Campos v. Van Ness et al
Filing
144
Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER"In view of the foregoing, it is hereby ORDERED that judgment shall enter for the defendant Christopher Van Ness on plaintiff Camila Campos' claims on behalf of the Estate of Andre Martins and on her own behalf."(Hohler, Daniel)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CAMILA M. CAMPOS,
Individually, and as
Administratrix of the Estate
of Andre Martins,
Plaintiff,
v.
CHRISTOPHER VAN NESS and
the TOWN OF YARMOUTH,
Defendants.
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C.A. No. 09-11852-MLW
MEMORANDUM AND ORDER
WOLF, D.J.
I.
September 29, 2014
INTRODUCTION
On July 28, 2008, following a high-speed vehicular chase
through a residential neighborhood, Yarmouth, Massachusetts police
officer
Christopher
Van
Ness
shot
and
killed
Andre
Martins.
Martins' girlfriend, Camila Campos, who was also a passenger in
Martins' car, brought a Fourth Amendment excessive force claim
against
Van
Ness
in
both
her
individual
capacity
and
as
administratrix of Martins' estate.
On May 19, 2014, following seven days of trial and three days
of deliberations, the jury was unable to reach a unanimous verdict
on either claim.
However, the jury did make unanimous findings on
two of the three factual questions presented to it.
The court
declared a mistrial, directed entry of the factual findings, and
ordered the parties to brief the issue of qualified immunity in
light of the jury's factual findings.
A hearing on that issue was
held on June 20, 2014.
For the reasons explained below, the court finds that Van Ness
is entitled to judgment as a matter of law with respect to the
claims by Campos individually and on behalf of Martins because he
is shielded by qualified immunity as to both.
Therefore, judgment
is being entered for the defendant.
II.
PROCEDURAL HISTORY
A.
Pre-Trial Proceedings
On October 30, 2009, Campos filed suit, seeking relief under
42 U.S.C. §1983, against Van Ness and the Town of Yarmouth.
Asserting claims individually and in her capacity as administratrix
of Martins' estate, Campos alleged that Van Ness had violated
Martins' Fourth Amendment rights and her own by using excessive
force to terminate a police chase, resulting in Martins' death.
On January 5, 2012, Judge Edward F. Harrington denied the
defendants' motion for summary judgment without an opinion.
The
defendants appealed. On April 1, 2013, the First Circuit dismissed
the appeal for lack of jurisdiction.
F.3d 243, 248 (1st Cir. 2013).
See Campos v. Van Ness, 711
Despite the existence of factual
disagreements concerning whether the car was moving when Van Ness
fired the first shot, the defendants claimed that an interlocutory
appeal was appropriate because "[Campos'] account 'is so blatantly
contradicted by the record . . . '" that it should not be credited.
2
Id. at 245 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
As
the First Circuit summarized this argument:
While defendants-appellants dispute several aspects of
Campos's story, they are primarily asking us to set aside
two claims she has made that are relevant to the issue of
qualified immunity: (1) that Martins's car was not moving
when Van Ness fired the fatal shot; and (2) that the car
began moving only after that point and did not move near
Van Ness.
Her testimony on those two points, in
defendants-appellant's view, contradicts the opinions of
her own accident reconstruction and ballistics experts.
Id. at 246-47.
The
accident
First
Circuit,
reconstruction
necessarily
discredited
reconstruction
report
however,
report
Campos'
"does
not
explained
nor
the
that
ballistics
account.
establish
neither
The
when,
the
report
accident
within
th[e]
movement sequence [of Martins's car], Van Ness fired," and the
ballistics report "seems to have assumed the truth of Van Ness's
account."
Id. at 247.
The First Circuit explained that "[w]e are
therefore a long way from the videotape in Scott that captured the
car chase in question and 'quite clearly contradict[ed]' the
plaintiff's account." Id. (alteration in original) (quoting Scott,
550 U.S. at 378).
The First Circuit concluded:
In short, defendants-appellants have not convinced us
that Campos's story is so "blatantly contradicted by the
record . . . that no reasonable jury could believe it."
Scott, 550 U.S. at 380. Nor have they attempted, in the
alternative, to accept all of Campos's facts and
inferences as true and "argue that even on [Campos's]
best case, they are entitled to immunity." Mlodzinski
[v. Lewis], 648 F.3d 24, 28 (1st Cir. 2011).
We
therefore dismiss the appeal for lack of jurisdiction.
See id.
3
Campos, 711 F.3d at 248 (footnote omitted).
Because the dismissal
was based on lack of jurisdiction, the First Circuit did not decide
the question of whether, even if the plaintiff's account had been
discredited, the defendants would be entitled to summary judgment.
In anticipation of Judge Harrington's retirement, the case was
reassigned to this court on October 8, 2013.
The court held
pretrial conferences on February 27, 2014 and April 22, 2014.
The
parties agreed to the dismissal of Campos' Massachusetts Civil
Rights Act claim (Count II) and municipal liability claim (Count
III),
eliminating
the
Town
of
Yarmouth
as
a
defendant
and
restricting the legal issues to the Fourth Amendment claims.
See
Apr. 23, 2014 Order; Stipulation of Dismissal with Prejudice.
B.
The May 2014 Trial
At trial, the jury heard testimony from witnesses called by
the plaintiff: (1) Campos; (2) Van Ness; (3) Officer Christopher A.
Kent; (4) Officer Kevin Leon Antonovich; (5) Officer Neal Donohue;
(6) and Officer Erica Wenberg. The plaintiff also read to the jury
the deposition testimony of Dr. Henry M. Nields, the medical
examiner who examined Martins' body after the shooting.
In
addition, the plaintiff proffered expert testimony from George
Kirkham on whether Van Ness' actions were objectively reasonable.
However, after a voir dire, the court excluded Kirkham's proposed
testimony.
See May 13 Tr. 72-75.
stipulations to the jury.
The plaintiff read certain
See May 14 Tr. 51:4-17.
4
She did not
call Dr. Zhukov, her accident reconstruction expert, and the court
excluded Zhukov's report.
See May 12 Tr. 81-82.
On May 14, 2014, after the plaintiff rested, the defendant
moved for judgment as a matter of law, pursuant to Federal Rule of
Civil Procedure 50(a).
See May 14 Tr. 52.
The defendant argued
that because no reasonable trier of fact could find that Van Ness
shot at Martins' car when the car was not moving, judgment should
enter in favor of Van Ness either on the Fourth Amendment claim or
based
on
qualified
immunity.
The
court
denied
the
motion,
concluding that the jury could reasonably credit Campos' testimony
that the car was not moving when Martins was shot, and that even if
the car were moving, the constitutional issue would not necessarily
be resolved.
See May 14 Tr. 53-54.
The defense then presented two witnesses: (1) State Trooper
Paul Chastenay, who worked on accident reconstruction; and (2)
Officer Melissa Alden.
The defendant also read into evidence
excerpts from the deposition of Theodosios Sperounis, who was a
witness to part of the incident.
