Kevin Lamar Adams; Bobbie Adams v. City of Auburn Hills, a municipal corporation

*The Honorab le James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0236P (6th Cir.)
File Name: 03a0236p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KEVIN LAMAR ADAMS;
BOBBIE ADAMS,
Plaintiffs-Appellees,
v.
CITY OF AUBURN HILLS, a
municipal corporation, et al.,
Defendants,
JOHN BACKSTROM,
Defendant-Appellant.
X
-
-
-
->
,
-
-
-
-
-
-
-
-
N
No. 02-1379
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 00-60443—Marianne O. Battani, District Judge.
Argued: May 6, 2003
Decided and Filed: July 21, 2003
Before: SUHRHEINRICH and COLE, Circuit Judges;
CARR, District Judge.*
2 Adams, et al. v. City of
Auburn Hills, et al.
No. 02-1379
_________________
COUNSEL
ARGUED: G. Gus Morris, COX, HODGMAN &
GIARMARCO, Troy, Michigan, for Appellant. H. Wallace
Parker, BLOOMFIELD LAW CENTER, Bloomfield Hills,
Michigan, for Appellees. ON BRIEF: G. Gus Morris, COX,
HODGMAN & GIARMARCO, Troy, Michigan, for
Appellant. H. Wallace Parker, BLOOMFIELD LAW
CENTER, Bloomfield Hills, Michigan, for Appellees.
_________________
OPINION
_________________
JAMES G. CARR, District Judge. Kevin Lamar Adams
claims that Auburn Hills, Michigan, police officer John
Backstrom used excessive force against him in making a
police stop. Officer Backstrom appeals from the district
court’s denial of his motion for summary judgment based on
qualified immunity. We hold that Adams has not made out a
constitutional violation against Backstrom. We therefore
REVERSE the district court’s denial of qualified immunity
and REMAND to dismiss the complaint.
I. BACKGROUND
A. Factual Background
This case arises from a domestic dispute that resulted in
Officer Backstrom’s shooting at the car Kevin Adams was
driving. On the evening of March 8, 1999, Kevin Adams
rented a room at the Motel 6 in Auburn Hills, Michigan, with
an old girlfriend. Adams drove a Ford Taurus to the motel.
Earlier that year, Geisha Breckenridge, Adams’s ex-girlfriend,

