# Rodriguez v. Passinault

[637 F.3d 675](https://scholar.google.com/scholar_case?case=4622245650916820044\&hl=en\&as_sdt=6,50) (6th Cir. 2011)

United States Court of Appeals, Sixth Circuit

**Rebecca Rodriguez**\
**v.**\
**Thomas Passinault**

## Opinion

Helene N. White, Circuit Judge.

Plaintiff Rebecca Rodriguez (Rodriguez) appeals the district court's grant of summary judgment to Shiawassee County Sheriff's Deputy Thomas Passinault (Passinault) in this 42 U.S.C. § 1983 action alleging excessive force under the Fourth and Fourteenth Amendments. We reverse the district court's determinations that no seizure occurred and that Passinault is entitled to qualified immunity, and remand for further proceedings consistent with this opinion.

## I. Background

The district court summarized the facts:

> This case arises out of a tragic incident involving the fatal shooting of Michael Murray ("Murray") by Defendant, a Shiawassee County deputy officer. On the night of September 5, 2003, after attending a party, Murray and Plaintiff were dropped off at Murray's truck, which was parked at a local bar. Murray had offered to drive Plaintiff home. While exiting the parking area, Murray spotted a police cruiser. Having consumed alcohol in violation of his parole terms, Murray attempted to elude the cruiser by maneuvering his vehicle through alleys and driveways before pulling into an alley and shutting off his engine and lights. Murray ducked down so as not to be seen and instructed Plaintiff to do the same.
>
> Defendant and fellow officer Jason Jenkins ("Jenkins") had noticed Murray's suspicious driving and proceeded to the area where Murray had parked. After Defendant and Jenkins began to search the area around the truck on foot, Murray started his engine and attempted to drive away. Defendant, allegedly fearing for his and his partner's safety, fired several shots at the vehicle. Murray was fatally struck, and his truck subsequently crashed into a ditch. \[. . .]

The district court noted:

> The parties greatly dispute the proximity of Murray's vehicle to the officers, the speed and erratic nature of his driving, and whether the officers were in danger of being struck by the vehicle. \[. . .]

The parties' "differing accounts" are set forth below.

### The Defendants' \[Passinault's and Jenkins's] Version of the Facts

The defendants claim that after Murray started the truck, he accelerated directly toward Passinault, who was standing next to a pole barn approximately 165 feet north of the truck. Jenkins and Passinault also assert that Passinault was 'effectively trapped between the truck and the pole barn.' According to the defendants, Passinault repeatedly ordered the driver of the truck to stop, but his orders were disregarded and the driver... continued accelerating toward him. Passinault gave conflicting accounts of how close the truck came as it passed him, eventually testifying that it was between one and eight feet away from where he was standing when he fired the first shot at the driver. But immediately after the shooting and for some days afterward, he reported that he had been hit by the truck and injured — even going so far as to call for an ambulance to come to the scene because he needed medical attention. However, that version of the facts turned out to be a complete fabrication.

In truth, Passinault had not been hit by the truck and continued shooting after it had passed him, claiming later that he believed that the driver might be heading toward his partner, Jenkins, who was on foot somewhere in the area. Passinault also asserts that he fired at the truck as it was driven away from him because he was concerned for the safety of other officers who had been summoned to the scene and for the public in general. The vehicle was not being operated at a high rate of speed, however, and there were no other officers or members of the public in the area at the time of these events.

Later investigation revealed that Passinault had fired a total of 12 shots at the truck, at least two or three of which struck Murray. The truck eventually came to a stop in a ditch some distance down the road, with Murray slumped over the wheel, dead.

### The Plaintiff's \[i.e., Murray's Estate's] Version of the Facts

Because Rebecca Rodriguez was an eyewitness to what occurred, the plaintiff was able to offer a significantly different version of events, which must \[. . .] be viewed in the light most favorable to her. According to this account of the facts, when Murray started the truck in order to escape from the alley, he accelerated not toward Passinault but rather toward the only exit available to him. Because the officers' patrol car blocked the truck in the alley from behind, "Murray had only one option, which was to drive forward past the position of the Deputies" in order to get away. The plaintiff concedes that Murray's truck went by Passinault at a distance of about eight feet but asserts that he took this path only because he could not get out of the alley any other way.

