Patricia Scott v. Clay County , Tennessee ; Chinn Anderson ; Billy Pierce ; Michael Thompson

1
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
_________________
P ATRICIA S COTT ,
Plaintiff-Appellee,
v.
C LAY C OUNTY , TENNESSEE ;
C HINN ANDERSON ; BILLY
P IERCE ; M ICHAEL THOMPSON,
Defendants-Appellants.
;>

1
No. 98-6157
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

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2 Scott v. Clay County, Tennessee, et al. No. 98-6157
1Section 1983 provides, in pertinent segment:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes
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).
Appellants. Richard M. Brooks, Carthage, Tennessee, for
Appellee.
KRUPANSKY, J., delivered the opinion of the court, in
which BOGGS, J., joined. CLAY, J. (pp. 21-23), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
KRUPANSKY, Circuit Judge. The defendants-appellants
Clay County, Tennessee (“the County”), Sheriff Cecil
“Chinn” Anderson (“Anderson”), Deputy Billy Pierce
(“Pierce”), and Deputy Michael Thompson (“Thompson”)
have contested the district court’s denial of their motion,
anchored in qualified immunity, for Fed. R. Civ. P. 56
summary adjudication of the federal civil rights claims of the
plaintiff-appellee Patricia Scott (“Patricia” or “the plaintiff”).
The plaintiff alleged in her single-count complaint that Clay
County Sheriff’s Department officers Anderson, Pierce, and
Thompson used excessive force to effect her arrest, in
violation of 42 U.S.C. §§ 1983 and 1988,1 which caused her
No. 98-6157 Scott v. Clay County, Tennessee, et al. 23
The majority asserts that because Plaintiff has argued
violations of her rights under the Fourth Amendment and not
the violation of her substantive due process rights under the
Fourteenth Amendment, the lesser standard of “objective
unreasonableness” should apply. The granting of summary
judgment under the circumstances of this case is improper
regardless of whether the standard that should be applied in
evaluating the officers’ conduct is the “conscience shocking”
standard of the Fourteenth Amendment, see County of
Sacramento v. Lewis, 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;
see also Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.
2000). Regardless of the appropriate standard, Defendants do
not dispute, as made clear by the district court’s opinion, that
Plaintiff’s right to be free from excessive force under the
Fourth Amendment was a clearly established right at the time
of the incident in question. The question that should have
been left for trial was whether excessive force was actually
employed against Plaintiff.
This Circuit’s unfortunate practice of arrogating unto itself
the role of resolving on appeal the factual disputes presented
by a qualified immunity defense in a § 1983 action, as
represented by the majority opinion herein, continues the
troubling trend followed by this Court in the improperly
decided case of Claybrook v. Birchwell. See 199 F.3d at 358-
61 (affirming the district court’s order granting summary
judgment to the defendants on Counts III and IV of the
plaintiffs’ complaint). I therefore dissent.