-- 1 of 5 --

No. 02-1379 Adams, et al. v. City of
Auburn Hills, et al.
3
agreed to sell the Taurus to Adams. Breckenridge allowed
Adams to use the car while he purchased it.
In the early morning hours of March 9, 1999, Breckenridge
spotted the Taurus at the motel. Using a tire iron, she smashed
in the window of the room in front of the Taurus.
Unbeknownst to Breckenridge, it was not the room occupied
by Adams. Adams heard the commotion, however, and stayed
in his rented room.
Motel 6 employees called the Auburn Hills police
department. Sergeant Glenn Heath and Officer Brian Martin
responded to the call. They found Breckenridge in the back
seat of her car in the motel parking lot. Breckenridge admitted
breaking the window, and she told the officers she was there
because Adams was with another woman. Breckenridge also
said she wanted to retrieve her keys to the Taurus, although
she admitted allowing Adams to use the Taurus.
After Breckenridge was in police custody, Officer John
Backstrom arrived at the scene. Sgt. Heath, as the higher-
ranking officer, told Backstrom that his presence was not
needed and that he could leave. As Backstrom was leaving, a
motel guest asked the officer for assistance unlocking his car.
Shortly thereafter, Sgt. Heath noticed that Adams was
attempting to leave the motel in the Taurus. Sgt. Heath yelled
to Officer Backstrom -- who was across the parking lot near
the exit -- to stop the Taurus and retrieve Breckenridge’s
keys.
According to Adams, as he drove towards the motel exit,
Officer Backstrom walked in front of the Taurus with his gun
in one hand and his other hand up for Adams to stop. Adams
stopped the vehicle and stood halfway outside the vehicle
with his left hand on the top of the door and his right hand on
top of the car. Adams asked Backstrom if he had broken any
law and the officer replied that he had not. Adams then told
4 Adams, et al. v. City of
Auburn Hills, et al.
No. 02-1379
1Officer Backstrom denies shooting into the door of the Taurus, and
no bullet holes were found in the driver’s side door. The only bullet holes
were in the wheel and mud flap.
Backstrom that because he had not broken any laws, he was
leaving. Backstrom yelled for Adams to get out of the car
three times and held his gun near the driver’s side window.
When Adams did not move, Adams claims Officer Backstrom
fired two shots into the driver’s side door. As Adams drove
away, Backstrom fired two more shots at the Taurus’s left
rear wheel and mud flap.1
Though Officer Backstrom’s shots had struck the Taurus,
Adams was able to drive to the home of his mother, Bobbie
Adams. Auburn Hills police issued a report regarding the
Taurus. Pontiac, Michigan, police spotted the Taurus in front
of Bobbie Adams’s home. When police officers came to the
back door of the home, Kevin Adams ran out the front door.
Bobbie Adams told the officers that she had not seen her son,
and she would not allow the officers to search the home. The
officers set up surveillance at the house. Later that morning,
Bobbie Adams allegedly consented to a search of her home.
A yellow jacket that Kevin Adams reportedly wore at the
motel was found inside the home. The police impounded the
Taurus. Kevin Adams subsequently surrendered with his
attorney.
The Oakland County Prosecutor’s Office charged Adams
with driving with a suspended license and assault with intent
to do great bodily harm for attempting to run down Officer
Backstrom. A jury convicted Adams on the suspended license
charge but acquitted him on the assault charge.
B. Procedural Background
In December, 2000, Adams and his mother filed a
42 U.S.C. § 1983 claim in the United States District Court for

-- 2 of 5 --

No. 02-1379 Adams, et al. v. City of
Auburn Hills, et al.
5
the Eastern District of Michigan. Plaintiffs alleged the City of
Auburn Hills, Auburn Hills Police Department, Auburn Hills
Police Chief Doreen Olko, Lieutenant David P. Chase, Sgt.
Heath, and Officer Backstrom violated the Fourth, Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution.
The defendants responded by seeking summary judgment
on the following bases: 1) defendants Auburn Hills and
Auburn Hills Police Department did not have a policy,
custom, or procedure which caused a constitutional
deprivation; 2) Chief Olko, Sgt. Heath, and Lt. Chase had no
direct involvement in the alleged acts of deprivation; and
3) Officer Backstrom was entitled to qualified immunity.
The district court heard oral argument on defendants’
motion. Thereafter, the district judge, ruling from the bench,
granted defendants’ motion for summary judgment on all
counts except the Fourth Amendment claim against Officer
Backstrom. The court stated:
The defendant argues here if it’s a mistake to shoot that
tire and it’s reasonable for him, then the immunity
defense of course would apply. But here there’s so many
factual issues about did he shoot as the car was driving
away, etc., and I think that those issues first have to be
resolved by a jury.
J.A. 522.
Backstrom filed an interlocutory appeal under Mitchell v.
Forsyth, 472 U.S. 511 (1985).
6 Adams, et al. v. City of
Auburn Hills, et al.
No. 02-1379
II. DISCUSSION
A. Standard of Review
Review of the denial of qualified immunity is de novo.
Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir. 2002). As
noted in Risbridger, “[a] district court’s decision rejecting an
individual defendant’s claim to qualified immunity is
immediately appealable to the extent that it raises a question
of law, notwithstanding the absence of a final judgment.” Id.
at 568 (citing Behrens v. Pelletier, 516 U.S. 299, 310-11
(1996); Mitchell, 472 U.S. at 530).
B. Qualified Immunity
As the Supreme Court explained in Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982), “government officials performing
discretionary functions, generally are shielded from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.”
Whether a defendant is entitled to qualified immunity
depends on: “(1) whether the facts taken in the light most
favorable to plaintiff could establish a constitutional
violation; (2) whether the right was a ‘clearly established’
right of which any reasonable officer would have known; and
(3) whether the official’s actions were objectively
unreasonable in light of that clearly established right.”
Risbridger, 275 F.3d at 569 (citing Williams v. Mehra, 186
F.3d 685, 690 (6th Cir. 1999)).
The sole issue in this appeal is whether Officer Backstrom,
by shooting at Adams’s car, violated Adams’s Fourth
Amendment rights.
The Supreme Court held in Graham v. Connor, 490 U.S.
386 (1989), that “all claims that law enforcement officers

