24-2126 Tennyson v. Francemone
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of November, two thousand twenty-five.
PRESENT:
SUSAN L. CARNEY, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________
EVELYN TENNYSON,
Plaintiff-Appellant,
v. No. 24-2126
KELSEY FRANCEMONE,
Defendant-Appellee, THE CITY OF SYRACUSE, KENTON BUCKNER, a.k.a. FRANK FOWLER, in his official capacity as Syracuse Police Chief,
Defendants. *
_____________________________________
For Plaintiff-Appellant: FRED LICHTMACHER, The Law Office of Fred Lichtmacher PC, New York, NY.
For Defendant-Appellee: JOHN G. POWERS (Mary L. D’Agostino, Ryan M. Poplawski, on the brief), Hancock Estabrook, LLP, Syracuse, NY; Todd M. Long, Office of the Corporation Counsel, for the City of Syracuse, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Brenda K. Sannes, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the July 12, 2024 judgment of the district court
is AFFIRMED.
Evelyn Tennyson appeals from the district court’s grant of summary
judgment in favor of Defendant Kelsey Francemone, a Syracuse police officer who
allegedly shot and injured Tennyson during a shootout with third parties in 2016.
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
2 We assume the parties’ familiarity with the underlying facts, procedural history,
and issues on appeal.
We review de novo a district court’s grant of summary judgment. Windward
Bora, LLC v. Wilmington Sav. Fund Soc’y, FSB, 982 F.3d 139, 141 (2d Cir. 2020).
“Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.’” Galloway v. County of Nassau, 141 F.4th 417, 422–23 (2d Cir. 2025)
(quoting Fed. R. Civ. P. 56(a)). In determining whether a party is entitled to
summary judgment, we “constru[e] the evidence in the light most favorable to the
non-movant.” Alberty v. Hunter, 144 F.4th 408, 414 (2d Cir. 2025) (internal
quotation marks omitted).
Tennyson claims that Francemone violated her right to substantive due
process under the Fourteenth Amendment when she “reckless[ly] and
indiscriminate[ly] discharge[d] her firearm into a crowded parking lot without
warning” during a gunfight that erupted at a crowded outdoor party. Appellant
Br. at 1. Even assuming that the shot that wounded Tennyson was fired by
Francemone – a fact that remains in dispute – we agree with the district court that
Tennyson’s Fourteenth Amendment claim fails as a matter of law.
3 The Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015),
“provides the appropriate standard for all excessive force claims brought under
the Fourteenth Amendment.” Edrei v. Maguire, 892 F.3d 525, 537 (2d Cir. 2018)
(emphasis added). The “central inquiry” is whether, on the record before us, “the
government action was rationally related to a legitimate government objective.”
Id. at 536. Force that is “deliberately used” by a government actor and that is
“objectively unreasonable” violates this standard. Kingsley, 576 U.S. at 396−97.
We have “long relied” on the four factors identified in Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973), to assess whether the government’s use of force was
objectively unreasonable. And as this Court explained in Edrei, “[t]he first three
factors identified in Glick . . . parallel the six non-exhaustive factors identified in
Kingsley.” 892 F.3d at 537. Those factors are “the need for force, the relationship
between the need and the degree of force used, and the extent of the injury.” Id.
All three of those factors support the district court’s grant of summary judgment
here.
First, in sharp contrast to the situation at issue in Edrei, which involved
“non-violent” demonstrators, id., the undisputed record here reflects that
Francemone responded to a “chaotic” scene in which gunmen fired
4 “approximately fifteen gunshots in rapid succession” in a crowded public area. J.
App’x at 1063–64, 1067 (internal quotation marks omitted). The situation faced
by Francemone presented a “need for force” that was far more compelling than
was the case in Edrei, where at most “someone may have thrown a glass bottle.”
Edrei, 892 F.3d at 537. Unlike the “victimless incident” in Edrei, where “[t]he most
significant problem confronting law enforcement appears to have been traffic
disruption caused by protesters walking in the street,” id., Tennyson concedes that
“gunfire erupted” at the party and “caus[ed] partygoers to flee the courtyard” en
masse, Appellant Br. at 2. We considered the traffic disruptions in Edrei to be “the
sort of public safety risk common to large public demonstrations,” and “not
necessarily an imminent threat warranting a significant use of force.” Edrei, 892
F.3d at 537. Here, by contrast, there was not just an “imminent threat,” but a live
one. Id. “Given ‘the severity of the security problem at issue,’” we agree that
Francemone was “justified in using nontrivial amounts of force” to restore order.