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

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4 Scott v. Clay County, Tennessee, et al. No. 98-6157
4Robert testified that he had recently consumed between five and
seven beers, in tandem with prescription pharmaceuticals including “nerve
medicine” and “muscle relaxants,” which had produced a drug-induced
mood alteration.
5At deposition, Thompson could not recall whether he activated his
unit’s siren and lights shortly before, or momentarily after, the Scott
vehicle sped perilously close to the sheriff and his vehicle.
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
proximately ingested a significant volume of alcohol coupled
with additional psychoactive substances;4 possessed no valid
motor vehicle operator’s permit because his license had been
judicially revoked pursuant to his conviction for driving while
intoxicated; and had, in the past, recklessly fled from law
enforcement authorities at high speeds. Forthwith, the
emotionally agitated, and chemically impaired, couple
engaged in a passionate argument inside the moving vehicle.
Flouting a traffic sign, Robert failed to stop at the
intersection of Neely’s Creek Road and Highway 53.
Sheriff’s Deputy Michael Thompson, on routine highway
patrol, observed the Scott vehicle race erratically through that
intersection with its tires squealing, then momentarily weave
off the pavement as it recklessly turned, at a hazardous
velocity, onto Walker Ridge Road. Thompson, concerned for
public safety, commenced tailing that motorcar.
The speed of the Scott automobile dangerously rose while
on Walker Ridge Road, rocketing past, and narrowly missing,
Sheriff Chinn Anderson’s unmarked service cruiser which he
had parked near the roadside, as well as the sheriff himself,
who had been sitting nearby. In response, Thompson, with
his vehicle’s siren sounding and blue lights flashing, pursued
the Caprice at high speed.5 Because he lacked a valid driver’s
license, Robert intended to evade apprehension by fleeing to
his mother’s residence. An experienced “road runner,”
Robert had successfully eluded the police in past high-speed
No. 98-6157 Scott v. Clay County, Tennessee, et al. 21
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. I respectfully dissent for
the reasons set out in the district court’s well-reasoned and
persuasive opinion denying Defendants’ motion for summary
judgment. I believe the district court was correct in finding
that Defendants are not immune from suit.
Contrary to the representations of the majority opinion, this
is a case in which factual disputes, which should preclude the
granting of summary judgment, abound. In my opinion, the
majority, contrary to the well-established dictates of law
governing the granting of summary judgment, can only arrive
at its conclusion that there are no factual disputes by deciding
all of the contested issues of fact against Plaintiff. Not only
does the majority opinion assert disputed facts to constitute
undisputed facts, but in its anxiousness to deny Plaintiff her
day in court, the majority reaches some of its factual
conclusions by stating, as objectively established facts, what
the majority supposes was in the minds of the deputies at the
time of the events surrounding the shooting. The deputies’
explanation for their conduct, much of which could be viewed
in the context of the factual circumstances to constitute after
the fact speculation about the motivation of the officers, is
asserted as uncontrovertibly true by the majority. Such
determinations would best be left to the finder of fact at the
time of trial.
Plaintiff and the officers have described vastly conflicting
versions of what occurred on the evening of April 28, 1995.
What is missing from the one-sided account of the events
described by the majority opinion is any consideration of
Plaintiff’s allegations or version of the events. This case
presents questions of whether the deputies acted reasonably
in pursuing an individual who had allegedly initially
committed a minor traffic violation; whether the deputies
embellished or exaggerated their version of the events which

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20 Scott v. Clay County, Tennessee, et al. No. 98-6157
22Even if this review had declined to exercise its discretionary
pendent party jurisdiction over the County, its ruling that none of the three
individual defendants had violated any constitutional right of the plaintiff
would constitute the law of the case which, under the mandate rule, would
compel the district court, following remand, also to dismiss the federal
claims against the County. See 28 U.S.C. § 2106; Vendo Co. v. Lektro-
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
F.3d 700, 705-06 (10th Cir. 1993); Piambino v. Bailey, 757 F.2d 1112,
1119-20 (11th Cir. 1985).
appellant Clay County, further directs that the plaintiff’s
federal claims against it shall be dismissed.22 See Brennan v.
Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir.
1996).
Finally, following remand, the district court shall initially
determine, in its sound discretion, whether to dismiss the
plaintiff’s remaining state law claims without prejudice, or to
exercise supplemental federal jurisdiction over them. 28
U.S.C. § 1367(a) & (c)(3); Carnegie-Mellon University v.
Cohill, 484 U.S. 343, 348-50 (1988); Rosado v. Wyman, 397
U.S. 397, 403-05 (1970); Musson Theatrical, Inc. v. Federal
Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996).
This reviewing court has carefully considered each
argument submitted by the plaintiff, but finds none
persuasive, either individually or collectively. Accordingly,
the district court’s order of July 28, 1998 denying qualified
immunity to defendants Anderson, Pierce, and Thompson is
REVERSED. All claims against all defendants anchored in
42 U.S.C. §§ 1983 and 1988 are DISMISSED WITH
PREJUDICE. This case is REMANDED to the district
court for such necessary further orders and proceedings as are
consistent with this opinion, including disposition of the
plaintiff’s pendent state law claims.
No. 98-6157 Scott v. Clay County, Tennessee, et al. 5
chases. Robert conceded that, during his ensuing flight, he
forced at least one fellow motorist off the roadway, and that
he “might have been across the yellow line or could have been
sliding across the yellow line,” which conduct patently risked
the physical safety of civilian motorists and pedestrians,
pursuing patrolmen, Robert’s passenger, and himself.
Patrol cruisers driven by Anderson and Deputy Sheriff Billy
Pierce momentarily joined Deputy Thompson’s pursuit of the
speeding Chevrolet. After the three sheriff’s office units had
chased the Scott car for over twenty minutes, at speeds
ranging between 85 to 100 miles per hour, Robert lost control
of his vehicle while attempting a sharp turn at 75 to 80 miles
per hour. The Caprice skidded for several hundred feet,
glided off the thoroughfare, and crashed into a roadside guard
rail, which brought the fugitive vehicle to an abrupt halt.
Deputy Pierce, whose patrol vehicle had led the erstwhile
chase, initially reached the immobilized motorcar. At some
point, a collision transpired between the Scott automobile and
Pierce’s departmental vehicle; Robert asserted that Pierce’s
car struck the stationary Caprice from the rear, whereas Pierce
posited that Robert backed the Caprice into his squad cruiser
after he (Pierce) had exited it. In any event, no dispute exists
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
approaching vehicle. Robert recalled that, although he had
observed at least one firearm-toting deputy approaching the
Caprice, and knew that additional armed law enforcement
officers were approaching, he nevertheless intended to escape
by driving in the direction from which the supporting units
would be arriving.
At the moment that the Chevrolet was racing once again
onto the public motorway, Deputy Pierce believed that its

