Unintended-Target Gunshot as a Fourth Amendment Seizure When Force Objectively Manifests Intent to Restrain (Post-Torres Rule)

Introduction

This interlocutory qualified-immunity appeal arises from a friendly-fire shooting during a police response to an “armed man” call in a dark Cleveland boarding house. Plaintiff-Appellee Jennifer Kilnapp and Defendant-Appellant Bailey Gannon were both on-duty City of Cleveland police officers. Gannon fired at a suspect (Darryl Borden) while retreating; a bullet struck Kilnapp, who was behind him on the stairs.

The central legal issue was threshold and dispositive for the Fourth Amendment theory: was Kilnapp “seized” within the meaning of the Fourth Amendment when she was struck by a bullet Gannon intentionally fired to restrain the suspect, even if Kilnapp was not the specific intended target? If a seizure occurred, the next question would ordinarily be whether the force was objectively reasonable under Graham v. Connor. The appeal also raised doctrinal questions about law-of-the-case and the “clearly established” prong of qualified immunity.

Summary of the Opinion

The panel majority (Moore, J., joined by Davis, J.) held:

• Seizure: Kilnapp was seized because Gannon intentionally fired in circumstances objectively manifesting an intent to restrain.
• Qualified immunity: Despite a seizure, Gannon is entitled to qualified immunity on the Fourth Amendment claim because this unintended-target seizure principle was not clearly established on July 20, 2020; Torres v. Madrid (2021) was pivotal in crystallizing the governing framework.
• Disposition: The Sixth Circuit vacated the district court’s denial of summary judgment and remanded with instructions to grant summary judgment to Gannon on the Fourth Amendment claim and for the district court to address the Fourteenth Amendment claim.

Judge Bush concurred in part, dissented in part, and concurred in the judgment. He agreed with remand for the Fourteenth Amendment claim, but argued no Fourth Amendment seizure occurred, relying on Claybrook v. Birchwell and asserting the majority created a multi-circuit split.

Analysis

Precedents Cited

1) The Supreme Court’s seizure framework: intent, objectivity, and “means intentionally applied”

• Brower v. County of Inyo (489 U.S. 593 (1989)) supplied the foundational requirement that a seizure is a “governmental termination of freedom of movement through means intentionally applied,” and that “the detention or taking itself must be willful.” The majority reads Brower (via later cases) as compatible with seizures of unintended persons so long as the governmental force was intentionally deployed with restraining character, not accidentally applied.
• Brendlin v. California (551 U.S. 249 (2007)) reinforced that the inquiry turns on objectively manifested police action, rejecting an approach that pivots on whether officers subjectively knew of a particular person. The majority uses Brendlin to underscore the Court’s refusal to inject subjective motive into Fourth Amendment seizure analysis.
• Torres v. Madrid (592 U.S. 306 (2021)) is the majority’s linchpin. It clarified that a seizure by force occurs with “the use of force with intent to restrain,” that “accidental force will not qualify,” and that the “appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain.” From this, the majority derives the operative unintended-target rule: if force is intentionally fired in objectively restraining circumstances, anyone struck is seized—target specificity is “immaterial.”
• County of Sacramento v. Lewis (523 U.S. 833 (1998)) appears both in the majority’s synthesis (accidental crash is not a seizure) and in the dissent’s structural argument about Fourth vs. Fourteenth Amendment sequencing.

2) Excessive-force reasonableness (not reached on the merits)

• Graham v. Connor (490 U.S. 386 (1989)) supplies the “objectively reasonable” standard and its familiar factors. The majority expressly declines to apply Graham because qualified immunity resolves the Fourth Amendment claim at the “clearly established” stage.
• Tennessee v. Garner (471 U.S. 1 (1985)) is cited as part of the seizure-by-force lineage.

3) Sixth Circuit and intra-circuit tension: Claybrook v. Birchwell

• Claybrook v. Birchwell (199 F.3d 350 (6th Cir. 2000)) is the doctrinal flashpoint. The majority characterizes its Fourth Amendment language (that collateral injuries to innocent third parties are not Fourth Amendment seizures because the third party was not a “deliberate object”) as dicta, emphasizing the appeal addressed a Fourteenth Amendment due-process claim. The dissent insists Claybrook necessarily decided a threshold Fourth Amendment issue and remains binding, invoking circuit stare decisis and later Sixth Circuit decisions that treated Claybrook as operative.
• The majority further reduces Claybrook’s force by noting it predates Brendlin and Torres, and by insisting modern seizure analysis must follow Torres’s objective “intent to restrain” test.

4) Qualified immunity and interlocutory posture

• Mitchell v. Forsyth (472 U.S. 511 (1985)) anchors jurisdiction under the collateral-order doctrine for qualified-immunity denials.
• Johnson v. Jones (515 U.S. 304 (1995)) limits interlocutory review to “purely legal questions,” excluding fact-dispute review. The opinion situates the appeal within this narrow channel.

5) Cross-circuit landscape (used diagnostically)

The majority surveys circuits on hostage shootings, mistaken-identity shootings, canine bites, bystander shootings, and passenger-in-vehicle shootings to argue pre-Torres law was muddled by (i) conflating “seizure by force” and “seizure by control,” and (ii) improperly keying seizure on subjective target selection. The dissent uses many of the same out-of-circuit lines to argue the majority’s holding isolates the Sixth Circuit and conflicts with other circuits’ approach to unintended targets.

