement.” Id. at 1001. The parties do not dispute that Fox
showed authority by firing eight shots into the Campbells’ home, but Fox contends that the
Campbells did not submit to this show of authority, and thus were not seized.
What constitutes a submission to a show of authority or a termination of freedom of
movement? If an officer rams a suspect’s car off the road or locks a suspect in a room, the
officer has terminated the suspect’s freedom of movement and seized the suspect under the
Fourth Amendment. See id. Alternatively, if an officer orders an individual to stop but the
individual continues running away, then there has been no seizure, because there has been no
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 7
submission to authority or termination of movement. See California v. Hodari D., 499 U.S. 621,
626 (1991). As the Supreme Court has recognized, “when an individual’s submission to a show
of governmental authority takes the form of passive acquiescence, there needs to be some test for
telling when a seizure occurs in response to authority, and when it does not.” Brendlin v.
California, 551 U.S. 249, 255 (2007). The Court explained that “a seizure occurs if ‘in view of
all of the circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave.’” Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
“Examples of circumstances that might indicate a seizure” include “the threatening presence of
several officers [or] the display of a weapon by an officer.” Mendenhall, 446 U.S. at 554.
In view of all the circumstances here, a reasonable person would not believe that he or
she was free to leave a house while an officer repeatedly fired at the front door.3 We considered
a similar situation in Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002). In Ewolski,
John Lekan had a standoff with the police at his home. Id. at 498–500. “The district court
concluded that Mr. Lekan was not seized, because by barricading himself in his home he never
submitted to official authority.” Id. at 506. We held that this conclusion was erroneous, because
under the circumstances, Lekan was not free to leave. Id. As we explained, “although Mr.
Lekan was never in police custody, the police surrounded the house and paraded an armored
vehicle in front of the Lekans’ house.” Id. “These actions qualify as an intentional application
of physical force and show of authority made with the intent of acquiring physical control” and
“this assertion of force and authority succeeded in restraining Mr. Lekan’s liberty to leave his
home.” Id. In this case, when Fox fired immediately and repeatedly upon Mark opening the
door, Fox terminated the Campbells’ movement and “a reasonable person would have believed
that he was not free to leave.” Brendlin, 551 U.S. at 255 (citation omitted). Therefore, the
Campbells were seized within the meaning of the Fourth Amendment.
Fox attempts to analogize this case to cases in which officers’ missed shots failed to stop
a fleeing suspect. We rejected this same argument in Ewolski, explaining that “[u]nlike the
3
The dissent states, “Mark evidently felt differently.” Dis. Op., at 18. But the test established in
Mendenhall is objective: “not whether the citizen perceived that he was being ordered to restrict his movement, but
whether the officer’s words and actions would have conveyed that to a reasonable person.” Hodari D., 499 U.S. at
628.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 8
fleeing suspects [in other cases,] Mr. Lekan was not ‘on the loose.’” 287 F.3d at 506. Like
Lekan, the Campbells were not “on the loose,” but rather confined to their home because of
Fox’s show of authority. See id. The dissent distinguishes Ewolski, emphasizing that Mark was
on the loose because he walked onto his front porch and yard. Dis. Op., at 20. We find Mark’s
limited range of movement onto the curtilage of his home more in line with the facts of Ewolski
than the fleeing cases in which suspects ran away from chasing officers.
In analyzing whether conduct constitutes submission to a show of authority, we also look
to “what a person was doing before the show of authority: a fleeing man is not seized until he is
physically overpowered, but one sitting in a chair may submit to authority by not getting up to
run away.” Brendlin, 551 U.S. at 262. When Fox shot at their front door, the Campbells
effectively submitted to his show of authority by remaining in their home. Fox emphasizes that
Mark later came out to his front porch, yelled profanities, and went out to his yard. This limited
range of movement is factually distinguishable from the cases in which a suspect is fleeing by
running or driving away from officers. See Floyd v. City of Detroit, 518 F.3d 398, 405–06 (6th
Cir. 2008); cf. Hodari D., 499 U.S. at 622–23; Adams v. City of Auburn Hills, 336 F.3d 515, 517,
518–20 (6th Cir. 2003). Moreover, Mark’s subsequent actions on his porch and in his yard are of
little use in determining whether the Campbells were seized at the time that Fox fired his
weapon, because a seizure is “a single act, and not a continuous fact,” and an individual may be
seized for a brief time despite later demonstrating freedom of movement. Torres, 141 S. Ct. at
1002 (quoting Hodari D., 49 U.S. at 625). The dissent contends we fail to look at what occurred
after the gunshots, erasing the distinction between seizures by control and seizures by force. Dis.
Op., at 17. We, of course, look to what the Campbells did in response to Fox’s show of
authority. They took cover in their home. The dissent focuses on Mark’s actions minutes later
when he came onto his porch. But the events immediately following the gunshots is of greater
value in determining whether the Campbells were seized because a seizure is a discrete moment,
and not a continuous chain of events. We do not ignore what happened next. Rather, we
emphasize that what occurred immediately is more informative than what occurred later in time.
By remaining on their property rather than leaving after shots were fired at their door, the
Campbells submitted to Fox’s show of authority and were restricted in their movement.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 9
It also makes no difference whether Fox knew Sherrie was also inside the home.
We have explained that when an officer seizes one person by shooting at a car, for example, the
officer seizes everyone in the car, even if the officer is unaware of the presence of passengers.
Rodriguez v. Passinault, 637 F.3d 675, 686–87 (6th Cir. 2011); Fisher v. City of Memphis, 234
F.3d 312, 318–19 (6th Cir. 2000); see also Brendlin, 551 U.S. at 254–59. The same logic
extends to the home: just as shooting at a car and causing it to stop terminates the freedom of
movement of everyone in the car, so does shooting into a house in a manner that prevents
occupants from leaving constitutes a seizure of the occupants. By shooting at the house, Fox
seized everyone inside, including Sherrie.4
The dissent analogizes this case to Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011). Dis.