See May 14 Tr. 101.
During its deliberations, the jury asked several questions,
and eventually indicated that it might not be able to reach a
unanimous verdict on either claim.
Following three days of
deliberations, the jury reported that it was at an irresolvable
impasse regarding the ultimate questions in the case.
5
See May 19
Tr. 28.
However, the jury was able to unanimously decide two of
the three factual questions they were asked to resolve:
!
1(b)(i): "Did Officer Van Ness shoot Mr. Martins before
Mr. Martins' car began moving?" No.
!
1(b)(iii): "Was Mr. Martins' car moving, but not at
Officer Van Ness, when Officer Van Ness shot him?" Yes.
See id. 29:1-9.
The jury was not able to unanimously decide
Question 1(b)(ii): "Was Mr. Martins' car moving at Officer Van Ness
before Officer Van Ness shot him?"
See id. 29:13-15.
On May 19, 2014, the court declared a mistrial on all claims
and directed the Clerk to enter the jury's two factual findings.
See id. 29.
C.
Post-Trial Orders
After declaring the mistrial, the court ordered the parties to
brief the qualified immunity issues concerning Martins and Campos
separately, and to address the implications of Brosseau v. Haugen,
543 U.S. 194 (2004).
A hearing on the issue of qualified immunity
was held on June 20, 2014.
III. STANDARD OF REVIEW
The defendant did not file a renewed motion for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(b)
following the declaration of a mistrial.
See González Pérez v.
Gómez Aguila, 312 F. Supp. 2d 161, 164 (D.P.R. 2004) (Rule 50
motion is permissible after a mistrial).
However, the court
essentially preempted such a motion by ordering the parties to
6
brief the issue of qualified immunity.
Therefore, as the parties
agreed at the June 20, 2014 hearing, see June 20, 2014 Tr. 4, the
court is now applying the Rule 50 standard for judgment as a matter
of law.
The First Circuit has explained that:
When a qualified immunity defense is pressed after a jury
verdict, the evidence must be construed in the light most
hospitable to the party that prevailed at trial. One
difference [from a motion for summary judgment] is that,
in such an exercise, deference should be accorded to the
jury's discernible resolution of disputed factual issues.
Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999) (citations
omitted).
The First Circuit has not addressed the appropriate standard
of review when, as here, the jury returned only a partial verdict
and neither party prevailed at trial.
However, the First Circuit
has suggested that the post-trial qualified immunity analysis is
similar to that used to analyze a motion for summary judgment filed
before trial, see Iacobucci, 193 F.3d at 23, and has indicated that
in both postures it is appropriate to "construe the . . . evidence
in the light most favorable to the non-movant," Wilson v. City of
Boston, 421 F.3d 45, 53 (1st Cir. 2005).
This standard of review is also similar to that employed when
a party moves for judgment as a matter of law under Federal Rule of
Civil Procedure 50.1
Rule 50 provides that "[i]f a party has been
1
The plaintiff employed the Rule 50 standard in her brief:
"Campos addresses the issue as if Van Ness was seeking qualified
7
fully heard on an issue during a jury trial and the court finds
that
a
reasonable
jury
would
not
have
a
legally
sufficient
evidentiary basis to find for the party on that issue," the court
may "resolve the issue against the party."
Fed. R. Civ. P. 50(a).
Such a motion "may be filed even if a mistrial has been declared."
González Pérez, 312 F. Supp. 2d at 164 (citing DeMaine v. Bank One,
Akron, N.A., 904 F.2d 219, 220 (4th Cir. 1990)).
In evaluating such a motion:
The court considers "[a]ll of the evidence and reasonable
inferences drawn from the evidence . . . in the light
most favorable to the non-moving party," and may not
evaluate the credibility of the witnesses or the weight
of the evidence. Malone v. Lockheed Martin Corp., 610
F.3d 16, 20 (1st Cir. 2010) (alteration in original)
(quoting Espada v. Lugo, 312 F.3d 1, 2 (1st Cir.2002))
(internal quotation marks omitted).
However, "the
plaintiff is not entitled to inferences based on
speculation
and
conjecture."
Id.
(quoting
Vázquez–Valentín v. Santiago–Díaz, 385 F.3d 23, 30 (1st
Cir. 2004), rev'd on other grounds, 546 U.S. 1163 (2006))
(internal quotation marks omitted).
Cham v. Station Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2012).
Furthermore, the court "must disregard evidence supporting the
moving party unless it is both uncontradicted and unimpeached."
Muñoz v. Sociedad Española De Auxilio Mutuo y Beneficiencia De
Puerto Rico, 671 F.3d 49, 55 (1st Cir. 2012) (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)).
immunity by a Rule 50 motion for judgment as a matter of law
following a jury trial." Pl.'s Memo. at 4. In addition, the
defendant has explicitly stated that he is entitled to judgment
as a matter of law. See Def.'s Response to Pl.'s Memo. at 1.
8
IV.
FACTS
In finding the facts for present purposes, the court is
employing the Rule 50 standard and giving "deference . . . to the
jury's
discernible
resolution
of
disputed
factual
issues."
Iacobucci, 193 F.3d at 23. Therefore, the court accepts the jury's
factual determinations: (1) that Van Ness did not shoot Martins
before Martins' car began moving; and (2) that Martins' car was
moving, but not at Van Ness, when Van Ness shot him.
The facts are, for present purposes, as follows.
Relevant
factual disputes that were not resolved by the jury are noted.2
As the parties stipulated: (1) "This matter arises from an
incident which occurred on July 27, 2008 on Baxter Avenue in
Yarmouth, Massachusetts."
(2) "The defendant, Yarmouth Police
Officer Christopher Van Ness, was acting under color of law at all
times relevant to this lawsuit on July 27th, 2008."
Martins died on July 27, 2008 of a gunshot wound."
time of his death, Andre Martins was 25 years old."
(3) "Andre
(4) "At the
(5) "Camila M.
Campos and Andre Martins are the natural parents of LM. . . and DM
2
The factual account concerning the chase, prior to the
arrival on the lawn of 41 Baxter Avenue, is taken largely from
the plaintiff's direct examination of Van Ness. Although this
approach might seem to discount the testimony of Campos, the
facts section in the plaintiff's memorandum relies almost
entirely on Van Ness' testimony in response to questions from
Campos' counsel, and does not cite any of Campos' testimony. See
Pl.'s Memo. at 4-9. Therefore, with regard to certain matters,
Van Ness' testimony is not disputed and, to that extent, may be
accepted as true for present purposes. Muñoz, 671 F.3d at 55.
9
. . . .
LM . . . was five years old on July 27th, 2008;
. was two years old on July 27th, 2008."
DM . .
May 14 Tr. 51; see also
Stipulations.
At about 1:00 a.m. on Sunday, July 27, 2008, Martins was
driving his Lincoln Mark VIII south on Bay View Street in Yarmouth.
May 9 Tr. 92-93.
39.
Campos was in the passenger seat.
See May 8 Tr.
