*3 Before: FISHER, JORDAN and ROTH, Circuit Judges (Filed: August 24, 2007) _______________ David S. Gould [ARGUED]
Steven L. Salzman
Richard L. Huffman
David S. Gould, P.C.
61 Broadway - Suite 2820
New York, NY 10006
Counsel for Appellant
Jeffrey M. Kadish, Esq. [ARGUED] Morgan Melhuish Abrutyn
651 West Mount Pleasant Avenue - # 200 Livingston, NJ 07039-1673
Counsel for Appellees
_______________ OPINION OF THE COURT _______________ JORDAN, Circuit Judge .
This civil rights suit, after a long and difficult history, is before us for the second time. Plaintiff Corvet Curley (“Curley”), an officer with the Port Authority of New York *4 and New Jersey, and his wife, Elaine, sued defendant Ronald Klem (“Klem”), a New Jersey State Trooper, under 42 U.S.C. § 1983, alleging that Klem violated Curley’s constitutional rights by shooting him while both Curley and Klem were responding to a police emergency at the George Washington Bridge. The Curleys appeal from a judgment order of the United States District Court for the District of New Jersey, entered after a jury trial. The jury made various findings of fact through special interrogatories, and stated by a verdict sheet its conclusion that Trooper Klem had not acted unreasonably under the circumstances. Based on those findings, the District Court entered judgment in favor of Klem on the basis of qualified immunity. For the reasons that follow, we will affirm, albeit on different grounds.
I.
A. Factual Background
On the evening of November 20, 1997, at approximately 8:45 p.m., Trooper Klem was on duty and learned that a suspect, Deon Bailey (“Bailey”), had shot and killed a Long Branch police officer and stolen a police car. A follow-up radio transmission informed Klem that Bailey was on the Garden State Parkway and had fired shots at a another police car. Shortly after 9:00 p.m., Klem received another transmission, this one saying that Bailey was now in a green Toyota Camry he had stolen from a woman at a gas station. A few minutes later, a further radio transmission described *5 Bailey as a “tall, black male” [1] and stated that he was headed north in the Camry on the New Jersey Turnpike. Klem and several other troopers found Bailey on the Turnpike and began chasing him, while Bailey shot at them. One of the troopers in the chase was shot in the arm, and Klem’s windshield was struck by a bullet.
During the chase, Klem ended up as the nearest trooper behind Bailey. He followed Bailey to the toll plaza at the George Washington Bridge, where, according to his testimony, he briefly lost sight of the Camry. He then saw the Camry stopped on the far left side of the plaza. Klem stopped his car about thirty yards back, and approached the Camry at a jog. He testified that he was unaware of any other police officers on the scene at that time, and that he did not wait for back-up.
Klem did not know that Bailey, upon arriving at the toll plaza, had crashed the Camry at high speed into a Nissan Pathfinder that was waiting in a toll lane. The crash sent the Pathfinder spinning out into the toll plaza some thirty feet from where the Camry had stopped. Immediately after the crash, Bailey shot himself in the head. According to a toll *6 booth attendant and another law enforcement officer, Bailey was sprawled across the passenger seat of the Camry. The toll booth attendant stated that he had no trouble seeing the body. That same attendant next saw the two principal parties in this dispute, Curley and Klem, approaching the ill-fated scene.
Curley was on duty that evening at the bridge. He was in his Port Authority police uniform, although not wearing his hat. He too had received a radio transmission stating that a black male in a stolen vehicle was being pursued by the New Jersey State Police, and was heading toward the bridge. By now it was nearing 9:30 p.m. Curley went to the New York side of the toll plaza in his marked police car, with both the lights and sirens on. After reaching the plaza, he turned his sirens off but left the lights on. He then saw a vehicle, which he later learned was the stolen Camry, headed toward the toll plaza at a high rate of speed, and he heard it crash into the Pathfinder.
Curley drove his car toward the Pathfinder and stopped next to it. He looked over at the Camry, but had trouble seeing inside of it because the front end was smashed. He unholstered his gun, told the driver of the Pathfinder to stay in his vehicle, and moved toward the Camry. Curley testified that, at this point, he had his gun pointed toward the Camry. Realizing that he did not have cover, Curley pointed his gun at the ground, turned and began to move back toward his own car.
At approximately the same time that Curley was investigating the scene, Klem approached the back of the Camry with a shotgun in hand. He saw a toll collector pointing toward the center of the toll plaza. Klem testified that he had not heard any shots, and that all of the doors on the Camry were closed. Klem approached the Camry from the back right, and stopped by the right front passenger door, close enough to the Camry to be able to touch it. He testified that, as he approached the Camry, he looked into the rear seat of the vehicle and into the front seat of the vehicle; he testified that the air bags had deployed, and that the interior of the Camry was filled with dust from the air bags. Klem stated that, at that time, he did not see a body in the Camry and did not see blood on the air bags or seat.
Klem turned in the direction that the toll collector had been pointing and saw a black male with a gun in his hand. According to Klem, the man had both hands on the gun and was pointing it directly at him. Klem testified that he shouted three times for the man with the gun, who was, in reality, Curley, to drop his gun. He also testified that Curley raised and lowered his gun to point at Klem three times while backpedaling away from Klem. Klem hesitated briefly, then fired his shotgun, [2] hitting Curley in the leg. Immediately after he fired, someone screamed to him that he had just shot a cop. Klem then looked into the Camry and saw Bailey’s body. *8 Klem testified that, had he earlier seen the body in the Camry, he never would have shot Curley. [3] Curley testified that he never saw Klem and that he never heard anyone tell him to drop his gun.
B. Procedural Background
Curley filed suit under 42 U.S.C. § 1983, alleging that Klem used excessive force against him, in violation of the Fourth Amendment. [4] Curley’s wife joined in the complaint, alleging loss of consortium. After discovery, the District Court granted summary judgment in favor of Klem. It held that Klem’s conduct was objectively reasonable and that he was thus shielded by qualified immunity. See Curley I , 298 *9 F.3d at 276 (recounting procedural history). Curley appealed, and we reversed the summary judgment. See id . at 273-74. In that opinion, we analyzed both the question of whether Klem’s conduct had violated Curley’s constitutional rights, and whether Klem was entitled to qualified immunity. We did so recognizing – indeed we reiterated it no less than four times in different ways – that, because we were reviewing a decision on a summary judgment motion, we were required to take the facts as Curley, the non-movant, had alleged them and to view every fact and inference in the light most favorable to Curley. See id. at 276-77; 279-80; 282-83. Given that procedural perspective, we determined that Klem’s actions would constitute an unreasonable seizure. Id . at 280.
Next, we decided that, in the District Court’s qualified immunity analysis, the Court had not recognized factual disputes that precluded a grant of summary judgment. Id . at 281. Specifically, we noted that a number of facts, including whether Klem looked inside the Camry and how Curley behaved during the confrontation between him and Klem, were disputed and required resolution by a jury. Id . at 281- 83. Thus, we remanded the case to the District Court for resolution of the disputed facts by a jury. Id . at 283.