Op., at 22–23. In Bletz, officers went to the Bletz family home to execute a warrant for Zachary
Bletz’s arrest. 641 F.3d at 747. While waiting for Zachary to secure his dog, officers waited in
the breezeway of the home and saw a man pointing a gun at them. Id. This was Zachary’s
father, Fred Bletz, who had poor vision and hearing. Id. at 748. Officers shot him. Id. Officers
then moved into the home where they handcuffed Zachary and his mother, Kitti Bletz, before
placing them in police cars. Id. Kitti alleged her Fourth Amendment rights were violated. Id.We held that “it is indisputable that Kitti was seized within the meaning of the Fourth
Amendment when defendants handcuffed her and placed her inside a locked police vehicle.” Id.
at 754. The dissent contends this shows that Kitti was not seized before this moment. Dis. Op.,
at 22–23. Bletz did not engage in any analysis of whether everyone in the house was seized
when the officers started shooting, so the same issue was not before the court. But, regardless,
unlike our case, officers did not shoot multiple rounds at the Bletz family home’s front door.
Rather, officers were already inside the breezeway of the home and shot directly at one person in
response to that person pointing a weapon at them. Bletz does not address the same seizure
issues presented here.
4
In Ewolski, this court held Lekan’s wife and child, who were also trapped in the home, were not seized
because “[t]heir movement was restrained by Mr. Lekan . . . not by the police.” 287 F.3d at 507. In fact, the police
were attempting to “remove them from the house and remove them from the control of Mr. Lekan.” Id. But in this
case, Fox’s gunshots, rather than Mark’s actions, confined Sherrie to her home. The dissent disagrees and contends
Mark kept Sherrie in the house, because he told her to stay put. Dis. Op., at 22. But, of course, Mark told Sherrie
not to move because Fox was shooting at the home.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 10
“When an officer fires a gun at a person,” but “the bullet does not hit the person, the
‘show of authority . . . ha[s] the intended effect of contributing to [the person]’s immediate
restraint’” and under our caselaw is a seizure.” Jacobs v. Alam, 915 F.3d 1028, 1042 (6th Cir.
2019) (alterations in original) (quoting Thompson v. City of Lebanon, 831 F.3d 366, 371 (6th Cir.
2016)). By firing at the Campbells’ home, Fox made a show of authority. This show of
authority restricted the Campbells’ movement such that a reasonable person, under these
circumstances, would not feel free to leave.5 Therefore, Fox seized the Campbells under the
Fourth Amendment.
2
Having established that Fox seized the Campbells, we turn to whether a reasonable jury
could conclude that Fox’s use of force was excessive, in violation of the Fourth Amendment. As
this is an interlocutory appeal, Fox “must be willing to concede the most favorable view of the
facts to the [Campbells] for purposes of the appeal.” Jacobs, 915 F.3d at 1039 (citation omitted).
If Fox fails to do so, we may exercise jurisdiction only over “the purely legal question of whether
the facts alleged support a claim of violation of clearly established law.” Id. at 1039–40 (citation
omitted).
“We have authorized the use of deadly force ‘only in rare instances’” in which “the
‘officer has probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others.’” Id. at 1040 (citations omitted). We look at the circumstances
of each case to determine the reasonableness of the use of force, “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.”
Graham, 490 U.S. at 396. The Campbells had committed no crime and were not evading arrest
when Fox used deadly force—leaving only the threat factor for our consideration. The threat
factor “is ‘a minimum requirement for the use of deadly force,’ meaning deadly force ‘may be
used only if the officer has probable cause to believe that the suspect poses a threat of severe
5
For this inquiry, it is irrelevant whether Mark or Sherrie knew the individual shooting at the door was a
law enforcement official, because the inquiry is objective and does not “depend on the subjective perceptions of the
seized person.” Torres, 141 S. Ct. at 999.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 11
physical harm.’” Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (citation omitted); see
also Tennessee v. Garner, 471 U.S. 1, 12–13 (1985). We make an objective assessment based on
the perspective of a reasonable officer in Fox’s position. See Jacobs, 915 F.3d at 1040–41.
Viewing the facts in the light most favorable to the Campbells, Fox and Austin arrived at
the Campbells’ home in the evening to conduct a welfare check. Fox, without announcing
himself as an officer, knocked on the front door. Mark asked, “You got a gun?” Fox asked
Mark, “What’s going on?” Mark said, with the door still closed, “I got one too.” Mark slightly
opened the door and Fox immediately began firing his weapon. Under these facts, a reasonable
officer would not have believed deadly force was justified, as there was no probable cause to
believe that Mark posed a threat to anyone’s safety simply by virtue of informing the officers
that he had a gun and then opening the door as they asked him to do. See Floyd, 518 F.3d at405–07; Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996).
Fox emphasizes that Mark said he had a gun. But under our precedent, mere possession
of a weapon is not sufficient to justify the use of deadly force. Jacobs, 915 F.3d at 1040.