Campos and Martins had spent the evening together, and had
just left the parking lot of a bar called Pufferbellies.
See id.
39.
Van Ness, in his police cruiser, was parked next to Officer
Kent, in a pickup truck, in a parking lot facing north near Bay
View Street.
Van Ness and Kent were speaking with their drivers'
windows next to each other, with Van Ness' cruiser pointed north.
May
9
Tr.
93.
Van
Ness
"heard
the
sound
of
an
engine
accelerating," looked up towards Bay View, and soon saw Martins'
car come into view.
Id. 93.
Van Ness testified that the car made
a left turn "at a high rate of speed," id. 95, and also said that
the car traveled about 25 feet in a matter of two seconds, id. 97.
Campos, however, testified that Martins was not speeding when he
made the turn.
See May 8 Tr. 41.
This dispute is not material.
In any event, Van Ness began to pursue Martins. Van Ness lost
sight of Martins at first, but quickly relocated him when Martins
was about halfway down Park Avenue, for which the speed limit was
30 miles per hour.
Id. 100-02, 114.
10
Van Ness accelerated to catch
up with Martins.
Id. 103.
At a speed of 45-50 miles per hour, he
was able to close the gap with Martins to about 50 yards by the
time Martins approached the stop sign at the end of Park Avenue.
Id. 104-08, 111.
Van Ness activated his blue overhead lights as
Martins was approaching the stop sign.
Id. 105.
He turned on his
siren when Martins disregarded the stop sign and turned left on
Glenwood.
Id. 108.
At this point, Van Ness made a radio call, alerting dispatch
and other officers to the chase.
See May 12 Tr. 121.
included a recording of that call.
See Ex. 69.
The evidence
The recording
included a response from Officer Wenberg, who was stationed at the
intersection of Route 28 and Baxter Avenue, north of where the
chase would ultimately terminate.
See May 12 Tr. 122.
The
recording of the call, which ended after the shots were fired,
lasted about ninety seconds, indicating the rapid speed at which
the incident unfolded.
Van Ness testified that, after turning on to Glenwood, Martins
accelerated and "started to pull away" from Van Ness, who was by
then traveling 50-55 miles per hour.
May 9 Tr. 115.
After less
than a quarter of a mile, Glenwood turned into Harbor Road.
id.
See
Glenwood is a winding road that required Van Ness to slow down
to about 40-50 miles per hour, maintaining his distance from
Martins.
See id. 117.
11
A
Toyota
Corolla
was
stopped
at
a
stop
sign
at
the
intersection of Harbor Road and Baxter Avenue. Martins entered the
left lane, drove around the Corolla, disregarded the stop sign, and
turned left on Baxter Avenue, heading north towards Route 28.
See
id. 119. Van Ness also drove around the Corolla, and was traveling
about 15 miles per hour as he turned on to Baxter.
Id. 119.
He
testified that Martins accelerated rapidly on Baxter and was 150200 yards ahead of him.
Id. 122.
Campos testified that Martins
reached speeds of about 90 miles per hour on Baxter.
See May 8 Tr.
47. Van Ness testified that his cruiser accelerated to a maximum
speed of about 70 miles per hour.
See May 9 Tr. 120.
Looking north on Baxter, Van Ness saw Wenberg's cruiser
approaching from Route 28.
Wenberg testified that she could see
Martins' car "all over the road," May 13 Tr. 113, and that she "was
concerned that he was going to make it out on to Route 28 and
strike somebody that was walking [or] riding their bike," id. 114.
Van Ness testified that, at that time of night, traffic on Route 28
was typically "very busy . . . .
[T]he Cape being a resort area,
there's a lot of people that come down, and at that hour, bars are
getting out, restaurants, [and] people are heading back to the
motels, [or] their summer houses . . . ."
May 12 Tr. 100-01.
Campos did not present any evidence to contradict the testimony
that Route 28 was busy at that time of night.
12
As Wenberg drove south on Baxter Avenue, towards Martins and
Van Ness, she pulled her cruiser across the road at an angle, so
that it was blocking traffic from both directions, about 100 yards
north of 41 Baxter Avenue.
May 9 Tr. 125-26.
After seeing Wenberg's cruiser, Martins braked heavily, and
Van Ness closed the distance between the two cars.
With Van Ness
about fifteen feet behind, Martins took a left turn on to the lawn
of the house at 41 Baxter Avenue.
Id. 127.
What occurred on the lawn of 41 Baxter is the crux of the case
and was disputed at trial.
Again, except for the facts expressly
found by the jury, the following evidence is presented in the light
most favorable to the plaintiff and relevant factual disagreements
are noted.
As Martins attempted to make a U-turn on the lawn of 41
Baxter.
Van Ness also drove on to the grass.
While Martins'
Lincoln was facing the house, midway through the U-turn, Van Ness
rammed the driver's side rear quarter panel of the vehicle with his
push bar at about 10 miles per hour.
See id. 129.
The impact
caused the Lincoln to spin counterclockwise and come to rest facing
Baxter Avenue and slightly south.
cruiser
and
the
Lincoln
opposite directions.
were
Van Ness testified that the
essentially
"parallel,"
Id. 131; May 15 Tr. 10, 24, 20, 24.
facing
Martins'
car was about two feet from the leading edge of the cruiser, and
the left sides of the cars were about five feet apart.
13
See May 12
Tr. 19.
Van Ness drew a diagram of the relative location of the
vehicles, which was comparable to his testimony.
See Ex. P.
Van Ness got out of his cruiser, stood behind the door of the
cruiser, and pointed his service pistol at Martins. See May 12 Tr.
16.
For the first time, Van Ness was able to see that there was a
passenger in the car.
Id. 63.
While using the door for cover, Van
Ness ordered Martins to show his hands.
See id. 16.
Van Ness
repeated this order about three times in five or six seconds.
Id.
21.3
Van Ness testified that, after those five to six seconds in
which
Martins'
forward.
car
was
See id. 23.
stopped,
Martins
began
to
accelerate
Van Ness also testified that Martins was
"[j]ust coming straight at me." Id. 23. As explained earlier, the
jury did not unanimously find that the car was moving at Van Ness
before Van Ness shot Martins, see May 19 Tr. 29; rather it was
evidently divided on this issue.
Van Ness testified that the
vehicle was moving at about 8 miles per hour as it drove past him.
See May 12 Tr. 32:7-8.
Van Ness also testified that, although the front of Martins'
car passed by without contact, some part of the left side of the
vehicle "made contact with [him]."
3
Id. 27:5-8.
Van Ness stated
Although Campos did not testify to having heard Van Ness'
commands, she did not contradict Van Ness' testimony that he
issued those orders. She did testify that Van Ness had his gun
drawn and visible before firing at Martins. See May 7 Tr. 67.
14
that he was struck on the outside of his left leg, but that he was
not knocked off balance or injured.
See id. 29.
He did not report
any injury to anybody until later in the evening, when he spoke
with other officers and the president of the police union. See id.
68-69.
