Matthew Cavedon
Cleveland police officers Bailey Gannon and Jennifer Kilnapp responded to a 911 report of a disturbed man with a firearm. Entering a boarding house, they were told by the caller that the man was in a bathroom on the second floor. Gannon opened the bathroom door and, upon seeing the man, fled and blindly fired. One of Gannon’s shots tore through Kilnapp’s arm and lodged in her back, causing lasting physical and psychological damage that ended her police career.
Kilnapp sued Gannon, alleging excessive force. The district court denied Gannon’s motion for judgment on the pleadings based on qualified immunity and a Sixth Circuit panel affirmed. However, a later Sixth Circuit panel vacated and remanded the district court’s denial of summary judgment to Gannon based on qualified immunity. The court held that Gannon seized Kilnapp when he “fired his weapon in circumstances that objectively manifested an intent to restrain” the man in the bathroom. However, the court described this holding as only “largely established” by Supreme Court decisions from 1989 and 2007—but not “crystallized” until a 2021 decision issued after Gannon shot Kilnapp. The court thus held that Gannon was entitled to qualified immunity.
Cato filed an amicus brief asking the Supreme Court to review and reverse this decision. A legal principle can always be “crystallized” further—but the law was clearly established that shooting someone other than the target is a seizure. The mere contingency of a later decision recognizing that a plaintiff like Kilnapp could seek relief did not make Gannon’s decision to blindly open fire reasonable.