Rather, there must be additional indicia that the safety of the officer or others is at risk. See, e.g.,
Hicks v. Scott, 958 F.3d 421, 435 (6th Cir. 2020) (individual pointed a rifle at the officer’s face);
Thomas v. City of Columbus, 854 F.3d 361, 365–66 (6th Cir. 2017) (individual suspected of
committing a burglary ran with a gun in hand toward a lone officer in a high-crime area). Fox
nonetheless contends that two of our cases support his use of deadly force as reasonable: Pollard
v. City of Columbus, 780 F.3d 395 (6th Cir. 2015) and Simmonds v. Genesee County, 682 F.3d
438 (6th Cir. 2012). In Pollard, we concluded that an officer’s use of deadly force was
objectively reasonable where the suspect clasped his hands in a shooting posture and pointed it at
the officers after engaging in a dangerous car chase and ignoring multiple commands. 780 F.3d
at 400, 403–04. In Simmonds, we concluded that an officer’s use of deadly force was reasonable
where the suspect brandished a silver object while yelling “I have a gun” after the suspect
threatened to kill others, ignored repeated orders, and fled from officers. 682 F.3d at 445.
Pollard and Simmonds thus provide examples of circumstances extending beyond mere
possession of a weapon that would lead a reasonable officer to believe there was a threat to the
safety of others. Without these additional circumstances, the fact that an individual states that he
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 12
has a weapon, or even in fact possesses a weapon, is not enough to justify the use of deadly
force. See Lee v. Russ, 33 F.4th 860, 863–66 (6th Cir. 2022); Jacobs, 915 F.3d at 1040; King v.
Taylor, 694 F.3d 650, 663–64 (6th Cir. 2012); Bradenburg v. Cureton, 882 F.2d 211, 215 (6th
Cir. 1989); see also Knowlton v. Richland Cnty., 726 F. App’x 324, 326–27, 331 (6th Cir. 2018);
Woodcock v. City of Bowling Green, 679 F. App’x 419, 424–25 (6th Cir. 2017). Viewing the
evidence in the light most favorable to the Campbells, no additional circumstances existed during
the incident that would lead a reasonable officer to believe that the Campbells posed a safety risk
to others.
Fox additionally contends that he believed Mark was holding a gun when Mark began
opening the door. However, this is a genuine dispute of fact, as Mark contends that he was not
holding a gun6 and there is evidence in the record that the officers did not know what, if
anything, Mark was holding. We lack jurisdiction to resolve the factual dispute over what Fox
perceived that evening when Mark slightly opened the door. See Jacobs, 915 F.3d at 1041;
Floyd, 518 F.3d at 404; Graves v. Malone, 810 F. App’x 414, 422–23 (6th Cir. 2020). Accepting
the Campbells’ version of the facts, a reasonable jury could find that Fox’s use of deadly force
was objectively unreasonable. Therefore, we turn to whether the right was clearly established.
3
An officer is not entitled to qualified immunity if he violates a constitutional right “so
clearly established when the acts were committed that any officer in the defendant’s position,
measured objectively, would have clearly understood that he was under an affirmative duty to
have refrained from such conduct.” Bouggess v. Mattingly, 482 F.3d 886, 894 (6th Cir. 2007)
(quoting Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987)).
The use of excessive force in a seizure is a violation of the Fourth Amendment. See
Graham, 490 U.S. at 394. And “[i]t has been clearly established in this circuit for some time that
individuals have a right not to be shot unless they are perceived as posing a threat to officers or
others.” Jacobs, 915 F.3d at 1040 (citation omitted). In some “obvious” cases, these general
standards are sufficient to clearly establish that an officer’s conduct is unconstitutional, even
6
No gun was found in the search of the Campbells’ home.
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“without a body of relevant case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per
curiam). More often, however, decisions at this level of generality are insufficient to indicate
whether the law clearly establishes that an officers’ use of force is unreasonble. See Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam). Instead, we look to the law at the time of the
officer’s conduct and identify the “existing precedent [that] ‘squarely governs’ the specific facts
at issue.” Id. at 1153 (citation omitted). There need not be “a case directly on point for a right to
be clearly established,” but “existing precedent must have placed the statutory or constitutional
question beyond debate.” Id. at 1152 (citation omitted). “Precedent involving similar facts can
help move a case beyond the otherwise ‘hazy border between excessive and acceptable force’
and thereby provide an officer notice that a specific use of force is unlawful.” Id. at 1153(citation omitted). “A clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.’” Mullenix v.
Luna, 577 U.S. 7, 11 (2015) (per curiam) (citation omitted).
In the light most favorable to the Campbells, this may be an obvious case in which the
general rule on use of deadly force, enunciated in Garner, provided sufficient notice to Fox that
his conduct was unlawful. See Garner, 471 U.S. at 12–13. But we need not resolve that issue
because, viewing the record in the light most favorable to the Campbells, Floyd, 518 F.3d at 398,
decided a decade before the incident here, clearly establishes that Fox’s conduct was
unconstitutional. In Floyd, a dispute among neighbors resulted in a complaint to the Detroit
police. Id. at 401–02. Two officers arrived at Floyd’s residence while Floyd was at a barbeque.
Id. at 402. The complaining neighbor told the officers that Floyd had threatened him with a
shotgun earlier and had brandished a weapon. Id. Floyd arrived home around 8:00 p.m. and
parked in his backyard. Id. He got out of his car and began walking with his empty hands out in
front of him when officers suddenly ran toward him. Id. A split second later, the officers began
shooting at him without warning. Id. We held that the officers’ use of deadly force under these
circumstances was objectively unreasonable and therefore unconstitutional, because under
Floyd’s version of the facts, he did not pose a threat of serious physical harm. Id. at 407.