Frost v. N.Y. Police Dep’t, 980 F.3d 231, 256 (2020) (quoting Kingsley, 576 U.S. at 397).
Second, Francemone’s use of force was proportional to the threat confronted.
Again, this case is readily distinguishable from Edrei, where the police procured
and deployed a device specifically designed “to cause pain/hearing damage”
5 indiscriminately against “non-violent” crowds who at most were “blocking
traffic.” Edrei, 892 F.3d at 538. Here, Francemone fired five rounds in the
direction of active shooters, J. App’x at 1088, who posed an immediate threat to
the lives and safety of dozens of innocent bystanders. See Appellant Br. at 1–2
(describing how “gunfire erupted” at “a Father’s Day barbecue” with “more than
200 people gathered,” thus “causing partygoers to flee the courtyard”); id. at 8
(“Francemone encountered an ongoing gunfight involving multiple shooters,
which posed an imminent threat to public safety. . . .”). Even Tennyson’s own
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24-2126 Tennyson v. Francemone
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of November, two thousand twenty-five.
PRESENT:
SUSAN L. CARNEY, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________
EVELYN TENNYSON,
Plaintiff-Appellant,
v. No. 24-2126
KELSEY FRANCEMONE,
Defendant-Appellee, THE CITY OF SYRACUSE, KENTON BUCKNER, a.k.a. FRANK FOWLER, in his official capacity as Syracuse Police Chief,
Defendants. *
_____________________________________
For Plaintiff-Appellant: FRED LICHTMACHER, The Law Office of Fred Lichtmacher PC, New York, NY.
For Defendant-Appellee: JOHN G. POWERS (Mary L. D’Agostino, Ryan M. Poplawski, on the brief), Hancock Estabrook, LLP, Syracuse, NY; Todd M. Long, Office of the Corporation Counsel, for the City of Syracuse, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Brenda K. Sannes, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the July 12, 2024 judgment of the district court
is AFFIRMED.
Evelyn Tennyson appeals from the district court’s grant of summary
judgment in favor of Defendant Kelsey Francemone, a Syracuse police officer who
allegedly shot and injured Tennyson during a shootout with third parties in 2016.
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
2 We assume the parties’ familiarity with the underlying facts, procedural history,
and issues on appeal.
We review de novo a district court’s grant of summary judgment. Windward
Bora, LLC v. Wilmington Sav. Fund Soc’y, FSB, 982 F.3d 139, 141 (2d Cir. 2020).
“Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.’” Galloway v. County of Nassau, 141 F.4th 417, 422–23 (2d Cir. 2025)
(quoting Fed. R. Civ. P. 56(a)). In determining whether a party is entitled to
summary judgment, we “constru[e] the evidence in the light most favorable to the
non-movant.” Alberty v. Hunter, 144 F.4th 408, 414 (2d Cir. 2025) (internal
quotation marks omitted).
Tennyson claims that Francemone violated her right to substantive due
process under the Fourteenth Amendment when she “reckless[ly] and
indiscriminate[ly] discharge[d] her firearm into a crowded parking lot without
warning” during a gunfight that erupted at a crowded outdoor party. Appellant
Br. at 1. Even assuming that the shot that wounded Tennyson was fired by
Francemone – a fact that remains in dispute – we agree with the district court that
Tennyson’s Fourteenth Amendment claim fails as a matter of law.
3 The Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015),
“provides the appropriate standard for all excessive force claims brought under
the Fourteenth Amendment.” Edrei v. Maguire, 892 F.3d 525, 537 (2d Cir. 2018)
(emphasis added). The “central inquiry” is whether, on the record before us, “the
government action was rationally related to a legitimate government objective.”
Id. at 536. Force that is “deliberately used” by a government actor and that is
“objectively unreasonable” violates this standard. Kingsley, 576 U.S. at 396−97.
We have “long relied” on the four factors identified in Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973), to assess whether the government’s use of force was
objectively unreasonable. And as this Court explained in Edrei, “[t]he first three
factors identified in Glick . . . parallel the six non-exhaustive factors identified in
Kingsley.” 892 F.3d at 537. Those factors are “the need for force, the relationship
between the need and the degree of force used, and the extent of the injury.” Id.
All three of those factors support the district court’s grant of summary judgment
here.
First, in sharp contrast to the situation at issue in Edrei, which involved
“non-violent” demonstrators, id., the undisputed record here reflects that
Francemone responded to a “chaotic” scene in which gunmen fired
4 “approximately fifteen gunshots in rapid succession” in a crowded public area. J.