On remand, the District Court held a jury trial and submitted both special interrogatories and a liability verdict sheet to the jury. In answer to the special interrogatories, the jury found that, when Klem approached the Camry, Bailey’s body was on the front seat of the car, not on the floorboards, and that Klem did not look into the window of the car. Furthermore, the jury found that Bailey’s body should have *10 been visible to someone standing in Klem’s position but that Klem had not made an objectively reasonable effort to look into the Camry. The jury also found that it was objectively reasonable for Klem to believe that the toll collector was signaling to the center of the plaza. Additionally, the jury found that Curley did not repeatedly point his gun at Klem, and that, when Curley was shot, he was not raising his gun to point it at Klem. Finally, the jury could not reach a unanimous decision and so did not answer whether Curley’s police uniform was visible to someone in Klem’s position or whether it was reasonable for Klem to believe that Curley was in civilian clothing.
In addition to the special interrogatories, the District
Court submitted to the jury a liability verdict sheet asking
whether Klem’s conduct was objectively reasonable.
See
Curley v. Klem
,
The jury answered yes to Question One, thus finding that Klem’s failure to look in the Camry was not objectively reasonable. However, the jury also found, in response to Question Two, that Klem did act in an objectively reasonable manner during the confrontation with Curley. Finally, in response to Question Three, the jury found that Klem’s mistake in firing his weapon was objectively reasonable. Based on these findings, and with no separate analysis, the District Court entered judgment for Klem, stating that Klem was entitled to qualified immunity based on the jury’s answer to Question Three, and also noting the jury’s answer to Question Two.
Curley moved for judgment as a matter of law or a new trial. [5] In its opinion addressing those post-trial motions, the District Court stated that the parties had agreed early in the case “that the jury would decide the issue of qualified immunity, and not the Court.” Id . at *4. On appeal, however, Curley points to several places in the record where he objected to the inclusion of Question Three on the liability verdict sheet and where he argued that a determination of qualified immunity was a question of law for the Court, not the jury. See Joint Appendix at A125 (“A jury can contribute fact finding to a qualified immunity question but not law finding”); Trial Transcript at T113 (“[Counsel for Klem] wants the jury to decide objectionable [sic] reasonableness *12 and then to decide whether there was a violation of the state of the law. Which you called the second prong on qualified immunity. And what is very clear is that no case ever did or could submit that to the jury.”). Whether the District Court misunderstood Curley’s position or Curley failed to make it clear during the framing of the special interrogatories and the verdict sheet, the objective reasonableness of Klem’s actions was put to the jury.
In support of his post-trial motions, Curley argued that
the jury’s general liability verdict was not supported by the
facts the jury had found in the special interrogatories and that
the verdict should therefore be overridden. He also argued
that the verdict could not stand because it was internally
inconsistent, since it faulted Klem’s action in not looking in
the Camry and yet stated that Klem’s behavior, including the
mistaken shooting, was reasonable. The District Court found
that the jury’s verdict was not inconsistent, and that the facts
found by the jury in the special interrogatories did not warrant
overturning the jury’s verdict for Klem.
Post-trial Opinion
,
The District Court reasoned that Curley was attempting to reduce the case “down to a handful of seconds in the continuum of events.” Id . at *2. Rejecting that effort, the District Court found that the relevant events spanned a lengthy period, beginning at the time that Klem received the first radio transmission about Bailey. Id . Thus, the Court stated, although
those seconds discussed by the Third Circuit are important, still they were singled out not because they were “the case,” but because this [District] Court erroneously saw them as unfolding only one way. That the jury decided otherwise, that it viewed some of the preshooting events contrary to Trooper Klem’s account, does not necessarily drive a determination that he acted unreasonably when he mistakenly shot Officer Curley.
Id . The District Court therefore found that there was no inconsistency or tension between the jury’s answers to the Special Interrogatories and its answers on the Liability Verdict Sheet. Id . Characterizing Questions One and Two as “General Liability” questions, the District Court held that those questions did not present alternative theories of liability. Id . at *5. The Court also held that the jury had decided in Question Three that Klem was entitled to qualified immunity. Id . at *3-5. Accordingly, the Court denied Curley’s motion for judgment as a matter of law or a new trial. Id . at *5.
Curley then filed this appeal. He raises five questions, some of which are conceptually overlapping: (1) Whether the District Court erred in putting to the jury the question of the objective reasonableness of Klem’s mistake in shooting Curley; (2) Whether the District Court erred in refusing to treat the jury’s answers to special interrogatories as requiring a verdict for Curley; (3) Whether the District Court likewise erred in refusing to treat the jury’s answer to the first question on the verdict sheet, which dealt with Klem’s failure to see *14 Bailey’s body in the Camry, as requiring a verdict for Curley (Curley calls this his “first theory of liability”); (4) Whether the District Court erred in refusing to enter a verdict for Curley or to order a new trial based on Klem’s actions in the confrontation and shooting (Curley’s “liability theory number two”); and (5) Whether the District Court erred in refusing to treat Curley’s two liability theories as alternatives that necessitated a verdict for Curley if the jury agreed with either.
II.
The District Court had jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343, and entered final judgment on September 29, 2005. This Court has jurisdiction over final judgments of the District Court under 28 U.S.C. § 1291.
The standard of review for a motion for judgment as a
matter of law is plenary.
Lightning Lube, Inc. v. Witco Corp.
,
III.
A. The Saucier Test for Qualified Immunity
As we noted in
Curley I
, the claim here arises under 42
U.S.C. § 1983, which “provides a cause of action for any
person who has been deprived of rights secured by the
Constitution or laws of the United States by a person acting
under color of law.”
In
Saucier v. Katz
,
That reasonableness inquiry requires “careful attention
to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”
Graham
,
“If, and only if, the court finds a violation of a
constitutional right,”
Scott v. Harris
,
Thus, the first step of the analysis addresses whether the force used by the officer was excessive, and therefore violative of the plaintiff’s constitutional rights, or whether it was reasonable in light of the facts and circumstances available to the officer at the time. This is not a question of immunity at all, but is instead the underlying question of whether there is even a wrong to be addressed in an analysis of immunity. The second step is the immunity analysis and addresses whether, if there was a wrong, such as the use of excessive force, the officer made a reasonable mistake about the legal constraints on his actions and should therefore be protected against suit
While the
Saucier
analytical approach has been
criticized for being unduly rigid and demanding resolution of
constitutional issues when cases could be more simply
disposed of on other grounds,
see, e.g., Los Angeles County,
California v. Rettele
,
B. Evolving Approaches to Applying the Test
The length of the foregoing review notwithstanding,
the two-step
Saucier
test can be stated simply. Its application,
however, presents perplexing logical and practical problems.
The point of immunity is to protect someone from the burden
imposed by litigation itself. It is supposed to be “an
immunity
from suit
rather than a mere defense to liability ... .”
Mitchell
v. Forsyth
,
The fundamental challenge lies in the nature of the
questions that compose the test. Since they are mixed
questions of law and fact, one is left to ask who should
answer them. As we noted in
Curley I
, “[a] disparity of
opinion exists among our sister circuits as to whether a judge
or jury should make the ultimate immunity determination.”