Under the Campbells’ version of events, Floyd is controlling. Mark was in his own
home, unarmed, when Fox knocked on his door late in the evening. Though Mark did not make
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 14
any threatening gestures indicating a danger of physical harm to others, Fox began repeatedly
shooting at him without warning. In both cases, the officers had some reason to believe that the
suspect had a weapon. Despite this, we determined in Floyd that the officers’ use of force was
excessive. This finding comports with our caselaw at the time of Fox’s use of force, which made
clear that merely possessing a weapon, without more, is insufficient to justify the use of deadly
force against a suspect. See Bouggess, 482 F.3d at 896 (“[E]ven when a suspect has a weapon,
but the officer has no reasonable belief that the suspect poses a danger of serious physical harm
to him or others, deadly force is not justified.”); King, 694 F.3d at 663–64 (concluding that,
though an individual was found with a gun after he was killed by an officer, “if [the officer] shot
King while he was lying on his couch and not pointing a gun at the officers, [the officer] violated
King’s clearly-established right to be free from deadly force”); Thomas, 854 F.3d at 366 (“To be
clear, we do not hold that an officer may shoot a suspect merely because he has a gun in his
hand. Whether a suspect has a weapon constitutes just one consideration in assessing the totality
of the circumstances.”); see also Knowlton, 726 F. App’x at 330–32; Woodcock, 679 F. App’x at
424–25. Given this clear precedent and the analogous facts of Floyd, any reasonable officer in
Fox’s position would know that using deadly force, under the circumstances that the Campbells
have asserted, was unconstitutional.
The dissent takes a different approach to the “clearly established” question, focusing on
whether Fox was on notice that he seized the Campbells. Dis. Op., at 23–24. When Fox fired
his weapon, he knew one of two things would occur: either he would hit someone, or he would
not. If he did shoot someone, then there is clearly established law that this is a seizure. See
Bouggess, 482 F.3d at 889. If he missed, then it was clearly established that a seizure occurs if a
reasonable person would have believed he was not free to leave in response to Fox’s gunshots.
See Brendlin, 551 U.S. at 255. As discussed, Ewolski, decided sixteen years before this incident,
established that a reasonable person would not feel free to leave in response to police
surrounding his home. See 287 F.3d at 506. Therefore, Fox was on fair notice that by shooting
at the Campbell’s home, he effectuated a seizure. Therefore, Fox is not entitled to qualified
immunity at the summary judgment stage.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 15
IV
Accepting the Campbells’ version of events, as we must in this interlocutory appeal, Fox
used deadly force while conducting a welfare check, shooting eight times into the home of two
unarmed nonthreatening individuals without warning. The “fortuity that [Fox’s] shot[s] failed to
strike [the Campbells]” does not take this case out of the Fourth Amendment’s protection against
unreasonable seizures. Floyd, 518 F.3d at 407. The Campbells were seized when Fox shot at
their house, thereby restricting their freedom to leave. There remains a genuine dispute of
material fact regarding how Mark appeared to officers that night, but in the light most favorable
to the Campbells, Fox’s use of deadly force was clearly excessive and unconstitutional. The
district court properly determined Fox was not entitled to qualified immunity at the summary
judgment stage. We affirm.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 16
_________________
DISSENT
_________________
NALBANDIAN, Circuit Judge, dissenting. This excessive-force case involving qualified
immunity presents a threshold question: Did Officer Fox seize Mark and Sherrie Campbell under
the Fourth Amendment when he fired his gun at Mark eight times, thankfully striking no one?
Under current law, including the Supreme Court’s recent decision in Torres v. Madrid, 141 S. Ct.
989 (2021), I believe the answer is no. And regardless, neither the Campbells nor the majority
points to an on-point case that gave Officer Fox notice that his conduct constituted a seizure.
Next, even if Officer Fox seized the Campbells, he acted reasonably given that Mark
announced he had a gun and then quickly opened the door at point-blank range with something
in his hand. And, in any event, no case exists that would have put Officer Fox on notice that his
conduct violated a clearly established constitutional right.
I would grant Officer Fox qualified immunity, so I respectfully dissent.1
I.
The § 1983 claim of excessive force here implicates the Fourth Amendment’s prohibition
of unreasonable seizures of a person. See Graham v. Connor, 490 U.S. 386, 394 (1989). But
before we evaluate whether Officer Fox violated the Campbells’ Fourth Amendment rights, we
must make sure that Officer Fox’s conduct implicated the Fourth Amendment in the first place.
After all, the “Fourth Amendment protects against ‘unreasonable seizures,’ not unreasonable or
even outrageous conduct in general.” Galas v. McKee, 801 F.2d 200, 202 (6th Cir. 1986).
An officer can seize someone by force or by control. See Torres, 141 S. Ct. at 1001.
I agree with the majority that seizure by force is not at issue. See Maj. Op. at 6. To seize
someone by control “involves either voluntary submission to a show of authority or the
termination of freedom of movement.” Torres, 141 S. Ct. at 1001. Arguing that he should
1
I do, however, agree with the majority that we cannot review Officer Fox’s statute-of-limitations
argument.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 17
receive qualified immunity, Officer Fox contends that Mark never submitted to authority and that
Officer Fox did not terminate Mark’s freedom of movement. I agree.
A.
Voluntary Submission. Mark did not voluntarily submit to Officer Fox’s authority. Just
watch the tape. As the majority notes, Mark felt free enough to reemerge onto his front porch
and yell profanities at the officers, asking them to shoot him. What’s more, Mark declined to
follow the officers’ orders to get on the ground and show his hands. So even though Officer Fox
tried to seize Mark, his show of authority failed. Mark submitted to authority (and was thus
seized) only when a different officer arrested him in his backyard. See California v. Hodari D.,
499 U.S. 621, 629 (1991).
The majority suggests that Torres supports disregarding Mark’s subsequent actions in the
yard because a seizure, as it was in Torres, is “a single act, and not a continuous fact.” See Maj.
Op. at 8. I disagree. In Torres, the seizure was “a single act” because the officers shot Torres.
