42 USC § 1983 action asserting an excessive force claim; Statute of limitations (SOL); Qualified immunity; Whether plaintiffs were “seized” under the Fourth Amendment; United States v Mendenhall; “Seizure by acquisition of control”; Torres v Madrid; Whether the use of deadly force was justified; Tennessee v Garner; Clearly established right; Floyd v City of Detroit

The court held that defendant-police officer (Fox) was not entitled to qualified immunity where plaintiffs-Campbells were seized by “acquisition of control,” and Fox’s firing of eight shots into their front door could have reasonably led them to believe they were not free to leave. Fox went to plaintiffs’ home to conduct a welfare check. He did not announce that he was law enforcement. Plaintiff-Mark Campbell refused to come out of the house, and Fox, claiming he saw a gun in Mark’s hand, fired shots toward the front door. No firearms were found in the home. Mark said the police might have seen his cell phone. Assault charges against him were dismissed. Plaintiffs sued for excessive force under § 1983. All defendants except Fox were granted qualified immunity. The court first held that it lacked jurisdiction to consider his SOL argument because the issue did not satisfy the collateral order doctrine. As to qualified immunity, he argued there could not have been a Fourth Amendment violation because plaintiffs were not “seized.” A seizure can be found where there is a “show of authority with acquisition of control.” The court noted this “‘involves either voluntary submission to a show of authority or the termination of freedom of movement.’” Fox claimed that while the shots he fired at the home “showed authority,” plaintiffs were not seized because they “did not submit to this show of authority[.]” In Mendenhall, the Supreme Court explained a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The court concluded that where Fox “repeatedly fired at the front door[,]” a reasonable person would not feel free to leave the house. “When Fox shot at their front door, the Campbells effectively submitted to his show of authority by remaining in their home.” The court also concluded that under the facts as viewed in the light most favorable to plaintiffs, “a reasonable officer would not have believed deadly force was justified, as there was no probable cause to believe that Mark posed a threat to anyone’s safety simply by virtue of informing the officers that he had a gun and then opening the door as they asked him to do.” Further, viewing the evidence in a light most favorable to plaintiffs, “a reasonable jury could find that Fox’s use of deadly force was objectively unreasonable.” Finally, given the analogous facts and clear precedent of “Floyd, any reasonable officer in Fox’s position would know that using deadly force, under the circumstances that the Campbells have asserted, was unconstitutional.” Affirmed.