Fourteenth Amendment Objective Reasonableness in Chaotic Shootouts: Commentary on Tennyson v. Francemone

Court: United States Court of Appeals for the Second Circuit
Date: November 19, 2025
Docket No.: 24‑2126
Disposition: Summary judgment for defendant affirmed (summary order; non‑precedential)

I. Introduction

This commentary examines the Second Circuit’s summary order in Tennyson v. Francemone, arising from a 2016 shooting at a crowded Father’s Day barbecue in Syracuse, New York. Plaintiff Evelyn Tennyson, an innocent bystander, was shot and injured during a chaotic gunfight involving multiple private shooters and a responding Syracuse police officer, Kelsey Francemone. Tennyson alleged that Officer Francemone violated her substantive due process rights under the Fourteenth Amendment by “recklessly and indiscriminately” firing into a crowded parking lot without warning.

The appeal focuses on whether, assuming that the officer’s bullet struck Tennyson, the officer’s use of force was “objectively unreasonable” under the Fourteenth Amendment standard articulated in Kingsley v. Hendrickson and elaborated by the Second Circuit in Edrei v. Maguire. The panel (Judges Carney, Sullivan, and Lee) affirmed the district court’s grant of summary judgment to Officer Francemone, concluding that—given the undisputed circumstances of the ongoing gunfight—her conduct was constitutionally permissible as a matter of law.

Although issued as a summary order without precedential effect, the decision is an important application of Kingsley and Edrei to a particularly fraught factual scenario: a police officer using deadly force in the middle of a live, chaotic shootout with multiple shooters and a large fleeing crowd, where an innocent bystander is injured. It illustrates how high the constitutional threshold is for bystanders to succeed on Fourteenth Amendment excessive force claims in such circumstances.

II. Summary of the Opinion

The key points of the Second Circuit’s decision can be summarized as follows:

Standard of review and posture: The court reviewed de novo the district court’s grant of summary judgment to Officer Francemone on Tennyson’s Fourteenth Amendment substantive due process claim.
Governing legal standard: Following Kingsley v. Hendrickson and its own decision in Edrei v. Maguire, the Second Circuit reaffirmed that Kingsley provides the appropriate standard for all excessive force claims brought under the Fourteenth Amendment. The central inquiry is whether the force used was rationally related to a legitimate government objective and, if deliberately used, whether it was objectively unreasonable.
Use of Johnson v. Glick factors: The court again relied on the traditional Johnson v. Glick factors—especially (1) the need for force, (2) the relationship between the need and the amount of force used, and (3) the extent of injury—to implement the objective reasonableness inquiry under Kingsley and Edrei.
Application to the facts: Taking the facts in the light most favorable to Tennyson and assuming that Officer Francemone fired the shot that struck her, the panel held that:
- There was an extraordinarily strong need for force: a live gun battle in a crowded public space, with approximately fifteen shots fired by private actors and a large crowd fleeing.
- The officer’s force—five shots directed at active shooters—was proportional to that threat and carefully targeted rather than indiscriminate.
- The unfortunate injury to Tennyson, though serious, occurred in a chaotic environment initiated by third-party shooters, and there was no showing that the officer’s behavior was objectively unreasonable given the need to protect dozens of bystanders from ongoing gunfire.
Totality of the circumstances: Emphasizing that courts must not apply the Fourteenth Amendment objective reasonableness standard “mechanically” or with “20/20 hindsight,” the panel stressed the short time frame, the officer’s duty, the presence of multiple shooters, and the officer’s efforts to move toward the threat and limit her own fire.
Result: Because Officer Francemone’s decision to fire five shots toward the shooters was “rationally related to a legitimate governmental objective,” the court affirmed summary judgment for the officer on the Fourteenth Amendment claim. The panel rejected Tennyson’s remaining arguments as meritless.

The decision thus confirms that, in the Fourteenth Amendment excessive force context, even deadly force that unintentionally harms an innocent bystander may be constitutionally permissible where it is deliberately directed at an immediate lethal threat and is objectively reasonable given the totality of the circumstances.