141 S. Ct. at 1002 (quoting Hodari D., 499 U.S. at 625). For seizures by force, which is what
Torres was, there is likely a single act of force plus an intent to restrain at that moment. Id. at
998. But in Hodari D., the Court explained that for seizures by show of authority, a seizure does
not occur when the subject does not yield at an officer’s call to halt. 499 U.S. at 626.
Instead, for shows of authority, the seizure occurs only when the suspect submits to that
authority, or when his movement is terminated, which did not happen in Hodari D. or here.
Torres did not disturb Hodari D.’s analysis as it relates to seizures by control. So by posing the
question as “whether the Campbells were seized at the time that Fox fired his weapon,” Maj. Op.
at 8, the majority “erases the distinction between seizures by control and seizures by force.”
Torres, 141 S. Ct. at 1001. How can you tell whether firing a gun that doesn’t strike a suspect
led that suspect to submit to authority or terminated his freedom of movement without looking at
what comes next? Simply put, you cannot. So looking at Mark’s actions after the shooting is
necessary to determine whether Officer Fox seized the Campbells. And the majority’s emphasis
on “what occurred immediately” rather “than what occurred later in time,” Maj. Op. at 8, is
misplaced. A suspect can show signs of submitting to authority but then decline to do so.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 18
See United States v. Jeter, 721 F.3d 746, 752–53 (6th Cir. 2013) (rejecting an argument that a
“momentary pause can . . . be considered a submission to authority” when the suspect later fled).
Termination of Movement. Did Officer Fox terminate Mark’s ability to freely move
around? The Supreme Court’s guidance on the question is that the termination of movement is
absolute. See Scott v. Harris, 550 U.S. 372, 385 (2007) (ramming a car off the road); Brower v.
County of Inyo, 489 U.S. 593, 598–99 (1989) (stopping a person successfully with a police
roadblock); Williams v. Jones, 95 Eng. Rep. 193, 194 (KB 1736) (locking a person in a room).
So the question becomes, did Officer Fox absolutely terminate Mark’s ability to move? Again,
I think not.
For starters, the majority seems to think that Mark’s behavior falls into a kind of “passive
acquiescence” between fleeing and submission. See Brendlin v. California, 551 U.S. 249, 255
(2007). In those cases, the Supreme Court has suggested that “a seizure occurs” when “a
reasonable person would have believed that he was not free to leave.” Id. (quoting United States
v. Mendenhall, 446 U.S. 544, 554 (1980)). So here the majority concludes that a reasonable
person would not feel free to leave after a police officer fired eight shots at him. And I agree.
But that’s not the end of our inquiry. For one thing, Mark evidently felt differently by going in
and out of his house multiple times, screaming at the officers, and disobeying orders. And for
another, the Supreme Court has explained before that the “so-called Mendenhall test” “states a
necessary, but not a sufficient, condition for seizure . . . effected through a ‘show of authority.’”
Hodari D., 499 U.S. at 627–28; see also Torres, 141 S. Ct. at 1001 (using Brendlin as an
example of when the Court had “not always been attentive to [the] distinction [between seizures
by control and seizures by force] when a case did not implicate the issue”). Brendlin was a case
about whether a passenger of a car pulled over for a traffic stop was seized. 551 U.S. at 253—
54. But the car stayed put, therefore indicating that those inside were submitting to authority.
Id. at 262. It would be a different case had the car sped off.
Take the facts of Hodari D., for instance. A fleeing youth was not seized when the
officers gave chase, nor when he saw an officer almost upon him. 499 U.S. at 623, 629. Instead,
the officer seized the youth only when he tackled him. Id. at 629. Was the youth “free to leave”
during the chase? Of course not. Yet the seizure occurred only when his movement in fact
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 19
stopped. So the reliance on Brendlin doesn’t get the majority all the way there. Although the
majority is correct that the standard under Mendenhall and Brendlin is objective, see Maj. Op. at
7 n.3, when a suspect fails to submit to a show of authority, like in Hodari D. and here, that
objective standard cannot by itself turn an attempted seizure into a seizure. See Hodari D., 499
U.S. at 629; see also Torres, 141 S. Ct. at 1001 (“[A]ctual control is a necessary element for [a
seizure by acquisition of control.]”).
How do the Campbells fill in the gap? They don’t. But the majority says that Ewolski v.
City of Brunswick, 287 F.3d 492 (6th Cir. 2002), is the best case to show that Officer Fox seized
Mark by terminating his movement. In Ewolski, John Lekan barricaded himself, his wife, and
his son in their home during a two-day armed standoff with police. See id. at 498–99. During
the standoff, Mr. Lekan exchanged gunfire with officers multiple times, and the police tried
various breaches that included crashing an armored vehicle through the living room. Id. at 499.
The district court decided that none of the Lekans were seized during the standoff, see id. at 505,
but we reversed as to Mr. Lekan, see id. at 506.