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6 Scott v. Clay County, Tennessee, et al. No. 98-6157
6Pierce had learned of Robert’s near collision with Anderson via
radio transmissions from Anderson and Thompson. The three defendants
had maintained radio contact throughout the chase.
7Pierce testified that he did not intend to kill the driver; rather, he
simply “intended to neutralize the situation.”
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
counteraction. In addition to the evidence evolved above, the record
reflected that, on November 4, 1996, the Criminal Court of Clay County,
Tennessee, convicted Robert, following his guilty pleas, on two counts of
felony reckless endangerment, one count of felony aggravated assault, and
one count of misdemeanor evasion of arrest, stemming from his actions
on the morning of April 29, 1995. Furthermore, at deposition on February
18, 1997, Robert confirmed his unstable mental state on the implicated
morning; when queried if, during the high speed chase, he had considered
that if he continued to flee that a pursuing officer might shoot, Robert
replied, “At the time, I didn’t care if I lived or died.”
operator had earlier tried to run down Sheriff Anderson,6 had
attempted to drive over him (Pierce) only moments
previously, and posed a grave immediate menace to the lives
and limbs of his approaching colleagues as well as innocent
highway travelers. The plaintiff has not contested Pierce’s
avowal that he did not know that a passenger was also inside
the vehicle. Confronted with a momentous, split-second, life-
or-death decision, defendant Pierce initially reacted by firing
five bullets towards the Chevrolet’s driver;7 he then
discharged an additional four rounds at that vehicle’s tires,
causing it to skid to a stop for the second, and final, time.
Pierce’s hail of bullets had failed to injure the driver, Robert
Scott. Unfortunately, however, two of his shots had
inadvertently struck plaintiff Patricia Scott, whose presence
as a passenger was unknown to Pierce.
Immediately following the Chevrolet’s incapacitation,
additional officers, including Anderson and Thompson,
arrived at the scene. Robert and Patricia were then removed
from the vehicle and manacled. However, instantly upon
perceiving that Patricia had been wounded, they radioed for
No. 98-6157 Scott v. Clay County, Tennessee, et al. 19
Haverstick Enterprises v. Financial Federal Credit, 32 F.3d 989, 996 n.
8 (6th Cir. 1994) (“section 1983 actions against municipalities [or
counties] carry certain special elements, including proof (1) that the City
[or county] pursued an official custom or policy of failing to adequately
train, supervise, or discipline its officers in a particular matter, and (2) that
such official policy or custom was adopted by the official makers of
policy with `deliberate indifference’ towards the constitutional rights of
persons affected by the policy or custom.”) (brackets added) (citing City
of Canton v. Harris, 489 U.S. 378, 387-88 (1989)). See also Collins v.
City of Harker Heights, 503 U.S. 115, 120-24 (1992); Monell v.
Department of Social Services, 436 U.S. 658, 690-95 (1978).
automatically excuse a municipality or county from
constitutional liability, even where the municipal or county
actors were personally absolved by qualified immunity, if
those agents in fact had invaded the plaintiff’s constitutional
rights. Leatherman v. Tarrant County Narcotics Unit, 507
U.S. 163, 166-67 (1993); Garner v. Memphis Police Dept., 8
F.3d 358, 365 (6th Cir. 1993). “An official capacity claim
filed against a public employee is equivalent to a lawsuit
directed against the public entity which that agent represents.”
Claybrook, 199 F.3d at 355 n.4 (citing Kentucky v. Graham,
473 U.S. 159, 165 (1985)). Accordingly, despite the
dismissal of Anderson, Pierce, and Thompson in their
personal capacities, a procedurally proper case has been stated
against defendant Clay County, Tennessee, by virtue of the
plaintiff’s specification, in her complaint, that Clay County,
as well as the three defendant county agents in their official
capacities, infringed her constitutional rights.
Nevertheless, our conclusion that no officer-defendant had
deprived the plaintiff of any constitutional right a fortiori
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
the individual police officer, the fact that the departmental
regulations might have authorized the use of
unconstitutionally excessive force is quite beside the point.”)
(emphasis the Court’s); Monday v. Oullette, 118 F.3d 1099,
1105 (6th Cir. 1997). Ergo, this court, in its discretionary
exercise of pendent party appellate jurisdiction over the