Rodriguez testified that she heard Passinault yell at Murray to stop the truck only once, as opposed to the repeated orders that the defendants claim Passinault made. According to Rodriguez, after ordering Murray to stop, Passinault did not wait for a response but immediately fired his weapon. Moreover, the record tends to show that Passinault fired only that first shot before the truck passed him and was moving away because forensic evidence fails to reflect that even one bullet struck the front of the truck or the windshield. Instead, according to Rodriguez, Passinault fired the remaining shots after the truck had already turned and driven past him. She testified, in fact, that she saw Passinault running after the truck as he continued shooting at it.

The plaintiff also contends that the fatal shot could not have been fired in self-defense because, according to the autopsy report, the shot that killed Murray would also have paralyzed his legs, yet he was able to operate the truck's gas pedal for some distance after passing Passinault. In addition, the autopsy report indicates that the bullet moved from the back of Murray's body toward the front, indicating that he was shot from behind.

The plaintiff calls into question Passinault's alleged concern for the safety of others. Although Passinault claimed that he continued shooting after the truck had passed him because he believed it was bearing down on his partner, Jenkins indicated that he was not in the truck's path and that he never felt in danger of being struck by the vehicle. The plaintiff also asserts that the officers lacked reason to believe Murray posed an ultimate threat to the general public because, despite the officers' suspicions that he might have committed a crime of some sort, the most serious offense they actually saw him commit was a traffic violation. \[. . .]

## II. Procedural History

In the companion case, *Murray-Ruhl,* Murray's estate filed a § 1983 action against Passinault and Jenkins, alleging that the deputies acted unreasonably in using deadly force against Murray, violating his Fourth Amendment rights. \[. . .] The same district court judge presided over both cases.

In *Murray-Ruhl,* the district court granted the defendants summary judgment on qualified-immunity grounds. \[. . .] On *Murray-Ruhl*'s appeal, this Court affirmed the grant of summary judgment to Jenkins and reversed as to Passinault. The Court reasoned that, under the plaintiff's version of the facts, 1) "a jury could find that no reasonably competent officer would have shot the victim, thus satisfying the first prong in *Saucier*'s[^1] two-pronged qualified immunity analysis," \[. . .] and 2) "a reasonable jury could conclude that Murray posed no danger to the officers or the general public... and \[in such circumstances], [*Tennessee v. Garner*](https://scholar.google.com/scholar_case?case=5843997099226288287\&hl=en\&as_sdt=6,50) \[. . .] provides a \`clearly established' right that fulfills the second prong of the qualified immunity analysis." \[. . .]

On October 23, 2007, Rodriguez re-filed her complaint, naming only Passinault[^2] as a defendant, and alleging violations of the Fourth and Fourteenth Amendments under § 1983.

The district court granted Passinault summary judgment and dismissed *Rodriguez II,* concluding that Rodriguez was not seized within the meaning of the Fourth Amendment because Passinault did not know that she was a passenger in Murray's truck, because she was not actually shot, and, in any event, because Passinault was entitled to qualified immunity. This appeal ensued.

## III.

The Fourth Amendment protects "\[t]he right of the people to be secure in their persons ... against unreasonable ... seizures." U.S. Const. amend. Iv. "\[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement..., nor even whenever there is a governmentally caused and governmentally *desired* termination of an individual's freedom of movement..., but only when there is a governmental termination of freedom of movement *through means intentionally applied.*" \[. . .]

A claim of excessive force under the Fourth Amendment requires that a plaintiff demonstrate that a seizure occurred, and that the force used in effecting the seizure was objectively unreasonable. [*Graham,* 490 U.S. at 394-95](https://scholar.google.com/scholar_case?case=4306215806680760770\&hl=en\&as_sdt=6,50). \[. . .]

## A.

The district court in the instant case concluded that no seizure occurred \[. . .].