2000) (“while qualified immunity ordinarily should be
decided by the court long before trial, if the issue is not
decided until trial the defense goes to the jury which must
then determine the objective legal reasonableness of the
officers’ conduct.”);
Champion v. Outlook Nashville, Inc.
, 380
F.3d 893, 900 (6th Cir. 2004) (“The issue of whether qualified
immunity is applicable to an official’s actions is a question of
law. However, where the legal question of qualified
immunity turns upon which version of the facts one accepts,
the jury, not the judge, must determine liability.”) (internal
citations and quotation marks omitted);
Ortega v. O’Connor
,
Our precedents too have evolved. Our recent
precedents say that the court, not a jury, should decide
whether there is immunity in any given case.
E.g., Harvey v.
Plains Twp. Police Dept
.,
immunity ruling. Special interrogatories related to the
qualified immunity defense are not improper per se, but they
must be carefully crafted so that the fact-finder’s role is
limited to determining whether the underlying facts are as the
plaintiff has alleged or proved.”) (internal citations and
quotation marks omitted)
with Turner v. Arkansas Ins. Dept.
,
Later, in
Curley I
, we cited
Sharrar
for the proposition
“that a jury can evaluate objective reasonableness when
relevant factual issues are in dispute.”
[11]
Finally, in a line of cases beginning with
Doe v.
Groody
, we began highlighting that “qualified immunity is an
objective question to be decided by the court as a matter of
law.”
Carswell
,
It appears that much of the discussion in
Carswell
was
dicta, since we were actually affirming in that case the grant
of judgment for the defendant as a matter of law, following
the presentation of the plaintiff’s case at trial.
There is some irony in this, since
Carswell
relied on
Curley I
and
Sharrar
, correctly citing them as support for the
proposition that objective reasonableness is a question of law.
But neither
Curley I
nor
Sharrar
stand for the related
proposition that the question of objective reasonableness
cannot be presented to a jury. Indeed they both teach “that a
jury can evaluate objective reasonableness when relevant
factual issues are in dispute.”
Curley I
,
Nevertheless, the
Carswell
approach, despite its
limitations,
see infra
at section III. C., appears to have taken
root and to represent the pattern and practice both in our
Circuit and much of the rest of the country. We therefore take
the opportunity to reiterate and clarify a central message from
that case: whether an officer made a reasonable mistake of
law and is thus entitled to qualified immunity is a question of
law that is properly answered by the court, not a jury.
Carswell
,
Question Three on the liability verdict sheet was evidently intended to reach the question of qualified immunity. [12] However, as we discuss further below, the
We addressed the issue in Sharrar , in which we observed that the “reasonableness of the officers' beliefs or actions is not a jury question,”128 F.3d at 828 , but qualified that observation by later noting that a jury can evaluate objective reasonableness when relevant factual issues are in dispute, id. at 830-31. This is not to say, however, that it would be inappropriate for a judge to decide the objective reasonableness issue once all the historical facts are no longer in dispute. A judge may use special jury interrogatories, for instance, to permit the jury to resolve the disputed facts upon which the court can then determine, as a matter of law, the ultimate question of qualified immunity.
Id. at 279. We cannot fault the District Court for following our instructions on remand. Unlike our dissenting colleague, we do not view Curley I as making “clear the respective roles of the judge and jury in cases such as this,” post at 18. To the extent Curley I can be read as allowing the District Court to submit the question of qualified immunity to the jury we are hard pressed to say the District Court erred in doing so. We hope, however, that it will now be clear that the second step in the Saucier analysis, i.e., whether an officer made a reasonable mistake about the legal constraints on police action and is entitled to qualified immunity, is a question of law that is exclusively for the court. When the ultimate question of the objective reasonableness of an officer’s behavior involves *28 question as framed actually pertains to whether there was any constitutional violation at all. Since it properly presented an essentially factual question regarding the constitutional violation, it was not error for the jury to consider it. C. The Challenge of Preserving “Totality of
Circumstances” Review
As this case demonstrates, trying to separate the ultimate from the underlying questions is no easy matter and can have a disturbing, unintended consequence. It can undermine the basic principle that both the threshold constitutional question and the immunity question are to be decided on the totality of the circumstances.
Fundamental fairness dictates a totality-of-the-
circumstances review, since the test for reasonableness “is not
capable of precise definition or mechanical application,”
Bell
v. Wolfish
,
dissent. While our colleague sees this case as coming down to, to use her analogy, one domino in the sequence of events, post at 12, we feel compelled to recognize that reality is a *29 method that we and many other courts have taken to address the mixed legal and factual questions posed by the Saucier test cannot easily, perhaps cannot ever, capture those circumstances in their totality. When one picks and chooses a few questions to pose to a jury to ferret out historical facts, staying away from asking the broader question of what constitutes reasonable behavior under those facts, one cannot help but focus attention on some events to the diminution or exclusion of others. In short, a totality-of-the-circumstances test is replaced by a test focusing on those few circumstances featured in the questions a court is able and willing to articulate.
The District Court clearly saw that problem in this
case. As quoted before, the judge observed that the analysis
in this case could not properly be shrunk into the few
moments immediately before Klem shot Curley, but instead
must be decided in light of all the events which had taken
place over the course of the entire evening.
Post-trial
Opinion
,
complicate easy cases, and might be unworkable in complicated ones.”).
In spite of the foregoing problem inherent in articulating specific questions to address factual issues, our most current precedent counsels that course. [14] However, while the judge must make the ultimate determination regarding the objective reasonableness of challenged behavior, that does not mean that the use of an advisory jury is foreclosed. We need not consider the propriety of such a step under the circumstances presented here, though, because the jury in this case was not acting in an advisory capacity. The Court put to the jury the question of the objective reasonableness of Klem’s actions, and the Court upheld the verdict rendered.
IV.
A. The Jury Was Not Choosing Between Alternative
Theories of Liability
The jury was not facing a choice of alternative liability
theories driven by “outcome-determinative facts,” as Curley
would have it.
See Post-trial Opinion
,
Even if those specifically identified factual areas were
the only ones to be considered, it is an unwarranted leap to
say that the jury’s responses to selected yes-or-no questions
means that only one set of inferences and conclusions can be
*32
drawn from those responses. For example, the jury’s answer
of “no” to the question of whether “Officer Curley raise[d] his
gun to point directly at Trooper Ron Klem several times
during ‘the confrontation’” might mean that the jury decided
that Curley had raised his gun to point at Klem only once or
twice, rather than “several times,” as the question asks.
[15]
One
need not draw the inference that Curley demands. Indeed, we
cannot. Though multiple inferences are possible, we must
draw all inferences in Klem’s favor, rather than Curley’s,
since we are reviewing a verdict for Klem.
See McGreevy v.
Stroup
,
B. The Focus Should Have Been on the Threshold
Question
Where the District Court did go astray was in assuming that a constitutional violation had occurred and then applying its efforts to answering the question of immunity. The Court’s confusion appears to have been the product both of *33 language in our Curley I opinion and of the intertwined questions of objective reasonableness posed by the two prongs of the Saucier test when applied to this case.
The panel in
Curley I
addressed the question of
whether Klem’s conduct violated Curley’s constitutional
rights in the summary judgment context, and thus
“consider[ed] only the facts alleged by Curley, taken in the
light most favorable to him.”
