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. These differing accounts are detailed in Murray–Ruhl v. Passinault, 246 Fed.Appx. 338, 340–42 (6th Cir.2007), and need not be restated here, as these factual differences are relevant to the reasonableness of Defendant's actions—an issue not analyzed in this opinion.
At the moment that the Chevrolet was racing once again onto the public motorway, Deputy Pierce believed that its operator had earlier tried to run down Sheriff Anderson, had attempted to drive over him (Pierce) only moments previously, and posed a grave immediate menace to the lives and limbs of his approaching colleagues as well as innocent highway travelers. The plaintiff has not contested Pierce's avowal that he did not know that a passenger was also inside the vehicle. Confronted with a momentous, split-second, life-or-death decision, defendant Pierce initially reacted by firing five bullets towards the Chevrolet's driver; he then discharged an additional four rounds at that vehicle's tires, causing it to skid to a stop for *684 the second, and final, time. Pierce's hail of bullets had failed to injure the driver, Robert Scott. Unfortunately however, two of his shots had inadvertently struck plaintiff Patricia Scott, whose presence as a passenger was unknown to Pierce.
[U]pon perceiving that Patricia had been wounded, they radioed for a medical evacuation helicopter.... [D]octors discovered one bullet lodged inside her skull and a second gunshot imbedded within her right shoulder.
In the cause sub judice, the district court presumed, for summary judgment purposes, that Patricia, as a voluntary cohort of Robert's whom, following the shooting, the defendant officers forcibly removed from the inoperative Chevrolet, and immediately handcuffed, was an intended target of an official seizure at all times pertinent, [footnote quoted below] thereby triggering the Fourth Amendment's comparatively relaxed “objective unreasonableness” standard of proof ... On appeal, the defendants-appellants have conceded that their summary judgment motion should be assessed under the Fourth Amendment, rather than the Fourteenth Amendment.
Accordingly, this review need not resolve whether a factual issue would otherwise exist for trial regarding whether, at the time that Pierce discharged his weapon into the moving Chevrolet's passenger compartment, the defendants intended to seize any passenger in that vehicle other than the driver, which in turn would determine which constitutional proviso would control the plaintiff's charges. See Claybrook v. Birchwell, 199 F.3d 350 (6th Cir.2000) (explaining that the constitutional tort action of a citizen who had been inadvertently wounded while inside a parked automobile during a police shoot-out with an armed felony suspect in the parking lot must be scrutinized under Fourteenth Amendment standards because the record proof was uncontested that the defendant peace constables had been unaware that anyone had been inside that vehicle and did not intend to seize anyone who might be inside that car).
Plaintiff was neither a hostage nor an innocent bystander, but rather an unknown—and intentionally concealed—passenger in Murray's vehicle. Fisher is silent as to whether the officer was aware of the presence of passengers in the car. While some courts have questioned, in dicta, whether an unknown passenger might be seized, see, e.g., Scott v. Clay County, Tenn., 205 F.3d 867, [876] n. 15 (6th Cir.2000); Herman v. City of Shannon, MS., 296 F.Supp.2d 709, 712 n. 3 (N.D.Miss.2003), aff'd, 104 Fed.Appx. 398 (5th Cir.2004), other courts have suggested that an unknown passenger would not be seized. See, e.g., *686 Edenfield [v. Estate of Arnold Willets ], , at *10 [(D.Hawai'i Apr. 14, 2006) ]; Tubar [v. Clift ], 453 F.Supp.2d [1252,] 1256 [(W.D.Wash.2006) ]. Scott and Herman do not compel a finding that an unknown passenger is seized when an officer fires at a moving vehicle, and in any event, the plaintiffs in both cases were struck by the officer's gunfire, unlike Plaintiff.
[S]topping a vehicle's driver does not constitute a seizure of a passenger. See County of Sacramento v. Lewis, 523 U.S. 833 [118 S.Ct. 1708, 140 L.Ed.2d 1043] (1998), citing Brower, 489 U.S. at 596–97 [109 S.Ct. 1378]. Thus, when Bauer shot Hart that did not constitute a seizure of the passengers.
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.
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