III. Detailed Analysis

A. Procedural Posture and Standard of Review

The appeal arises from the Northern District of New York’s grant of summary judgment in favor of Officer Francemone. Tennyson alleged a violation of her Fourteenth Amendment substantive due process rights based on the officer’s use of force.

The Second Circuit reiterates the familiar summary judgment standard:

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, citing Federal Rule of Civil Procedure 56(a) and Galloway v. County of Nassau, 141 F.4th 417 (2d Cir. 2025).
On appeal, the court reviews de novo (i.e., from scratch, with no deference) the district court’s grant of summary judgment, citing Windward Bora, LLC v. Wilmington Sav. Fund Soc’y, FSB, 982 F.3d 139 (2d Cir. 2020).
The court construes the evidence in the light most favorable to the non‑movant (here, Tennyson), as emphasized in Alberty v. Hunter, 144 F.4th 408 (2d Cir. 2025).

Crucially, the panel explicitly assumes, without deciding, that the bullet that hit Tennyson was fired by Officer Francemone. That assumption eliminates causation as a factual barrier for purposes of the appeal and allows the court to resolve the case purely on the constitutional sufficiency of the officer’s conduct. Even on those plaintiff‑favorable assumptions, the court holds that there is no Fourteenth Amendment violation as a matter of law.

B. Substantive Legal Framework: Fourteenth Amendment Excessive Force

1. The Kingsley standard

The decision rests squarely on the Supreme Court’s framework from Kingsley v. Hendrickson, 576 U.S. 389 (2015). In Kingsley, the Court held that a pretrial detainee bringing a Fourteenth Amendment excessive force claim must show that the force used against him was objectively unreasonable—not that the officer had a subjective intent to punish.

In Edrei v. Maguire, the Second Circuit extended this reasoning, holding that Kingsley provides the appropriate standard for all excessive force claims brought under the Fourteenth Amendment. Tennyson reaffirms that proposition and applies it to yet another category of plaintiff: an innocent bystander (not a detainee, arrestee, or protester) injured by police gunfire during a chaotic confrontation.

Under Kingsley (as described in the order and in prior Second Circuit gloss), the key questions are:

Was the force deliberately used by the government actor (not accidental contact or mere negligence)?
Was that deliberate use of force objectively unreasonable in light of the facts and circumstances known to the officer at the time?
Was the use of force rationally related to a legitimate governmental objective (such as maintaining order or protecting lives), or was it instead arbitrary or excessive relative to that objective?

2. Johnson v. Glick factors as tools for objective reasonableness

The panel notes that the Second Circuit has long relied on the factors identified in Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), to evaluate governmental use of force. After Kingsley, some aspects of Glick have been reinterpreted, but the core analytical tools remain relevant.

In Edrei, the Second Circuit explained that the first three Glick factors parallel the non‑exhaustive factors listed in Kingsley:

The need for force: How serious and immediate was the threat? Was there a significant security or safety problem?
The relationship between the need and the degree of force used: Did the officer use more force than reasonably necessary given the threat?
The extent of the injury: What were the actual consequences of the use of force for the plaintiff?

Tennyson explicitly states that all three of these factors support the grant of summary judgment for the officer.

3. Rational relation to a legitimate governmental objective

A notable feature of the Second Circuit’s post‑Kingsley jurisprudence, reiterated here, is the framing of the Fourteenth Amendment inquiry as whether the challenged government action was rationally related to a legitimate government objective. This language originates in Kingsley and is emphasized in Edrei.

That is a somewhat more structural way of stating the objective reasonableness inquiry: the court looks not only at how much force was used, but also at its connection to a legitimate goal—here, stopping active gunfire that endangered dozens, if not hundreds, of people.

C. Application to Officer Francemone’s Conduct

With that framework in place, the panel methodically walks through the three key Glick/Kingsley factors: the need for force, proportionality, and injury, as well as the broader totality of the circumstances.

