Claybrook v. Birchwell

 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0014P (6th Cir.) File Name: 00a0014p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ ;  ROYAL E. CLAYBROOK, JR.,  GWANNETTE CLAYBROOK,  PETRECE CLAYBROOK, CO-  No. 98-6029 ADMINISTRATORS OF THE  ESTATE OF ROYAL > CLAYBROOK, SR., and    QUINTANA CLAYBROOK,  Plaintiffs-Appellants,   v.    JESSE BIRCHWELL, STEVE  LEWIS, KEN SPENCER,  ROBERT KIRCHNER, and GOVERNMENT OF NASHVILLE  METROPOLITAN  & DAVIDSON COUNTY,  Defendants-Appellees.  1 Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 96-00157—John T. Nixon, District Judge. Argued: August 10, 1999 Decided and Filed: January 11, 2000 1 2 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 23 Before: KRUPANSKY, BOGGS, and CLAY, Circuit and Four of the complaint. I would also reinstate the Judges. supplemental state law claims. _________________ COUNSEL ARGUED: E. E. Edwards III, EDWARDS, SIMMONS & OLIVER, Nashville, Tennessee, for Appellants. Kennetha Sawyers, THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY DEPARTMENT OF LAW, Nashville, Tennessee, for Appellees. ON BRIEF: E. E. Edwards III, Wesley M. Oliver, EDWARDS, SIMMONS & OLIVER, Nashville, Tennessee, for Appellants. Kennetha Sawyers, THE METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY DEPARTMENT OF LAW, Nashville, Tennessee, for Appellees. KRUPANSKY, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 19-23), delivered a separate opinion concurring in part and dissenting in part. _________________ OPINION _________________ KRUPANSKY, Circuit Judge. The plaintiffs-appellants Royal E. Claybrook Jr. (“Royal Jr.”), Gwannette Claybrook (“Gwannette”), Petrece Claybrook (“Petrece”), and Quintana Claybrook (“Quintana”) have disputed the district court’s dismissal of their complaint for failure to state a claim, and/or its award of summary judgment to the defendants,1 against the 1 The district court cast its ruling as an alternate dismissal of the complaint for failure to state a claim and/or summary judgment adverse to the plaintiffs. "Whether a district court has correctly dismissed a suit pursuant to Fed. R. Civ. P. 12(b)(6) [failure to state a claim] is a question of law, and therefore subject to de novo review. The district court must construe the 22 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 3 officers when Mr. Claybrook refused to throw down his gun, defendants-appellees Jesse Birchwell (“Birchwell”), Steve as opposed to firing at him. Indeed, the officers testified that Lewis (“Lewis”), Ken Spencer (“Spencer”), Robert Kirchner they attempted to pull out their badges only “during the (“Kirchner”), and the Metropolitan Government of Nashville gunfire,” or after the gunfire had already begun. Notably, and Davidson County, Tennessee (“Nashville”). The there were no emergency circumstances present so as to plaintiffs have alleged that peace officers Birchwell, Lewis, require the officers to begin shooting without following and Spencer used excessive force, in violation of 42 U.S.C. protocol and without making a reasoned decision as to § 1983,2 which resulted in the death of Royal Claybrook Sr. whether the vehicle was occupied. Accordingly, under these circumstances, a jury should decide whether the officers acted with deliberate indifference to Ms. Claybrook’s rights. See Lewis, 118 S. Ct. at 1719 (noting the instances of “deliberate complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can indifference” could be found in the context of pretrial custody prove no set of facts in support of his claims that would entitle him to where “forethought about an inmate’s welfare is not only relief. When an allegation is capable of more than one inference, it must feasible but obligatory under a regime that incapacitates a be construed in the plaintiff's favor." Columbia Natural Resources, Inc. prisoner to exercise ordinary responsibility for his own v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted). welfare”); see also Stemler v. City of Florence, 126 F.3d 856, Although the complaint’s allegations are construed liberally for the 868 (6th Cir. 1997) (suggesting that under substantive due plaintiff, a complaint which does not contain allegations sufficient to support a claim under any legal theory must be dismissed. Id. A court is process, “‘a duty to protect can arise in a noncustodial setting not bound to accept alleged legal conclusions or unwarranted factual if the state does anything to render an individual more inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. vulnerable to danger’”) (quoting Gazette v. City of Pontiac, 1987). 41 F.3d 1061, 1065 (6th Cir. 1994)). Reasonable minds surely could differ as to whether the plainclothes officers’ Following adequate opportunities for discovery and upon adversarial decision to open fire on Mr. Claybrook at nine o’clock in the motion, summary judgment under Fed. R. Civ. P. 56 must be entered against a plaintiff who has failed to produce evidence sufficient to support evening outside of a market in an area where patrons of the each element of his or her prima facie case. Celotex Corp. v. Catrett, 477 store could have been seated in their vehicles, when the U.S. 317, 322-23 (1986). Because sufficiency of the evidence is a officers admitted that they did not feel that they were in question of law, a trial court’s grant of summary judgment, like a imminent danger, rose to the level of deliberate indifference dismissal under Fed. R. Civ. P. 12(b)(6), is subject to plenary scrutiny. to Ms. Claybrook’s rights. Indeed, a reasonable person could Painter v. Robertson, 185 F.3d 557, 566 (6th Cir. 1999); Grider v. conclude that officers who open fire on a public street at nine Abramson, 180 F.3d 739, 756 n.7 (6th Cir.), cert. denied, 120 S. Ct. 528 (1999). o’clock in the evening when they are in no imminent danger have every reason to believe that they may recklessly injure 2 Section 1983 provides, in pertinent segment: members of the public. Under the facts presented by this case, Ms. Claybrook should not be deprived of her right to Every person who, under color of any statute, ordinance, trial on the question of whether the circumstances of the regulation, custom, or usage, of any State . . . subjects, or causes shooting violated her substantive due process rights. to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, Accordingly, I would reverse the district court’s dismissal privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in of Ms. Claybrook’s claim against the officers for violation of equity, or other proper proceeding for redress[.] her substantive due process rights as set forth in Counts Three In any action under section 1983, the plaintiff must prove that (1) he has been deprived of a right secured by the United States constitution or 4 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 21 (“Claybrook”) and the serious bodily injury of Quintana department rules requiring them to radio for a marked car and Claybrook. They further contended that Kirchner, as the uniformed officers, and they made a conscious decision to Chief Executive Officer of the Nashville-Davidson County request such support. The officers were also aware that the Metropolitan Police Department, failed to properly train department rules mandated that they refrain from and/or supervise the three faulted field officers, and neglected investigating the situation unless emergency circumstances to develop appropriate official departmental guidelines arose. Significantly, at the point when they discovered Mr. restraining the unjustifiable utilization of lethal force. The Claybrook standing outside with this gun, Officer Birchwell trial court concluded that (1) Royal Jr., Gwannette, and testified that he did not believe that the officers were in Petrece Claybrook (the children of Royal Sr.) lacked standing imminent danger or that exigent circumstances requiring the to recover for alleged personal losses derivatively generated use of force existed. However, after having made a decision by their father’s violent demise, and had failed to seek to request backup, the officers inexplicably proceeded to recovery for Claybrook’s alleged constitutional injuries as engage Mr. Claybrook in a violent confrontation without representatives oft his estate; and (2) Quintana had suffered awaiting the arrival of the uniformed officers. Contrary to the no cognizable constitutional tort. majority’s assertion, the officers here were hardly involved in a high-speed pursuit or any high-pressure confrontation at the On the evening of February 28, 1995, plainclothes time that they decided to act, as were the officers in Lewis. caucasian undercover police officers Birchwell, Lewis, and See 118 S. Ct. at 1720-21. As such, Ms. Claybook’s claims Spencer of the Nashville Crime Suppression Unit were should be analyzed using the “deliberate indifference” engaged in anti-crime surveillance, from an unmarked squad standard; which is to say, her claim should be viewed in the vehicle, in a high-crime Nashville neighborhood. At context of whether the officers had time to make a reasoned approximately 9:11 p.m., they observed an African-American judgment about their conduct. Id.; see Moreland v. Las Vegas male (later identified as Royal Claybrook Sr.) standing near Metro. Police Dep’t, 159 F.3d 365, 373 (9th Cir. 1998) the street curb in the dimly-lit parking lot of the F & J Market (recognizing that the critical question when applying the (“the market”) while displaying a long gun at port-arms. A appropriate standard of culpability under Lewis is “whether gray Maxima automobile blocked the business’ entrance. The the circumstances allowed the state actors time to fully patrolmen knew that the market had been the target of recent consider the potential consequences of their conduct”). crimes. Suspecting that a robbery was in progress, the driver of the incognito patrol car, Officer Birchwell, in conformity When viewing the officers’ actions under this standard, with his department’s standard operating procedures, radioed questions of fact remain for the jury to decide with respect to the police force headquarters to report the gunman’s location whether the officers’ conduct violated Ms. Claybrook’s and to request the immediate dispatch of a marked police substantive due process rights. For example, questions of fact cruiser containing uniformed law enforcers. exist as to whether the officers observed Ms. Claybrook enter the car or reasonably should have known that Ms. Claybrook Birchwell then drove the undercover vehicle into the was in the car, in that if the officers passed by the market at market’s parking lot. He intended to stop his vehicle on what the time they claimed, a reasonable person could believe that they observed Ms. Claybrook leaving the market and entering the car. Furthermore, a question of fact exists as to whether laws, (2) the defendants who allegedly caused that deprivation acted the officers should have provoked the confrontation with Mr. under color of state law, and (3) the deprivation occurred without due Claybrook before the uniformed back-up officers arrived, and process of law. O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th whether they should have identified themselves as police Cir. 1994). 