A photograph of the part of Van Ness' body allegedly hit,
taken shortly after the incident, did not reveal any bruising or
other sign of injury.
See id. 46-47, 49-50; Ex. 33.
For present
purposes, the court assumes that Van Ness was not struck by
Martins' vehicle.
As Martins drove by at about 8 miles per hour, with Van Ness
standing about three feet away, Van Ness fired into the car through
the open driver's side window.
See May 12 Tr. 31.
Van Ness
testified that he saw Martins "slouch to the right" when the first
shot was fired, but he did not then know that he had struck Martins
with the first shot.
Id. 55.
Van Ness now acknowledges that the
first shot struck and killed Martins.
See id.
As the Lincoln continued moving forward, Van Ness fired two
more shots.
Van Ness testified that he "thought [he] had fired
[his] weapon twice in total," id. 33, and that when he fired the
second shot, he "thought [Martins' car] was still right next to
[him.]
The shots were in quick succession," id. 34.
However, the
evidence showed locations of three shell casings, indicating that
Van Ness fired three shots, not two.
See id. 61.
The second shot
shattered the rear window of the Lincoln, see id. 34, while the
15
third shot grazed the top of the Lincoln's roof, back to front, see
id. 36.
The first two shell casings were on the lawn, near the
cruiser door, a few feet apart.
See id. 59; Ex. 14.
The third
shell casing was several feet away, on the edge of the lawn, see
Ex. 16, indicating that Van Ness had moved toward Baxter Avenue
when he fired the third shot.
The Lincoln came to a stop "40 or 50 feet" south on Baxter
Avenue, with its brake lights on.
Id. 62.
Van Ness approached the
Lincoln from the rear passenger side with his gun in the ready
position.
Id. 64.
complied.
See id. 62.
Campos emerged from the passenger door.
When Van Ness ordered her to show her hands, Campos
Id.
Although Van Ness handcuffed Campos, he told her
that she was not under arrest.
Id.
When he looked inside the
Lincoln, Van Ness saw Martins, who was "gurgling" and had a red
stain on his shirt.
Id. 65.
Soon after, Wenberg came to the
vehicle, followed by Officer Kent, who had driven north on Baxter
Avenue to get there. See id. 66. Wenberg administered first aid to
Martins.
See id. 57:9-10.
Van Ness remained on the scene for
about 10 minutes before he was driven to the police station.
See
id. 67-68.
Martins was transported to Cape Cod Hospital, where attempts
to revive him were unsuccessful, and he was pronounced dead at 1:50
a.m.
See Ex. 47.
As explained in the deposition of the medical
examiner, Dr. Nields, the autopsy indicated that the bullet from
16
the first shot entered the left side of Martins' back, see May 14
Tr. 37, perforated Martins' heart and lung, see id. 32, and exited
the left side of Martins' chest, see id. 43.
This indicated that
"there was a downward and left-to-right angle of travel of the
bullet."
V.
Id. 43.
ANALYSIS
A.
Qualified Immunity Standard
In order to decide whether qualified immunity will protect a
public official from liability, a court ordinarily will determine
"(1)
whether
a
public
official
has
violated
a
plaintiff's
constitutionally protected right; and (2) whether the particular
right that the official has violated was clearly established at the
time of the violation."
Cir. 2010).
Raiche v. Pietroski, 623 F.3d 30, 35 (1st
However, as the Supreme Court held in Pearson v.
Callahan, 555 U.S. 223, 236 (2009), a court may determine whether
an
officer
is
entitled
to
qualified
immunity
without
first
determining whether his or her actions violated the Constitution.
Answering the qualified immunity question first can avoid "a
substantial expenditure of scarce judicial resources on difficult
questions that have no effect on the outcome of the case," which is
"difficult to justify in cases where the constitutional questions
presented are heavily fact-bound, minimizing their precedential
value."
Maldonado v. Fonatanes, 568 F.3d 263, 269 (1st Cir. 2009)
(citing Pearson, 223 U.S. at 238)); see also Estrada v. Rhode
17
Island, 594 F.3d 56, 62 (1st Cir. 2010) (deciding qualified
immunity issue first to avoid fact-bound Fourth Amendment claims).
The court is, therefore, addressing qualified immunity first, which
makes
it
unnecessary
to
determine
whether
Van
Ness
violated
Martins' Fourth Amendment rights.
In its most recent case on excessive force claims under the
Fourth Amendment, the Supreme Court restated the familiar standard
for qualified immunity:
An official sued under §1983 is entitled to qualified
immunity unless it is shown that the official violated a
statutory or constitutional right that was "'clearly
established'" at the time of the challenged conduct.
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). And
a defendant cannot be said to have violated a clearly
established right unless the right's contours were
sufficiently definite that any reasonable official in the
defendant's shoes would have understood that he was
violating it. Id. at 2083-84. In other words, "existing
precedent
must
have
placed
the
statutory
or
constitutional question" confronted by the official
"beyond debate." Id. In addition, "[w]e have repeatedly
told courts . . . not to define clearly established law
at a high level of generality," id. at 2074, since doing
so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced.
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).
In evaluating
whether a right is "clearly established" for the purposes of a
given case, the court must decide whether there is "controlling
authority"
or
"a
robust
'consensus
of
cases
of
persuasive
authority.'" al-Kidd, 131 S. Ct. at 2084 (quoting Wilson v. Layne,
526 U.S. 603, 617 (1999)); see also Plumhoff, 134 S. Ct. at 2023.
18
In deciding cases concerning the use of deadly force against
a fleeing suspect, the Supreme Court has noted that "this area is
one in which the result depends very much on the facts of each
case."
Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam).
However, precise factual symmetry is not required to show that a
right is clearly established.
"[O]fficials can still be on notice
that their conduct violates established law even in novel factual
circumstances."
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
The doctrine of qualified immunity is also not restricted to
questions of established law.
As the First Circuit has explained:
While qualified immunity is often invoked in cases where
legal principles were unclear at the time of the disputed
conduct, it also protects reasonable assessments of fact,
Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009),
even if matters might have been handled differently in
the calm of retrospective appraisal, Roy v. Inhabitants
of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). The aim
of the doctrine in both cases is to avoid the chilling
effect of second-guessing where the officers, acting in
the heat of events, made a defensible (albeit imperfect)
judgment. See id.
Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010).
Therefore, the questions relating to qualified immunity are
whether Van Ness' conduct violated rights of Martins or Campos that
were "'clearly established' at the time of the challenged conduct,"
July 27, 2008, Plumhoff, 134 S. Ct. at 2023, and, if so, whether
the violation occurred because Van Ness was reasonably mistaken
about the facts, Statchen, 623 F.3d at 18.
19
B.
The Claim on Behalf of Andre Martins
Campos argues that "[a]s of July 27, 2008, it had long been
the law that it is constitutionally unreasonable to shoot at a
fleeing suspect [who] no longer poses a threat of serious physical
harm to the officer or others."
Pl.'s Memo. on Qualified Immunity
at 17-18 (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985);
Whitfield v. Melendez-Rivera, 431 F.3d 1, 7 (1st Cir. 2005)).