The district court held that Mr. Lekan wasn’t seized because, by barricading himself in
his home, he never submitted to authority. Id. The district court analogized Mr. Lekan to a
fleeing suspect who had not submitted to authority, but we disagreed. Instead, we found the
situation more like Brower, a different fleeing case. Id. In Brower, police set up a roadblock
that a fleeing suspect fatally crashed into. 489 U.S. at 594. The Supreme Court held that such
action was a seizure because it was a governmental termination of freedom of movement through
means intentionally applied. Id. at 599. Seizing on this, we concluded that “Mr. Lekan was not
free to leave.” Ewolski, 287 F.3d at 506. Just like the driver in Brower, Mr. Lekan was never in
police custody. But the police actions in both cases still intentionally applied force and authority
to restrain movement. So we said that Mr. Lekan wasn’t “on the loose” like the fleeing suspect
in Hodari D. Id. Instead, we reasoned that the police’s actions were as if they had nailed all of
Lekan’s doors and windows shut, trapping him inside. Id.The majority thinks the same reasoning applies here, but I see it differently. When it
comes to whether Officer Fox seized Mark, Ewolski is distinguishable on both the facts and the
law. Above all, in Ewolski, Mr. Lekan was both not free to move and unable to leave. After
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 20
multiple gunfire exchanges and breach attempts, Mr. Lekan was not free to leave his home given
police action, and in fact he did not leave his home. On the other hand, Mark was free to leave
his home, and we know this because he in fact did. First, when he yelled at the officers from his
front porch and disobeyed orders to get on the ground, and then again when he exited the rear of
his house “to see who was shooting at [him] and maybe get a jump on them.” (R. 71-6, Mark
Campbell Dep., PageID 408–09.) During Mark’s backyard jaunt, he “walked right on past these
two officers in these vehicles.” (Id. at 409.) It’s clear to me that Mark was “on the loose” like
the suspect in Hodari D. See Ewolski, 287 F.3d at 506. So unlike Mr. Lekan, Officer Fox’s
“intentional application of physical force and show of authority” did not “succeed[] in
restraining” Mark’s “liberty to leave his home.” Id. “The distinguishing feature of a seizure is
the restraint of . . . his . . . freedom to walk away.” Id. at 507. Mark did just that. In sum,
Officer Fox did not seize Mark.
Finally, the Supreme Court’s decision in Torres does not change my conclusion. In
Torres, officers shot a suspect that sped off after they tried to stop her car and speak with her.
141 S. Ct. at 994. The bullets didn’t stop Torres though. She drove off, stole a car, and made it
to a new town before being airlifted to a hospital to treat her gunshot wounds. Id. Authorities
arrested Torres at the hospital the next day. Id. Torres later brought an excessive-force claim
against the officers under § 1983. The district court granted summary judgment to the officers,
and the Tenth Circuit affirmed, reasoning that Torres’s continued flight meant no seizure
occurred. Id.
The Supreme Court vacated and remanded. First, the Court identified that the case was
about the application of physical force, not a show of authority. Id. at 995. Then, after
surveying the common law, the Court held that the officers seized Torres during the shooting
because they “applied physical force to her body and objectively manifested an intent to restrain
her from driving away.” Id. at 999. Addressing opposing arguments, the Court talked about
seizures by control and explained that, unlike seizures by force, seizures by control require that
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 21
“an officer succeeds in gaining control” over a suspect by “either voluntary submission to a show
of authority or the termination of freedom of movement.”2 Id. at 1001.
Because the seizure was “just the first step in the analysis,” the Court remanded the case
without deciding the reasonableness of the seizure and whether the officers were entitled to
qualified immunity. Id. at 1003. On remand, the magistrate judge granted the officers qualified
immunity because it wasn’t clear to an officer at the time of the shooting that their conduct
constituted a seizure. Torres v. Madrid, No. 1:16-cv-01163, 2021 WL 6196994, at *4 (D. N.M.
Dec. 30, 2021).
Torres clarified that the rule is this: “A failed attempt to restrain a suspect is not a
‘seizure’ within the meaning of the Fourth Amendment unless there is some application of
physical force.” Steed ex rel. Steed v. Mo. State Highway Patrol, 2 F.4th 767, 770 (8th Cir.
2021) (citing Torres, 141 S. Ct. at 995). Of course, many understood that rule before Torres.
Dissenting in Hodari D., Justice Stevens understood the majority’s decision to mean that a police
officer firing his weapon at a suspect would “not implicate the Fourth Amendment—as long as
he misses his target.” Hodari D., 499 U.S. at 630 (Stevens, J., dissenting). So applied here,
when Officer Fox shot at Mark, he attempted to seize him. But “[a]ttempted seizures of a person
are beyond the scope of the Fourth Amendment.” County of Sacramento v. Lewis, 523 U.S. 833,
845 n.7 (1998). Had Officer Fox in fact shot Mark, he would have been seized even if he
remained in his house or roaming around his backyard. See Torres, 141 S. Ct. at 999. But
without the force, a seizure by acquisition of control “requires that ‘a person be stopped by the
very instrumentality set in motion or put in place in order to achieve that result.’” Id. at 1001
(quoting Brower, 489 U.S. at 599).
That didn’t happen here. Both under the law at the time of Officer Fox’s conduct, and
especially after Torres, it’s clear that Officer Fox did not seize Mark.
2
Because the three dissenting Justices agreed that to seize someone through a “show of authority” “occurs
only if the suspect submits to an officer’s possession,” Torres, 141 S. Ct. at 1014 (Gorsuch, J., dissenting), all eight
Justices on the case agreed on this point.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 22
B.
Nor did Officer Fox seize Sherrie. Ewolski helps explain why. There, we held that the
wife and child trapped in the home were not seized by police because Mr. Lekan, not the police,
restrained their movement. 287 F.3d at 507. The officers here and in Ewolski both shot into the
house, but in Ewolski that wasn’t enough to seize the people not targeted by the gunfire. Id.Like Ewolski, here there “are no facts alleged that would suggest” Officer Fox in any way
restrained Sherrie’s movement. Id. In fact, the record shows that Sherrie stayed put because
after the shooting had ended, Mark told her “not to move, to stay where [she was] at.” (R. 71-7,
Sherrie Campbell Dep., PageID 413.) So if anything, Mark kept Sherrie in the house, not Officer
Fox.
The district court’s reliance on Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011),
and Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000), is misplaced. Both cases involved
police shooting at cars, not homes, and both involved an officer’s intentional exertion of force
against the passenger.
