*2 THOMPSON , Circuit Judge . We seldom do our best thinking in the murky hours when late night seeps into early morning. What strikes one as a fine idea in the darkness may reveal itself to be a brilliant mistake in the cold light of dawn. Decisions made well past 4 a.m. by two men -- one a suspect, the other a police officer -- are at the heart of this appeal. Jonathan E. Mitchell, once the suspect, now the plaintiff, decided to break in to his estranged wife's apartment to talk about their relationship, and then opted to lead police on a car chase. He now contends that Officer Robert Miller violated his Fourth Amendment rights when Miller shot him as he sped away. The district court granted summary judgment to Miller, finding that the officer was entitled to qualified immunity. Although Mitchell appeals that judgment, because we find the district court reached the right decision, we affirm.
I.
Background On the evening of April 9, 2011 in Portland, Maine, Jonathan E. Mitchell spent time drinking at a bar and smoking marijuana before deciding to help himself to a friend's Volkswagen Jetta. In the wee small hours of the 10th, Mitchell had the idea of visiting his estranged wife to talk "about their relationship." Perhaps anticipating the reception he might receive, instead of *3 calling or ringing the bell, Mitchell broke into the sleeping woman's apartment. He then woke her and talked to her in what he characterizes as an attempt "to rekindle their relationship." Unsurprisingly, she viewed his behavior as more of a criminal act than a display of ardor, and, once Mitchell made his exit, she called the police. The woman reported the break-in at 4:39 a.m., and provided a description of the Jetta, as well as the direction in which Mitchell was driving when he left.
The police dispatcher, in turn, passed along the information to patrol officers and added that: Mitchell's driver's license had been revoked as a habitual offender; he was a sexually- violent convicted felon; and he was reported to be under the influence of alcohol or drugs and "possibly unstable." Portland Police Officer Robert Miller was on patrol that evening when he heard the report of the residential burglary, spotted the Jetta, and began to follow Mitchell. A video camera mounted to Mitchell's cruiser recorded the subsequent events. 1
Mitchell turned into a residential neighborhood and drove at a normal rate of speed, stopping at stop signs and using 1 Both Mitchell and Miller rely on the factual summary in the district court's order. The district court, in turn, relied on the videotape from Miller's cruiser, as well as that of Officer Schertz, who also responded to the radio call. Because the facts are largely undisputed, we too shall rely on the district court's recitation, and our own review of the videotapes.
his turn signal. After Miller confirmed that this was the Jetta he had been looking for, he turned on his blue lights and siren. Rather than pull over, Mitchell continued to drive at a moderate speed for over a minute. At this point, Officer David Schertz joined the pursuit in his own cruiser.
Mitchell, now tailed by two cruisers, sped up and drove down residential side streets at speeds of up to sixty-five miles per hour. After another forty seconds, Mitchell turned down a dead-end residential street and, at the end of the street, veered up onto an embankment, coming to rest three to four feet above street level. The remainder of the incident, captured on video, took only twenty-six seconds to unfold.
As Miller parked his cruiser behind the Jetta, and Schertz parked behind Miller, Mitchell began backing the Jetta down the embankment. Miller emerged from the cruiser, and Mitchell pulled the Jetta abruptly forward two to three feet before stopping. Miller approached the Jetta with his gun drawn, yelling loudly to Mitchell to get out of the car. Schertz then exited his cruiser and followed Miller. When Mitchell did not obey his commands, Miller opened the driver's side door of the Jetta with his left hand, keeping the gun pointed at Mitchell with his right. As Miller held the door, the Jetta again lurched forward. Schertz also grabbed the door of the Jetta with his left hand. Miller *5 then reached into the passenger compartment and began to grapple with Mitchell. At one point, Miller stepped back slightly and the car rolled backwards. As Miller continued to try to get hold of Mitchell, the Jetta lurched forward several feet, and its wheels turned sharply to the left. Both officers sidestepped to keep pace with the moving car.