Campos also argues that "Van Ness would have had fair notice that
shooting Martins in the back when he did not pose an imminent
threat of serious physical harm to him was not constitutionally
sanctioned."
Id. at 17.
Furthermore, Campos contends that "there
was no bystander or other person whose physical safety could have
been immediately endangered by Martins' actions."
Id.
Van Ness, by contrast, argues that the plaintiff has not
demonstrated that Brosseau does not resolve the qualified immunity
question in his favor.
See Def.'s Memo. of Law on Qualified
Immunity at 11. The Supreme Court recently summarized its decision
in Brosseau as one in which "an officer on foot fired at a driver
who had just begun to flee and who had not yet driven his car in a
dangerous manner." Plumhoff, 134 S. Ct. at 2023. It characterized
Brousseau as a ruling that clarified that as of February 1999, "it
was not clearly established that it was unconstitutional to shoot
a fleeing driver to protect those whom his flight might endanger."
Id.
20
As explained below, Van Ness is not entitled to qualified
immunity with respect to Martins' claim based on his actions
allegedly taken to defend himself.
However, in view of the
precedent that existed in July 2008, Van Ness is entitled to
qualified immunity with respect to Martins' claim because of the
risk that Martins posed to others.
1.
Constitutional Standard
In Plumhoff, the Supreme Court recently wrote that:
A claim that law-enforcement officers used excessive
force to effect a seizure is governed by the Fourth
Amendment's "reasonableness" standard.
See Graham v.
Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471
U.S. 1 (1985). In Graham, we held that determining the
objective reasonableness of a particular seizure under
the Fourth Amendment "requires a careful balancing of the
nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing
governmental interests at stake." 490 U.S. at 396
(internal quotation marks omitted). The inquiry requires
analyzing the totality of the circumstances. See id.
We analyze this question from the perspective "of a
reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Id. We thus "allo[w] for
the fact that police officers are often forced to make
split-second judgments - in circumstances that are tense,
uncertain, and rapidly evolving - about the amount of
force that is necessary in a particular situation." Id.
at 396-97.
Plumhoff, 134 S. Ct. at 2020.
The test for excessive force is
objective, "without regard to [the officer's] underlying intent or
motivation.
An officer's evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of force;
nor
will
an
officer's
good
intentions
21
make
an
objectively
unreasonable use of force constitutional." Graham, 490 U.S. at 397
(citation omitted).
When an officer shoots a fleeing suspect, his conduct is
objectively reasonable when "the officer [using the force] has
probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or
others."
Garner, 471 U.S. at 3.
However, the Supreme Court has
cautioned against defining "clearly established" rights at this
level of generality.
See Plumhoff, 134 S. Ct. at 2023.
It has
explained that "Garner did not establish a magical on/off switch
that triggers rigid preconditions whenever an officer's actions
constitute 'deadly force,'" Scott, 550 U.S. at 382.
this
framework
is
appropriate
for
analyzing
Nevertheless,
the
potential
justifications for Van Ness' shooting of Martins in the unique
factual circumstances of this case.
2.
The Risk that Martins Posed to Van Ness
The evidence at trial focused primarily on whether Martins
posed an immediate risk of harm to Van Ness, and consequently
whether Van Ness' use of deadly force was objectively reasonable as
a matter of self-defense.
relevant facts.
The parties disputed many of the
Although the jury resolved some of the important
factual disputes, it remains unresolved whether Martins drove
directly toward Van Ness at any time before Van Ness fired the
first, fatal shot.
See May 19 Tr. 29.
22
Furthermore, the plaintiff
presented evidence to contradict Van Ness' assertion that he had
been struck by Martins' passing car, which would, if proven,
support Van Ness' claim that he reasonably feared for his life.
With respect to whether Martins posed a risk of immediate harm
to Van Ness, the record is not sufficient to permit the court,
rather than a jury, to decide whether Van Ness is entitled to
qualified
immunity
constitutional
or
whether
violation.
More
there
was
specifically,
an
underlying
there
are
two
remaining factual questions that would require resolution by a jury
if they were material to the outcome of the case.
First, could a
reasonable officer in Van Ness' position have believed that Martins
posed a significant threat to the officer at some time during the
sequence of events on the lawn of 41 Baxter Avenue?
Second, if
belief in such a risk was reasonable at one time, did that belief
become unreasonable by the time the fatal shot was fired?
As the plaintiff correctly argues, in 2008, there was a
consensus
of
cases
outside
the
First
Circuit
that
clearly
established that an officer is not permitted to use deadly force in
self-defense once the risk from the fleeing suspect has abated.
See, e.g., Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999)
(reversing grant of summary judgment to officer who "may have had
time to get out of the way, take aim, and fire" at fleeing suspect,
and explaining that "[a] passing risk to a police officer is not an
ongoing license to kill an otherwise unthreatening suspect" (citing
23
Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993)); Waterman v.
Batton, 393 F.3d 471, 481 (4th Cir. 2005) ("[F]orce justified at
the beginning of an encounter is not justified even seconds later
if the justification for the initial force has been eliminated.");
Hathaway v. Bazany, 507 F.3d 312, 321 (5th Cir. 2007) (agreeing
with Waterman that deadly force may sometimes become "unjustified
because the officers could have actually perceived the passing of
the threat"); Smith v. Cupp, 430 F.3d 766, 774-75 (6th Cir. 2005)
("[T]his is not a case where a dangerous situation evolved quickly
to a safe one before the police officer had a chance to realize the
change.").
Viewed in the light most favorable to the plaintiff, the
evidence in this case would permit a jury to conclude that by the
time the fatal shot was fired a reasonable officer in Van Ness'
position would have realized that the risk to him had passed.
As
Van Ness himself testified, Martins' car was traveling at about 8
miles per hour as it left the lawn of 41 Baxter.
32.
See May 12 Tr.
It is undisputed that Van Ness fired the fatal shot from
beside the driver's side window.
Id. 31.
The medical examiner
testified that the fatal shot entered Martins' body through his
back, indicating that the car was moving past Van Ness when the
shot was fired.
See May 14 Tr. 43.
Moreover, the second and third
shots were fired as Martins drove away from Van Ness, who was no
longer in any danger himself.
24
Although Van Ness testified that he had been struck by some
portion of the side of Martins' car as it passed, heightening his
apprehension
of
harm,
the
plaintiff
introduced
evidence
to
contradict that testimony, including the fact that Van Ness did not
claim to have been hit until he spoke with union officials at the
police station, see May 12 Tr. 68-69.
In addition, a photograph
taken shortly after the incident showed no signs of injury. See id.
46-47, 49-50; Ex. 33.
Although a reasonable jury could choose to
believe Van Ness' testimony, for present purposes the court must
assume that Van Ness was not struck by Martins' vehicle.
Iacobucci, 193 F.3d at 23.
See
In any event, Van Ness acknowledged
that the alleged impact did not knock him down or off balance,
which would have supported his argument that the shooting was
reasonable.