20 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 5 In Lewis, the Supreme Court reviewed the range of conduct appeared to be a driveway or alleyway which abutted the under which a substantive due process claim may arise under building’s western side, to enable the officers to the Fourteenth Amendment. See 118 S. Ct. at 1717. The surreptitiously observe the firearm-toting suspect and the Court began by reiterating the long-held standard that one suspicious gray automobile, pending arrival of the summoned may state a claim of deprivation of substantive due process by marked squad car. However, Birchwell subsequently alleging conduct “‘that shocks the conscience’ and violates discovered that no contiguous roadway paralleled the the ‘decencies of civilized conduct.’” Id. (quoting Rochin v. structure’s west end. Consequently, while repositioning his California, 342 U.S. 165, 172-73 (1965)). However, the vehicle to prevent the armed suspect from facing the officers’ Court went on to recognize that the measure of “what is backs, Birchwell maneuvered the unidentified patrol car conscience-shocking is no calibrated yard stick,” and towards the stationary gray automobile. observed that “[r]ules of due process are not . . . subject to mechanical application [such that] [d]eliberate indifference That movement prompted the wary gunman to advance that shocks in one environment may not be so patently menacingly behind the hood of the gray Maxima while facing egregious in another, and our concern with preserving the the intruders. Unbeknownst to the peace officers, constitutional proportions of substantive due process demands Claybrook’s daughter-in-law, Quintana Claybrook, worked at an exact analysis of circumstances before any abuse of power the market. Because that establishment served as a “front” for is condemned as conscience-shocking.” Id. at 1717-1719. an unlawful “numbers” gambling operation, thieves The Court emphasized that liability may lie for actions that occasionally targeted it. Quintana was responsible for amount to “deliberate indifference” where the officials depositing illegal betting proceeds. The associated physical involved enjoyed the luxury of “time to make unhurried danger prompted Claybrook habitually to escort Quintana, judgments, upon the chance for repeated reflection, largely while armed, from the store to her automobile. He uncomplicated by the pulls of competing obligations.” Lewis, customarily remained in the parking lot, holding his shotgun 118 S. Ct. at 1720. The Court explained as follows: in plain view, until Quintana had exited the area. Claybrook was acting as a security guard for his daughter-in-law on the When such extended opportunities to do better are evening of February 28, 1995. When the unmarked police teamed with protracted failure even to care, indifference vehicle arrived at the scene, Quintana was already inside the is truly shocking. But when unforeseen circumstances Maxima, seated behind the steering wheel with her back demand an officer’s instant judgment, even precipitate towards the three defendant peace constables, although each recklessness, fails to inch close enough to harmful of them testified that he did not know that anyone then purpose to spark the shock that implicates “the large occupied that automobile. concerns of the governors and the governed.” Quintana testified that a passenger within the strange Id. (quoting Daniels v. Williams, 474 U.S. 327, 332 (1986)). vehicle (the unmarked police car) ordered Claybrook to drop his weapon, to which he responded, “no, you drop your gun.” When conducting an “exact analysis” of the facts of this She further attested: case in the light most favorable to Ms. Claybrook, it is clear that the officers had sufficient time to make an unhurried And then the next thing I know, I heard like a judgment about their conduct upon seeing Mr. Claybrook firecracker sound, and then I felt something in my back, with his weapon such that a lower level of fault should be and I kind of jumped, like, you know. And I really didn’t applied. As the officers testified, they were aware of 6 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 19 know what had happened, because, you know, I hadn’t ______________________________________________ heard a gun shot, you know, before. CONCURRING IN PART, DISSENTING IN PART And then I kind of felt like I was wet, and so I kind of ______________________________________________ felt, and I was like, you know, -- and then I realized that I had been shot. And I kind of leaned over in the seat, CLAY, Circuit Judge, concurring in part and dissenting in and I looked up at my father-in-law, and he looked at me. part. I concur in the majority’s decision to reverse the district He was still standing in front of my car. court’s dismissal of Counts One and Two of the complaint; however, because I believe that the district court’s dismissal And then I just -- you know, I saw like -- I guess it was of Counts Three and Four should also be reversed, I a burst of fire or something. I don’t know what it was. respectfully dissent from the majority’s decision to affirm the It was just like some fire or something. And I heard a big dismissal of these counts. boom. And then I just heard a whole bunch of just fireworks and, you know. And then I heard another I disagree with the majority’s application of what it boom.3 And I was like, we're getting robbed. considers to be the appropriate standard under which the Somebody's robbing us. substantive due process claim of Quintana Claybrook (“Ms. Claybrook”), as set forth in Counts Three and Four, should be Tragically, Quintana’s back had been struck by a stray analyzed. The majority applies the “conscious shocking” bullet. She testified that she unsuccessfully attempted to standard used for situations involving instances when police telephone “911" on her cellular phone. She then called her officers are called to make “fast action[s]” such as when husband, Royal Jr., to report that armed assailants were facing an ensuing prison riot or when in the throes of a high- attempting to rob her and Claybrook. However, because she speed chase. Under such circumstances, a much higher crouched inside her vehicle following the initial volley, she standard of fault, such as “‘whether force was applied in a did not witness the shoot-out. good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing During much of the ensuing firefight, Claybrook shielded harm,’” must be shown in order to hold a police officer liable. himself behind the Maxima. Rounds discharged by See County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. Claybrook struck the windshield, hood, and door of the 1708, 1720 (1998) (quoting Witley v. Albers, 475 U.S. 312, officers’ cruiser. The three police officers testified, contrary 320 (1986)). Because the record does not support the to Quintana’s assertion, that Claybrook discharged his firearm majority’s application of this standard, the less stringent at least twice before they were able to return the assailant’s standard of culpability – that which is considered “something fire. They further asserted that, following the initial exchange more than negligence but less than intentional conduct, such of gunfire, they endeavored to identify themselves as police as recklessness or gross negligence” – should be applied. See officers by verbalizations reinforced by manual displays of Lewis, 118 S. Ct. at 1718 (internal quotation marks omitted). their official badges which each wore on a neck chain. Under this standard, coined by the Supreme Court as Nevertheless, Claybrook continued to shoot at them. Officer “deliberate indifference,” a question of fact remains for trial as to whether the officers’ conduct regarding Ms. Claybrook rose to this level. 3 Birchwell testified that "it's very easy to distinguish a pistol shot from a shotgun. A pistol shot is sort of like a firecracker," while "a shotgun is a deep, low boom." 18 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 7 Furthermore, because the charged official conduct did not Birchwell sustained gunshot wounds to his right thigh and inflict any constitutional deprivation upon Quintana, knee and left foot. He then reported to the police dispatcher, defendant Kirchner, in his official capacity as the Chief via radio, that shots had been fired, and again requested Executive Officer of the Nashville-Davidson County immediate back-up assistance. At approximately that time, Metropolitan Police Department, cannot be liable to her for the suspected perpetrator fled behind the market. However, any alleged neglect to train or supervise those officers, or apparently rejecting the available option of escaping failure to develop appropriate deadly force policies; therefore unharmed by means of an adjacent street, Claybrook the lower court’s summary dismissal of count four was also circumambulated the structure in a bid to ambush the agents proper. City of Los Angeles v. Heller, 475 U.S. 796, 799 from the rear. (1986) (per curiam) (“If a person has suffered no constitutional injury at the hands of the individual police Claybrook concealed himself behind a slightly elevated officer, the fact that the departmental regulations might have concrete structure which afforded a dominant strategic firing authorized the use of unconstitutionally excessive force is posture. Each of the three officers testified that they once quite beside the point.”) (emphasis the Court’s). again warned the assailant to drop his weapon. Instead, he aimed his shotgun directly at them. The officers defensively Accordingly, the summary judgments for the defendants fired at the suspect, bringing him to the ground. which disposed of counts three and four of the amended Approximately at that same moment, marked police units complaint are AFFIRMED; whereas the summary dismissals transporting uniformed officers, as well as an ambulance of counts one and two are REVERSED, and the action containing emergency medical technicians (“EMTs”), arrived REMANDED for further proceedings concerning those two at the scene. The entire incident had transpired within only causes of action as are consistent with this opinion. one or two minutes. Claybrook, pronounced dead at the scene, had sustained a mortal head wound. Upon discovering the seriously injured Quintana inside the Maxima, the