CA10: QI applies to suit by driver and his child in car over police shooting driver

Several officers attempted to stop plaintiff at 3:50 am, and he finally stopped. One officer got in front of the car with a shotgun, and the car moved forward. That officer fired two shots from a shotgun at the driver, severely wounding him. Based on all that happened up to that point, particularly the refusal to stop, the court can’t say that this shooting violated clearly established law and qualified immunity applies. The same to getting him out of the car. Plaintiff’s child was in the car right behind him when the shooting occurred. The child’s claim is also barred by qualified immunity. Carabajal v. City of Cheyenne, 2017 U.S. App. LEXIS 2084 (10th Cir. Feb. 6, 2017):

In Childress v. City of Arapaho, this court held that two hostages who were passengers in a vehicle being pursued by the police were not seized when police fired shots at the vehicle, inadvertently wounding the hostages. 210 F.3d 1154, 1156-57 (10th Cir. 2000). Plaintiffs maintain that Childress is distinguishable because it involved the police attempting to deliver hostages from a dangerous situation. However, we need not address whether our holding in Childress extends to passengers like V.M.C.

We may affirm the district court’s judgment as to this claim on any ground supported by record. GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 882 (10th Cir. 2005) (citing Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003)). Plaintiffs are not pursuing a municipal liability claim based on any seizure of V.M.C. Aplt. Reply Br. at 7 n.7. As to the individual liability of Officer Thornton, we note that he raised the defense of qualified immunity in his answer, ECF 38 at 19, and pursued it by motion after this claim was dismissed. 1 Aplt. App. 125-32. We conclude that, even if Plaintiffs pled a plausible unreasonable seizure claim as to V.M.C., Officer Thornton would be entitled to qualified immunity. This is so because Plaintiffs cannot demonstrate that the law was clearly established that a seizure of V.M.C. occurred in these circumstances. See Pearson, 555 U.S. at 232 (discussing the requirements for qualified immunity).

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