See, e.g., Thomas v. Durastanti, 607 F.3d 655, 666
(10th Cir. 2010) (finding that officer had made a reasonable
mistake, crediting officer's argument that "because he had been
struck
and
propelled
over
the
hood
of
the
Lincoln,
he
was
disoriented and fired the shots while believing that the Lincoln
was still approaching him (even though it clearly was headed away
from him)").
Finally,
although
the
First
Circuit
has
recognized
that
qualified immunity may exist when the officer makes a reasonable
mistake of fact, see Statchen, 623 F.3d at 18, that principle does
not apply here.
Again, it remains disputed whether Martins' car
25
ever moved at Van Ness before he shot Martins.
A jury could find
that in view of the vehicle's slow speed, a reasonable officer in
Van Ness' situation would have had enough time to reevaluate the
risk that Martins posed and realized that he was not a significant
threat to the officer.
Therefore, the evidence is insufficient to justify a finding
of qualified immunity based on the risk that Martins posed to Van
Ness.
3.
The
The Risk that Martins Posed to Others
evidence
does,
however,
establish
that
Van
Ness
is
entitled to qualified immunity because, based on the undisputed
facts, the level of risk that Martins' conduct posed to third
parties was high enough to place Van Ness' use of lethal force
within the "hazy border between excessive and acceptable force."
Saucier v. Katz, 533 U.S. 194, 206 (2001).
Based on the law as of
July 2008, an officer in Van Ness' position would not have been on
notice that shooting Martins was an unreasonable use of force in
violation of the Fourth Amendment.
As explained earlier, there was considerable, uncontested
evidence at trial about what a reasonable officer in Van Ness'
position would have known about the risks that Martins posed as a
result of his attempt to flee. It included the undisputed evidence
that: Martins ignored two stop signs, see May 9 Tr. 108, 119; he
drove across the centerline of Harbor Road to circumvent another
26
motorist, see id. 119; he was "all over the road" as he drove north
on Baxter, May 13 Tr. 113; he reached a speed of 90 miles per hour
in a residential neighborhood according to Campos, see May 8 Tr.
47; his original path on Baxter would have taken him directly to
Route 28, which typically had substantial vehicular, bicycle, and
pedestrian traffic at that time on a Saturday night, see May 12 Tr.
100-01; May 13 Tr. 114; he drove on the lawn of a residence in an
attempt to evade Van Ness and Wenberg, who was stopped north on
Baxter, see May 9 Tr. 127; he disregarded Van Ness' repeated
orders, at gunpoint, to show his hands, see May 12 Tr. 21; note 3,
supra; he attempted to drive off the lawn, past Van Ness' cruiser,
see May 12 Tr. 30-32; and other officers, including Wenberg, were
known to be near or headed to 41 Baxter in response to Van Ness'
radio call, see May 13 Tr. 115.
There was also evidence that would tend to diminish the risk
to the general public and other officers that would be reasonably
perceived.
For example, Martins' attempt to make a U-turn at 41
Baxter indicated that he was trying to avoid a collision with
Wenberg and suggested that he then no longer intended to travel
towards Route 28, where his reckless driving would have posed the
greatest
risk.
However,
a
reasonable
officer
in
Van
Ness'
situation, without the benefit of hindsight, would have reasonably
been
concerned
that
Martins
would
continue
north
on
Baxter,
encounter Wenberg, and possibly get around her and on to Route 28.
27
Thus, even viewing the facts in the light most favorable to Campos,
a reasonable officer in Van Ness' position could have believed that
Martins posed a substantial, imminent threat to other officers and
civilians in the area, particularly on Route 28.
The essential question in determining whether Van Ness is
protected by qualified immunity, therefore, is whether in July 2008
it was clearly established that this level of risk to others did
not justify the use of deadly force.
As explained below, neither
the parties nor the court have identified a case decided before
July 2008 that "squarely governs the case here," Brosseau, 543 U.S.
at 201, and while this Court is not deciding whether Van Ness'
conduct violated the Fourth Amendment, some analogous cases to
reach the issue have found no Fourth Amendment violation as a
matter of law.
Most importantly for qualified immunity purposes,
the divided body of circuit cases demonstrates that Van Ness'
actions "fell in the 'hazy border between excessive and acceptable
force.'" Id. (quoting Saucier, 533 U.S. at 206) (internal quotation
marks omitted). Therefore, Van Ness is entitled to qualified
immunity.
As the Supreme Court recently explained in Plumhoff, "Brosseau
makes plain that as of February 21, 1999 -- the date of the events
at issue in that case -- it was not clearly established that it was
unconstitutional to shoot a fleeing driver to protect those whom
his flight might endanger."
Plumhoff, 134 S. Ct. at 2023.
28
The
Court went on to find that this remained true at least until July
18, 2004, the date of the incident in Plumhoff.
Id.
Campos is
similarly situated to the plaintiff in Plumhoff, where the Court
observed:
To defeat immunity here, then, [the plaintiff] must show at a
minimum either (1) that the officers' conduct in this case was
materially different from the conduct in Brosseau or (2) that
between February 21, 1999, and [the date of the alleged
violation], there emerged either "'controlling authority'" or
a "robust 'consensus of cases of persuasive authority,'" alKidd, 131 S. Ct. at 2084 (quoting Wilson, 526 U.S. at 617
(some internal quotation marks omitted), that would alter
[the] analysis of the qualified immunity question.
Plumhoff, 134 S. Ct. at 2023.
Supreme Court precedent, as well as
circuit court decisions in the years between Brosseau and July
2008, show that no such consensus emerged.
In Brosseau, the defendant police officer saw a fleeing
suspect get into a vehicle and believed that he was trying to
retrieve a weapon.
543 U.S. at 196.
The officer pointed her gun
at the suspect and ordered him out of the vehicle, but the suspect
instead started the car and began to drive.
officer shot the suspect in the back.
Id.
Id.
To stop him, the
The officer later
explained that she did so because she feared for the safety of the
other officers who she believed were in the immediate area, and for
the safety of citizens as well.
The
Supreme
Court
found
Id.
that
immunity for use of deadly force.
the
officer
Id. at 197.
had
qualified
The Court reviewed
the judicial judgments as of 1999, searching for cases relevant to
29
the officer's decision, "whether to shoot a disturbed felon, set on
avoiding capture through vehicular flight, when persons in the
immediate area are at risk from that flight."
Id. at 200.
The
Court found that no decision "squarely govern[ed]" Brosseau.
Id.
at 201.
Rather, it concluded that the officer's actions fell
within the "hazy border between excessive and acceptable force,"
and, therefore, Brosseau was protected by qualified immunity.
Id.
Similarly, the question faced by the Supreme Court in Scott v.
Harris was: "[c]an an officer take actions that place a fleeing
motorist at risk of serious injury or death in order to stop the
motorist's
bystanders?"
flight
from
endangering
the
550 U.S. 372, 374 (2007).
lives
of
innocent
In Scott, in 2001, an
officer observed a driver going eighteen miles per hour over the
speed limit and attempted to pull him over, prompting a high-speed
chase down two lane roads at speeds exceeding eighty-five miles per
hour, with the driver swerving around several dozen cars.