App’x at 1063–64, 1067 (internal quotation marks omitted). The situation faced
by Francemone presented a “need for force” that was far more compelling than
was the case in Edrei, where at most “someone may have thrown a glass bottle.”
Edrei, 892 F.3d at 537. Unlike the “victimless incident” in Edrei, where “[t]he most
significant problem confronting law enforcement appears to have been traffic
disruption caused by protesters walking in the street,” id., Tennyson concedes that
“gunfire erupted” at the party and “caus[ed] partygoers to flee the courtyard” en
masse, Appellant Br. at 2. We considered the traffic disruptions in Edrei to be “the
sort of public safety risk common to large public demonstrations,” and “not
necessarily an imminent threat warranting a significant use of force.” Edrei, 892
F.3d at 537. Here, by contrast, there was not just an “imminent threat,” but a live
one. Id. “Given ‘the severity of the security problem at issue,’” we agree that
Francemone was “justified in using nontrivial amounts of force” to restore order.
Frost v. N.Y. Police Dep’t, 980 F.3d 231, 256 (2020) (quoting Kingsley, 576 U.S. at 397).
Second, Francemone’s use of force was proportional to the threat confronted.
Again, this case is readily distinguishable from Edrei, where the police procured
and deployed a device specifically designed “to cause pain/hearing damage”
5 indiscriminately against “non-violent” crowds who at most were “blocking
traffic.” Edrei, 892 F.3d at 538. Here, Francemone fired five rounds in the
direction of active shooters, J. App’x at 1088, who posed an immediate threat to
the lives and safety of dozens of innocent bystanders. See Appellant Br. at 1–2
(describing how “gunfire erupted” at “a Father’s Day barbecue” with “more than
200 people gathered,” thus “causing partygoers to flee the courtyard”); id. at 8
(“Francemone encountered an ongoing gunfight involving multiple shooters,
which posed an imminent threat to public safety. . . .”). Even Tennyson’s own
crime-scene reconstruction expert concluded that Francemone was “directing her
fire at locations where there were individuals discharging their firearms.” J.
App’x at 546; see also id. at 1066 (“The parties agree that Defendant discharged five
rounds from her firearm in the direction of the individuals firing weapons next to the
black sedan.” (emphasis added and internal quotation marks omitted)). This
establishes that upon her initial approach to the shooters’ location, Francemone
“tried to ‘temper or to limit the amount of force’” she employed to combat the
threat she (and the public at large) faced. See Edrei, 892 F.3d at 538 (quoting
Kingsley, 576 U.S. at 397).
6 Finally, the extent of the injury sustained by Tennyson supports the
conclusion that Francemone’s conduct was not objectively unreasonable.
Although we do not mean to denigrate the seriousness of Tennyson’s wound, her
injury was sustained during a chaotic gunfight initiated by third parties. Even
assuming that Francemone fired the shot that struck Tennyson – which, again, is
a disputed fact – there can be no doubt that Tennyson and other innocent
bystanders might have been killed if Francemone had not confronted the shooters
as she did.
In assessing Tennyson’s Fourteenth Amendment claim we are mindful that
“[a] court (judge or jury) cannot apply th[e] [Fourteenth Amendment objective
reasonableness] standard mechanically.” Kingsley, 576 U.S. at 397. It instead
must consider the totality of the circumstances confronted by the police officer,
“including what the officer knew at the time, [without] the 20/20 vision of
hindsight,” as well as her duty to maintain public order. Id. Here, Francemone
was dispatched to respond to a noise complaint, and encountered unexpected
gunfire within minutes of arriving to the scene, while still awaiting backup. J.
App’x at 1064. She ran towards the shooters’ location just nineteen seconds after
the gunfire caused a “sea of people [to] run[] in the opposite direction.” Id. at
7 846–47. The undisputed record shows that she then encountered “two different
shooters on either side of the black” sedan where Tennyson also stood, and that
“at least three different shooters – other than Officer Francemone – [were] in the
vicinity.” Id. at 848. “Pulling these threads together,” we conclude that
Francemone’s decision to fire five shots in the shooters’ direction upon her initial
approach to their location was “rationally related to a legitimate governmental
objective.” Edrei, 892 F.3d at 535, 538 (quoting Kingsley, 576 U.S. at 398). We
therefore affirm the district court’s grant of summary judgment in favor of
Francemone on Tennyson’s Fourteenth Amendment claim.
* * *
We have considered Tennyson’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court