-- 3 of 5 --

No. 02-1379 Adams, et al. v. City of
Auburn Hills, et al.
7
have used excessive force -- deadly or not -- in the course of
an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a ‘substantive
due process’ approach.” Id. at 395 (emphasis in original).
The parties argue whether Officer Backstrom’s actions
were objectively reasonable in light of the facts and
circumstances surrounding the shooting. The Sixth Circuit has
looked to several factors in determining whether objective
reasonableness exists, including: 1) “the severity of the crime
at issue,” 2) “whether the subject pose[d] a threat to anyone,”
and 3) “whether the suspect [was] attempting to escape or . . .
resisting arrest.” Patrick v. City of Detroit, 906 F.2d 1108,
1115 (6th Cir. 1990) (quoting Graham, 490 U.S. at 396).
Citing Graham and Tennessee v. Garner, 471 U.S. 1
(1985), Adams argues that a person has a clearly established
right not to be shot unless he or she poses a threat to the
police or to others. Accordingly, because Adams was
unarmed and Officer Backstrom was not in the path of the
Taurus, Adams argues it was not objectively reasonable for
Officer Backstrom to shoot at him.
Officer Backstrom argues that shooting at the tires of the
Taurus was not excessive force because Adams was “fleeing
and posed an immediate threat to the officer’s personal safety
and in addition posed a threat to members of the public
because he was fleeing the scene in a rapid and reckless
fashion.” Br. at 17-18. Shooting at the tire in an attempt to
disable it was, Backstrom argues, a reasonable application of
force.
The parties in this case have skipped a preliminary
question. Before the reasonableness of Backstrom’s use of
force can be analyzed, we must first determine whether there
was a seizure for purposes of the Fourth Amendment. If
Adams was not seized, the Fourth Amendment has not been
8 Adams, et al. v. City of
Auburn Hills, et al.
No. 02-1379
violated, and consideration of the reasonableness of Officer
Backstrom’s conduct is unnecessary.
A “seizure” triggering the Fourth Amendment’s protections
occurs only when government actors have, “by means of
physical force or show of authority, . . . in some way
restrained the liberty of a citizen.’” Terry v. Ohio, 392 U.S. 1,
19 n.16 (1968).
In United States v. Mendenhall, 446 U.S. 544, 553 (1980),
the Supreme Court stated: “a person has been ‘seized’ within
the meaning of the Fourth Amendment only if, in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” See
also Brower v. County of Inyo, 489 U.S. 593, 597 (1989)
(finding that a Fourth Amendment seizure occurs “when there
is a governmental termination of freedom of movement
through means intentionally applied.”) (emphasis in original).
In California v. Hodari D., 499 U.S. 621 (1991), the
Supreme Court held that where police make a show of
authority but the subject does not yield, there is no seizure for
Fourth Amendment purposes. In Hodari, police chased a
juvenile who discarded cocaine while fleeing, before he was
tackled by an officer. The Court ruled that the cocaine could
be introduced in the criminal proceeding because the
defendant had not been seized before the officer took
possession of the drugs. Because the defendant did not
comply with the order to stop, “he was not seized until he was
tackled.” Id. at 629. The word “seizure,” according to the
Court, does not apply “to the prospect of a policeman yelling
‘Stop, in the name of the law!’ at a fleeing form that continues
to flee.” Id. at 626.
This court specifically has held that shooting at a fleeing
felon, but missing, is not a “seizure.” In Cameron v. City of
Pontiac, 813 F.2d 782 (6th Cir. 1987), the mother of the
deceased fleeing suspect filed a § 1983 action against an

