6th Circ. Case Eases Path For Some Excessive Force Claims

By Sharon Fairley | December 1, 2023, 4:11 PM EST ·

Sharon Fairley
Sharon Fairley
During its 2020-2021 term, the U.S. Supreme Court paved the way for individuals who were shot by police, but nonetheless able to flee, to bring excessive force claims under the Fourth Amendment.

In Torres v. Madrid,[1] the court held that a Fourth Amendment seizure includes law enforcement's application of physical force to the body of a person with the intent to restrain, even if the person does not submit and is not subdued by such force.

This term, the court has declined an invitation to further define or clarify what it means to be seized under the Fourth Amendment.

In so doing, the court leaves in place a U.S. Court of Appeals for the Sixth Circuit ruling that allows a victim of a police officer's unjustified discharge of a firearm to bring an excessive force claim under the Fourth Amendment, regardless of whether the person was actually hit by the gunfire.

This is helpful for civil rights litigants who otherwise would have to bring such a claim under the 14th Amendment's cumbersome "shock the conscience" standard.

The certiorari petition denied in Fox v. Campbell[2] on Oct. 2 arose from an incident in Cheatham County, Tennessee.

Shortly after 9 p.m. on a summer evening, two deputies from the sheriff's department were dispatched to conduct a welfare check after the 911 system received two hang-up calls from a residence at that address.

When the deputies arrived at the home, they did not activate their emergency lights. One of the deputies walked up onto the front porch of the home and knocked on the front door without announcing his office. The deputy then backed down off the porch and stood next to his colleague.

Several seconds later, the homeowner, Mark Campbell, came to the front door but did not open it. Campbell spoke to the deputies — who apparently still had not announced their office — through the closed door, asking them, "You got a gun?" and then stating, "I got one too."

Upon hearing this, one deputy immediately unholstered his firearm. When Campbell began to open the door, the deputy fired: first two shots, then an additional six.

The entire altercation lasted a mere 31 seconds. Thankfully, neither Campbell nor his wife, who was also inside the home, were hit by the gunfire.

Although no firearms were found in the home, Campbell was charged with two counts of aggravated assault. The charges were ultimately dismissed.

The Campbells sued the sheriff's department, arguing that they were subject to excessive force under the Fourth Amendment.

The U.S. District Court for the Middle District of Tennessee denied qualified immunity to the officer in 2021, and the Sixth Circuit affirmed in Campbell v. Cheatham County Sheriff's Department the following year.[3]

The federal appeals court concluded that the Campbells had been seized under the Fourth Amendment, despite the fact that neither had been hit by the deputy's bullets.

The court explained that a Fourth Amendment seizure can occur in two ways: (1) by the use of force with the intent to restrain, as the Supreme Court clarified in Torres v. Madrid; or (2) by a show of authority that results in acquisition of control over the subject, as explained by the Supreme Court in its 1991 California v. Hodari D. decision.[4]

The Sixth Circuit concluded that, even though the deputy used force, this incident resulted in the second form of a seizure: a show of authority with acquisition of control.

The court found that there was clearly a show of authority — bullets being shot through the door of the home — followed by the acquisition of control over the subject, as the Campbells had no choice but to remain in their home.

The deputy filed a petition for certiorari arguing that there was no Fourth Amendment seizure because the Campbells had a safe escape route out of the back of house, and thus the shooting did not result in the acquisition of control over the subject.

The argument was apparently insufficiently compelling to convince at least four of the justices to take the case. This should not be surprising, because the Supreme Court has consistently directed courts to focus the analysis of a seizure on the circumstances occurring at the moment the seizure occurred, without consideration of what happened afterward.

Most recently, the court made this clear in Torres, stating that a "seizure is a single act, and not a continuous fact."[5]

The Supreme Court's denial of certiorari in Fox v. Campbell leaves in place the Sixth Circuit's holding — that an excessive force claim arising from a police firearms discharge incident can be founded on the Fourth Amendment, even if no one is hit by gunfire — which is helpful to civil rights litigants.

The premise is important because, without the Fourth Amendment as the constitutional underpinning, litigants would have to bring such claims under the due process clause of the 14th Amendment.

To prevail on a substantive due process claim, a plaintiff must show that the officer's conduct was so egregious as to "shock the conscience," a standard established by the Supreme Court's 1952 decision in Rochin v. California.

This standard sets a significantly higher hurdle for plaintiffs relative to the "reasonableness" determination under the Fourth Amendment.

Allowing claims predicated on the use of deadly force in the form of a firearms discharge to be evaluated based on the Fourth Amendment's reasonableness standard makes the most sense.

A firearms discharge is a quintessential form of force used by law enforcement. Further, the U.S. Supreme Court's 1989 decision in Graham v. Connor[6] established the underlying premise for a long-standing history of cases grounding constitutional protections against the use of excessive force by law enforcement in the Fourth Amendment's prohibition against unreasonable seizure.

The Sixth Circuit decision is also entirely consistent with Torres and Hodari D., which together establish what it means to be seized under the Fourth Amendment.

The court is quite discerning when it comes to granting certiorari in cases involving Fourth Amendment controversies. Last term, there were no Fourth Amendment issues among the cases argued and decided on the merits.

Perhaps this is a byproduct of the court's reluctance to create bright-line rules when applying the Fourth Amendment's reasonableness standard.

Yet several unanswered questions and differences of opinion remain among the circuit courts regarding the scope of the Fourth Amendment in the use-of-force context.

Thus, litigants are likely to continue to tee up cases like Fox v. Campbell to the court, with the hope of garnering at least some guidance on, if not resolution of, these open questions.

Sharon R. Fairley is a professor from practice at the University of Chicago Law School. She previously served as chief administrator of the Chicago Independent Police Review Authority and Chicago's Civilian Office of Police Accountability, and as an assistant U.S. attorney in the U.S. Attorney's Office for the Northern District of Illinois.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Torres v. Madrid , 592 U.S. --- (2021).

[2] Fox v. Campbell , --- S.Ct. ----, 2023 WL 6377793 (2023).

[3] Campbell v. Cheatham County Sheriff's Department , 47 F.4th 468 (6th Cir. 2022).

[4] California v. Hodari D , 499 U.S. 621 (1991).

[5] Torres v. Madrid , 141 S. Ct at 1002 (citing Hodari D. which quotes from Thompson v. Whitman , 85 U.S. 457, 471 (1873).

[6] Graham v. Connor , 490 U.S. 386 (1989).

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