In Fisher, an officer shot at the driver of a car but hit the passenger instead. 234 F.3d at
315. We held that the officer seized the passenger because he shot her while intending to shoot
at the car. Id. at 318–19. And in Rodriguez, an officer shot and killed the driver of a fleeing
vehicle and injured a passenger. 637 F.3d at 677–78. We denied qualified immunity because a
dispute of fact existed about which version of the events to believe and how the passenger
received her injury. Id. at 687–89.
Neither case is enough like this one to justify the majority’s reliance. Instead, I think the
closest analogue is Ewolski or Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011). In Bletz, two
police officers executed an arrest warrant for a man who lived with his parents. 641 F.3d at 747.
The officers went inside the home with Bletz so he could change clothes under their supervision.
Id. at 748. But once inside, the officers came upon Bletz’s father with a gun drawn. Id. The
parties disputed some of what happened next, but it’s undisputed that one of the officers shot and
killed Bletz’s father. Id. After the shooting, the officers moved to secure the home, handcuffing
and detaining Bletz and his mother for several hours. Id. Bletz’s mother claimed the officers
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 23
violated her Fourth Amendment rights, but we held that the officers seized Bletz’s mother
“within the meaning of the Fourth Amendment when defendants handcuffed her and placed her
inside a locked police vehicle,” not when the shooting occurred. Id. at 754.
The two cases most like this one, Ewolski and Bletz, involved officers shooting or
shooting at an individual at home, and we held that the third party was not seized at the time of
the shooting. The two cases the majority relies on, Fisher and Rodriguez, both involved injuries
to the passengers from the officers’ intentional application of force with the intent to restrain. So
it’s clear to me that following the more analogous caselaw, Officer Fox did not seize Sherrie.
C.
As for the “clearly established” question, I think the discussion above shows, at a
minimum, that no case exists that could have put Officer Fox on notice that he seized the
Campbells. “The doctrine of qualified immunity shields officials from civil liability so long as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)
(cleaned up). “[Q]ualified immunity is appropriate unless the officer in question had ‘fair notice’
that h[is] conduct was unlawful.” Trozzi v. Lake County, 29 F.4th 745, 761 (6th Cir. 2022)
(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). To provide fair notice,
the “scope of the constitutional right must be ‘sufficiently clear that every reasonable official
would have understood’” that their conduct violated that right. Id. (quoting Rivas-Villegas v.
Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam)). That the “scope of the constitutional right”
must be clear enough to shape future conduct means, to me, the whole right. So even though we
usually focus most of the “clearly established” inquiry on the violation of the right, the same
reasoning applies to the implication of the right itself.
So we have examined whether it was clearly established that conduct constituted a
seizure in the first place. See Haywood v. Hough, 811 F. App’x 952, 961 (6th Cir. 2020) (“At
the time of [the Plaintiff’s] initial detention, it was clearly established that confining a person to a
room constituted a seizure . . . .”); see also Gutierrez v. Cobos, 841 F.3d 895, 907 (10th Cir.
2016) (“Because Plaintiffs did not proffer clearly established authority that [the Plaintiff] was
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 24
seized, they did not carry their burden to rebut qualified immunity on this illegal seizure
claim.”); Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004) (using the clearly
established standard for whether a seizure occurred).
Here, neither the Campbells nor the majority “identified any Supreme Court case that
addresses facts like the ones at issue here.” Rivas-Villegas, 142 S. Ct. at 8. And “[e]ven
assuming that Circuit precedent can clearly establish law for the purposes of § 1983,” the cases
the majority relies on—primarily Ewolski—are “materially distinguishable and thus do[] not
govern the facts of this case.” Id. And the Campbells admit as much. During oral argument, the
Campbells’ counsel conceded that “there is no case that addresses this particular scenario” when
asked which case clearly established that a seizure occurred. (Oral Arg. at 16:04-16:30; see also
id. at 23:58-24:04 (“I extensively researched this and came up at a loss to find anything truly on-
point.”).)
II.
Because I don’t believe that Officer Fox seized either of the Campbells, I would stop here
and grant qualified immunity. But even if Officer Fox did seize them, his conduct was
reasonable. To decide whether Officer Fox’s use of force was reasonable, we must balance
Officer Fox’s use of force with the threat that Mark posed to Officer Fox and his partner. See
Graham, 490 U.S. at 396. Our assessment is objective, so it “must be made from the perspective
of a reasonable officer.” Jacobs v. Alam, 915 F.3d 1028, 1041 (6th Cir. 2019). Like all
excessive-force evaluations, we consider a totality of the circumstances without relying on “the
20/20 vision of hindsight.” Graham, 490 U.S. at 396.
“If you were a police officer, what risk of getting shot would you be willing to face
before” firing your weapon at a suspect who announced he had a gun, then, without warning,
opened a door mere feet away from you? Browning v. Edmonson County, 18 F.4th 516, 536 (6th
Cir. 2021) (Murphy, J., concurring in part and dissenting in part). That’s the choice Officer Fox
faced here. And I believe that he made a reasonable one.
Our caselaw shows that a reasonable officer would have thought that Mark had a gun. In
Simmonds v. Genesee County, police officers shot a suspect who yelled that he had a gun and
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 25
then leaned out of his car with an object in his hand that the officers thought was a gun. 682
F.3d 438, 441–42 (6th Cir. 2012). We affirmed a grant of qualified immunity, finding that “the
officers were permitted to use deadly force in light of the uncontested statement by [the suspect]
that ‘I have a gun.’” Id. at 446. Next, in Pollard v. City of Columbus, officers shot a suspect
after his car crashed following an unsuccessful flee attempt. 780 F.3d 395, 399–400 (6th Cir.