374-75.
Id. at
To end the chase, the officer pushed his bumper to the
rear of the driver's vehicle and caused the driver to lose control,
crash, and be seriously injured.
Id.
Writing in 2007, the Court found that the officer's conduct
was "quite clear[ly]" constitutional as a matter of law.
381.
Id. at
The Court stated that "in judging whether [the officer's]
actions were reasonable, we must consider the risk of bodily harm
that [his] actions posed to [plaintiff] in light of the threat to
30
the public that [the officer] was trying to eliminate."
383.
Id. at
The Court determined that any reasonable jury would have to
find that "[t]he car chase that [plaintiff] initiated . . . posed
a substantial and immediate risk of serious physical injury to
others," and held that the officer's actions were objectively
reasonable under the Fourth Amendment.
Id. at 384.
Most recently, in Plumhoff, the Court was confronted with a
case where, in 2004, a driver sped away from a police officer after
being asked to step out of the car during a traffic stop.
S.Ct. 2012, 2017.
134
Several officers chased the driver at speeds of
over 100 miles per hour, passing more than two dozen vehicles. Id.
The driver was eventually cornered in a parking lot.
Id.
As the
officers exited their vehicles and began to approach him he tried
to escape, accelerating into a police cruiser.
Id.
One officer
fired three shots into the car, yet the driver managed to keep
driving until two other officers fired twelve more shots towards
the car, causing the driver to lose control and killing both the
driver and his passenger.
Id. at 2018.
The Court observed that the driver's "outrageously reckless
driving posed a grave public safety risk," and when the officers
fired the shots, the chase was not over, as the driver was again
attempting to escape.
Id. at 2021.
The Court determined that
"[u]nder the circumstances at the moment when the shots were fired,
all that a reasonable police officer could have concluded was that
31
[the driver] was intent on resuming his flight and that, if he was
allowed to do so, he would once again pose a deadly threat for
others on the road."
Id. at 2022.
Relying on Scott, the Court
found that the officers' firing 15 shots and killing the driver and
passenger did not violate the driver's Fourth Amendment rights.
Id.
The Court next addressed whether, in the absence of its
finding that the conduct in question was constitutional, the
officers would have been entitled to qualified immunity.
2023.
Id. at
Describing Brosseau as holding that an officer "did not
violate clearly established law when she fired at a fleeing vehicle
to prevent possible harm" to other officers and citizens who might
be
in
the
area,
and
finding
no
substantial
change
in
legal
authority between the date at issue in Brosseau, February 1999, and
that at issue in Plumhoff, July 2004, the Court held that the
officer was entitled to qualified immunity.
Id. at 2023-24.
In Brosseau, Scott, and Plumhoff, the Supreme Court has
indicated
that,
although
the
analysis
in
each
case
is
fact
specific, see, e.g., Plumhoff at 2020, officers who use lethal
force to stop a fleeing driver who poses an imminent public safety
risk are at least protected by qualified immunity, and may have
acted objectively reasonably as a matter of law.
As discussed
earlier, the undisputed evidence in the instant case shows that
Martins' posed a serious, imminent risk to public safety.
32
See
supra.
Like the driver in Brosseau, it is undisputed that Martins
refused to heed the officer's warnings at gunpoint, see May 12 Tr.
21, tried to drive away from the officer and resume his flight, see
May 12 Tr. 30-32, and would be fleeing to an area where other
officers and civilians were known to be, see May 13 Tr. 115; May 12
Tr. 100-01.
According to Campos' own testimony, Martins exceeded
the speed of the driver in Scott, where the Court, writing in April
of 2007, found that there was "quite clear[ly]" no constitutional
violation, 551 U.S. at 381.
While the driver in Scott was driving
on a busier road, Martins was driving at high speeds through a
residential neighborhood. See May 8 Tr. 47. In addition, like the
driver
in
Plumhoff,
Martins
drove
recklessly
and
disobeyed
officers, May 9 Tr. 108, 119; May 13 Tr. 113, was cornered, and
then was shot while attempting to resume his flight.
See May 12
Tr. 30-32.
These cases do not necessarily show that Van Ness' conduct did
not violate the Fourth Amendment. However, they are similar enough
to
the
instant
case
that,
absent
a
more
recent
controlling
precedent or the development of a robust consensus in the case law
between the time when they were decided and July 2008, a reasonable
officer Van Ness' position would not have known that using lethal
force against Martins violated his Fourth Amendment rights.
Consideration of the circuit court decisions in the years
around 2008 confirms that no such "robust 'consensus of persuasive
33
authority'" existed in July 2008.
al-Kidd, 131 S.Ct. at 2084
(quoting Wilson, 526 U.S. at 617); see also Plumhoff, 134 S.Ct. at
2023. For example, in Cordova v. Aragon, 569 F.3d 1183, 1189 (10th
Cir. 2009),
the Tenth Circuit considered "whether the substantial
but not imminent risk imposed on innocent bystanders and police by
a motorist's reckless driving justifies a reasonable officer to use
a level of force that is nearly certain to cause the motorist's
death."
The motorist in Cordova was driving recklessly at night
and attempting to ram police cars that blocked his way, but there
were no other motorists in the immediate vicinity, making the risk
posed by the driver "presumably less 'imminent' than that posed by
the driver in Scott."
Id. at 1189 (quoting Scott, 550 U.S. at
379).
The Tenth Circuit recognized this to be a novel question in
2009, observing both that at the time of the shooting -- May 2006
-- and the time that it was issuing its opinion -- June 2009 -"[t]he law in our circuit and elsewhere has been vague on whether
the potential risk to unknown third parties is sufficient to
justify the use of force nearly certain to cause death."
1193.
Id. at
Therefore, although the court held that the officer's
conduct violated the Fourth Amendment, it found that he was
shielded by qualified immunity.
Id. at 1195.
In Abney v. Coe, 493 F.3d 412, 414-16 (4th Cir. 2007), the
Fourth Circuit found no Fourth Amendment violation where, in 2001,
34
an officer had rammed a fleeing motorcyclist, causing him to crash,
in order to end a chase in which the driver committed several
dangerous evasive maneuvers.
The Fourth Circuit found that it was
"eminently reasonable to terminate the chase in order to avoid
further risks to the lives of innocent motorists."
Id. at 417.
The Sixth Circuit in Williams v. City of Grosse Pointe Park,
496 F.3d 482, 484 (6th Cir. 2007), found no Fourth Amendment
violation when, in 2003, a police officer fired several shots into
a vehicle containing three suspected criminals after the suspects
had smashed into a police car and knocked over a fellow officer in
an attempt to escape. The Court held that the officer's conduct in
shooting the driver was objectively reasonable because the driver
continued his attempt to escape after the officer drew his weapon
and was "willing to risk the safety of officers, pedestrians, and
other drivers in order to evade capture."
