Excessive force claim under 42 USC § 1983: Fourth Amendment “seizure”; Torres v Madrid; Qualified immunity; Whether each defendant “seized” plaintiff; Reasonableness of the use of force; Graham v Connor; Probable cause to believe plaintiff posed an immediate threat; State-law claims; Whether defendants were entitled to “official immunity” under Michigan law; “Good faith”

[This appeal was from the ED-MI.] The court held that defendant-Thompson was entitled to qualified immunity on plaintiff-Ward’s excessive force claim because he did not seize Ward by acquiring control over him and his “shots did not contribute to Ward’s ‘immediate restraint’ in any way because he continued to run out the door afterward.” As to defendant-Brotzke, he was entitled to qualified immunity because his use of force was reasonable. The court also held that Ward’s state law claims failed because both officers were entitled to official immunity under Michigan law. When conducting a “sweep” at a convenience store, an officer noticed a gun handle protruding from Ward’s pocket. Ward admitted that he had no license for a concealed pistol and ran. “Seeing that Ward was armed, Thompson yelled” a warning and fired twice. His shots missed. Brozke fired four times at Ward as Ward ran toward and out the door. Ward was hit four times and required hospitalization and surgery. He sued for excessive force under federal and state law. The district court granted the officers summary judgment based on qualified immunity. On appeal, the court noted that the Supreme Court clarified in Torres that “there are two types of seizures under the Fourth Amendment: ‘(1) use of force with the intent to restrain; or (2) show of authority with acquisition of control.’” The court concluded that some of its “prior cases are no longer good law to the extent that they hold that an officer can seize a suspect even if the officer [] (1) had no physical contact with a suspect personally or from a weapon, and (2) failed to prevent the suspect from further movement.” Here, Ward’s excessive force claim against Thompson failed because Thompson did not seize him. As to whether Brotzke’s use of force was reasonable, the court applied the Graham factors. It was “undisputed that Ward resisted arrest and attempted to flee. As to the severity of the crime, carrying a gun without a permit is a felony in Michigan.” And the court concluded that “Brotzke had probable cause to believe Ward posed an immediate threat.” He testified that he did not see Ward had dropped the gun and he did not know who had fired the two shots he heard. A video showed “Ward dropped the weapon less than a second before Brotzke began firing.” Further, it was not unreasonable “to think that Ward was the shooter and posed a threat to the officers or others[.]” Thus, the court held that Brotzke was also properly granted qualified immunity. As to Ward’s Michigan law claims, the court held that defendants “reasonably believed they properly used deadly force.” Affirmed.