-- 4 of 5 --

No. 02-1379 Adams, et al. v. City of
Auburn Hills, et al.
9
officer for unjustifiably using deadly force in attempting to
apprehend her son, a burglary suspect. Police chased the
suspect and shot at him several times, but never hit him. The
suspect ran onto a busy expressway and was fatally struck by
a motor vehicle.
We explained:
Cameron was not seized by [officer defendants].
Cameron elected to flee, not to be restrained. The
officers’ show of authority by firing their weapons, while
designed to apprehend Cameron, did not stop or in any
way restrain him. “Just as clearly, when the pursuit
terminated in an accident [causing the death of] the
minor plaintiff, he was not restrained by, or as a result of,
the officer’s show of authority.” Cameron’s freedom of
movement was restrained only because he killed himself
by electing to run onto a heavily traveled, high speed
freeway.
The use of deadly force standing alone does not
constitute a seizure, and absent an actual physical
restraint or physical seizure, the alleged
unreasonableness of the officers’ conduct cannot serve as
a basis for a § 1983 cause of action anchored in the
Fourth Amendment. Consequently, the reasonableness of
the officers’ use of their weapons in attempting to
apprehend Cameron cannot be challenged under § 1983.
Id. at 785 (citing Galas v. McKee, 801 F.2d 200, 202 (6th Cir.
1986)).
Courts outside the Sixth Circuit also have addressed
whether shooting at a car -- but not hitting or stopping the
individuals inside of it -- is a violation of the Fourth
Amendment. See e.g., Latta v. Keryte, 118 F.3d 693, 699-700
(10th Cir. 1997) (finding that the plaintiff was “seized” only
when he stopped at a roadblock and not when the defendant-
10 Adams, et al. v. City of
Auburn Hills, et al.
No. 02-1379
officer shot the tires of plaintiff’s car in an unsuccessful
pursuit); Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993)
(“[T]he shots that were fired at the truck and that did not hit
[plaintiff] were not seizures because they too failed to
produce a stop.”); McAllister v. New York City Police Dept.,
49 F. Supp. 2d 688, 698-99 (S.D.N.Y. 1999) (granting
defendant-officers’ motion for summary judgment on
plaintiff’s excessive force-shooting claim because plaintiff
suffered no damage when police fired into the car but the
plaintiff was not hit or hurt); Palmer v. Williamson, 717 F.
Supp. 1218, 1223 (W.D. Tex. 1989) (“[M]ere firing does not
establish a ‘seizure’ within the meaning of the Fourth
Amendment. . . . [E]ven if [the officer] meant to stop [the
plaintiff] by firing his gun at the car as it pulled away, [the
plaintiff] was not stopped.”).
In this case, Officer Backstrom’s firing at the automobile
did not impair Adams’s movement. Adams was not hit by
Officer Backstrom’s bullets and was able to leave the scene
unharmed despite Backstrom’s use of his firearm. Even
though the tire of the Taurus was hit, it appears that the car
still was operable and Adams reached his destination, his
mother’s house.
Hence, Adams never was seized, and our holding that no
seizure occurred makes the discussion of the reasonableness
of Backstrom’s conduct unnecessary. Because the Fourth
Amendment is not implicated, Adams has not alleged a
constitutional violation to support a § 1983 claim. Without an
underlying constitutional violation, the question of whether
Backstrom is entitled to qualified immunity is moot.
CONCLUSION
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND for further proceedings in
accordance with this decision.

-- 5 of 5 --