1. The need for force: a live, not just imminent, threat

The record, as summarized in the order, establishes the following undisputed facts:

The scene was “chaotic,” with multiple shooters firing approximately fifteen gunshots in rapid succession.
This occurred in a crowded public setting—a Father’s Day barbecue attended by more than 200 people.
The gunfire caused a “sea of people” to run in the opposite direction, fleeing en masse.
Officer Francemone had been dispatched on what began as a noise complaint and encountered this unexpected gunfight within minutes of arrival, while awaiting backup.
Within about nineteen seconds of the crowd fleeing, she ran toward the source of gunfire.
She encountered at least three shooters (other than herself) near a black sedan where Tennyson was located, including shooters on either side of the vehicle.

Against this backdrop, the court contrasts the case sharply with Edrei, which involved “non‑violent” demonstrators and at most a thrown glass bottle. In Edrei, the primary concern was traffic disruption; here, the panel stresses, there was not just an “imminent threat,” but a live, ongoing threat from active shooters.

This comparison does two things:

It underscores that the need for significant force here was considerably stronger than in protest contexts like Edrei, where indiscriminate dispersal tools (LRAD-type devices) were used against non‑violent crowds.
It signals that context matters greatly under Kingsley: what is unreasonable in a protest setting may be fully reasonable—or even constitutionally required—in response to an ongoing gun attack.

The panel then quotes Frost v. N.Y. Police Dep’t, 980 F.3d 231 (2d Cir. 2020), to reinforce that, given the “severity of the security problem at issue,” Officer Francemone was “justified in using nontrivial amounts of force” to restore order, echoing Kingsley’s recognition that substantial force may be reasonable where the security threat is grave.

2. Proportionality: five shots directed at active shooters

The second factor asks whether the amount and type of force used was proportionate to the threat actually faced.

The panel again contrasts this case with Edrei, where the police used a device “designed to cause pain/hearing damage” indiscriminately against non‑violent crowds. There, the concern was that law enforcement deployed a crowd‑control weapon without attentively targeting the actual risk.

In Tennyson, by contrast:

Officer Francemone fired five rounds, not sustained or indiscriminate fire.
She fired those rounds “in the direction of the individuals firing weapons next to the black sedan,” where the shooters were located.
Even Tennyson’s own crime‑scene reconstruction expert concluded that the officer was “directing her fire at locations where there were individuals discharging their firearms.”

This evidence is critical. Tennyson characterized the officer’s conduct as “reckless and indiscriminate,” but the undisputed record—including plaintiff’s own expert—demonstrated targeted fire at active shooters, not random shots into a crowd. The court emphasizes this by noting:

“The parties agree that Defendant discharged five rounds from her firearm in the direction of the individuals firing weapons next to the black sedan.”

The panel concludes that this conduct shows that the officer tried to ‘temper or to limit the amount of force’ used, invoking Edrei’s reading of Kingsley. Limiting fire to five targeted shots at active shooters—rather than a wider barrage—supports the conclusion that the officer pursued a measured response in an extraordinarily dangerous scenario.

3. Extent of injury and causation

The third factor is the extent of the injury. Tennyson did suffer a serious wound; the court explicitly declines to minimize that harm. However, two points are important:

The injury occurred in the midst of a gunfight initiated by third parties, who bear primary responsibility for creating the deadly context.
Even if Officer Francemone’s bullet struck Tennyson, the court notes that “there can be no doubt” that Tennyson and other bystanders might have been killed if the officer had not confronted the shooters as she did.

Thus, while the injury is a sobering outcome, it does not by itself establish that the officer’s deliberate use of force was constitutionally unreasonable. Under Kingsley, the issue is not whether harm occurred, but whether the government’s deliberate use of force was objectively unreasonable relative to the threat and its legitimate objectives.

4. Totality of the circumstances and rejection of “20/20 hindsight”

The court underscores that the Kingsley objective reasonableness inquiry cannot be applied “mechanically.” Instead, a judge (or jury) must consider:

What the officer knew at the time,
The rapid evolution of events,
The officer’s duty to maintain public order and protect lives, and
The prohibition on evaluating police conduct with the “20/20 vision of hindsight.”

