511 F.Supp.3d 809
M.D. Tenn.2021Background
- Officers Fox and Austin responded to three 9-1-1 hang-up calls for a welfare check at the Campbells’ home late on August 21, 2018; they approached in marked patrol cars with body- and dash-cams but did not announce themselves before knocking.
- After Fox knocked, Mark asked through the closed door whether the officers had a gun and said he "had one too." Within about 28 seconds of the first knock, Fox drew his weapon and fired two shots as Mark opened the door, then fired six more seconds later; no one was hit and no weapon was found in the home.
- Plaintiffs sued under 42 U.S.C. § 1983 (Count I: excessive force v. Fox; Count II: failure-to-protect v. Austin; Count III: municipal liability v. County and Sheriff; Count IV: IIED under Tennessee law).
- The County moved for summary judgment; Officers Fox and Austin separately moved as well. The Court granted the County’s motion in full; granted summary judgment to Austin on the failure-to-protect claim and to both officers on IIED; and denied summary judgment as to Fox on the excessive-force claim.
- Remaining for trial: Plaintiffs’ Fourth Amendment excessive-force claim against Officer Fox (qualified-immunity denied as to Fox). Sheriff Breedlove (official-capacity) and the Sheriff’s Department were dismissed as redundant/improper municipal defendants; County municipal-liability and state-law claims were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of service / statute of limitations (§1983) | Campbell: timely filed Feb 16, 2019; alias summons issued within Rule 3 safe-harbor | Officers: service on Fox untimely under Tenn. R. Civ. P. 3 and Fed. R. Civ. P. 4(m) | Held for Plaintiffs — Rule 3 alias summons issued within one year restored the filing date; magistrate later granted extension under Rule 4(m) so claim not time-barred |
| Whether Mark and Sherrie were "seized" under the Fourth Amendment | Plaintiffs: shooting into the residence and officers’ presence restrained both occupants | Officers: no seizure because shots missed and did not cause submission | Held for Plaintiffs — both were seized: Mark because shots contributed to restraint; Sherrie because force was aimed at the residence and seized occupants therein |
| Excessive force / deadly force (Fox) | Plaintiffs: shooting at a homeowner who was not committing a crime and may have been holding a phone was unreasonable | Fox: believed Mark announced he had a gun and raised something that appeared to be a gun, posing an immediate threat | Held: genuine factual disputes (video ambiguity; no weapon found; context) — jury issue; qualified immunity denied for Fox because clearly established law forbids deadly force absent an immediate threat |
| Failure-to-protect (Austin) | Plaintiffs: Austin failed to intervene to stop Fox’s shooting | Austin: lacked time and opportunity to perceive and prevent the shooting | Held for Austin — no constitutional violation; sequence was too brief (≈3–10 seconds) and Austin had neither sufficient notice nor opportunity to intercede |
| Municipal liability (County; failure-to-train / policy / Facebook) | Plaintiffs: Sheriff’s Facebook posts and alleged inadequate training created a custom/policy or showed deliberate indifference | County: no policy or admissible record showing Facebook content or deliberate indifference; officers received state-required academy and annual training | Held for County — Plaintiffs produced no admissible evidence of the Facebook content or a pattern/similar prior incidents; failed to show deliberate indifference or single-incident obviousness; municipal liability dismissed |
| State-law intentional infliction of emotional distress (IIED) | Plaintiffs: IIED based on the shooting and emotional harm (Sherrie alleges anxiety) | Officers: immune from negligent theory; insufficient evidence of outrageous conduct or serious mental injury for IIED | Held for Officers — negligent claim barred by officer immunity; no admissible evidence of the severe emotional injury required for IIED, so summary judgment for officers granted |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (use-of-force claims governed by Fourth Amendment reasonableness standard)
- Scott v. Harris, 550 U.S. 372 (video evidence may control factual view on summary judgment)
- Tennessee v. Garner, 471 U.S. 1 (deadly force permissible only if suspect poses serious threat)
- Monell v. Department of Social Services, 436 U.S. 658 (municipal liability requires policy or custom causing constitutional violation)
- Connick v. Thompson, 563 U.S. 51 (deliberate indifference standard for failure-to-train municipal liability)
- Brower v. County of Inyo, 489 U.S. 593 (seizure requires intentional application of force terminating freedom of movement)
- Floyd v. City of Detroit, 518 F.3d 398 (shot-and-missed case where seizure and excessive-force issues presented genuine disputes)
- Rodriguez v. Passinault, 637 F.3d 675 (occupants may be seized when force is deliberately applied to vehicle or location)
- Fisher v. City of Memphis, 534 F.3d 312 (force aimed at vehicle or place seizes all occupants regardless of officer awareness)
- Jacobs v. Alam, 915 F.3d 1028 (deadly force reasonableness factors)
- Bard v. Brown County, Ohio, 970 F.3d 738 (assessing opportunity to intervene and qualified immunity)
- White v. Pauly, 137 S. Ct. 548 (clearly established law must be particularized to context)
- Mullenix v. Luna, 577 U.S. 7 (qualified-immunity framework; context-specific clearly established inquiry)
- Conn. Bryan County v. Brown, 520 U.S. 397 (single-incident deliberate indifference standard)