Miller continued to tussle with Mitchell as the car once again rolled backwards. Schertz repositioned himself somewhat, moving from Miller's left and in front of the open driver's side door, to behind Miller. The Jetta's engine began to rev and its tires squealed as Mitchell threw the car into a rapid u-turn to the left (the side where the officers were standing). Miller, still holding the door, was briefly pulled around by the car, but did not fall. Miller then fired two shots in Mitchell's direction.
The Jetta sped away. Mitchell, with one bullet lodged in his shoulder (the other having passed through his neck), drove to a friend's house and ingested some opiates. He was later apprehended at the friend's house.
In April 2013, Mitchell filed suit against Miller, the city of Portland, and its chief of police. The lawsuit originally alleged four counts, two of which, against the city and the police chief, were voluntarily dismissed. As to the remaining counts, Mitchell alleged that Miller had violated his Fourth Amendment *6 rights, and had committed common law assault. Miller moved for summary judgment, arguing that he had used reasonable force, and that he was protected by qualified immunity. On September 26, 2014, the district court awarded summary judgment to the defendant on the grounds of qualified immunity (for the 42 U.S.C. § 1983 claim) and discretionary act immunity (for the assault claim). This appeal followed.
II.
Discussion Mitchell argues that the district court erred by concluding "that Defendant Miller 'could reasonably have believed at least one other person in the immediate vicinity was in great danger,'" and by holding that Miller was entitled to qualified immunity. 2
We review a grant of summary judgment de novo, drawing
all reasonable inferences in the light most favorable to the non-
moving party. Alicea v. Machete Music, 744 F.3d 773, 778 (1st
Cir. 2014). Here, the inferences that can reasonably be drawn are
2 Mitchell makes no separate argument regarding his state law
claim and discretionary authority. Miller contends, and Mitchell
does not dispute, that although the terminology differs, the
standard for determining discretionary authority for the state
tort claim is the same as the standard for determining qualified
immunity for the federal claim, so we will address them as one.
Richards v. Town of Eliot,
*7
limited by the existence of video evidence. See Scott v. Harris,
A claim that a police officer used excessive force "is
governed by the Fourth Amendment's 'reasonableness' standard."
Plumhoff v. Rickard,
Even if it is not clear that the use of force was
reasonable, under the doctrine of qualified immunity, a police
officer is protected from liability for civil damages under § 1983
"unless it is shown that the [officer] violated a statutory or
*8
constitutional right that was clearly established at the time of
the challenged conduct." McGrath v. Tavares,
Cir. 2014) (quoting Plumhoff, 134 S. Ct. at 2023). "An officer cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it, meaning that existing precedent . . . placed the statutory or constitutional question beyond debate." City and Cnty. of San Francisco, California v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal quotation marks and citations omitted) (alterations in original).
The plaintiff bears the burden of demonstrating that the
law was clearly established at the time of the alleged violation,
and it is a heavy burden indeed. McGrath,
Analysis
We "employ a two-prong analysis" to determine whether an
officer is protected by qualified immunity. Mlodzinski v. Lewis,
This two-step process is not mandatory; courts have the
discretion, where warranted, to proceed directly to the second
prong. Pearson v. Callahan,
1. Clearly Established
Mitchell has the burden of demonstrating that as of April
10, 2011, the time of the alleged violation, the law was clearly
established such that a reasonable officer in Miller's shoes would
*10
be on notice that his actions would violate the Fourth Amendment.
McGrath, 757 F.3d at 29. Although "[w]e do not require a case
directly on point . . . existing precedent must have placed the
statutory or constitutional question beyond debate." Taylor v.