EMTs rushed her to Vanderbilt University Hospital, where she received emergency medical attention and subsequent extended hospitalization. On February 12, 1996, the plaintiffs instigated a complaint in district court under section 1983 and Tennessee law. Count one asserted that Royal Jr., Gwannette, and Petrece Claybrook, as the “heirs at law” of their deceased father, suffered injuries consequent to the three defendant officers’ alleged violations of their parent’s civil rights. Via Count two, Claybrook’s three children sought recovery from Robert Kirchner, the Chief Executive Officer of the Nashville- 8 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 17 Davidson County Metropolitan Police Department,4 for his that no conscience-shocking behavior was implicated by a alleged failure to (1) properly train and/or supervise the three deputy sheriff’s emergency enlistment of a civilian police officer defendants and/or (2) implement adequate bystander’s assistance in subduing a dangerous assailant departmental policies circumscribing the application of deadly which prompted the perpetrator to slay the civilian),14 cert. force. Count three advanced the claims of Quintana and her denied, 119 S. Ct. 869 (1999). husband Royal Jr. for the officers’ averred infringements of Quintana’s civil rights. Count four articulated Quintana’s Indeed, the record reflected, without contradiction, that the claim against Kirchner anchored in allegations similar to three defendant undercover agents did not know that anyone those stated in count two. Count five, asserted by all was present in the gray Maxima prior to, or during, the plaintiffs, alleged that Birchwell, Lewis, and Spencer had exchange of gunfire which caused Quintana’s injury. Thus, committed state law torts.5 the defendants could not have acted maliciously or sadistically towards that unknown individual. See Farmer v. Each of Claybrook’s three children requested $125,000 in Brennan, 511 U.S. 825, 835-36 (1994) (explaining that actual damages, plus an equivalent sum in punitive damages, malicious or sadistic behavior entails unjustifiable intentional against each defendant. Quintana sought $250,000 in conduct undertaken with the direct purpose of causing harm compensatory damages for her personal injuries, plus an to the victim). equivalent amount of punitives, against each defendant. The plaintiffs further petitioned for an award of attorney fees Hence, construing all supported allegations and record under 42 U.S.C. § 1988(b), an equitable declaration that the evidence most favorably for Quintana, no rational fact finder Nashville police had violated their civil rights, and an could conclude that Officers Birchwell, Lewis, and/or injunction compelling reform of the Nashville police Spencer violated her substantive due process rights, because department’s deadly force policies. the plaintiff cannot prove that they acted with malice or sadism towards her. Thus, the lower court’s summary Following the lodging of the defendants’ answers to the judgment for those defendants on count three of the amended initial complaint, the plaintiffs, on May 23, 1996, filed a complaint was correct. See Lewis, 118 S. Ct. at 1714 n.5. four-count amended complaint which reiterated, with 14 The Radecki court explained: 4 On April 10, 1997, the district court dismissed all claims asserted Deputy Barela had no time for deliberation. The undisputed against Chief Robert Kirchner in his individual capacity, but retained him facts in this record make clear that Deputy Barela was as an official capacity defendant, which ruling is not before this appellate confronted with the kind of instantaneous judgment call that is forum. An official capacity claim filed against a public employee is so often required of law enforcement personnel, prison officials, equivalent to a lawsuit directed against the public entity which that agent and many other government actors called to emergency represents. Kentucky v. Graham, 473 U.S. 159, 165 (1985). situations. Sometimes these decisions are negligent, sometimes Municipalities and counties are “persons” exposed to litigation under they are even reckless, sometimes indifferent. Under these section 1983. Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir.), cert. circumstances, however, where Plaintiffs have not even alleged denied, 522 U.S. 914 (1997). that Deputy Barela acted with an intent to harm the participants 5 or to worsen their legal plight, under the Lewis standard there is On April 10, 1997, the trial judge dismissed count five with no constitutional liability. prejudice in the exercise of its statutory discretion to decline to extend supplemental jurisdiction over a state law claim. 28 U.S.C. § 1367(c). Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998), cert. denied, That mandate is not before this reviewing forum. 119 S. Ct. 869 (1999). 16 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 9 prompted by "unforeseen circumstances [which] demand[ed] modifications, causes one through four of their original an officer's instant judgment," to a prison riot. Id. Thus, the complaint. However, the plaintiffs added, inter alia, language more exacting “malicious or sadistic” standard of proof, to their complaint intended to clarify that Royal Jr., rather than the comparatively relaxed “deliberate Gwannette, and Petrece Claybrook did not seek satisfaction indifference” evidentiary criterion, controlled the “shocks the for alleged losses personal to themselves; rather, they were conscience” substantive due process element. Id. at 1720-21. prosecuting the instant action, as representatives of the Similarly, the “malicious or sadistic” test of conscience- decedent’s estate, for compensation of Claybrook’s pre-death shocking behavior controls the instant action because, beyond constitutional deprivations. The caption of the amended controversy, Officers Birchwell, Lewis, and Spencer had no complaint listed the plaintiffs as: opportunity to ponder or debate 13their reaction to the dangerous actions of the armed man. ROYAL E. CLAYBROOK, JR., GWANNETTE CLAYBROOK, PETRECE CLAYBROOK, CO- Hence, even if, as the plaintiffs have argued, the actions of ADMINISTRATORS OF THE ESTATE OF ROYAL the three defendant patrolmen violated departmental policy or E. CLAYBROOK, SR., AND QUINTANA were otherwise negligent, no rational fact finder could CLAYBROOK[.] conclude, even after considering the evidence in the light most favorable to Quintana, that those peace enforcement (Boldface added). operatives acted with conscience-shocking malice or sadism towards the unintended shooting victim. Lewis, 118 S. Ct. at The two counts advanced by Claybrook’s three children 1721 (dictating that, “[r]egardless whether [Deputy] Smith’s related: behavior offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound COUNT ONE practices, it does not shock the conscience, and petitioners are not called upon to answer for it under § 1983.”). See Radecki 33. On the basis of the allegations in paragraphs 1 v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998) (concluding through 32 [generally averring the plaintiffs' version of the events of February 28, 1995], defendants Birchwell, Lewis and Spencer are liable, both jointly and severally, to plaintiffs Royal E. Claybrook, Jr., Gwannette 13 The plaintiffs' contention that the defendant officers wrongfully Claybrook and Petrece Claybrook, the heirs at law of incited the violence which injured Quintana by entering the parking lot Royal E. Claybrook, Sr., for the defendants’ conduct, and driving towards the stationary gray vehicle was misconceived. See individually and in concert, to violate the civil rights of Lewis, 118 S. Ct. at 1720-21. As the Seventh Circuit has commented: Royal E. Claybrook, Sr. under the First, Second, Fourth, Fifth, Eighth and Fourteenth Amendments to the United Other than random attacks, all such cases [involving the use of States Constitution. These rights include the right to be force by criminal justice personnel] begin with the decision of a police officer to do something, to help, to arrest, to inquire. If free from unlawful arrest and from unreasonable and the officer had decided to do nothing, then no force would have excessive use of police force, to freedom of movement, been used. In this sense, the police officer always causes the to keep and bear arms, to be free from cruel and unusual trouble. But it is trouble which the police officer is sworn to punishment, to due process of law and to equal cause, which society pays him to cause and which, if kept within protection of law. constitutional limits, society praises the officer for causing. Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994). 10 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 15 COUNT TWO Fundamentally, the substantive component of the due process clause insulates citizens against the arbitrary exercise 34. On the basis of the allegations in paragraphs 1 of governmental power. Id. at 1716. Accordingly, conduct of through 32, defendant Robert Kirchner is liable to a law enforcement officer towards a citizen which “shocks the plaintiffs Royal E. Claybrook, Jr., Gwannette Claybrook conscience” denies the victim fundamental substantive due and Petrece Claybrook, the heirs at law of Royal E. process. Id. at 1717. In situations wherein the implicated Claybrook, Sr., for his failure to develop policies and state, county, or municipal agent(s) are afforded a reasonable procedures, to properly train police conduct [sic] in opportunity to deliberate various alternatives prior to electing undercover activities, to train with regard to the use of a course of action (such as, for example, most occasions deadly force and to supervise and regulate adequately so whereby corrections officials ignore an inmate’s serious as to protect Royal E. Claybrook, Sr. and to prevent the medical needs), their actions will be deemed conscience- violations of the said Claybrook Sr.'s rights as alleged in shocking if they were taken with “deliberate indifference” paragraph 30 [paragraph 33?] above. towards the plaintiff’s federally protected rights. Id. at 1719. In contradistinction, in a rapidly evolving, fluid, and Additionally, the amended complaint alleged (1) the parent- dangerous predicament which precludes the luxury of calm child relationship of Claybrook to Royal Jr., Gwannette, and and reflective pre-response deliberation (such as, for example, Petrece (paragraphs one through four); (2) that “Plaintiffs a prison riot), public servants’ reflexive actions “shock the Royal, Gwannette and Petrece Claybrook are co- conscience” only if they involved force employed administrators of the Estate of Royal E. Claybrook, Sr." “maliciously and sadistically for the very purpose of causing (paragraph six); and (3) that "[a]s a