Curley I
,
[T]hese facts, viewed in the light most favorable to Curley , are sufficient to support the claim that Klem’s shooting of Curley constituted an unreasonable seizure, violative of Curley’s rights under the Fourth Amendment. ... [W]e find that under Curley’s account of events , it was unreasonable for Klem to fire at Curley based on his unfounded, mistaken conclusion that Curley was the suspect in question.
Id.
at 280 (emphasis added). The District Court apparently
read our opinion as establishing that Curley’s constitutional
rights were violated. In its ruling on post-trial motions, the
District Court stated that “there was a constitutional violation
in that Officer Curley had a right not to be shot by Trooper
Klem.”
Thus, our earlier opinion was not a decision on whether, under all of the facts and circumstances of the case, Klem’s conduct violated Curley’s constitutional rights. The jury was not bound at trial, and the District Court was not bound post-trial, by our earlier statements involving a hypothetical set of facts favoring Curley, since the facts and inferences actually found by the jury were clearly different than those which we were required to posit in Curley I when considering the summary judgment order. [16]
Confusion between the threshold constitutional inquiry and the immunity inquiry is also understandable given the difficulty courts have had in elucidating the difference between those two analytical steps. [17] At the risk of understating the challenges inherent in a qualified immunity analysis, we think the most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified immunity question is whether the officer was reasonably mistaken about the state of the law.
With that in mind, we turn to the questions presented to the jury in this case. The constitutional liability question posed to the jury, Question Two on the verdict sheet, was “Did Trooper Ron Klem act in an objectively reasonable manner in shooting Officer Curley during the confrontation?” Question Three, designed as the immunity question, was posed as, “Was Trooper Ron Klem’s mistake in firing his weapon objectively reasonable?” The difference between those two questions is essentially semantic, the only difference being that Question Three makes explicit what was *36 already obvious and conceded in the case: that the shooting was a mistake.
For practical purposes, then, the analysis of objective
reasonableness that the District Court undertook under the
rubric of an immunity question actually applies better to the
preliminary constitutional question. The immunity step of the
Saucier
test is typically focused on established legal standards
and requires a review of relevant case law, a review a jury
simply cannot undertake.
See Saucier
,
C. The Jury’s Verdict is Supported by the Evidence
The jury’s verdict on the objective reasonableness of Trooper Klem’s actions is well supported by the record. There are many facts that the jury was entitled to rely on that were not in dispute, including Bailey’s behavior prior to and during the high speed car chase that led to the George Washington Bridge. Bailey had shot and killed a police officer, had shot at another officer, had stolen a police car, had then carjacked the Camry from a rest stop on the New Jersey Turnpike, had launched a high speed chase on the Turnpike and, during that chase, had fired shots at Klem and other officers, wounding an officer and hitting Klem’s windshield. Furthermore, whether or not Klem knew exactly what had occurred, no one disputes that he came on the scene in the immediate aftermath of Bailey’s creating additional havoc by crashing into the Pathfinder. In short, no one *38 disputes that Bailey was actively evading arrest after committing several severe crimes, that he posed a serious danger to both the police and public, and that Klem could properly approach the scene prepared to use deadly force. In fact, Curley himself did so. He testified that, when he began to approach the Camry, his gun was drawn.
The very real danger that both Curley and Klem perceived at the toll plaza was intensified by the presence of numerous innocent bystanders. Curley’s solicitude for the safety of the driver of the Pathfinder is not just commendable; it reflects the well-founded fear that people who got out of their cars were in danger of being shot. Added to all of this is the jury’s finding that, when Klem approached the wrecked Camry, he saw a toll booth attendant signaling him to look to the middle of the toll plaza. That is where Curley was standing with a gun in his hands.
In Curley’s view, none of those facts is of any moment, since Klem’s failure to look into the Camry is dispositive. According to Curley, had Klem looked, he would have seen Bailey’s dead body and there would have been no confrontation. [19] However, as we have stated several times, *39 the reasonableness of Klem’s conduct must be examined based on the totality of the circumstances, and the inquiry cannot be collapsed into a single instant, particularly not when, at that instant, Klem’s vision was being drawn by the toll booth attendant toward Curley, standing in the plaza with a gun. [20] Thus, when we examine all of the facts and circumstances, the jury’s verdict that Klem acted reasonably is supported by the evidence.
Klem looked in the Camry is highly relevant. But it is not outcome determinative. We did not equate looking in the Camry with knowledge of Bailey’s death, since it was conceivable that a factfinder could have decided that an objectively reasonable officer could look in the Camry and still not see Bailey, no matter how obvious the body might have been to others not in that officer’s unique position. It was also conceivable that a factfinder could conclude, as the jury apparently did, that despite Klem’s overlooking information that could have enlightened him about the suicide, his actions in totality and under the pressure of the moment were such that his failure to look in the car did not make the shooting objectively unreasonable. The jury’s conclusion that Klem’s failure to look into the
Camry was unreasonable is not beyond dispute. Given all else that had occurred and was occurring, it can be argued that looking at the gesticulating toll booth attendant, rather than into the car, may not have been the most reasonable action but was still within the bounds of reason. However, since we are upholding the verdict on other grounds, we do not address that issue.
The mistake Klem made has undoubtedly been terrible
in its long-term consequences for Officer Curley and his
family, and we do not for a moment discount the pain, sorrow,
expense, and frustration that it has visited on them in their
innocence. But a mistake, though it may be terrible in its
effects, is not always the equivalent of a constitutional
violation. In
Curley I
, we acknowledged “the great pressure
and intensity inherent in a police officer’s hot pursuit of a
suspect known to be armed and highly dangerous ... .” 298
F.3d at 280. That would amount to little more than lip
service, were we to reverse the jury’s verdict and the District
Court’s thoughtful decision on the post-trial motions.
“[P]olice 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.”
Graham
,
V.
For the foregoing reasons, we will affirm the judgment of the District Court on the ground that no constitutional violation occurred.
CURLEY v. KLEM (“Curley II”)
No. 05-4701 ROTH , Circuit Judge, dissenting: The jury’s findings make clear that, were it not for Trooper Klem’s unreasonable actions, the tragic shooting of Officer Curley would never have occurred. In the special interrogatories, the jury found that the sole perpetrator was dead and visibly sprawled across the passenger seat of the Camry at the time Klem approached it, and that Klem came within an arm’s length of the Camry’s passenger side window, yet failed to look into the car to check for the perpetrator’s body. Klem admitted at trial that, had he looked into the Camry and seen the perpetrator lying there, Klem would not have confronted and shot Curley. Klem would have holstered or lowered his gun, thus breaking the chain reaction of events leading to the shooting, and Curley would have walked away unharmed. In Question 1 of the liability verdict sheet, the jury had to decide whether Klem’s failure to break the chain reaction – by failing to look into the Camry – was an objectively reasonable mistake of fact, in light of the totality of the circumstances. The jury concluded that it was not.