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

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8 Scott v. Clay County, Tennessee, et al. No. 98-6157
9“Qualified or `good faith’ immunity is an affirmative defense that
is available to government officials performing discretionary functions.”
Rich v. City of Mayfield Hts., 955 F.2d 1092, 1094 (6th Cir. 1992). “The
ultimate burden of proof is on the plaintiff to show that the defendants are
not entitled to qualified immunity.” Id. at 1095 (emphases added). The
Sixth Circuit, en banc, has recently defined the components of the
qualified immunity defense:
Government officials performing discretionary functions
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
constitutional violation has occurred; second, we determine
whether the right that was violated was a clearly established right
of which a reasonable person would have known; finally, we
determine whether the plaintiff has alleged sufficient facts, and
supported the allegations by sufficient evidence, to indicate that
what the official allegedly did was objectively unreasonable in
light of the clearly established constitutional rights.
Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)
(quotations omitted; brackets added) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); Dickerson v. McClellan, 101 F.3d 1151, 1157-58
(6th Cir. 1996)).
The insulation from federal civil rights litigation bestowed upon state
application of force to effect an arrest. Additionally, the
plaintiff joined pendent Tennessee constitutional and tort law
claims. Patricia has sought $10 million in compensatory
damages, an additional $5 million in punitive damages,
attorney fees and other litigation expenses, an injunction
restricting the defendants’ forcible arrest practices, and other
appropriate relief.
Following discovery, on June 1, 1998, the four defendants
jointly petitioned the district court for a summary judgment
under Fed. R. Civ. P. 56 dismissing the plaintiff’s federal civil
rights claims, as well as the dismissal, for want of federal
subject matter jurisdiction, of her pendent Tennessee law
claims. Basing their motion on the doctrine of qualified
immunity,9 the defendants argued that the evinced facts, even
No. 98-6157 Scott v. Clay County, Tennessee, et al. 17
inexplicably failed to address it in its judgment denying their qualified
immunity motion.
19As aptly observed by the Lewis Court:
[T]he police on an occasion calling for fast action have
obligations that tend to tug against each other. Their duty is to
restore and maintain lawful order, while not exacerbating
disorder more than necessary to do their jobs. They are
supposed to act decisively and to show restraint at the same
moment, and their decisions have to be made in haste, under
pressure, and frequently without the luxury of a second chance.
County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (quotations
and citations omitted).
Accordingly, as a matter of law, defendant Pierce’s faulted
actions were objectively reasonable, and thus did not violate
the Fourth Amendment. Pierce permissibly discharged his
professional duty to restore and maintain lawful order through
the most effective instrumentality readily available, namely
gunfire.19 Pierce justifiably fired at the fleeing vehicle in
order to seize its occupant(s); his actions therefore could not
violate the Fourth Amendment rights of any unknown
passenger who may have been injured by his actions. Thus,
Pierce is entitled to qualified immunity because he did not
impinge the plaintiff’s constitutional rights.
In turn, the remaining two individual defendants, Anderson
and Thompson, are likewise shielded by qualified immunity,
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
F.3d 425, 429 (6th Cir. 1997) (explaining that an officer can,
under certain circumstances, be deemed personally
responsible for unconstitutional compulsion applied by a
fellow agent if that officer, at minimum, either "(1) actively
participated in the use of excessive force, (2) supervised the
officer who used excessive force, or (3) owed the victim a
duty of protection against the use of excessive force.")
(citations omitted).