result of the wrongful acts harm" rather than "in a good faith effort to maintain or restore of the defendants, plaintiffs Royal E. Claybrook, Jr., discipline[.]"12 Id. at 1720 (citation omitted). Gwannette Claybrook and Petrece Claybrook incurred medical and funeral expenses, as well as great emotional loss Applying those principles, the Lewis Court analogized a associated with the wrongful death of their father." (paragraph high-speed motorcycle chase, which led to the accidental thirty-one). Furthermore, the plaintiffs’ Prayer for Relief death of the pursued motorbike’s innocent passenger, sought personal compensatory and punitive damage awards for each of them, as well as collective equitable relief, in conformity with their original complaint’s prayer; but it did not expressly request any relief for the Estate of Royal E. 12 As aptly observed by the Lewis Court: Claybrook, Sr.. [T]he police on an occasion calling for fast action have Following discovery, the district court, on July 1, 1998, obligations that tend to tug against each other. Their duty is to granted the defendants’ motions for dismissal of the amended restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are complaint and/or summary judgment. The plaintiffs noticed supposed to act decisively and to show restraint at the same a timely appeal on July 20, 1998. moment, and their decisions have to be made in haste, under pressure, and frequently without the luxury of a second chance. In the Sixth Circuit, a section 1983 cause of action is entirely personal to the direct victim of the alleged County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (citations constitutional tort. Jaco v. Bloechle, 739 F.2d 239, 241 (6th omitted). See also Graham v. Connor, 490 U.S. 386, 397 (1989) (“police officers are often forced to make split-second judgments – in Cir. 1984). See also Purnell v. City of Akron, 925 F.2d 941, circumstances that are tense, uncertain, and rapidly evolving -- about the 948-49 n.6 (6th Cir. 1991); May v. County of Trumbull, 127 amount of force that is necessary in a particular situation.”). 14 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 11 [sic] in undercover activities, to train with regard to the F.3d 1102 (Table), 1997 WL 651662, at **4 (6th Cir. Oct. 20, use of deadly force and to supervise and regulate 1997) (per curiam); Tinch v. City of Dayton, 77 F.3d 483 adequately so as to protect Quintana Claybrook and to (Table), 1996 WL 77445, at **1 (6th Cir. Feb. 20, 1996) (per prevent the violations of the said Quintana Claybrook's curiam). Accordingly, only the purported victim, or his rights as alleged in paragraph 32 [paragraph 35?] above. estate’s representative(s), may prosecute a section 1983 claim; conversely, no cause of action may lie under section 1983 for On review, Quintana has disputed only the trial court’s emotional distress, loss of a loved one, or any other dismissal of her Fourteenth Amendment substantive due consequent collateral injuries allegedly suffered personally by process claim.10 Ordinarily, a charge that law enforcement the victim’s family members. Id. Despite the amended personnel used excessive force to effect a plaintiff’s arrest, complaint’s caption, which named plaintiffs Royal Jr., which caused bodily injury to that individual, is assessed Gwannette, and Petrece as co-administrators of Claybrook’s under Fourth Amendment “objective reasonableness” estate, coupled with an express allegation at paragraph six to standards.11 Graham v. Connor, 490 U.S. 386, 394-97 that same effect, the district court construed counts one and (1989); Tennessee v. Garner, 471 U.S. 1, 7-9 (1985). two as seeking only compensation for alleged personal losses Accordingly, when an arrestee is “seized” by means of deadly and suffering experienced individually by Claybrook’s three force, any dependent section 1983 claim initiated by the children. Consequently, the district court dismissed counts target, or his or her estate, must be supported by proof that, one and two because the plaintiffs lacked standing to initiate under the pertinent circumstances, the means used to detain personal claims stemming from alleged violations of their the suspect were objectively “unreasonable.” Id. However, deceased father’s federally protected liberties.6 the Fourth Amendment “reasonableness” standard does not apply to section 1983 claims which seek remuneration for Upon de novo review of a trial court’s dismissal of a physical injuries inadvertently inflicted upon an innocent complaint under Rule 12(b)(6), the allegations of the third party by police officers’ use of force while attempting complaint should be construed liberally in the plaintiffs’ to seize a perpetrator, because the authorities could not favor. Lewis v. ACB Business Services, Inc., 135 F.3d 389, “seize” any person other than one who was a deliberate object 405 (6th Cir. 1998). “[A] complaint should not be dismissed of their exertion of force. Brower v. County of Inyo, 489 U.S. for failure to state a claim unless it appears beyond doubt that 593, 596 (1989). Rather, constitutional tort claims asserted the plaintiff can prove no set of facts in support of his claim by persons collaterally injured by police conduct who were which would entitle him to relief.” Conley v. Gibson, 355 not intended targets of an attempted official “seizure” are U.S. 41, 45-46 (1957) (emphasis added; note omitted). In this adjudged according to substantive due process norms. County case, the lower court dismissed counts one and two on the of Sacramento v. Lewis, 118 S. Ct. 1708, 1714-16 (1998). sole rationale that the plaintiffs had failed to plead that they sought damages as representatives of their deceased father’s estate for his alleged constitutional injuries. However, 10 plenary scrutiny of the material allegations of the amended The Fourteenth Amendment to the United States Constitution complaint reveals that, when construed in the light most stipulates, in pertinent segment, that “No state shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1. 6 11 Because the lower court’s analysis of counts one and two focused The Fourth Amendment posits, in relevant portion, that “The right exclusively upon the sufficiency of the amended complaint’s allegations, of the people to be secure in their persons . . . against unreasonable . . . this review construes the trial court’s dismissal of those causes of action seizures, shall not be violated[.]” U.S. Const. amend. IV. as a Rule 12(b)(6) dismissal for failure to state a claim. 12 Claybrook, et al. v. Birchwell, et al. No. 98-6029 No. 98-6029 Claybrook, et al. v. Birchwell, et al. 13 favorable for the plaintiffs, they have adequately requested By contrast, the district court correctly resolved that counts compensation for Claybrook’s alleged constitutional injuries three and four of the amended complaint were not supported in their representative capacities as co-administrators of his by sufficient evidence.8 Those causes of action recited: estate. COUNT THREE Notwithstanding that certain allegations of the amended complaint also appear to aver that Claybrook’s children 35. On the basis of the allegations in paragraphs 1 suffered personal losses caused by the defendants’ alleged through 32, defendants Birchwell, Lewis and Spencer are impingements of their decedent’s constitutionally safeguarded liable, both jointly and severally, to plaintiff Quintana interests, which created some ambiguity regarding the identity Claybrook for the defendants' conduct, individually and of the person(s) whose injuries in fact were asserted in counts in concert, to violate the civil rights of Quintana one and two, this reviewing forum regards those extraneous Claybrook under the First, Second, Fourth, Fifth, Eighth, allegations to constitute mere surplusage which ultimately and Fourteenth Amendments to the United States have no substantive effect. Because the plaintiffs have Constitution. These rights include the right to be free unequivocally alleged in plain language that they have from unlawful arrest and from unreasonable and prosecuted the subject action as the co-administrators of excessive use of police force, to freedom of movement, Claybrook’s estate, matched with clear allegations in counts to keep and bear arms, to be free from cruel and unusual one and two that the defendants’ actions had deprived punishment, to due process of law and to equal Claybrook of his civil rights, it cannot be said that they have protection of law. Said defendants are liable to plaintiff pleaded no set of facts in counts one and two which could Royal E. Claybrook, Jr. for the loss of companionship, conceivably entitle them, as representatives of Claybrook’s love and affection of his wife, Quintana Claybrook.9 estate, to relief. Accordingly, the district court’s dismissal of counts one and two for failure to state a claim, which was COUNT FOUR justified solely on the rationale that the plaintiffs had not pled that they sought recovery for their late parent’s injuries as 36. On the basis of the allegations in paragraphs 1 representatives of his estate, constituted legal error. Hence, through 32, defendant Robert Kirchner is liable to the Rule 12(b)(6) dismissals of counts one and two are plaintiff Quintana Claybrook for his failure to develop reversed, and the case remanded to the district court for policies and procedures, to properly train police conduct further proceedings regarding7 those causes of action as are consistent with this decision. the amended complaint. 7 8 This court emphasizes that, as to counts one and two of the amended Because consideration of the sufficiency of the record evidence is complaint, it rules only that the plaintiffs have sufficiently alleged that necessary to dispose of counts three and four, as developed below, this they are seeking monetary compensation, as the co-administrators of the review construes the lower court’s rejection of those causes of action as decedent’s estate, for alleged constitutional torts personally suffered by a summary adjudication. See Fed. R. Civ. P. 12(b) & 56. Claybrook, which affords them standing as vindicators of Claybrook’s 9 individual federal rights to the extent that his tort claims survived, under For the reasons developed above, Royal Claybrook Jr. lacks Tennessee law, beyond his own death. See Jaco v. Bloechle, 739 F.2d standing under section 1983 to claim compensation for any indirect 239, 241-45 (6th Cir. 1984); Tenn. Code Ann. §§ 20-5-102 & 106 (1994 injuries allegedly caused to him by reason of any constitutional tort & Supp. 1998). This reviewing forum expresses no opinion regarding the suffered by his spouse Quintana Claybrook, irrespective of the potential substantive merits of any claim asserted within counts one and/or two of merits of Quintana’s personal claims. 