Based on these facts, I cannot agree with the majority’s conclusion that the jury returned a verdict for Klem. The exact opposite is true. The jury answered Question 1 in favor of Curley, which established a constitutional violation. Although the jury answered Question 3 in favor of Klem, this question should never have been posed, as it asked the ultimate question *42 of qualified immunity and encompassed purely legal issues reserved exclusively for the court. The majority concedes that such a question is outside the province of the jury, and our prior precedents, including our prior decision in this case, have never stated otherwise. Therefore, in order to justify its decision to affirm, the majority takes a revisionist view of history and refashions Question 3 into a factual, rather than legal, question. The majority does so notwithstanding the fact that the language and structure of the verdict sheet and the understanding of the District Court and the parties clearly demonstrate that Question 3 was an improper legal question.
For these reasons and those that follow, I respectfully dissent. Question 3 should be stricken, the judgment for Klem should be vacated, and this case should be remanded in order to permit the District Court, rather than the jury, to resolve the ultimate question of qualified immunity. If the District Court were to conclude that immunity is not warranted under clearly established law, judgment should be entered in favor of Curley and the case should proceed to a damages determination.
I. BACKGROUND
In
Curley v. Klem
,
When Klem arrived at the toll plaza, he was unaware that
his suspect had just shot and killed himself while sitting
inside the stolen Camry. But it is uncontroverted that
Klem knew there was only one perpetrator.
Thus, had
Klem known of Bailey’s suicide, it would have been
clearly unreasonable for him later to confuse Curley with
the suspect
. Assuming that a reasonable officer in
Klem’s position would have looked inside the Camry
upon arriving at the scene, a key issue becomes whether
Klem did, in fact, look inside the Camry’s window.
Id.
at 281 (emphasis added). We noted that, while qualified
immunity is supposed to act as immunity from suit, not just
liability, “the reality [is] that factual disputes often need to be
resolved before determining whether the defendant’s conduct
violated a clearly established constitutional right.”
Id.
at 278.
We noted that “[a] judge may use special jury interrogatories,
for instance, to permit the jury to resolve the disputed facts upon
which the court can then determine, as a matter of law, the
ultimate question of qualified immunity.”
Id.
at 279. Our
analysis was colored by the Supreme Court’s directive, in
Saucier v. Katz
,
In accordance with our directives in Curley I , the District Court submitted a series of special interrogatories to the jury at the conclusion of trial. These 10 interrogatories were derived from the material fact disputes we had identified in our decision in Curley I . Five interrogatories sought to resolve fact disputes relating to the extent of Klem’s inspection of the Camry. All of these interrogatories were answered in favor of Curley in that they tended to demonstrate that Klem had acted unreasonably by failing to look into the Camry, where he would have seen the perpetrator’s dead body. [21] The other five interrogatories addressed Klem’s subsequent confrontation with Curley – *45 which, by Klem’s own admission, never would have happened had Klem acted reasonably by looking into the Camry. Two of these interrogatories were answered in favor of Curley (in that they tended to demonstrate that Klem confronted Curley in an unreasonable manner), [22] one interrogatory was answered in favor of Klem (in that it tended to demonstrate that Klem had acted reasonably), [23] and two interrogatories were left unanswered due to the jury’s failure to reach a unanimous decision on them. [24]
The District Court also submitted to the jury a separate “Liability Verdict Sheet” premised on and guided by our discussion in Curley I . Although the majority opinion reproduces the four liability questions in full, the majority fails to include the instructions that accompanied these questions. Because these instructions are critical to understanding the meaning of the questions themselves, I set forth the verdict sheet in its entirety, as returned by the jury, below:
LIABILITY VERDICT SHEET After you have finished answering the written interrogatories, please proceed to liability, and, if appropriate, damage questions.
1. Did Trooper Ron Klem’s failure to act in an objectively reasonable manner in observing the Camry prevent him from seeing the perpetrator’s body in the Camry?
X Yes No 2. Did Trooper Ron Klem act in an objectively reasonable manner in shooting Officer Curley during the confrontation?
X Yes No If you answered Yes to Question 1 and/or No to Question 2, proceed to Question 3.
If you answered No to Question 1 and also Yes to Question 2, then go no further. Stop deliberating and inform the attendant that you have reached the verdict. If not, proceed to Question 3. 3. Was Trooper Ron Klem’s mistake in firing his weapon objectively reasonable?
X Yes No If you answered No to Question 3, then proceed to Question 4.
If you answered Yes to Question 3 then proceed no further. Stop deliberating and inform the attendant that you have reached a verdict. 4. Did the plaintiff suffer damages that were proximately caused by Trooper Ron Klem’s conduct?
Yes No If you answered Yes to Question 4 you must proceed to the Damages Verdict Sheet. If you answered No to Question 4, proceed no further. Stop deliberating and inform the attendant that you have reached a verdict. *48 There is certainly some ambiguity in the verdict sheet. However, as I will discuss below, I believe it is clear that – in light of the special interrogatories, the verdict sheet instructions, and other record evidence – Questions 1 and 2 represented alternate theories of liability, and Question 3 represented the ultimate qualified immunity question. Although Questions 1 and 2 were more or less in accordance with our directives in Curley I , Question 3 was not – and it never should have been included on the verdict sheet.
Upon receiving the jury’s answer to Question 3, the District Court promptly entered judgment for Klem on that basis, without any further analysis, in a two-page judgment order. See 9/29/05 Order. In its post-trial opinion, the District Court made clear that the issue of qualified immunity was out of its hands and had been delegated to the jury in Question 3: “Question 3 properly asks the jurors to make the finding that is inherent in the remand, and in answering it as they did, unanimously, this jury decided the issue of qualified immunity in Trooper Klem’s favor.” Curley v. Klem , No. 98-5256, 2006 WL 414093, at *5 (D.N.J. Feb. 21, 2006) (emphasis added). By entering judgment for Klem on the basis of Question 3, the District Court disregarded the jury’s answers to the special interrogatories, overrode the jury’s finding of liability in Question 1, and improperly delegated the ultimate question of qualified immunity to the jury.
II. DISCUSSION
First, I will explain why Questions 1 and 2 were alternate theories of liability. Second, I will explain why Question 3 *49 asked the ultimate question of qualified immunity, and thus should be stricken. Third, I will explain how the District Court should have handled the issue of qualified immunity.
A. Questions 1 & 2
It is self-evident that Klem shot the wrong man. That
mistake alone, however, does not establish a Fourth Amendment
violation for unreasonable seizure. Rather, what must be shown
is that the facts of the case rendered it objectively unreasonable
for Klem to mistake Curley for the fleeing perpetrator and then
use deadly force to seize him. As we noted in
Curley I
, there are
at least two ways in which the jury could have found the
mistaken identification and corresponding shooting to be
objectively unreasonable. First, the jury could have concluded
that Klem acted unreasonably by failing to check the Camry for
the perpetrator’s body, which directly led to the mistaken
identification and shooting. Indeed, we explicitly stated in
Curley I
that, “had Klem known of Bailey’s suicide, it would
have been clearly unreasonable for him later to confuse Curley
with the suspect.”