## B. *Brower v. Cnty. of Inyo,* 489 U.S. 593, 596 (1989).

\[In] *Brower,* a frequently-cited Fourth Amendment excessive-force case in which a fleeing driver was "killed when the stolen car that he had been driving at high speeds for approximately 20 miles in an effort to elude pursuing police crashed into a police roadblock." \[. . .] The decedent's heirs brought suit under 42 U.S.C. § 1983, alleging that the respondent officers used excessive, unreasonable and unnecessary force in establishing the roadblock and thus effected an unreasonable seizure of Brower. The district court \[concluded that] establishing a roadblock was not unreasonable under the circumstances. \[The] Ninth Circuit affirmed on the basis that no seizure had occurred. The Supreme Court reversed:

> In [*Tennessee v. Garner* ](https://scholar.google.com/scholar_case?case=5843997099226288287\&hl=en\&as_sdt=6,50)\[. . .], all Members of the Court agreed that a police officer's fatal shooting of a fleeing suspect constituted a Fourth Amendment "seizure." \[. . .] We reasoned that "\[w]henever an officer restrains the freedom of a person to walk away, he has seized that person." \[. . .] While acknowledging *Garner,* the Court of Appeals here concluded that no "seizure" occurred when Brower collided with the police roadblock because "\[p]rior to his failure to stop voluntarily, his freedom of movement was never arrested or restrained" and because "\[h]e had a number of opportunities to stop his automobile prior to the impact." \[. . .] Essentially the same thing, however, could have been said in *Garner.* Brower's independent decision to continue the chase can no more eliminate respondents' responsibility for the termination of his movement effected by the roadblock than Garner's independent decision to flee eliminated the Memphis police officer's responsibility for the termination of his movement effected by the bullet.
>
> The Court of Appeals was impelled to its result by consideration of what it described as the "analogous situation" of a police chase in which the suspect unexpectedly loses control of his car and crashes. \[. . .] We agree that no unconstitutional seizure occurs there, but not for a reason that has any application to the present case. Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, \[. . .] but the detention or taking itself must be willful. This is implicit in the word "seizure," which can hardly be applied to an unknowing act....
>
> Thus, if a parked and unoccupied police car slips its brake and pins a passerby against a wall, it is likely that a tort has occurred, but not a violation of the Fourth Amendment. And the situation would not change if the passerby happened, by lucky chance, to be a serial murderer for whom there was an outstanding arrest warrant — even if, at the time he was thus pinned, he was in the process of running away from two pursuing constables. It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused and governmentally *desired* termination of an individual's freedom of movement (the fleeing felon), but only where there is a governmental termination of freedom of movement *through means intentionally applied.* That is the reason there was no seizure in the hypothetical situation that concerned the Court of Appeals. The pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit; and though he was in fact stopped, he was stopped by a different means — his loss of control of his vehicle and the subsequent crash. If, instead of that, the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect's freedom of movement would have been a seizure.
>
> ....
>
> \[A] roadblock is not just a significant show of authority to induce a voluntary stop, but is designed to produce a stop by physical impact if voluntary compliance does not occur. It may well be that respondents here preferred, and indeed earnestly hoped, that Brower would stop on his own, without striking the barrier, but we do not think it practicable to conduct an inquiry into subjective intent.... Nor do we think it possible, in determining whether there has been a seizure in a case such as this, to distinguish between a roadblock that is designed to give the oncoming driver the option of a voluntary stop (*e.g.,* one at the end of a long straightaway), and a roadblock that is designed precisely to produce a collision (*e.g.,* one located just around a bend). In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result. It was enough here, therefore, that according to the allegations of the complaint, Brower was meant to be stopped by the physical obstacle of the roadblock — and that he was so stopped.\*

[*Brower,* 489 U.S. at 595-99](https://scholar.google.com/scholar_case?case=1981267556172816296\&hl=en\&as_sdt=6,50).

## C. *Fisher v. City Of Memphis,* 234 F.3d 312 (6th Cir. 2000).

*Fisher*'s facts and procedural history are succinctly stated therein:

> On March 24, 1996, Officer William Taylor of the Memphis Police Department stopped to speak to two young women. As they spoke in the middle of Speed Street, they noticed a vehicle driven by Demetria Becton ("Becton") approaching in their direction. To avoid being hit, the two women jumped onto the curb, and the Officer jumped onto the hood of his police car, simultaneously firing his gun at the car. The bullet went through the driver's side window and hit the passenger, Elitia Fisher.
>
> As a result of this incident, Ms. Fisher filed suit against Officer Taylor in federal district court pursuant to 42 U.S.C. § 1983, alleging deprivations of her Fourth, Eighth, and Fourteenth Amendment rights. Defendant moved for summary judgment.... The court... denied the motion as to the Fourth Amendment claim, finding an issue of material fact as to whether Defendant's actions were reasonable under the Fourth Amendment....
>
> At trial, the jury reached a verdict for Plaintiff, and awarded her \[damages].