[by Krupansky]

 KRUPANSKY, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 361-63), delivered a separate opinion concurring in part and dissenting in part. OPINION KRUPANSKY, Circuit Judge. The plaintiffs-appellants Royal E. Claybrook Jr. (“Royal Jr.”), Gwannette Claybrook (“Gwannette”), Petrece Clay-brook (“Petrece”), and Quintana Claybrook (“Quintana”) have disputed the district court’s dismissal of their complaint for failure to state a claim, and/or its award of summary judgment to the defendants, 1 against the defendants-appellees Jesse Birchwell (“Birchwell”), Steve Lewis (“Lewis”), Ken Spencer (“Spencer”), Robert Kirchner (“Kirchner”), and the Metropolitan Government of Nashville and Davidson County, Tennessee (“Nashville”). The plaintiffs have alleged that peace officers Birchwell, Lewis, and Spencer used excessive force, in violation of 42 U.S.C. § 1983 , 2 which resulted in the death of Royal Claybrook Sr. (“Claybrook”) and the serious bodily injury of Quintana Clay-brook. They further contended that Kirchner, as the Chief Executive Officer of the Nashville-Davidson County Metropolitan Police Department, failed to properly train and/or supervise the three faulted field officers, and neglected to develop appropriate official departmental guidelines restraining the unjustifiable utilization of lethal force. The trial court concluded that (1) Royal Jr., Gwannette, and Petrece Claybrook (the children of Royal Sr.) lacked standing to recover for alleged personal losses derivatively generated by their father’s violent demise, and had failed to seek recovery for Claybrook’s alleged constitutional injuries as representa *354 tives oft his estate; and (2) Quintana had suffered no cognizable constitutional tort. On the evening of February 28, 1995, plainclothes Caucasian undercover police officers Birchwell, Lewis, and Spencer of the Nashville Crime Suppression Unit were engaged in anti-crime surveillance, from an unmarked squad vehicle, in a high-crime Nashville neighborhood. At approximately 9:11 p.m., they observed an African-American male (later identified as Royal Claybrook Sr.) standing near the street curb in the dimly-lit parking lot of the F & J Market (“the market”) while displaying a long gun at port-arms. A gray Maxima automobile blocked the business’ entrance. The patrolmen knew that the market had been the target of recent crimes. Suspecting that a robbery was in progress, the driver of the incognito patrol car, Officer Birchwell, in conformity with his department’s standard operating procedures, radioed the police force headquarters to report the gunman’s location and to request the immediate dispatch of a marked police cruiser containing uniformed law enforcers. Birchwell then drove the undercover vehicle into the market’s parking lot. He intended to stop his vehicle on what appeared to be a driveway or alleyway which abutted the building’s western side, to enable the officers to surreptitiously observe the firearm-toting suspect and the suspicious gray automobile, pending arrival of the summoned marked squad car. However, Birchwell subsequently discovered that no contiguous roadway paralleled the structure’s west end. Consequently, while repositioning his vehicle to prevent the armed suspect from facing the officers’ backs, Birchwell maneuvered the unidentified patrol car towards the stationary gray automobile. That movement prompted the wary gunman to advance menacingly behind the hood of the gray Maxima while facing the intruders. Unbeknownst to the peace officers, Claybrook’s daughter-in-law, Quinta-na Claybrook, worked at the market. Because that establishment served as a “front” for an unlawful “numbers” gambling operation, thieves occasionally targeted it. Quintana was responsible for depositing illegal betting proceeds. The associated physical danger prompted Clay-brook habitually to escort Quintana, while armed, from the store to her automobile. He customarily remained in the parking lot, holding his shotgun in plain view, until Quintana had exited the area. Claybrook was acting as a. security guard for his daughter-in-law on the evening of February 28, 1995. When the unmarked police vehicle arrived at the scene, Quintana was already inside the Maxima, seated behind the steering wheel with her back towards the three defendant peace constables, although each of them testified that he did not know that anyone then occupied that automobile. Quintana testified that a passenger within the strange vehicle (the unmarked police car) ordered Claybrook to drop his weapon, to which he responded, “no, you drop your gun.” She further attested: And then the next thing I know, I heard like a firecracker sound, and then I felt something in my back, and I kind of jumped, like, you know. And I really didn’t know what had happened, because, you know, I hadn’t heard a gun shot, you know, before. And then I kind of felt like I was wet, and so I kind of felt, and I was like, you know, — and then I realized that I had been shot. And I kind of leaned over in the seat, and I looked up at my father-in-law, and he looked at me. He was still standing in front of my car. And then I just — you know, I saw like — I guess it was a burst of fire or something. I don’t know what it was. It was just like some fire or something. And I heard a big boom. And then I just heard a whole bunch of just fireworks and, you know. And then I heard *355 another boom. 3 And I was like, we’re getting robbed. Somebody’s robbing us. Tragically, Quintana’s back had been struck by a stray bullet. She testified that she unsuccessfully attempted to telephone “911” on her cellular phone. She then called her husband, Royal Jr., to report that armed assailants were attempting to rob her and Claybrook. However, because she crouched inside her vehicle following the initial volley, she did not witness the shoot-out. During much of the ensuing fírefíght, Claybrook shielded himself behind the Maxima. Rounds discharged by Clay-brook struck the windshield, hood, and door of the officers’ cruiser. The three police officers testified, contrary to Quinta-na’s assertion, that Claybrook discharged his firearm at least twice before they were able to return the assailant’s fire. They further asserted that, following the initial exchange of gunfire, they endeavored to identify themselves as police officers by verbalizations reinforced by manual displays of their official badges which each wore on a neck chain. Nevertheless, Clay-brook continued to shoot at them. Officer Birchwell sustained gunshot wounds to his right thigh and knee and left foot. He then reported to the police dispatcher, via radio, that shots had been fired, and again requested immediate back-up assistance. At approximately that time, the suspected perpetrator fled behind the market. However, apparently rejecting the available option of escaping unharmed by means of an adjacent street, Claybrook circumambulat-ed the structure in a bid to ambush the agents from the rear. Claybrook concealed himself behind a slightly elevated concrete structure which afforded a dominant strategic firing posture. Each of the three officers testified that they once again warned the assailant to drop his weapon. Instead, he aimed his shotgun directly at them. The officers defensively fired at the suspect, bringing him to the ground. Approximately at that same moment, marked police units transporting uniformed officers, as well as an ambulance containing emergency medical technicians (“EMTs”), arrived at the scene. The entire incident had transpired within only one or two minutes. Claybrook, pronounced dead at the scene, had sustained a mortal head wound. Upon discovering the seriously injured Quintana inside the Maxima, the EMTs rushed her to Vanderbilt University Hospital, where she received emergency medical attention and subsequent extended hospitalization. On February 12, 1996, the plaintiffs instigated a complaint in district court under section 1983 and Tennessee law. Count one asserted that Royal Jr., Gwannette, and Petrece Claybrook, as the “heirs at law” of their deceased father, suffered injuries consequent to the three defendant officers’ alleged violations of their parent’s civil rights. Via Count two, Claybrook’s three children sought recovery from Robert Kirchner, the Chief Executive Officer of the Nashvüle-Davidson County Metropolitan Police Department, 4 for his alleged failure to (1) properly train and/or supervise the three police officer defendants and/or (2) implement adequate departmental policies circumscribing the application of deadly force. Count three advanced the claims of Quintana and her husband Royal *356 Jr. for the officers’ averred infringements of Quintana’s civil rights. Count four articulated Quintana’s claim against Kirchner anchored in allegations similar to those stated in count two. Count five, asserted by all plaintiffs, alleged that Birchwell, Lewis, and Spencer had committed state law torts. 