Although these two theories were not the only potential avenues for liability, they were the focus of our opinion in Curley I and influenced the District Court’s decision to place Questions 1 and 2 on the verdict sheet as alternative theories of liability. The trial record reflects that the parties and the District *50 Court understood and intended Questions 1 and 2 to be alternate liability questions. This understanding was in line with the verdict sheet instructions directing the jury to proceed to Question 3 “[i]f you answered Yes to Question 1 and/ or No to Question 2” (emphasis added). The fact that an answer for Curley on either Question 1 or 2 warranted consideration of Question 3 suggests that Questions 1 and 2 were in fact alternate and independent liability questions. They had to be, because an answer for Curley on either question took the jury to the same place. Questions 1 and 2 operated independently and a finding for Curley on either one was sufficient to establish a constitutional violation.
Klem argues that Question 1 was actually a special interrogatory, as opposed to an independent liability question. This argument makes little sense in light of the fact that all other special interrogatories were placed on a separate sheet entitled “Special Interrogatories” and Question 1 appeared on the “Liability Verdict Sheet.” Klem also argues that the District Court would have included instructions to skip Question 2 upon a finding in favor of Curley on Question 1 if those two questions were actually alternate and independent theories of liability. This argument seems plausible at first blush, but Curley rightly points out that it was sensible for the District Court to instruct the jury to answer both questions, despite being independent of one another, in case this Court were to invalidate one of the two theories of liability on appellate review – a reasonable concern given the complexity and history of this case. Finally, Klem argues that our comment in Curley I that “a key issue” – as opposed to the key issue – was “whether Klem did, in fact, look inside the Camry’s window,” id. at 281, shows that it is *51 impossible for Question 1 to be outcome-determinative. This argument falls short because it fails to appreciate the fact that identifying a proximate cause of an injury can be outcome- determinative even if it is not the only proximate cause of that injury.
With regard to this last argument, the majority adopts a
somewhat similar view by arguing that one event – the
unreasonable failure to inspect the Camry – cannot alone
support liability because the totality of the circumstances must
be considered. I do not dispute that the totality of the
circumstances must be considered and I fully agree that “[a]ll of
the events leading up to the pursuit of the suspect are relevant.”
Carswell v. Borough of Homestead,
This is so because the high-speed chase was composed of a sequence of events forming a chain reaction, like a row of falling dominoes. One event caused the next event which caused the next. Had Klem looked into the Camry for the sole perpetrator – which is what the jury concluded an objectively reasonable police officer would have done in light of the circumstances [26] – a key domino would have been removed and the chase would have come to an end. Indeed, Klem admitted at trial that, had he seen the perpetrator in the Camry, he never would have shot Curley. App. at T1016. Klem’s admission negates any suggestion that, even if he knew of the perpetrator’s death, Curley’s subsequent approach with a gun might have *53 nevertheless presented a new danger that would have warranted the use of deadly force.
The District Court correctly instructed the jury: “The question is whether, in the circumstances here, a reasonable officer would not have made the mistake that Trooper Klem made.” App. at T1166-67. By concluding, in Question 1, that a reasonable officer would have looked in the Camry – where, according to the jury’s findings in the special interrogatories, Bailey was lying in plain view – the jury answered the dispositive question of liability in favor of Curley. For Klem’s shooting of Curley to have been reasonable, Klem’s misidentification of Curley must have been reasonable as well. The jury concluded that Klem’s misidentification was not reasonable. Therefore, the shooting could not have been reasonable. [27] It is this simple syllogism, premised upon the law *54 of the case as set forth in Curley I , see In re City of Phila. Litig. , 158 F.3d 711, 722 (3d Cir. 1998) (applying law of the case doctrine in a similar Fourth Amendment case), that the majority fails to appreciate.
For these reasons, I would conclude that, by answering Question 1 in favor of Curley, the jury found that Klem had committed a constitutional violation. In this case, proof of an unreasonable action that directly causes a later action that might otherwise be reasonable but nevertheless should not have occurred should be enough to prove a violation. [28] Having concluded that the jury found a constitutional violation, I wrongly identified as the feeling perpetrator, after the unreasonable action of turning off the radio – an unreasonable action directly responsible for the misidentification and ramming of the innocent driver. Similarly, Klem’s misidentification of Curley is unreasonable due to the unreasonable action that directly preceded it – the failure to look into the Camry – which directly caused the misidentification and shooting to occur. This is not to say that in all circumstances one
unreasonable action that occurs within a series of reasonable actions necessarily establishes a violation. For example, if the hypothetical officer discussed above, supra note 7, turned his radio back on before any relevant information was transmitted, the officer’s misidentification later would not necessarily constitute a violation simply because of the officer’s earlier unreasonable action of turning off his radio. *55 consider whether we should permit that finding to be negated by Question 3.
B. Question 3
As I noted above, there is no dispute that Klem shot the wrong man. Therefore, Questions 1 and 2 did not ask whether Klem had made a mistake, since that was conceded; rather, they asked whether Klem’s mistake was an objectively reasonable one, for Fourth Amendment purposes, in light of the factual circumstances at hand. That is, Questions 1 and 2 resolved step one of the Saucier test concerning whether a constitutional violation had occurred.
Since the jurors found a constitutional violation by answering “Yes” to Question 1, they next considered Question 3, which asked, “Was Trooper Ron Klem’s mistake in firing his weapon objectively reasonable?” The majority acknowledges that “Question Three on the liability verdict sheet was evidently intended to reach the question of qualified immunity,” i.e., Saucier step two, but nevertheless concludes that Question 3 “actually pertains to whether there was any constitutional violation at all.” Maj. Slip Op. at 27. The majority’s conclusion is unfounded because, as discussed above, the language and the structure of the verdict sheet make clear that Questions 1 and 2 already asked whether a constitutional violation had occurred. Under the majority’s reading, Question 3 is essentially redundant. I believe the more logical reading is that Question 3 sought to resolve Saucier step two, i.e., the objective reasonableness of a mistake of law, whereas Questions 1 and 2 *56 resolved Saucier step one, i.e., the objective reasonableness of a mistake of fact. [29]
As alluded to by the majority, my conclusion is in line
with the understanding of the parties and the District Court. In
its post-trial opinion, the District Court made clear that Question
3 asked the ultimate question of qualified immunity. The
District Court stated that “the litigants agreed to submit the
ultimate question of qualified immunity to the jury,”
[30]
despite
*57
the fact that “there is Third Circuit law on the books that
indicates the trial judge, and not the jury, decides qualified
immunity.”
Curley
,
Having concluded that Question 3 did, in fact, ask the
ultimate question of qualified immunity, I consider whether it
was permissible for the District Court to submit that question to
the jury. I have no trouble concluding that it was not. Although
the objective reasonableness of a mistake of
fact
is a question
that the jury may answer, the jury may never consider the
objective reasonableness of a mistake of
law
.
[31]
See Carswell
,
381 F.3d at 242 (“The court must make the ultimate
determination on the availability of qualified immunity as a
matter of law.”) (citing
Curley I
,
The majority suggests that our decision in Curley I left open the possibility of giving the ultimate question of qualified immunity to the jury. The majority points out that we stated in that case “that a jury can evaluate objective reasonableness when relevant factual issues are in dispute.” Maj. Slip Op. at 25 (quoting Curley I , 298 F.3d at 279). I disagree with the majority’s interpretation of Curley I . To the extent we were permitting juries to consider the question of “objective reasonableness,” we were referring to the objective reasonableness of one’s view of the facts (i.e., Saucier step one, which asks whether a violation occurred), as opposed to the objective reasonableness of one’s view of the law (i.e., Saucier step two, which asks whether a right was clearly established under the case law). See supra note 9. Indeed, we made clear the respective roles of the judge and jury in cases such as this one: “A jury must resolve these [fact] issues before a court can determine whether it would have been clear to a reasonable officer that Klem’s conduct was unlawful.” Curley I , 298 F.3d at 283.