Legal Reasoning

A. Reframing the seizure inquiry: force vs. control

The majority insists the case is a seizure-by-force problem, not a seizure-by-control problem: Kilnapp was struck by a bullet—physical force—so the governing test is the one Torres v. Madrid emphasized: intent to restrain as objectively manifested. “Control” (submission, termination of movement) is not required for seizure by force, and therefore doctrines built around Mendenhall-style “free to leave” considerations are not decisive here.

B. “Intent to restrain” is objective and does not require “target specificity”

The opinion’s doctrinal move is to treat the officer’s restraining deployment of force as the relevant intent, rather than intent to restrain a particular identified person. Gannon’s first shot was intentional and fired in response to an armed-suspect threat; the majority treats those circumstances as objectively manifesting an intent to restrain. Once that is true, the person actually struck is seized, even if not the officer’s specific intended target.

The majority’s approach also functions as an administrability argument: where memory is contested or unknowable (as with Gannon’s limited recollection), seizure should not hinge on reconstructing subjective target selection. Instead, it hinges on what the officer’s conduct objectively “manifested.”

C. Qualified immunity turns on timing and doctrinal crystallization

Having recognized a seizure, the court nonetheless grants qualified immunity because the right was not “clearly established” in July 2020. The majority reasons that Torres v. Madrid (decided in 2021) “crystallized” the principles necessary to resolve unintended-target seizures by force, and that pre-Torres doctrine—especially in light of lower-court divisions and intra-circuit uncertainty associated with Claybrook v. Birchwell—did not provide the requisite fair warning.

D. The dissent’s competing model: seizure requires intent directed to the person injured

Judge Bush’s dissent is built around two propositions: (1) Claybrook v. Birchwell binds later panels and rejected Fourth Amendment seizure for innocent third parties not deliberately targeted; and (2) neither Torres v. Madrid nor Brendlin v. California overruled that approach because they did not address unintended-target gunshot seizures. On this view, subjective (person-specific) intent is essential, and the majority effectively imports a transferred-intent concept into Fourth Amendment seizure doctrine.

Impact

1) Doctrinal impact within the Sixth Circuit

• New seizure rule for gunshot unintended targets: A Fourth Amendment “seizure by force” occurs when an officer intentionally fires under circumstances objectively manifesting an intent to restrain, and the bullet strikes any person—whether or not the person was the intended target.
• Practical consequence: Future plaintiffs in friendly-fire and bystander-shooting cases in the Sixth Circuit can more readily pass the “seizure” gate and litigate the real merits question—Graham reasonableness—rather than being diverted into substantive due process by a no-seizure ruling.
• But with a transitional caveat: Because the court tied “clearly established” status to post-2021 clarification, older incidents may still be immunized, even where a seizure is now recognized.

2) Litigation and policing implications

• Seizure becomes less target-dependent: Parties will emphasize objective circumstances (threat, commands, direction of fire, tactical posture) to show “intent to restrain,” rather than proving an officer’s subjective aim at a particular person.
• Reasonableness becomes the main battleground: Once seizure is established, agencies and officers will focus on whether force was objectively reasonable given lighting, retreat dynamics, known/unknown presence of fellow officers, and tactical alternatives.
• Potential for en banc or Supreme Court attention: The dissent frames the ruling as conflicting with other circuits and with Claybrook v. Birchwell, teeing up intra-circuit stare decisis questions and possible higher-court review.

Complex Concepts Simplified

• “Seizure” (Fourth Amendment): Government action that restrains a person’s liberty. After Torres v. Madrid, even a momentary seizure can occur by physical force if the force is applied with intent to restrain, even if control is not achieved.
• Seizure by force vs. seizure by control: Control typically involves submission or being stopped (think traffic stops); force involves physical contact like a bullet strike. The tests differ; “control” concepts (like whether someone felt free to leave) do not define “force” seizures.
• “Objectively manifests an intent to restrain”: Courts look at what the officer’s actions would convey in context (armed-suspect response, firing in a restraining confrontation), not at unverifiable internal motives.
• Qualified immunity / “clearly established”: Even if a constitutional violation occurred, an officer is immune from damages unless existing precedent made the unlawfulness obvious to every reasonable officer at the time.
• Law of the case: A doctrine discouraging re-litigation of issues already decided earlier in the same case; it is flexible and subject to exceptions (new evidence, intervening law, manifest injustice).
• Dicta vs. holding: A holding is necessary to the court’s decision; dicta is commentary not essential to the result. The majority and dissent sharply disagree on whether Claybrook v. Birchwell’s Fourth Amendment language was binding holding or dicta.

Conclusion

The Sixth Circuit’s majority opinion announces a significant Fourth Amendment clarification: when an officer intentionally fires a gun in circumstances that objectively manifest an intent to restrain, any person struck is seized, even if not the officer’s intended target. Yet the same opinion simultaneously limits immediate liability exposure by holding the rule was not clearly established in July 2020—largely because Torres v. Madrid (2021) was pivotal to the analysis—thus granting qualified immunity on the Fourth Amendment claim. On remand, the district court must address the unresolved Fourteenth Amendment theory.

In broader context, the decision shifts unintended-target shootings away from threshold “no seizure” dismissals and toward the more substantive constitutional question: whether the force was objectively reasonable. But the strong dissent—grounded in Claybrook v. Birchwell and asserted circuit consensus—signals that the durability of this new rule may depend on future en banc clarification or Supreme Court review.