\[. . .] On appeal, Officer Taylor argued that the district court should have instructed the jury that Fisher's wounding was accidental and thus not actionable under § 1983 or, alternatively, that the district court should have analyzed Fisher's claim as arising under the Fourteenth, rather than the Fourth, Amendment. This Court rejected both arguments:

> Defendant is correct in noting that to state a claim under 42 U.S.C. § 1983, a Plaintiff must demonstrate more than just mere negligence. However, the intent in question is the intent to commit the act, not the intent that a certain result be achieved. Therefore, Officer Taylor's act of firing the gun was intentional, even if the result was not one he sought to achieve. Instructing the jury that more than negligence was required would likely confuse the jury as to the intent question....
>
> Defendant's alternative argument is that the district court erred by analyzing his actions under the Fourth Amendment... \[; he] specifically argues that this court should apply a "shock the conscience" standard... under the Fourteenth Amendment....
>
> In addition, the United States Supreme Court has stated that a Fourth Amendment seizure occurs when governmental termination of freedom is through means intentionally applied. \[. . .] Therefore, violation of the Fourth Amendment requires an intentional acquisition of physical control. As a result, a seizure occurs even when an unintended person or thing is the object of the detention or taking, so long as the detention or taking itself is willful. *Id.*
>
> In its recent decision in [*Claybrook v. Birchwell* ](https://scholar.google.com/scholar_case?case=1523192387357174463\&hl=en\&as_sdt=6,50)\[. . .], this Circuit applied *Brower* in determining whether a victim of an errant bullet in a shootout fell within the scope of Fourth Amendment seizure. While recognizing that the Fourth Amendment does not apply to § 1983 claims "which seek remuneration for physical injuries inadvertently inflicted upon an innocent party by police officers' use of force while attempting to seize a perpetrator," *Claybrook* emphasized that police officers do seize any person who is a "deliberate object of their exertion of force." \[. . .] Here, Becton's car was the intended target of Defendant's intentionally applied exertion of force. By shooting at the driver of the moving car, he intended to stop the car, effectively seizing everyone inside, including the Plaintiff. Thus, because the Defendant "seized" the Plaintiff by shooting at the car, the district court did not err in analyzing the Defendant's actions under the Fourth Amendment.

[*Fisher,* 234 F.3d at 317-19](https://scholar.google.com/scholar_case?case=1460923242863717374\&hl=en\&as_sdt=6,50).

\[. . .]

## IV. Analysis

Under *Fisher,* an officer's intentionally applied exertion of force directed at a vehicle to stop it effectuates a seizure of all occupants therein. \[. . .] Factually, the instant case is like *Fisher* in that it involved an officer's shooting at a moving vehicle in order to stop it, resulting in injury to the passenger. That *Fisher* does not mention whether the police were aware of the passenger's presence in the vehicle does not render *Fisher* inapplicable to the instant case.

Here, after two or more of Passinault's shots struck Murray in the back, one of which paralyzed Murray, the truck continued moving for a brief time and crashed into a ditch, with Murray dead at the wheel. In *Troupe,* the fleeing vehicle continued its flight for more than .3 miles and crashed into a concrete wall only after sharply veering to avoid oncoming traffic. Although a bullet struck the driver, it did not effect a seizure of the vehicle; it was the vehicle's later crash that stopped the vehicle and caused the death of the driver and a passenger, and injury to the other passenger.

\[. . .]

Here the intent to stop the vehicle was the same as in *Fisher,* and *Fisher* controls:

> By shooting at the driver of the moving car, he intended to stop the car, effectively seizing everyone inside, including the Plaintiff. Thus, because the Defendant "seized" the Plaintiff by shooting at the car, the district court did not err in analyzing the Defendant's actions under the Fourth Amendment.\*

\[And] the fact that the passenger in *Fisher* was struck by police gunfire, while Rodriguez was not, \[does not] render *Fisher* inapplicable here. The district court's apparent belief that Rodriguez could not maintain an excessive force/unreasonable seizure Fourth Amendment claim without having been shot goes against established law, i.e., that under the Fourth Amendment's reasonableness standard, excessive force claims generally require at least *de minimis* physical injury. \[. . .] Although the district court properly determined that Rodriguez was not struck by gunfire, it did not take into account that Rodriguez testified on deposition that she was injured by flying glass caused by the gunfire. Thus, a genuine issue of material fact remained whether Passinault's gunfire resulted in physical injury to Rodriguez. Additionally, \[. . .]the vehicle here crashed due to Murray being shot, not his careless driving. Thus, as in *Fisher,* the injury was sustained due to the seizure of the vehicle.

\[. . .]