The majority also suggests that our decisions in
Sharrar
and
Karnes v. Skrutski
,
As previously noted, supra note 9, any ambiguity in our precedents exists because “objective reasonableness” is the standard by which mistake of facts and mistakes of law are to be judged in the context of the Fourth Amendment’s prohibition of unreasonable searches and seizures. Courts, including this one, create confusion by talking about “objective reasonableness” in the Fourth Amendment context without specific reference to either Saucier step one or two. The use of the term “objective reasonableness” without reference to factual or legal reasonableness is what has made this area of the law so confusing and it is why our precedents appear at times to say contradictory things with regard to the respective roles of judge and jury in determining objective reasonableness.
I will try to clarify matters. If there are no disputed material facts, the court must determine the objective reasonableness of a mistake of fact (here, whether it was objectively reasonable for Klem to mistake Curley for the perpetrator). However, if there are triable issues of material fact, the jury must determine the objective reasonableness of that mistake of fact. With regard to the objective reasonableness of a mistake of law (here, whether it was objectively reasonable for Klem to believe that the law permitted him to use of deadly force against Curley in the situation at hand), the court should always determine this issue, because doing so requires a review of case law, which is not a task appropriate for the jury. (Of course, this second Saucier step need not be reached if it is established that no constitutional violation occurred. At that issues of credibility related to qualified immunity, but not qualified immunity itself. Id. at 499.
point, there is no violation, so there is no need for immunity
analysis.) If there are no disputed material facts, the court
should make this determination as soon as possible. However,
if factual disputes relevant to this legal analysis do exist, the
court will have to postpone making this determination until the
jury resolves all the relevant factual disputes, because
determining what actually happened is a prerequisite to
determining whether the law clearly established that a particular
action was permitted or prohibited by the Fourth Amendment
under those circumstances.
See Saucier
,
The District Court committed reversible error by submitting the ultimate question of qualified immunity to the jury by way of Question 3. Having so concluded, I next address what the District Court should have done instead. In doing so, I address what I believe to be the proper methods for handling qualified immunity where material fact disputes preclude resolution of that issue prior to trial.
C. Proper Methods
*63 After answering one of the two alternate liability questions in favor of Curley, the jury should have been instructed to proceed to Question 4, concerning proximate causation. The jury would have had to find that Klem’s shooting of Curley caused Curley’s injuries, since the evidence overwhelmingly reflected that fact and the issue was essentially uncontested. Indeed, at the charging conference, counsel for Klem agreed to place the proximate causation question separately at the bottom of the verdict sheet, rather than alongside each liability question, because causation was “not really a contested issue in this case.” App. at T1061-62. Next, the jurors should have been instructed to proceed to the separate damages verdict sheet, where they would have had to decide on dollar amounts that accurately reflected the economic and non- economic losses suffered by Curley as a result of Klem’s violation.
After receiving the jury’s verdict for Curley, the District Court should have considered whether qualified immunity, Saucier step two, nevertheless prevented judgment from being entered against Klem. That would have been appropriate if the Fourth Amendment jurisprudence of the Supreme Court and this Court did not clearly establish that Klem’s conduct, in the circumstances at hand, was unlawful. In other words, if Klem’s conduct could have been the result of an objectively reasonable but mistaken view of law, he should have been entitled to qualified immunity.
In making the ultimate qualified immunity determination for a Fourth Amendment case such as this one, the District Court should have reviewed the answers to the special *64 interrogatories in order to determine what actually happened. Then the District Court should have applied these findings to its survey of the relevant case law in order to determine if it was clearly established that a police officer was permitted to use deadly force in circumstances similar to the instant case. Post- trial briefing likely would have been helpful to the District Court in this regard. If the District Court had concluded that Klem was entitled to qualified immunity, judgment should have been entered for Klem, notwithstanding the jury’s verdict. If the District Court had made the opposite conclusion, judgment should have been entered for Curley. Either way, the District Court should have issued a written opinion explaining its reasoning with regard to qualified immunity.
III. CONCLUSION
In my view, the District Court improperly delegated the ultimate question of qualified immunity to the jury. I would vacate the judgment for Klem and remand the case so that the District Court can decide the question of qualified immunity in the first place. [33]
The District Court considered post-trial motions regarding various issues, including potential inconsistencies in the verdict, and in doing so conducted some analysis of the special interrogatory answers. However, the District Court has not considered qualified immunity anew based on the jury’s answers to the special interrogatories and the relevant case law, which is what I believe the law in the Circuit requires. If the District Court were to conclude that Klem was not entitled to qualified immunity, a trial would have to be held on the damages issue, which never reached the jury. If, on the other hand, the court were to conclude that Klem was entitled to qualified immunity, then the court would have to set aside the liability verdict as it had before. [34]
(1994)). In addition, a new trial in not required, as Curley
requests, for purported racial discrimination during juror
selection. The District Court correctly concluded that Curley
failed to make out a prima facie showing of racial
discrimination during voir dire under
Batson v. Kentucky
, 476
U.S. 79, 96 (1986) and
United States v. Milan
,
Although the outcome reached by the majority brings closure to nine years of litigation in this difficult case, I do not believe that this outcome is the correct one. In my view, the majority’s decision is not faithful to its own opinion, Curley I , or our other precedents, and thus should be modified as I have proposed.
Interrogatory 7, see supra note 2), and to consider how they apply to the Saucier step two analysis. That said, it would be surprising if the District Court were to grant qualified immunity in this situation given Klem’s admission in his appellate brief that the issue in this case “is not whether there was a misunderstanding of the law.” Klem Br. at 25; see also Klem Br. at 2 (“This case, involving a ‘friendly fire’ shooting as a result of mistaken identity, is one of the class of Fourth Amendment and qualified immunity cases where the decisive issue is whether a police officer has made a reasonable mistake of fact in carrying out his duties.”) (emphasis added).
Notes
[1] At the summary judgment stage of the case, Klem
claimed that the radio transmission described Bailey as a
“thin, black male” rather than a “tall, black male.”
See Curley
v. Klem
,
[2] At his deposition, Klem testified that about thirty seconds passed between the time he first saw Curley and the time he fired his shotgun. At trial, he testified that only ten to fifteen seconds had passed.
[3] It is undisputed that Bailey had been alone, and that Klem knew that.
[4] “To state a claim for excessive force as an unreasonable
seizure under the Fourth Amendment, a plaintiff must show
that a ‘seizure’ occurred and that it was unreasonable.”
Abraham v. Raso
,
[5] For purposes of the following discussion, when we speak of Officer Curley taking certain legal positions, it should be understood that his wife and co-plaintiff has also taken those positions.