Barkes,
In McGrath, a more recent case involving a police officer
who fired on a fleeing driver, we determined that there were two
paths a plaintiff could take to avoid summary judgment under the
second prong of the qualified immunity analysis: "a plaintiff would
have to show at a minimum that the officer's conduct is materially
different from the conduct in Brosseau or that between February
21, 1999 and the date of the alleged constitutional violation there
emerged either controlling authority or a robust consensus of cases
of persuasive authority that would alter our analysis of the
qualified immunity question." McGrath, 757 F.3d at 30 (quoting
*12
Plumhoff,
i. Materially Different
Mitchell attempts to distinguish the facts of this case
from Brosseau, arguing that neither Miller nor anyone else was in
danger of death or serious injury. There are some striking
parallels between this case and Brosseau: both cases involve a
suspect who refused to exit a vehicle; an officer with gun drawn
who wrestled with the suspect for control of the car; and shots
fired as the suspect drove away. Mitchell focuses his argument on
the distinctions that exist between the two cases: that there was
no active arrest warrant for Mitchell as there was for the suspect
in Brosseau; that, in Brosseau, "the officer believed other
3 "[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
United States v. Zannino,
Although a warrant had not been issued for Mitchell's arrest, Miller was aware that Mitchell was a sexually-violent convicted felon suspected of breaking into his estranged wife's apartment, and that he was reported to be driving without a license while under the influence of alcohol or drugs and "possibly unstable." It is likely, therefore, that Miller and Brosseau had similar reasons for concern, and certainly more than probable cause to arrest.
Mitchell's second distinction, if correct, would be more compelling. He points out that, in Brosseau, "the officer believed other officers were in the immediate area" of the escaping vehicle. At oral argument, Mitchell's attorney distinguished this fact by stating that Officer Miller said nothing in his police report about fearing for the safety of Officer Schertz. According to counsel, that motivation surfaced for the first time during Officer Miller's deposition. Curious, we dug a little deeper. Although Mitchell did not include the police report in the record submitted to us, we found that it was attached to the deposition in the district *14 court docket. The following is from the very end of the narrative in that report:
Knowing the danger of a motor vehicle being driven recklessly I felt my life and Ofc.
Schertz's life were in imminent danger. At no time did Mitchell obey any of our verbal commands nor did he show any concern for our lives or the general public. There was no question in my mind that Mitchell would have stopped at nothing to get away.
Clearly, despite counsel's representation to the contrary, Officer Miller has consistently stated that he was motivated by fear for his own life as well as that of Officer Schertz. 4
Mitchell argues that Miller could not reasonably have
believed (as Brosseau claimed to) that he or anyone else was in
danger because neither the officers nor anyone else were in the
path of the Jetta. 5 However, the test is not whether a person was
actually directly in the path of the car, but whether it was
reasonable for Miller to believe -- at the point when events were
4 "[A] genuine dispute as to a material fact cannot be created
by relying on the hope that the jury will not trust the credibility
of the witness. There must be some affirmative evidence that the
officer[] [is] lying. There is none in this case, and there is
nothing inherently unbelievable" about Officer Miller's testimony.
McGrath v. Tavares,
5 We note that while Brosseau asserted that she acted out of fear for her fellow officers, for occupants in vehicles in Haugen's path and other citizens, the Supreme Court expressed no view as to whether her use of force was reasonable. Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
rapidly unfolding -- that someone was at risk of serious physical harm. Plumhoff, 134 S. Ct. at 2021 (citing Scott, 550 U.S. at 381). Both men were standing close to the Jetta at the point at which Mitchell threw the car into a rapid, tight U-turn, and Miller was still holding onto the car's door at the time. As the video reveals, although Schertz had repositioned himself shortly before the turn, Miller's focus was trained on Mitchell and he likely did not see Schertz move in his peripheral vision. Miller did not have a duty to "turn around and pin down [his partner's] exact location." McGrath, 757 F.3d at 28. We "must account 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 25-26 (internal quotation marks and citation omitted). Miller faced just such a circumstance here; the confrontation with Mitchell -- following what was at times a high-speed chase -- lasted only twenty-six seconds.
Our review of the evidence leads us to conclude that in all material ways, the facts of this case are similar to that of Brosseau, in which the Supreme Court held that it was not clearly established that the officer's conduct violated the Fourth Amendment. Because this case is not materially different from that of Brosseau, and in the absence of any subsequent contravening *16 authority, Mitchell has failed to demonstrate that it was clearly established that Miller's conduct was constitutionally unreasonable in these circumstances. We hold that Miller is protected by qualified immunity.
III.
Conclusion Our de novo review reveals no genuine dispute as to any material fact, therefore Miller is entitled to judgment as a matter of law. Accordingly, we affirm the District Court's entry of summary judgment.