## VI.

\[. . .]

If the legal question of immunity is completely dependent on which view of the facts the jury accepts, the district court should not grant summary judgment on the issue. [*Brandenburg v. Cureton,* 882 F.2d 211, 215-16 (6th Cir.1989)](https://scholar.google.com/scholar_case?case=13559997021590617070\&hl=en\&as_sdt=6,50); *see also* [*Sova v. City of Mt. Pleasant,* 142 F.3d 898, 903 (6th Cir.1998)](https://scholar.google.com/scholar_case?case=9850244513989663328\&hl=en\&as_sdt=6,50) ("\[S]ummary judgment is inappropriate where there are contentious factual disputes over the reasonableness of the use of deadly force.").

We agree with Rodriguez and the *Murray-Ruhl* panel that Passinault's entitlement to qualified immunity depends on which party's version of the facts a jury accepts, and therefore disagree with the district court's determination that Passinault was entitled to summary judgment on qualified immunity grounds.

## VII.

For the foregoing reasons, we reverse the district court's grant of summary judgment and remand for further proceedings consistent with this opinion.

We reject Passinault's argument for several reasons. Sixth Circuit Internal Operating Procedure 41 provides that the mandate "is the document by which this court relinquishes jurisdiction and authorizes the originating district court ... to enforce the judgment of this court." Also, as Rodriguez argues, it was reasonable for her to assume that the *Murray-Ruhl* defendants might move for rehearing, and they had until September 12, 2007, to do so. Further, Passinault answered Rodriguez's re-filed complaint in December 2007, and the parties thereafter engaged in consensual scheduling, conferences with the district court, discovery, and expert evaluations, without Passinault raising the claim that Rodriguez failed to timely re-file her complaint. We thus reject Passinault's argument that he was entitled to summary judgment on this ground.

The Fourth Amendment "addresses misuse of power, ... not the accidental effects of otherwise lawful government conduct." [*Landol-Rivera,* 906 F.2d at 795](https://scholar.google.com/scholar_case?case=11843387287658219636\&hl=en\&as_sdt=6,50) (quoting [*Brower,* 489 U.S. at 596, 109 S.Ct. 1378](https://scholar.google.com/scholar_case?case=1981267556172816296\&hl=en\&as_sdt=6,50)) (internal quotation marks omitted) (alterations in original). The claim presented in this case vindicates no interest protected by the Fourth Amendment. So far from seeking to restrain Joshua's freedom, the troopers' every effort was bent on delivering all the hostages from deadly peril. *See* [*Medeiros v. Town of South Kingstown,* 821 F.Supp. 823, 827 (D.R.I.1993)](https://scholar.google.com/scholar_case?case=18150293451882866333\&hl=en\&as_sdt=6,50) (rejecting the Fourth Amendment claim of a passenger who asserted that he was imprisoned in the fleeing car by the police officers' high speed chase, stating that "the police did not intend to restrict the movement of the passenger by causing the driver to flee at high speeds. In fact, their intent was the exact opposite....").

.... But where the hostage is hit by a bullet intended for the hostage-taker, the mishap is the "unintended consequence\[ ] of government action," and the governing principle is that such consequences cannot "form the basis for a fourth amendment violation." [*Ansley v. Heinrich,* 925 F.2d 1339, 1344 (11th Cir.1991)](https://scholar.google.com/scholar_case?case=3772485636503114452\&hl=en\&as_sdt=6,50).

[*Medeiros,* 150 F.3d at 168-69](https://scholar.google.com/scholar_case?case=2098644395948303166\&hl=en\&as_sdt=6,50).

[^1]: [*Saucier v. Katz,* 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)](https://scholar.google.com/scholar_case?case=4327618298378646573\&hl=en\&as_sdt=6,50).

[^2]: Passinault's counsel filed a Suggestion of Death on December 11, 2007, stating that Passinault passed away on May 30, 2007 (i.e., months before Rodriguez re-filed her complaint).


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