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16 Scott v. Clay County, Tennessee, et al. No. 98-6157
17Additionally, the target’s persistent high-risk attempts to evade
capture created an objectively reasonable suspicion that he may have
perpetrated unknown additional serious offenses, thereby reinforcing the
weight of the first “reasonableness” factor as supporting Pierce’s actions.
See Illinois v. Wardlow, 120 S. Ct. 673, 675-77 ( 2000).
18The Freland panel commented:
[U]nder Graham [v. Connor, supra], we must avoid substituting
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
different to someone facing a possible assailant than to someone
analyzing the question at leisure.
Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) (brackets added).
Despite the instant defendants’ timely invocation of Freland, and the
patent significance of that precedent to the subject action, the trial court
actively resisting arrest by eluding representatives of the
criminal justice system.17
Moreover, an antecedent mandate by this circuit has
directly instructed that a constable who fired into the
passenger compartment of a moving vehicle, under
circumstances remarkably similar to those presently on
review, did not violate the Fourth Amendment. In Smith v.
Freland, 954 F.2d 343 (6th Cir. 1992), an automobile sped
out of a parking lot and violated a posted stop sign. A patrol
cruiser followed that vehicle, which culminated in a chase at
speeds reaching 90 miles per hour in residential districts.
After the violator had twice attempted to collide with the
occupied police vehicle, the squad car cornered the fugitive
motorist. However, the culprit accelerated his automobile
into the lawman’s cruiser, and then drove towards the public
street. The officer fired a fatal round at the mobile offender.
Id. at 344. The Sixth Circuit affirmed summary judgment for
the shooter, ruling that his actions were constitutionally
reasonable as a matter of law.18 Id. at 346-48.
No. 98-6157 Scott v. Clay County, Tennessee, et al. 9
governmental personnel by qualified immunity sweeps broadly, affording
them “`ample room for mistaken judgments’ by protecting `all but the
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
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
official would not have been aware that he was committing a [federal civil
rights] violation, we then afford immunity.”) (brackets added).
when construed most favorably for the claimant, could not, as
a matter of law, support the conclusion that any defendant had
violated any federal constitutionally-protected right; or,
alternatively, assuming arguendo that the evidence adverse to
the movants was legally sufficient to sustain a hypothetical
rational jury’s finding of a constitutional infraction, the
defendant law enforcers should nevertheless be shielded from
personal liability because the offended right was not “clearly
established” on April 29, 1995. See, e.g., Painter v.
Robinson, 185 F.3d 557, 566-67 (6th Cir. 1999).
On July 28, 1998, the trial court denied the subject motion,
ruling that material issues of fact remained, for juror
resolution, regarding the Fourth Amendment
“reasonableness” of the plaintiff’s seizure (evolved below);
and, if the seizure was unreasonable, whether the precise
contributing actions of each individual defendant were
objectively unreasonable under the dictates of law which was
clearly established on the incident date. On August 24, 1998,
the defendants noticed a timely appeal to this reviewing
bench.
Ordinarily, a trial forum’s rejection of a summary judgment
motion is not subject to appellate scrutiny, irrespective of
whether that motion had ultimately posed a legal or a factual
question. However, a district court’s dismissal of a civil
rights defendant’s summary disposition application anchored
in qualified immunity will be immediately appealable if no
predicate finding of an essential material fact remains for jury
determination, and thus the lynchpin issue is purely legal.
Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v.