[6]
Saucier
was not the first time the Court had framed the
analysis in two parts,
see Siegert v. Gilley
,
[7] As further explained herein, infra at sections IV.B and IV.C, we do not have occasion to reach that second step here, because no constitutional violation occurred in this case.
[8]
See Rodriguez-Marin v. Rivera-Gonzalez
,
[11] We are not suggesting that the objective reasonableness of an officer’s view of the law may be submitted to the jury. Rather, we are recognizing that, when material issues of fact are in dispute, our past precedents, in particular Karnes , Sharrar , and Curley I , have allowed the jury to resolve those disputes and also to determine the objective reasonableness of the officer’s conduct in light of the facts.
[12] We acknowledge again that our language in
Curley I
left
open the possibility of giving that question to the jury.
Discussing “the procedure for deciding the immunity question
when the existence of disputed issues of fact precludes
disposition on summary judgment,”
[14] We note that in the Supreme Court’s recent decision in
Scott
,
[15] Given that Curley acknowledged pointing the gun in the direction of the Camry and that Klem was standing next to the car, it is not fanciful to believe that the jury could have interpreted the question as described.
[16] The procedural posture of Curley I provides another key reason why we cannot agree with the dissent. Our colleague takes as a given that Curley I established alternative theories of liability based on a “simple syllogism,” post at 13-14, but Curley I was in a procedural posture that required every inference to be drawn for Curley. It thus did not present an opportunity to frame a set of factual questions to constrain the jury’s fresh look at the evidence. The jury was not constrained by the Curley I opinion’s necessarily biased view of the facts, and the jury was therefore free to consider the entire set of facts facing Klem when determining whether Klem’s conduct violated Curley’s constitutional rights.
[17] The
Saucier
opinion itself was generated by the
confusion inherent in such conceptually close questions.
See
Saucier
,
[18] The fact that the District Court relied on Question Three
as answering the qualified immunity question and entered a
verdict based on Trooper Klem deserving qualified immunity
is not reversible error. Because Trooper Klem was entitled to
a verdict in his favor either if there was no constitutional
violation or if he was entitled to qualified immunity, the error
in the District Court’s analysis was harmless.
Hill v. Laisz
,
[19] This, of course, is the dissent’s view as well, post at 11-
12, and we do not suggest that this is illogical, only that it is
not the exclusively logical view. We stated in
Curley I
that
Klem knew there was only one suspect and, “had Klem
known of Bailey’s suicide, it would have been clearly
unreasonable for him later to confuse Curley with the
suspect.”
[21] These interrogatories are as follows. Interrogatory 1 asked: “At the time Trooper Klem approached the Camry, was the perpetrator’s body on the front seat of the car?” The jury answered: “Yes.” Interrogatory 2 asked: “At the time Trooper Klem approached the Camry, was the perpetrator’s body on the passenger side floor of the car?” The jury answered: “No.” Interrogatory 3 asked: “When Trooper Ron Klem was within about an arm’s length from the passenger side window of the Camry, did he look into the window of the Camry to see if the perpetrator was in the car?” The jury answered: “No.” Interrogatory 4 asked: “Regardless of where the perpetrator’s body was located in the Camry, should it have been visible to someone looking in the passenger side window from where Trooper Klem was positioned?” The jury answered: “Yes.” Interrogatory 5 asked: “Did Trooper Ron Klem make an objectively reasonable effort to observe into the Camry to determine if the perpetrator was inside the Camry?” The jury answered: “No.”
[22] These interrogatories are as follows. Interrogatory 7 asked: “Did Officer Curley raise his gun to point directly at Trooper Ron Klem several times during “the confrontation?” The jury answered: “No.” Interrogatory 8 asked: “At the time Officer Curley was shot, was Officer Curley’s gun coming up to aim at Trooper Ron Klem?” The jury answered: “No.”
[23] This interrogatory, Interrogatory 6, asked: “Was it objectively reasonable for Trooper Ron Klem to believe that toll collector Jenkins signaled to him with an arm motion towards the east side center of the plaza?” The jury answered: “Yes.”
[24] These interrogatories are as follows. Interrogatory 9 asked: “Was Officer Curley’s uniform visible as a police uniform from the position where Trooper Ron Klem was standing?” Interrogatory 10 asked: “Was it objectively reasonable for Trooper Ron Klem to believe that the individual he observed holding a weapon was wearing civilian clothing?”
[25] In its charge to the jury, the District Court stated that “[a]ll of the events leading up to the pursuit of the suspect are relevant,” apparently quoting Carswell verbatim. App. at T1166.
[26] In
Curley I
, we “[a]ssum[ed] that a reasonable officer in
Klem’s position would have looked inside the Camry upon
arriving at the scene.”
[27] This is so notwithstanding the jury’s answer to Question 2, which, as discussed above, was answered in case this Court were to invalidate Question 1. The shooting during the confrontation was unreasonable by necessity – due to the sequential nature of the events – once the jury concluded that it was unreasonable for Klem not to look into the car. The unreasonableness of Klem’s failure to look into the Camry carried over and rendered Klem’s misidentification during the confrontation unreasonable as well. This “carry over” effect can be understood with a hypothetical. If, during a high- speed car chase, an officer unreasonably turned off his police radio and therefore did not hear that the perpetrator being pursued had been stopped, by necessity it would be unreasonable if the officer then rammed an innocent driver,
[29] That said, there is certainly some ambiguity in the verdict sheet, in large part because “objective reasonableness” is the standard by which a mistake of fact (or any decision based on real or perceived facts) and a mistake of law (or any decision based on a correct or incorrect understanding of the law) must be judged in the context of a Fourth Amendment case such as this one. See Maj. Slip Op. at 17-18 (noting that, in a Fourth Amendment case, Saucier steps one and two require an objective analysis of what is reasonable under the facts and the law, respectively). Courts create confusion by talking about “objective reasonableness” in the Fourth Amendment context without specific reference to either Saucier step one or two.
[30] It should be noted, however, that Curley never agreed to submit the qualified immunity question to the jury. The record clearly reflects that Curley objected to the inclusion of Question 3 on the verdict sheet prior to its submission to the jury. Curley correctly noted that Question 3 asked about a purely “legal matter” that “should not be a jury question.” App. at T1062.
[31] In this case, the mistake of fact was for Klem to think that Curley was the fleeing perpetrator. The mistake of law, if there was one, would have been for Klem to think that the Fourth Amendment jurisprudence of the Supreme Court and this Court permitted the use of deadly force in this situation, when it did not.
[32] For example, in
Sharrar
, we held “that in deciding
whether defendant officers are entitled to qualified immunity
it is not only the evidence of ‘clearly established law’ that is
for the court but also whether the actions of the officers were
objectively reasonable. Only if the historical facts material to
the latter issue
are in dispute . . . will there be an issue for the
jury.”
[33] However, I would not remand to a different judge, as
Curley requests, because there is little evidence, if any, of
judicial bias. Curley attempts to show bias by pointing to
several unremarkable rulings and remarks made by Judge
Hayden during the official proceedings of this case. This
Court has said, however, that such official judicial activity is
almost never sufficient to warrant recusal under 28 U.S.C. §
455.
See United States v. Bertoli
,