Kilnapp v. City of Cleveland, 2026 WL 457597 (6th Cir. 2026)
Early morning, a dark boarding house in Cleveland, Ohio. A report of an armed man who had already fired a shot inside the building. Two officers, Gannon and Kilnapp, enter with guns drawn. Gannon goes first up the narrow staircase. No lights on inside except what they carry. No verbal identification as police. The suspect is reported to be in a bathroom upstairs.
Gannon opens the bathroom door. What happens next is disputed. What is not disputed is that Gannon fired two shots. The first shot is intentional. That round hits Officer Kilnapp. The bullet enters her forearm, exits upward, strikes her bicep, travels into her armpit, and lodges in her back.
Kilnapp sues. In court, the legal question becomes one most officers never think about in the moment: If you intentionally fire at a suspect, but your round hits someone else, have you “seized” that person under the Fourth Amendment?
The 6th Circuit said yes — under current law. But the officer still gets qualified immunity. Why does that matter to you on the street?
If an officer intentionally fires their weapon to stop someone and the bullet strikes a person, that person has been seized — even if they were not the intended target.
Officers Kilnapp and Gannon responded to a report that Darryl Borden had shot through the floorboards inside a Cleveland boarding house. The building was completely dark. Officer Kilnapp had a weapon-mounted light. Officer Gannon carried a flashlight in one hand and his firearm in the other.
Gannon went first up a two-flight staircase with a landing in between. Kilnapp followed. They did not announce “Police.” A woman downstairs yelled that Borden was in the bathroom “behind” them. Gannon turned into a narrow hallway and opened the bathroom door. From here, the stories split.
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Gannon said Borden was standing with arms extended, pointing a gun at him. Gannon said he retreated quickly, yelled “Get back,” and gunfire followed. But in deposition, Gannon admitted he did not see Borden fire. Gannon could not recall exactly where he was when he fired. He admitted he could not see Borden when he pulled the trigger. From the stairs or landing, you could not see into the bathroom.
Gannon fired two shots while retreating. The first was intentional — meant to stop the threat. That first round struck Kilnapp as she ran behind him down the stairs. According to Gannon, the second shot was unintentional, fired in the suspect’s direction while the officer retreated.
The Supreme Court, in Torres v. Madrid, held when an officer intentionally applies physical force with intent to restrain, that is a seizure, even if the person does not submit. The 6th Circuit extended that logic in this case. If an officer intentionally fires their weapon to stop someone and the bullet strikes a person, that person has been seized — even if they were not the intended target. The Constitution looks at intent to restrain, not intent to hit a particular body.
From a street perspective, that’s important. If you squeeze the trigger deliberately to stop a threat, anyone struck by that round may be considered seized for Fourth Amendment purposes. It does not matter that you meant to hit someone else.
Nonetheless, Officer Gannon was still entitled to qualified immunity, and here’s why: The shooting happened in July 2020. The Supreme Court didn’t clarify this seizure rule in Torres until 2021. At the time of the shooting, there was no clearly established law saying an unintended person struck by an intentional shot was seized under the Fourth Amendment.
Qualified immunity asks one question: Would every reasonable officer at that time have known this violated clearly established law? The 6th Circuit said “no” on what Officer Gannon did. So even though, under today’s doctrine, Kilnapp would be considered seized, the officer gets qualified immunity because the law was not settled when the incident occurred.
Doctrine moves. What is unsettled today may be settled tomorrow. Timing saved the Fourth Amendment claim for Gannon.
Here are some practical takeaways for officers:
- Trigger intent matters legally. If you intentionally fire to stop a threat, courts will treat that as an intentional application of force designed to restrain. It does not matter who the round ultimately hits. That has constitutional consequences.
- Identification and positioning matter more than you might think. This case involved a dark building, a narrow stairwell, no verbal police identification, and a retreating officer firing without being able to see his target. From a tactical standpoint, those are high-risk ingredients. From a litigation standpoint, they become focal points. Courts examine visibility, line of sight, positioning, and whether you could actually see the threat when you fired. If you cannot see the suspect when you shoot, that fact will matter later.
- Friendly fire is not legally invisible. Officers may assume accidental injury to another officer is purely an internal discipline matter. Not necessarily. If the round was intentionally fired, courts will analyze it under constitutional force principles. An intentional trigger press prompts a constitutional force analysis.
This case is not about bad faith. It is about sequence and legal evolution. An intentional shot aimed at a suspect struck a fellow officer. Under current law, that constitutes a seizure. But because the law was not clearly established at the time, qualified immunity applied. On the street, everything happens fast — dark hallway, shouted warning, stairwell retreat. In court, everything slows down.
The Constitution cares about intent, visibility, and timing. Qualified immunity cares about what the law required that night — not what it requires today.
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