5 Each of Claybrook’s three children requested $125,000 in actual damages, plus an equivalent sum in punitive damages, against each defendant. Quintana sought $250,000 in compensatory damages for her personal injuries, plus an equivalent amount of punitives, against each defendant. The plaintiffs further petitioned for an award of attorney fees under 42 U.S.C. § 1988 (b), an equitable declaration that the Nashville police had violated their civil rights, and an injunction compelling reform of the Nashville police department’s deadly force policies. Following the lodging of the defendants’ answers to the initial complaint, the plaintiffs, on May 23, 1996, filed a four-count amended complaint which reiterated, with modifications, causes one through four of their original complaint. However, the plaintiffs added, inter alia, language to their complaint intended to clarify that Royal Jr., Gwannette, and Petrece Clay-brook did not seek satisfaction for alleged losses personal to themselves; rather, they were prosecuting the instant action, as representatives of the decedent’s estate, for compensation of Claybrook’s pre-death constitutional deprivations. The caption of the amended complaint listed the plaintiffs as: ROYAL E. CLAYBROOK, JR., GWAN-NETTE CLAYBROOK, PETRECE CLAYBROOK, CO-ADMINISTRATORS OF THE ESTATE OF ROYAL E. CLAYBROOK, SR., AND QUINTA-NA CLAYBROOKU (Boldface added). The two counts advanced by Claybrook’s three children related: COUNT ONE 33. On the basis of the allegations in paragraphs 1 through 32 [generally averring the plaintiffs’ version of the events of February 28,1995], defendants Birchwell, Lewis and Spencer are liable, both jointly and severally, to plaintiffs Royal E. Claybrook, Jr., Gwannette Claybrook and Petrece Claybrook, the heirs at law of Royal E. Claybrook, Sr., for the defendants’ conduct, individually and in concert, to violate the civil rights of Royal E. Claybrook, Sr. under the First, Second, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. These rights include the right to be free from unlawful arrest and from unreasonable and excessive use of police force, to freedom of movement, to keep and bear arms, to be free from cruel and unusual punishment, to due process of law and to equal protection of law. COUNT TWO 34. On the basis of the allegations in paragraphs 1 through 32, defendant Robert Kirchner is liable to plaintiffs Royal E. Claybrook, Jr., Gwannette Claybrook and Petrece Claybrook, the heirs at law of Royal E. Claybrook, Sr., for his failure to develop policies and procedures, to properly train police conduct [sic] in undercover activities, to train with regard to the use of deadly force and to supervise and regulate adequately so as to protect Royal E. Clay-brook, Sr. and to prevent the violations of the said Claybrook Sr.’s rights as alleged in paragraph 30 [paragraph 33?] above. Additionally, the amended complaint alleged (1) the parent-child relationship of Claybrook to Royal Jr., Gwannette, and *357 Petrece (paragraphs one through four); (2) that “Plaintiffs Royal, Gwannette and Petrece Claybrook are co-administrators of the Estate of Royal E. Claybrook, Sr.” (paragraph six); and (3) that “[a]s a result of the wrongful acts of the defendants, plaintiffs Royal E. Claybrook, Jr., Gwan-nette Claybrook and Petrece Claybrook incurred medical and funeral expenses, as well as great emotional loss associated with the wrongful death of their father.” (paragraph thirty-one). Furthermore, the plaintiffs’ Prayer for Relief sought personal compensatory and punitive damage awards for each of them, as well as collective equitable relief, in conformity with their original complaint’s prayer; but it did not expressly request any relief for the Estate of Royal E. Claybrook, Sr.. Following discovery, the district court, on July 1, 1998, granted the defendants’ motions for dismissal of the amended complaint and/or summary judgment. The plaintiffs noticed a timely appeal on July 20,1998. In the Sixth Circuit, a section 1983 cause of action is entirely personal to the direct victim of the alleged constitutional tort. Jaco v. Bloechle, 739 F.2d 239, 241 (6th Cir.1984). See also Purnell v. City of Akron, 925 F.2d 941 , 948-49 n. 6 (6th Cir.1991); May v. County of Trumbull, 127 F.3d 1102 (Table), 1997 WL 651662 , at *4 (6th Cir. Oct.20, 1997) (per curiam); Tinch v. City of Dayton, 77 F.3d 483 (Table), 1996 WL 77445 , at *1 (6th Cir. Feb.20, 1996) (per curiam). Accordingly, only the purported victim, or his estate’s representative(s), may prosecute a section 1983 claim; conversely, no cause of action may lie under section 1983 for emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly suffered personally by the victim’s family members. Id. Despite the amended’ complaint’s caption, which named plaintiffs Royal Jr., Gwannette, and Petrece as co-administrators of Claybrook’s estate, coupled with an express allegation at paragraph six to that same effect, the district court construed counts one and two as seeking only compensation for alleged personal losses and suffering experienced individually by Claybrook’s three children. Consequently, the district court dismissed counts one and two because the plaintiffs lacked standing to initiate personal claims stemming from alleged violations of their deceased father’s federally protected liberties. 6 Upon de novo review of a trial court’s dismissal of a complaint under Rule 12(b)(6), the allegations of the complaint should be construed liberally in the plaintiffs’ favor. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 405 (6th Cir.1998). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957) (emphasis added; note omitted). In this case, the lower court dismissed counts one and two on the sole rationale that the plaintiffs had failed to plead that they sought damages as representatives of their deceased father’s estate for his alleged constitutional injuries. However, plenary scrutiny of the material allegations of the amended complaint reveals that, when construed in the light most favorable for the plaintiffs, they have adequately requested compensation for Claybrook’s alleged constitutional injuries in their representative capacities as co-administrators of his estate. Notwithstanding that certain allegations of the amended complaint also appear to aver that Claybrook’s children suffered personal losses caused by the defendants’ alleged impingements of their decedent’s constitutionally safeguarded interests, which created some ambiguity regarding *358 the identity of the person(s) whose injuries in fact were asserted in counts one and two, this reviewing forum regards those extraneous allegations to constitute mere surplusage which ultimately have no substantive effect. Because the plaintiffs have unequivocally alleged in plain language that they have prosecuted the subject action as the co-administrators of Claybrook’s estate, matched with clear allegations in counts one and two that the defendants’ actions had deprived Clay-brook of his civil rights, it cannot be said that they have pleaded no set of facts in counts one and two which could conceivably entitle them, as representatives of Claybrook’s estate, to relief. Accordingly, the district court’s dismissal of counts one and two for failure to state a claim, which was justified solely on the rationale that the plaintiffs had not pled that they sought recovery for their late parent’s injuries as representatives of his estate, constituted legal error. Hence, the Rule 12(b)(6) dismissals of counts one and two are reversed, and the case remanded to the district court for further proceedings regarding those causes of action as are consistent with this decision. 7 By contrast, the district court correctly resolved that counts three and four of the amended complaint were not supported by sufficient evidence. 8 Those causes of action recited: COUNT THREE 35. On the basis of the allegations in paragraphs 1 through 32, defendants Birchwell, Lewis and Spencer are liable, both jointly and severally, to plaintiff Quintana Claybrook for the defendants’ conduct, individually and in concert, to violate the civil rights of Quintana Claybrook under the First, Second, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. These rights include the right to be free from unlawful arrest - and from unreasonable and excessive use of police force, to freedom of movement, to keep and bear arms, to be free from cruel and unusual punishment, to due process of law and to equal protection of law. Said defendants are liable to plaintiff Royal E. Claybrook, Jr. for the loss of companionship, love and affection of his wife, Quintana Claybrook. 9 COUNT FOUR 36. On the basis of the allegations in paragraphs 1 through 32, defendant Robert Kirchner is liable to plaintiff Quintana Claybrook for his failure to develop policies and procedures, to properly train police conduct [sic] in undercover activities, to train with regard to the use of deadly force and to supervise and regulate adequately so as to protect Quintana Claybrook and *359 to prevent the violations of the said Quintana Claybrook’s rights as alleged in paragraph 32 [paragraph 35?] above. On review, Quintana has disputed only the trial court’s dismissal of her Fourteenth Amendment substantive due process claim. 10 Ordinarily, a charge that law enforcement personnel used excessive force to effect a plaintiffs arrest, which caused bodily injury to that individual, is assessed under Fourth Amendment “objective reasonableness” standards. 11 Graham v. Connor, 490 U.S. 386, 394-97 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7-9 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). Accordingly, when an arrestee is “seized” by means of deadly force, any dependent section 1983 claim initiated by the target, or his or her estate, must be supported by proof that, under the pertinent circumstances, the means used to detain the suspect were objectively “unreasonable.” Id. However, the Fourth Amendment “reasonableness” standard does not apply to section 1983 claims which seek remuneration for physical injuries inadvertently inflicted upon an innocent third party by police officers’ use of force while attempting to seize a perpetrator, because the authorities could not “seize” any person other than one who was a deliberate object of their exertion of force. Brower v. County of Inyo, 489 U.S. 593, 596 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989). Rather, constitutional tort claims asserted by persons collaterally injured by police conduct who were not intended targets of an attempted official “seizure” are adjudged according to substantive due process norms. County of Sacramento v. Lewis, 523 U.S. 833 , 118 S.Ct. 1708, 1714-16 , 140 L.Ed.2d 1043 (1998). Fundamentally, the substantive component of the due process clause insulates citizens against the arbitrary exercise of governmental power. Id. at 1716. Accordingly, conduct of a law enforcement officer towards a citizen which “shocks the conscience” denies the victim fundamental substantive due process. Id. at 1717. In situations wherein the implicated state, county, or municipal agent(s) are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action (such as, for example, most occasions whereby corrections officials ignore an inmate’s serious medical needs), their actions will be deemed conscience-shocking if they were taken with “deliberate indifference” towards the plaintiffs federally protected rights. Id. at 1719. In contradistinction, in a rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective pre-response deliberation (such as, for example, a prison riot), public servants’ reflexive actions “shock the conscience” only if they involved force employed “maliciously and sadistically for the very purpose of causing harm” rather than “in a good faith effort to maintain or restore discipline^]” 12 Id. at 1720 (citation omitted). *360 Applying those principles, the Lewis Court analogized a high-speed motorcycle