42 USC § 1983 action alleging an excessive force claim under the Fourth Amendment; “Unintended-target” shooting; Whether plaintiff was “seized” when defendant-police officer shot her while shooting at a suspect; Torres v Madrid; “Objective intent”; Qualified immunity; Whether defendant’s conduct violated a “clearly established” constitutional right

The court held that “when an officer intentionally shoots their firearm in circumstances that objectively manifest an intent to restrain, any individual struck by the bullet is” seized, even if he or she was not the “specific intended target.” But because “this law was not clearly established at the time of” plaintiff-Kilnapp’s shooting, defendant-officer (Gannon) was entitled to qualified immunity on her Fourth Amendment claim. Gannon and Kilnapp were both officers and were partners. Gannon shot Kilnapp when firing his weapon in the direction of a suspect. Kilnapp sued him, alleging excessive force in violation of her Fourth Amendment rights. The district court denied Gannon’s motion for summary judgment based on qualified immunity. On appeal, the court first addressed whether it was bound by the “law of the case” doctrine where a prior panel had upheld the district court’s earlier denial of Gannon’s motion to dismiss. Because determining whether the doctrine was appropriate here required “an examination of the merits, we forgo the former and proceed to the latter.” The court explained that the overriding issue here was “whether Kilnapp was seized within the meaning of the Fourth Amendment when she was struck by the bullet Gannon fired.” In Torres, the Supreme Court held that when “an officer intentionally shoots their firearm in circumstances that objectively manifest an intent to restrain, any individual struck by the bullet is thereby seized, regardless of whether that individual was the officer’s specific intended target.” Under the “objective intent standard,” the court concluded that “because Gannon intentionally (not accidentally) fired his weapon in circumstances that objectively manifested an intent to restrain, Kilnapp was seized when that bullet struck her.” However, because Torres was decided in 2021 and Kilnapp was shot in 2020, she could not “prevail on the clearly established law prong of qualified immunity.” Vacated and remanded “with instructions to grant Gannon’s summary-judgment motion as to the Fourth Amendment claim” and to address Kilnapp’s Fourteenth Amendment claim.