Mitchell v. Miller, 790 F.3d 73

In the early morning of April 10, 2011, Jonathan Mitchell (driving a stolen Volkswagen Jetta) broke into his estranged wife’s apartment; she reported the burglary and described the car and direction of travel.
Portland Officer Robert Miller, told Mitchell was a revoked-license habitual offender, a sexually-violent felon, and possibly unstable/under the influence, located the Jetta and initiated a stop; Mitchell fled instead and was pursued by two cruisers.
After a brief high-speed flight through residential streets, the Jetta stopped at the end of a dead-end embankment; Mitchell backed and then attempted a rapid U-turn with officers at the driver’s door while Miller was holding the door.
Miller and Officer Schertz were grappling with Mitchell at the open driver’s door; as Mitchell threw the car into a tight U-turn and pulled Miller around, Miller fired two shots; one struck Mitchell in the shoulder and another in the neck.
Mitchell sued Miller under 42 U.S.C. § 1983 (excessive force/Fourth Amendment) and for common-law assault; the district court granted summary judgment to Miller on qualified immunity and discretionary-act immunity grounds, and Mitchell appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Miller violated Mitchell's Fourth Amendment right by shooting a fleeing driver	Mitchell: Miller was not entitled to use deadly force because no one was directly in the Jetta’s path and the officers weren’t in imminent danger	Miller: He reasonably believed he and Officer Schertz (and the public) were in imminent danger when the car lunged and made a tight U-turn while he held the door	Court: Did not decide reasonableness; held Miller is entitled to qualified immunity because the law was not clearly established
Whether the law was clearly established such that qualified immunity does not apply	Mitchell: Brosseau is distinguishable (no warrant in Mitchell; no others in vehicle path; different circumstances) so precedent would have put Miller on notice	Miller: Brosseau and subsequent authority show it was not clearly established that shooting a fleeing driver under these facts is unconstitutional	Court: Facts not materially different from Brosseau; plaintiff failed to show controlling or a clear consensus post-Brosseau; qualified immunity applies

Brosseau v. Haugen, 543 U.S. 194 (Sup. Ct.) (as of 1999 it was not clearly established that shooting a fleeing driver to protect others was unconstitutional)
Plumhoff v. Rickard, 134 S. Ct. 2012 (Sup. Ct.) (qualified-immunity framework and that Brosseau forecloses clear-establishment in similar fleeing-driver shootings)
McGrath v. Tavares, 757 F.3d 20 (1st Cir. 2014) (explains ways a plaintiff can show post‑Brosseau law would clearly forbid officer conduct)
Scott v. Harris, 550 U.S. 372 (Sup. Ct.) (courts may rely on video evidence to resolve factual disputes at summary judgment)
City & County of San Francisco v. Sheehan, 135 S. Ct. 1765 (Sup. Ct.) (clarifies the contours of clearly established rights and qualified immunity)