chase, which led to the accidental death of the pursued motorbike’s innocent passenger, prompted by “unforeseen circumstances [which] demanded] an officer’s instant judgment,” to a prison riot. Id. Thus, the more exacting “malicious or sadistic” standard of proof, rather than the comparatively relaxed “deliberate indifference” evidentiary criterion, controlled the “shocks the conscience” substantive due process element. Id. at 1720-21. Similarly, the “malicious or sadistic” test of conscience-shocking behavior controls the instant action because, beyond controversy, Officers Birehwell, Lewis, and Spencer had no opportunity to ponder or debate their reaction to the dangerous actions of the armed man. 13 Hence, even if, as the plaintiffs have argued, the actions of the three defendant patrolmen violated departmental policy or were otherwise negligent, no rational fact finder could conclude, even after considering the evidence in the light most favorable to Quintana, that those peace enforcement operatives acted with conscience-shocking malice or sadism towards the unintended shooting victim. Lewis, 118 S.Ct. at 1721 (dictating that, “[r]egardless whether [Deputy] Smith’s behavior offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound practices, it does not shock the conscience, and petitioners are not called upon to answer for it under § 1983.”). See Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998) (concluding that no conscience-shocking behavior was implicated by a deputy sheriffs emergency enlistment of a civilian bystander’s assistance in subduing a dangerous assailant which prompted the perpetrator to slay the civilian), 14 cert. denied, — U.S. -, 119 S.Ct. 869 , 142 L.Ed.2d 771 (1999). Indeed, the record reflected, without contradiction, that the three defendant undercover agents did not know that anyone was present in the gray Maxima prior to, or during, the exchange of gunfire which caused Quintana’s injury. Thus, the defendants could not have acted maliciously or sadistically towards that unknown individual. See Farmer v. Brennan, 511 U.S. 825, 835-36 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994) (explaining that malicious or sadistic behavior entails unjustifiable intentional conduct undertaken with the di *361 rect purpose of causing harm to the victim). Hence, construing all supported allegations and record evidence most favorably for Quintana, no rational fact finder could conclude that Officers Birchwell, Lewis, and/or Spencer violated her substantive due process rights, because the plaintiff cannot prove that they acted with malice or sadism towards her. Thus, the lower court’s summary judgment for those defendants on count three of the amended complaint was correct. See Lewis, 523 U.S. 833 , 118 S.Ct. at 1714 n. 5. Furthermore, because the charged official conduct did not inflict any constitutional deprivation upon Quintana, defendant Kirehner, in his official capacity as the Chief Executive Officer of the Nashville-Davidson County Metropolitan Police Department, cannot be liable to her for any alleged neglect to train or supervise those officers, or failure to develop appropriate deadly force policies; therefore the lower court’s summary dismissal of count four was also proper. City of Los Angeles v. Heller, 475 U.S. 796, 799 , 106 S.Ct. 1571 , 89 L.Ed.2d 806 (1986) (per curiam) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of unconstitutionally excessive force is quite beside the point.”) (emphasis the Court’s). Accordingly, the summary judgments for the defendants which disposed of counts three and four of the amended complaint are AFFIRMED; whereas the summary dismissals of counts one and two are REVERSED, and the action REMANDED for further proceedings concerning those two causes of action as are consistent with this opinion. . The district court cast its ruling as an alternate dismissal of the complaint for failure to state a claim and/or summary judgment adverse to the plaintiffs. "Whether a district court has correctly dismissed a suit pursuant to Fed.R.Civ.P. 12(b)(6) [failure to state a claim] is a question of law, and therefore subject to de novo review. The district court must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. When an allegation is capable of more than one inference, it must be construed in the plaintiff's favor." Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995) (citations omitted). Although the complaint's allegations are construed liberally for the plaintiff, a complaint which does not contain allegations sufficient to support a claim under any legal theory must be dismissed. Id. A court is not bound to accept alleged legal conclusions or unwarranted factual inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Following adequate opportunities for discovery and upon adversarial motion, summary judgment under Fed.R.Civ.P. 56 must be entered against a plaintiff who has failed to produce evidence sufficient to support each element of his or her prima facie case. Celo-tex Corp. v. Catrett, 477 U.S. 317, 322-23 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Because sufficiency of the evidence is a question of law, a trial court’s grant of summary judgment, like a dismissal under Fed.R.Civ.P. 12(b)(6), is subject to plenary scrutiny. Painter v. Robertson, 185 F.3d 557, 566 (6th Cir.1999); Grider v. Abramson, 180 F.3d 739 , 756 n. 7 (6th Cir.), cert. denied,-U.S.-, 120 S.Ct. 528 ,-L.Ed.2d-(1999). . Section 1983 provides, in pertinent segment: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] In any action under section 1983, the plaintiff must prove that (1) he has been deprived of a right secured by the United States constitution or laws, (2) the defendants who allegedly caused that deprivation acted under color of state law, and (3) the deprivation occurred without due process of law. O’Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir.1994). . Birchwell testified that "it’s very easy to distinguish a pistol shot from a shotgun. A pistol shot is sort of like a firecracker,” while "a shotgun is a deep, low boom.” . On April 10, 1997, the district court dismissed all claims asserted against Chief Robert Kirchner in his individual capacity, but retained him as an official capacity defendant, which ruling is not before this appellate forum. An official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity which that agent represents. Kentucky v. Graham, 473 U.S. 159, 165 , 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985). Municipalities and counties are "persons” exposed to litigation under section 1983. Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir.), cert. denied, 522 U.S. 914 , 118 S.Ct. 298 , 139 L.Ed.2d 229 (1997). . Because the lower court’s analysis of counts one and two focused exclusively upon the sufficiency of the amended complaint's allegations, this review construes the trial court’s dismissal of those causes of action as a Rule 12(b)(6) dismissal for failure to state a claim. . This court emphasizes that, as to counts one and two of the amended complaint, it rules only that the plaintiffs have sufficiently alleged that they are seeking monetary compensation, as the co-administrators of the decedent's estate, for alleged constitutional torts personally suffered by Claybrook, which affords them standing as vindicators of Clay-brook’s individual federal rights to the extent that his tort claims survived, under Tennessee law, beyond his own death. See Jaco v. Bloechle, 739 F.2d 239, 241-45 (6th Cir.1984); Tenn.Code Ann. §§ 20-5-102 & 106 (1994 & Supp.1998). This reviewing forum expresses no opinion regarding the substantive merits of any claim asserted within counts one and/or two of the amended complaint. . Because consideration of the sufficiency of the record evidence is necessary to dispose of counts three and four, as developed below, this review construes the lower court's rejection of those causes of action as a summary adjudication. See Fed.R.Civ.P. 12(b) & 56. . For the reasons developed above, Royal Claybrook Jr. lacks standing under section 1983 to claim compensation for any indirect injuries allegedly caused to him by reason of any constitutional tort suffered by his spouse Quintana Claybrook, irrespective of the potential merits of Quintana’s personal claims. . The Fourteenth Amendment to the United States Constitution stipulates, in pertinent segment, that "No state shall ... deprive any person of life, liberty, or property, without due process of law[J" U.S. Const, amend. XIV, § 1. . The Fourth Amendment posits, in relevant portion, that "The right of the people to be secure in their persons ... against unreasonable ... seizures, shall not be violated[.]” U.S. Const, amend. IV. . As aptly observed by the Lewis Court: [T]he police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made in haste, under pressure, and frequently without the luxury of a second chance. County of Sacramento v. Lewis, 523 U.S. 833 , 118 S.Ct. 1708, 1720 , 140 L.Ed.2d 1043 (1998) (citations omitted). See also Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) ("police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the *360 amount of force that is necessary in a particular situation.”). . The plaintiffs' contention that the defendant officers wrongfully incited the violence which injured Quintana by entering the parking lot and driving towards the stationary gray vehicle was misconceived. See Lewis, 523 U.S. 833 , 118 S.Ct. at 1720-21 . As the Seventh Circuit has commented: Other than random attacks, all such cases [involving the use of force by criminal justice personnel] begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994). . The Radecki court explained: Deputy Barela had no time for deliberation. The undisputed facts in this record malte clear that Deputy Barela was confronted with the kind of instantaneous judgment call that is so often required of law enforcement personnel, prison officials, and many other government actors called to emergency situations. Sometimes these decisions are negligent, sometimes they are even reckless, sometimes indifferent. Under these circumstances, however, where Plaintiffs have not even alleged that Deputy Barela acted with an intent to harm the participants or to worsen their legal plight, under the Lewis standard there is no constitutional liability. Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998), ce rt. denied, - U.S. -, 119 S.Ct. 869 , 142 L.Ed.2d 771 (1999). 