These admonitions parallel longstanding law from Fourth Amendment excessive force jurisprudence (e.g., Graham v. Connor), but are here anchored directly in Kingsley’s application under the Fourteenth Amendment.

Applying these principles, the panel highlights:

The officer’s unexpected encounter with a gun battle almost immediately upon arrival on a noise complaint.
Her decision, within seconds, to run toward the source of gunfire while backup was still en route.
The discovery of multiple shooters around the black sedan.
The fact that hundreds of people had just been in the area, many of whom were still nearby or in the line of fire.

“Pulling these threads together,” the court concludes that her decision to fire five shots toward the shooters was rationally related to a legitimate governmental objective, namely, stopping active shooters who were posing a grave, immediate threat to many lives.

D. Precedents Cited and Their Influence

1. Kingsley v. Hendrickson, 576 U.S. 389 (2015)

Kingsley is the cornerstone of modern Fourteenth Amendment excessive force doctrine. Though it arose in the context of a pretrial detainee, its holding—that the plaintiff must show objective unreasonableness, not subjective intent—is here applied, consistent with Edrei, to a bystander‑injury scenario.

Tennyson uses several key aspects of Kingsley:

The distinction between deliberate use of force and mere negligence or accident.
The need to avoid analysis via “20/20 hindsight.”
The requirement that the force be rationally related to a legitimate nonpunitive governmental purpose.
The acceptance that significant or “nontrivial” force can be reasonable where security concerns are severe.

Thus, Kingsley’s rationale continues to migrate outward from the detention context to other Fourteenth Amendment excessive force situations.

2. Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018)

Edrei is the Second Circuit case that explicitly held Kingsley provides the appropriate standard for all excessive force claims brought under the Fourteenth Amendment. It involved the use of an acoustic Long Range Acoustic Device (LRAD) against non‑violent protesters, raising questions about indiscriminate force and proportionality.

In Tennyson, the panel:

Relies on Edrei for the proposition that Kingsley supplies the general standard.
Adopts Edrei’s synthesis of the Glick/Kingsley factors.
Uses Edrei as a foil—a contrasting scenario—highlighting how the need for force here was dramatically higher than in the protest context addressed there.

The broader doctrinal message is that the same legal standard—Fourteenth Amendment objective reasonableness—applies across very different factual settings (protests, detention, crowd‑shootings). The difference in outcomes stems from factual differences in threat level, not a different legal rule.

3. Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973)

Although decided long before Kingsley, Johnson v. Glick remains an important tool in the Second Circuit’s arsenal. Historically, Glick articulated substantive due process factors for assessing police and correctional officer force, including:

The need for the application of force;
The relationship between that need and the amount of force used;
The extent of the injury inflicted; and
Whether force was applied in a good‑faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.

While the subjective “malicious and sadistic” inquiry is diminished after Kingsley, the first three, more objective factors remain central and are explicitly invoked in Tennyson to structure the reasonableness inquiry.

4. Frost v. N.Y. Police Dep’t, 980 F.3d 231 (2d Cir. 2020)

The panel cites Frost for the proposition that, given a severe security problem, an officer may be justified in using “nontrivial amounts of force” to restore order, citing language drawn from Kingsley. In Tennyson, this reinforces the notion that significant force, including deadly force, can be constitutionally permissible when directed at active lethal threats, even in crowded environments.

5. Procedural precedents: Windward Bora, Galloway, Alberty

The cases Windward Bora, LLC v. Wilmington Sav. Fund Soc’y, FSB, 982 F.3d 139 (2d Cir. 2020), Galloway v. County of Nassau, 141 F.4th 417 (2d Cir. 2025), and Alberty v. Hunter, 144 F.4th 408 (2d Cir. 2025), are cited for routine but important propositions about summary judgment:

De novo review of grants of summary judgment.
No genuine dispute of material fact → judgment as a matter of law.
Evidence viewed in the light most favorable to the non‑moving party.

Their significance here is to make clear that the Second Circuit did not resolve contested facts against Tennyson; rather, it assumed the critical factual issues in her favor and yet still concluded that no reasonable jury could find a constitutional violation under Kingsley/Edrei.