Id. at 487.
In Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002),
the Eleventh Circuit found that police officers probably did not,
in
1998,
violate
the
Fourth
Amendment
and
were
entitled
to
qualified immunity when they shot a suspect who had been cornered
by officers as he tried to flee.
The court reasoned that the
driver's refusal to get out of the car and his reckless driving
through a residential area before the shooting, combined with the
fact that the shots were fired within a few seconds after cornering
35
the
driver,
meant
that
the
driver
"would
have
appeared
reasonable police officers to have been gravely dangerous."
to
Id.
Circuit courts have also denied qualified immunity in similar
situations, reasoning that there was insufficient risk to third
parties
to
make
the
officer's
reasonable as a matter of law.
decision
to
use
deadly
force
The common thread in each of these
cases is that, viewing the facts in the light most favorable to
plaintiff, a jury could find that the officer shot a motorist who
posed virtually no immediate risk to third parties.
For example,
in Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008), the Sixth
Circuit
found
that
qualified
immunity
was
unjustified
where
officers, in 2003, shot a driver who was attempting to flee
because, on the plaintiff's account of events, "no one was ever in
danger," the driver had never been driving recklessly, and nobody
was near the path of the driver's escape. Similarly, in Vaughan v.
Cox, 343 F.3d 1323, 1339 (11th Cir. 2003), the Eleventh Circuit
denied qualified immunity because it found insufficient danger to
justify an officer, in 1998, shooting the driver of a fleeing
truck, reasoning that on the plaintiff's version of events the
driver had made no aggressive maneuvers and had a clear lane ahead
of him when the shots were fired.
In Smith v. Cupp, 430 F.3d 766, 773 (6th Cir. 2005), an
officer, in 2002, shot and killed a suspect who had just stolen his
police cruiser.
The Sixth Circuit denied the officer qualified
36
immunity because on the plaintiff's facts "there was no immediate
danger to anyone in the vicinity" that was grave enough to justify
the use of deadly force.
Id.
Finally, in Sigley v. Parma Heights,
437 F.3d 527, 537 (6th Cir. 2006), the Sixth Circuit denied an
officer qualified immunity because, on the plaintiff's account of
the facts, the officer who fired the fatal shot "was running behind
[the driver's] car, out of danger, and [the driver] drove in a
manner to avoid others on the scene in an attempt to flee."
Therefore, the Court concluded that "it is not clear whether [the
officer] had probable cause to believe that [the driver] posed a
significant threat of death or serious physical injury to others."
Id. at 536.
This review of circuit court decisions confirms the Tenth
Circuit's conclusion in Cordova, 569 F.3d at 1192-93, that in 2006,
the law was unclear as to the degree of risk to third parties
required to make the use of deadly force reasonable, and shows that
it remained unclear as of July 2008.
The uncontradicted facts
indicate that the risk posed by Martins' continued flight was as
great or greater than that posed by the motorists in several of the
foregoing cases.
375;
Cordova,
See Brosseau, 543 U.S. at 196; Scott 550 U.S. at
569
F.3d
at
1189;
Abney,
493
F.3d
at
414-16;
Williams, 496 F.3d at 484; Pace, 283 F.3d at 1282; Kirby, 530 F.3d
at 482; Vaughan, 343 F.3d at 1339; Smith, 430 F.3d at 273; Sigley,
437 F.3d at 537.
As of July 2008, the law was not sufficiently
37
clear that a reasonable officer in Van Ness' position "would have
understood
that
his
conduct
violated
the
Plaintiff['s]
constitutional rights." Raiche, 623 F.3d at 36 (quoting Maldonado,
568 F.3d at 269).
Rather, once again, Van Ness' conduct fell
within the "hazy border between excessive and acceptable force."
Saucier, 533 U.S. at 206.
Therefore, Van Ness is entitled to qualified immunity on
Campos' Fourth Amendment claim as executrix of Martins' estate.
C.
Claims of Camilla Campos Individually
As described earlier, Campos has asserted that her own Fourth
Amendment rights were violated by Van Ness.
Van Ness is also
protected by qualified immunity with regard to that claim.
For an individual's Fourth Amendment rights to be implicated,
an officer must intend to acquire physical control of her.
Brower v. Cnty. of Inyo, 489 U.S. 593, 595-96 (1989).
See
As the First
Circuit has stated, "[i]t is intervention directed at a specific
individual that furnishes the basis for a Fourth Amendment claim."
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990).
Van Ness testified that he knew there was a passenger in the
vehicle before he shot into and at it.
The jury could have found
that he intended to shoot and stop the passenger, Campos, as well
as Martins.
However, based on Van Ness' agreement it was not
required to decide this question.
Therefore, it is appropriate to
assume for present purposes that Campos' Fourth Amendment rights
38
were implicated and force that could be found to have been directed
against her was objectively unreasonable.
However, in July 2008, a reasonable officer in Van Ness'
position would not have known that his conduct violated Campos'
Fourth Amendment rights.
As the Supreme Court wrote in Plumhoff
with regard to the state of the law in 2004:
There seems to be some disagreement among lower courts as
to whether a passenger in Allen's situation can recover
under a Fourth Amendment theory. Compare Vaughan v. Cox,
343 F.3d 1323 (11th Cir. 2003) (suggesting yes), and
Fisher v. Memphis, 234 F.3d 312 (6th Cir. 2000) (same),
with Milstead v. Kibler, 243 F.3d 157 (4th Cir. 2001)
(suggesting no), and Landol-Rivera v. Cruz Cosme, 906
F.2d 791 (1st Cir. 1990) (same). We express no view on
this question.
134 S.Ct. at 2022 n.4.
As the Supreme Court implicitly indicated
in this 2014 statement in Plumhoff, the law had not become clearly
established by 2008.
Compare Rodriguez v. Passinault, 637 F.3d
675, 684 (6th Cir. 2011) ("By shooting at the driver of the moving
car, [the officer] intended to stop the car, effectively seizing
everyone inside, including the [passenger].") (quoting Fisher v.
City of Memphis, 234 F.3d 312, 318-19 (6th Cir. 2000)), with Troupe
v. Sarasota Cnty., 419 F.3d 1160, 1167 (11th Cir. 2005) (shooting
to "stop[] a vehicle's driver does not constitute a seizure of the
passenger"), and Schultz v. Braga, 455 F.3d 470, 482 (4th Cir.
2006) ("[T]he Fourth Amendment does not protect persons who were
merely
'reasonably
foreseeable
victims'
of
excessive
force
inflicted upon another, even if they were themselves targets of a
39
seizure.").
Therefore, Van Ness is protected by qualified immunity and
judgment for him will enter on Campos' individual claim.
VI.
ORDER
In view of the foregoing, it is hereby ORDERED that judgment
shall enter for the defendant Christopher Van Ness on plaintiff
Camila Campos' claims on behalf of the Estate of Andre Martins and
on her own behalf.
/s/ MARK L. WOLF
UNITED STATES DISTRICT JUDGE
40
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