[Concurrence in Part by Clay]

 CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in the majority’s decision to reverse the district court’s dismissal of Counts One and Two of the complaint; however, because I believe that the district court’s dismissal of Counts Three and Four should also be reversed, I respectfully dissent from the majority’s decision to affirm the dismissal of these counts. I disagree with the majority’s application of what it considers to be the appropriate standard under which the substantive due process claim of Quintana Claybrook (“Ms. Claybrook”), as set forth in Counts Three and Four, should be analyzed. The majority applies the “conscience shocking” standard used for situations involving instances when police officers are called to make “fast action[s]” such as when facing an ensuing prison riot or when in the throes of a high-speed chase. Under such circumstances, a much higher standard of fault, such as “ ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm,’ ” must be shown in order to hold a police officer liable. See County of Sacramento v. Lewis, 523 U.S. 833 , 118 S.Ct. 1708, 1720 , 140 L.Ed.2d 1043 (1998) (quoting Whitley v. Albers, 475 U.S. 312, 320 , 106 S.Ct. 1078 , 89 L.Ed.2d 251 (1986)). Because the record does not support the majority’s application of this standard, the less stringent standard of culpability—that which is considered “something more than negligence but less than intentional conduct, such as recklessness or gross negligence”—should be applied. See Lewis, 523 U.S. 833 , 118 S.Ct. at 1718 (internal quotation marks omitted). Under this standard, coined by the Supreme Court as “deliberate indifference,” a question of fact remains for trial as to whether the officers’ conduct regarding Ms. Claybrook rose to this level. In Lewis , the Supreme Court reviewed the range of conduct under which a substantive due process claim may arise under the Fourteenth Amendment. See 118 S.Ct. at 1717 . The Court began by reiterating the long-held standard that one may state a claim of deprivation of substantive due process by alleging conduct *362 “ ‘that shocks the conscience’ and violates the ‘decencies of civilized conduct.’” Id.. (quoting Rochin v. California, 342 U.S. 165, 172-73 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952)). However, the Court went on to recognize that the measure of “what is conscience-shocking is no calibrated yard stick,” and observed that “[rjules of due process are not ... subject to mechanical application [such that] [djeliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking.” Id. at 1717-1719. The Court emphasized that liability may lie for actions that amount to “deliberate indifference” where the officials involved enjoyed the luxury of “time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.” Lewis, 118 S.Ct. at 1720 . The Court explained as follows: When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. But when unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness, fails to inch close enough to harmful purpose to spark the shock that implicates “the large concerns of the governors and the governed.” Id. (quoting Daniels v. Williams, 474 U.S. 327, 332 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986)). When conducting an “exact analysis” of the facts of this case in the light most favorable to Ms. Claybrook, it is clear that the officers had sufficient time to make an unhurried judgment about their conduct upon seeing Mr. Claybrook with his weapon such that a lower level of fault should be applied. As the officers testified, they were aware of department rules requiring them to radio for a marked car and uniformed officers, and they made a conscious decision to request such support. The officers were also aware that the department rules mandated that they refrain from investigating the situation unless emergency circumstances arose. Significantly, at the point when they discovered Mr. Claybrook standing outside with this gun, Officer Birchwell testified that he did not believe that the officers were in imminent danger or that exigent circumstances requiring the use of force existed. However, after having made a decision to request backup, the officers inexplicably proceeded to engage Mr. Claybrook in a violent confrontation without awaiting the arrival of the uniformed officers. Contrary to the majority’s assertion, the officers here were hardly involved in a high-speed pursuit or any high-pressure confrontation at the time that they decided to act, as were the officers in Lewis. See 118 S.Ct. at 1720-21 . As such, Ms. daybook’s claims should be analyzed using the “deliberate indifference” standard; which is to say, her claim should be viewed in the context of whether the officers had time to make a reasoned judgment about their conduct. Id.; see Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365 , 373 (9th Cir.1998) (recognizing that the critical question when applying the appropriate standard of culpability under Lewis is “whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct”). When viewing the officers’ actions under this standard, questions of fact remain for the jury to decide with respect to whether the officers’ conduct violated. Ms. Clay-brook’s substantive due process rights. For example, questions of fact exist as to whether the officers observed Ms. Clay-brook enter the car or reasonably should have known that Ms. Claybrook was in the car, in that if the officers passed by the market at the time they claimed, a reasonable person could believe that they observed Ms. Claybrook leaving the market and entering the car. Furthermore, a question of fact exists as to whether the *363 officers should have provoked the confrontation with Mr. Claybrook before the uniformed back-up officers arrived, and whether they should have identified themselves as police officers when Mr. Clay-brook refused to throw down his gun, as opposed to firing at him. Indeed, the officers testified that they attempted to pull out their badges only “during the gunfire,” or after the gunfire had already begun. Notably, there were no emergency circumstances present so as to require the officers to begin shooting without following protocol and without making a reasoned decision as to whether the vehicle was occupied. Accordingly, under these circumstances, a jury should decide whether the officers acted with deliberate indifference to Ms. Claybrook’s rights. See Lewis, 118 S.Ct. at 1719 (noting the instances of “deliberate indifference” could be found in the context of pretrial custody where “forethought about an inmate’s welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare”); see also Stemler v. City of Florence, 126 F.3d 856, 868 (6th Cir.1997) (suggesting that under substantive. due process, “ ‘a duty to protect can arise in a noncustodial setting if the state does anything to render an individual more vulnerable to danger’ ”) (quoting Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir.1994)). Reasonable minds surely could differ as to whether the plainclothes officers’ decision to open fire on Mr. Clay-brook at nine o’clock in the evening outside of a market in an area where patrons of the store could have been seated in their vehicles, when the officers admitted that they did not feel that they were in imminent danger, rose to the level of deliberate indifference to Ms. Claybrook’s rights. Indeed, a reasonable person could conclude that officers who open fire on a public street at nine o’clock in the evening when they are in no imminent danger have every reason to believe that they may recklessly injure members of the public. Under the facts presented by this case, Ms. Claybrook should not be deprived of her right to trial on the question of whether the circumstances of the shooting violated her substantive due process rights. Accordingly, I would reverse the district court’s dismissal of Ms. Claybrook’s claim against the officers for violation of her substantive due process rights as set forth in Counts Three and Four of the complaint. I would also reinstate the supplemental state law claims.