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10 Scott v. Clay County, Tennessee, et al. No. 98-6157
10The Anderson Court explained:
As to materiality, the substantive law will identify which
facts are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (citation omitted).
Jones, 515 U.S. 304, 309-12 (1995). That judicial exception
to the governing norm prevails because, if a defendant public
servant is personally immunized from monetary liability as a
matter of law, he or she is entitled to “an immunity from suit
rather than a mere defense to [ultimate] liability.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (italics in original;
brackets added).
In the cause sub judice, although the adversaries disputed
multiple factual issues in the trial court, none of those
disputed facts were essential to the qualified immunity
defense. See Fed. R. Civ. P. 56(c) (directing that summary
judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
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
added). “By its very terms, this standard provides that the
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
genuine issue of material fact.”10 Anderson v. Liberty Lobby,
477 U.S. 242, 247-48 (1986) (emphases in original).
Accordingly, a lower court’s determination that defendant
state employees were not shielded by qualified immunity,
with reference to a set of undisputed operative facts, is a
No. 98-6157 Scott v. Clay County, Tennessee, et al. 15
16As a general proposition, “[w]here the officer has probable cause
to believe that the suspect poses a threat of serious physical harm, either
to the officer or to others, it is not constitutionally unreasonable to prevent
escape by using deadly force.” Garner, 471 U.S. at 11. “`Probable
cause’ denotes facts and circumstances within the officer’s knowledge
that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense. If the
circumstances, viewed objectively, support a finding of probable cause,
the arresting officer’s actual motives are irrelevant.” Painter v.
Robertson, 185 F.3d 557, 569 (6th Cir. 1999) (quotations and citations
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,
when the undisputed material facts, or the plaintiff’s version of disputed
material facts, manifest that a reasonable officer in the defendant’s
posture would have objectively believed that probable cause existed, the
existence of that factor may be determined as a matter of law on summary
judgment. See Painter, 185 F.3d at 571-72.
In the case in controversy, the testimonial proof, encapsulated herein,
would warrant a reasonable officer in Pierce’s circumstances to conclude
that the culprit posed a serious risk of injury to others, which, standing
alone, reconciled his use of force with Fourth Amendment strictures.
a hypothetical reasonable officer would not have known that
his actions, under the circumstances, were objectively
unreasonable. See Sova v. City of Mt. Pleasant, 142 F.3d 898,
902-03 (6th Cir. 1998). The testimonial record before the
instant review, even when construed most favorably for the
plaintiff, overwhelmingly manifested that each of the three
Graham considerations, highlighted above, militated in
support of the incontrovertible conclusion that the defendants’
actions were objectively reasonable. First, Robert had
committed serious, life-threatening crimes in the presence of
the defendant officers. Second, the record proof demonstrated
that the fleeing motorist’s ongoing felonious misconduct
posed an immediate threat to the safety of officers as well as
innocent civilians.16 Third, the vehicular perpetrator was

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14 Scott v. Clay County, Tennessee, et al. No. 98-6157
Determining whether the force used to effect a
particular seizure is "reasonable" under the Fourth
Amendment requires a careful balancing of the nature
and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing
governmental interests at stake. . . . Because the test of
reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,
however, its proper application requires careful attention
to the facts and circumstances of each particular case,
including [1] the severity of the crime at issue, [2]
whether the suspect poses an immediate threat to the
safety of the officers or others, and [3] whether he is
actively resisting arrest or attempting to evade arrest by
flight. . . .
The “reasonableness” of a particular use of force must
be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of
hindsight. . . . The calculus of reasonableness must
embody allowance for the fact that police officers are
often forced to make split-second judgments – in
circumstances that are tense, uncertain, and rapidly
evolving – about the amount of force that is necessary in
a particular situation.
As in other Fourth Amendment contexts, however, the
“reasonableness” inquiry in an excessive force case is an
objective one: the question is whether the officers’
actions are “objectively unreasonable” in light of the
facts and circumstances confronting them, without regard
to their underlying intent or motivation.
Graham v. Connor, 490 U.S. 386, 396-97 (1989) (italics and
brackets added; citations and quotations omitted).
Although the Fourth Amendment “reasonableness” inquiry
is largely fact-driven, summary judgment for defendant public
servants founded in qualified immunity is nonetheless
appropriate when the undisputed material facts, or the
plaintiff’s version of disputed material facts, demonstrate that
No. 98-6157 Scott v. Clay County, Tennessee, et al. 11
11All legal conclusions by lower courts, including those posited 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
(6th Cir.), cert. denied, 120 S. Ct. 528 (1999); Brennan v. Township of
Northville, 78 F.3d 1152, 1154, 1156 (6th Cir. 1996).
12The Sixth Circuit has recently clarified the factors which inform an
appellate court’s jurisdiction to review a district court’s denial of qualified
immunization on summary judgment:
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
defendant must nonetheless be willing to concede the most
favorable view of the facts to the plaintiff for purposes of the
appeal. Only if the undisputed facts or the evidence viewed in
the light most favorable to the plaintiff fail to establish a prima
facie violation of clear constitutional law may we decide that the
defendant is entitled to qualified immunity on an interlocutory
appeal.
Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (citations omitted).
“final decision” of law,11 and thus is immediately appealable
under 28 U.S.C. § 1291.12 Mitchell, 472 U.S. at 530. That
principle controls even if the trial judge had erroneously
concluded that genuine issues of material fact had to be
initially resolved by the trier of fact to assess the qualified
immunity defense. See Williams v. Mehra, 186 F.3d 685,
689-90 (6th Cir. 1999) (en banc) (“regardless of the district
court’s reasons for denying qualified immunity, we may
exercise jurisdiction over the appeal to the extent it raises
questions of law.”) (italics in original; ellipse omitted)
(quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th
Cir. 1996)).
Constitutional tort claims against state actors undergirded
by allegations of excessive force exerted to consummate a
person’s seizure are properly assessed under Fourteenth
Amendment due process guarantees if the plaintiff had been
a non-targeted innocent third party collaterally injured by an
assertion of official force; in such instances, the defendant