E. Impact and Significance

1. On Fourteenth Amendment excessive force doctrine

While Tennyson is a summary order and thus non‑precedential, it reinforces doctrinal trends already visible in published decisions:

Kingsley’s reach: The case confirms that courts in the Second Circuit apply Kingsley’s objective reasonableness standard to all Fourteenth Amendment excessive force claims, not just those of pretrial detainees.
Unified framework: The same Fourteenth Amendment test now governs force used against:
- Pretrial detainees;
- Non‑violent protesters (Edrei); and
- Innocent bystanders injured during police confrontations with third‑party shooters (Tennyson).
Context‑driven outcomes: Divergent results in these cases reflect different factual contexts, not different legal standards.

2. On bystander‑injury claims against police

Perhaps the most practically important takeaway is for future cases where innocent bystanders are injured by police gunfire. Generally, bystanders cannot claim a “seizure” under the Fourth Amendment unless they were actually targeted by officers, so their constitutional claims are often framed under the Fourteenth Amendment’s substantive due process guarantee.

Tennyson illustrates that:

Even when a bystander can plausibly show that an officer’s bullet caused the injury, that is not enough to establish a constitutional violation.
The plaintiff must also show that the deliberate use of force was objectively unreasonable under Kingsley/Edrei, considering:
- the severity and immediacy of the threat,
- the officer’s attempt (or failure) to limit or target force, and
- the broader safety interests of the public.
Where an officer reasonably targets active shooters and uses measured force to neutralize them, injury to a bystander can be a tragic but constitutionally permissible collateral consequence.

The bar for Fourteenth Amendment liability in such situations is therefore quite high. Plaintiffs may still have potential remedies under state tort law (e.g., negligence, wrongful death, etc.), but the constitutional floor set by the objective reasonableness standard is robustly deferential to officers acting under exigent, life‑threatening conditions.

3. On “indiscriminate” use of force in crowd settings

There is a tension that runs through modern police‑force cases involving crowds:

In protest contexts, cases like Edrei are highly skeptical of indiscriminate crowd‑control tools directed at largely peaceful demonstrators.
In active‑shooter or high‑violence contexts, Tennyson suggests that courts will be far more tolerant of deadly force, even where that force necessarily carries risk for nearby bystanders.

The key doctrinal distinction is whether the force is in fact “indiscriminate.” In Tennyson, the court relied heavily on the evidence that Officer Francemone directed her fire at known shooters, not at the crowd generally. Plaintiffs in future cases will likely focus on:

Whether officers had sufficient ability to discriminate between shooters and bystanders before firing;
Whether officers could and did limit their fire; and
Whether force was targeted (like a handgun aimed at known shooters) or inherently indiscriminate (like crowd‑dispersal munitions used against large groups).

4. On summary judgment in police‑force cases

Finally, the case is another example of an appellate court affirming summary judgment in a police‑force case even while:

Accepting plaintiff’s causal theory (officer’s bullet caused the injury); and
Drawing all reasonable inferences in favor of the plaintiff.

Tennyson suggests that where the undisputed video, expert, and testimonial evidence shows:

a severe, immediate threat, and
an officer using limited, targeted force aimed at neutralizing that threat,

courts may conclude as a matter of law that no reasonable jury could find the force objectively unreasonable. That narrows the window in which Fourteenth Amendment excessive force cases—particularly bystander cases in high‑risk scenarios—will reach a jury.

IV. Complex Concepts Simplified

1. Substantive Due Process (Fourteenth Amendment)

The Fourteenth Amendment’s Due Process Clause has two main aspects:

Procedural due process: fair procedures before the government deprives a person of life, liberty, or property (e.g., notice and hearing).
Substantive due process: certain governmental actions are so unjustified or extreme that they violate the Constitution no matter what process is used.

Excessive force claims by certain categories of plaintiffs (e.g., pretrial detainees, bystanders, sometimes students or other civilians) are often brought under substantive due process, arguing that the officer’s use of force was so unreasonable and unjustified that it violated fundamental constitutional guarantees.