2015). As officers approached the car, the suspect reached down to the floor of his car and then
pointed his hands at the officers in a clasped shooting posture. Id. at 400. We affirmed the grant
of qualified immunity, holding that the officers reasonably thought the suspect had a gun and
could reasonably consider him a threat. Id. at 404.
Here, Mark announced that he had a gun. And this statement must be viewed in context.
The porch was lit and had a security camera. Although Mark later testified that the camera was a
fake, installed to deter neighbors, the officers believed that Mark knew they were police when he
announced that he had a gun and as he opened the door. Someone willing to tell an officer at his
door that he has a gun is threatening. As soon as Mark said, “I got one too,” Officer Fox
immediately unholstered his gun. So like the officers in Simmonds and Pollard, Officer Fox had
reason to believe that Mark had a gun.
True, whether Mark had a gun, a cellphone, or nothing in his hand is not dispositive. As
the majority points out, “merely possessing a weapon is not enough—the officer must reasonably
believe the individual poses a danger of serious physical harm.” Jacobs, 915 F.3d at 1040
(cleaned up). But the officers’ perception that the individual has a weapon, combined with other
circumstances that give the reasonable officer reason to believe that there is a danger of serious
harm, can be dispositive.
Here, the officers testified that they thought that Mark had something in his hand after he
had said that he had a gun and after he opened the door. (R. 71-1, Austin Decl., PageID 377
(“I believed, and still believe, that Mr. Campbell had a gun[.]”); R. 71-2, Fox Decl., PageID 388
(“I . . . had only a second or two to observe a silver or gun-metal gray object, which I believe to
have been a gun[.]”).) Mark did not contradict that testimony. In fact, Mark testified that he
thought he “had [his] cellphone in [his] hand.” (R. 71-6, Mark Campbell Dep., PageID 401.)
But he never denied that he had something in his hand, and in fact told the officers that he had a
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 26
gun. So nothing in the record refutes the officers’ perception that, at a minimum, Mark had
something in his hand. See Hicks v. Scott, 958 F.3d 421, 437 n.2 (6th Cir. 2020).
Beyond his perceived possession of a weapon, Mark’s close proximity to the officers is
enough of an additional circumstance to warrant the use of deadly force. See Hicks, 958 F.3d at
436 (reasoning that an officer’s “close proximity” to an armed suspect “compounded” the
perceived threat); see also Chappell v. City of Cleveland, 585 F.3d 901, 911 (6th Cir. 2009) (“[I]t
is apparent that if the detectives had hesitated one instant, i.e., long enough to allow [the suspect]
to take even one more step, they would have been within his arm’s reach and vulnerable to
serious or even fatal injury.”). In Thomas v. City of Columbus, for instance, we found that
40 feet was a close enough distance to warrant deadly force. 854 F.3d 361, 366 (6th Cir. 2017).
We reasoned that, at that range, “a suspect could raise and fire a gun with little or no time for an
officer to react.” Id. So we held the officer’s decision to fire his gun, even though the suspect
never raised his, to be objectively reasonable. Id.As seen from the body-camera footage, Mark was much closer to the officers than the
40 feet in Thomas. At that distance, it would take only a second or two for someone to point,
aim, and fire. These kinds of split-second decisions are ripe for second-guessing, but we must
resist that temptation. See Graham, 490 U.S. at 396–97; see also Williams v. City of Grosse
Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007) (emphasizing “the need to assess the
reasonableness of an officer’s conduct in view of uncertain and rapidly developing
circumstances”).
From these cases, it’s clear that when officers are close to a suspect and have reason to
believe he’s armed, either because of his statement or other gestures, the use of deadly force is
reasonable. The facts, even in the light most favorable to the Campbells, show that reasonable
officers would’ve felt that Mark posed an imminent threat to their safety. “Sometimes, the time
or space available to an officer may mean that the reasonable thing to do is to monitor the
suspect, issue a warning, or take cover.” Thomas, 854 F.3d at 366–67. But this wasn’t one of
those times. Given the totality of the circumstances, Officer Fox acted reasonably.
No. 21-5044 Campbell, et al. v. Cheatham Cnty. Sheriff’s Dep’t, et al. Page 27
III.
Moreover, even if Officer Fox seized the Campbells, the law didn’t provide him
sufficient notice that his conduct was unlawful. “A right is clearly established when it is
‘sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.’” Rivas-Villegas, 142 S. Ct. at 7 (quoting Mullenix, 577 U.S. at 11). In non-
obvious cases like this one, the Campbells must identify a case that put Officer Fox on notice
that his specific conduct was unlawful. See id. at 8.
The Campbells land on Floyd v. City of Detroit as that case. There, we affirmed a denial
of qualified immunity to two officers who shot an unarmed man. Floyd, 518 F.3d 398, 402, 409
(6th Cir. 2008). But Floyd is “materially distinguishable and thus does not govern the facts of
this case.” Rivas-Villegas, 142 S. Ct. at 8.
Above all, the officers in Floyd had much less reason to feel threatened by Floyd than
Officer Fox did by Mark. Those officers were responding to a call about a dispute from more
than an hour before regarding a suspect with a weapon. See Floyd, 518 F.3d at 402. And
although the first officer who fired did so without hearing from Floyd first, Floyd testified that he
yelled that he didn’t have a gun before the second officer fired, striking him. Id. Mark himself
announced that he had a gun just seconds before opening the door. What’s more, Floyd’s hands
were empty and extended out in front of his body. Id. at 407. It’s clear that shooting an unarmed
man with his hands out based on a stale tip is markedly different from shooting at someone feet
away who announced they had a gun and opened a door without warning. Floyd is thus
materially distinct and an improper case for providing Officer Fox notice that his conduct was
unlawful.
IV.
For these reasons, I would grant qualified immunity and I respectfully dissent.