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12 Scott v. Clay County, Tennessee, et al. No. 98-6157
13This rule governs because Fourth Amendment prohibitions against
“unreasonable seizures,” developed below, cannot apply when the
plaintiff had not been purposefully “seized” by state lawmen. See
Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (“the Fourth
Amendment `reasonableness’ standard does not apply to section 1983
claims which seek remuneration for physical injuries inadvertently
inflicted upon an innocent third party by police officers’ use of force
while attempting to seize a perpetrator, because the authorities could not
`seize’ any person other than one who was a deliberate object of their
exertion of force.”) (emphasis in original) (citing Brower v. County of
Inyo, 489 U.S. 593, 596 (1989)).
Similarly, Fourteenth Amendment due process bounds, rather than
Fourth Amendment “reasonableness” imperatives, confine exertions of
state power which accidentally impact even the intended subject of an
official seizure, such as where an inadvertent collision with a police
vehicle injures an arrest target, because the state agents had not
volitionally crafted the violence to facilitate an official seizure. See
County of Sacramento v. Lewis, 118 S. Ct. 1708, 1715-16 (1998).
will be liable only if he or she had acted in a manner which
“shocks the conscience.”13 County of Sacramento v. Lewis,
118 S. Ct. 1708, 1714-21 (1998); Claybrook v. Birchwell, 199
F.3d 350, 359 (6th Cir. 2000). By contrast, an excessive force
claim asserted against public servants by a premeditated
target of official compulsion designed to consummate a
seizure are analyzed under Fourth Amendment
“reasonableness” strictures; the plaintiff need prove only that
the faulted official action was, under the implicated
circumstances, objectively “unreasonable.” Graham v.
Connor, 490 U.S. 386, 394-97 (1989); Tennessee v. Garner,
471 U.S. 1, 7-9 (1985); Claybrook, 199 F.3d at 359.
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
Chevrolet, and immediately handcuffed, was an intended
No. 98-6157 Scott v. Clay County, Tennessee, et al. 13
14See 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.
797, 802-05 (1971) (resolving that the plaintiff, an arrestee who had been
the victim of mistaken identity, had been “seized” even though the police
had intended to confine another man, because the plaintiff nonetheless
had been the object of a willful official detention).
15Accordingly, this review need not resolve whether a factual issue
would otherwise exist for trial regarding whether, at the time that Pierce
discharged his weapon into the moving Chevrolet’s passenger
compartment, the defendants intended to seize any passenger in that
vehicle other than the driver, which in turn would determine which
constitutional proviso would control the plaintiff’s charges. See
Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (explaining that the
constitutional tort action of a citizen who had been inadvertently wounded
while inside a parked automobile during a police shoot-out with an armed
felony suspect in the parking lot must be scrutinized under Fourteenth
Amendment standards because the record proof was uncontested that the
defendant peace constables had been unaware that anyone had been inside
that vehicle and did not intend to seize anyone who might be inside that
car).
target of an official seizure at all times pertinent,14 thereby
triggering the Fourth Amendment’s comparatively relaxed
“objective unreasonableness” standard of proof (and hence
the paradigm most favorable to the plaintiff), as juxtaposed
against the more exacting “shocks the conscience” evidentiary
requisites of the Fourteenth Amendment. On appeal, the
defendants-appellants have conceded that their summary
judgment motion should be assessed under the Fourth
Amendment, rather than the Fourteenth Amendment.15
The Supreme Court has defined the boundaries of Fourth
Amendment “reasonableness” by adoption of an objective
“balancing” query:

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