2. Objective Reasonableness

“Objective reasonableness” means that the court looks at the officer’s conduct from the perspective of a reasonable officer on the scene, given what that officer knew at the time. The court does not ask:

What the officer intended in her heart; or
What, in hindsight, would have been the safest or perfect course of action.

Instead, the question is whether a reasonable officer, confronted with those same facts and time pressures, could have believed that the level of force used was necessary and appropriate to achieve a legitimate government goal, such as protecting bystanders from active shooters.

3. “Rationally related to a legitimate government objective”

This phrase comes from Kingsley (and, more broadly, from constitutional analysis of government action). In this context, it means:

The officer must be acting to accomplish a legitimate goal, such as public safety, not out of pure malice or personal vendetta.
The chosen means (here, firing five shots at active shooters) must not be wildly disproportionate or unrelated to that goal.

In Tennyson, the legitimate objective is clear: stopping active shooters in a crowded area to protect lives. The question is whether firing five shots at those shooters, under those conditions, bore a reasonable connection to that goal. The court says yes.

4. Summary Judgment

Summary judgment is a way for the court to decide a case without a trial when:

There are no genuine disputes about the key facts that would affect the outcome; and
Based on those undisputed facts, one party is entitled to win as a matter of law.

It is often used in civil rights cases when, even taking the plaintiff’s version of events as true, the plaintiff cannot meet the legal standard required to prove a constitutional violation.

5. “20/20 hindsight”

Courts repeatedly warn against the “20/20 vision of hindsight” in evaluating police use of force. This means:

We cannot judge officers by what we now know after the fact.
We must instead assess their decisions from the perspective of an officer at the scene, making rapid decisions under stress and uncertainty.

In Tennyson, the court stresses that within seconds of unexpected gunfire erupting, the officer had to decide whether to move toward the shooters and open fire. That context is central to the court’s conclusion that her actions were objectively reasonable.

6. Summary Order and Non‑Precedential Status

The Second Circuit designates this decision as a summary order, which:

Does not have formal precedential effect; it does not bind future panels in the same way a published opinion does.
May still be cited, under Federal Rule of Appellate Procedure 32.1 and Local Rule 32.1.1, as persuasive authority.

In practice, summary orders often signal how the court is likely to view similar issues in future cases, even if they are not technically binding precedent.

V. Conclusion

Tennyson v. Francemone is a vivid example of how the Second Circuit applies the Fourteenth Amendment’s objective reasonableness standard to police use of deadly force in chaotic, life‑threatening situations involving innocent bystanders.

The key lessons from the decision include:

Unified Standard: The court continues to treat Kingsley as setting the standard for all Fourteenth Amendment excessive force claims, extending across very different factual settings.
High Threshold in Active‑Shooter Contexts: Where there is a live, serious threat from multiple shooters in a crowded space, and the officer responds with targeted, limited fire, it will be very difficult for a bystander plaintiff to establish a constitutional violation.
Importance of Targeting and Limitation: Evidence that an officer aimed at known shooters and limited the number of shots, even at great personal risk, strongly supports a finding of objective reasonableness, notwithstanding resulting injuries to bystanders.
Fact‑Sensitive Application of Objective Reasonableness: Cases like Edrei (protests) and Tennyson (crowd shootout) demonstrate that the same legal test can yield different outcomes based entirely on the specific threats and context.
Summary Judgment as a Screening Tool: Even with factual disputes about who fired the injuring shot, courts may decide at summary judgment that no reasonable jury could find the officer’s conduct objectively unreasonable, especially where the undisputed record shows a severe threat and a proportionate response.

While this summary order does not create binding precedent, it provides a clear, concrete illustration of how federal courts in the Second Circuit are likely to analyze Fourteenth Amendment claims arising from police‑bystander shootings in the midst of active gun battles. It underscores the deference given to officers who act quickly and in a targeted way to protect the public from immediate lethal threats, and it reinforces the reality that many tragic injuries in such scenarios, while actionable under state law, may fall short of the constitutional threshold for excessive force.