Lead Opinion
Adаm Moore appeals from the district court’s decision to grant Officer Kurt Inde-har’s motion for summary judgment based on qualified immunity. We reverse the grant of summary judgment and remand the matter to the district court for further consideration.
I.
Moore argues on appeal that the district court failed to construe the facts of the case in the light most favorable to him, the non-moving party. When bringing a summary judgment motion, the moving party is required to present “the pleadings, the discovery and disclosure materials on file, and any affidavits [which] show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The adverse party “may not rely merely on allegations or denials in its own pleading,” rather the adverse, or non-moving, party must “set
At approximately 7:00 p.m. on March 23, 2003, Moore and several others, including Rufus Loyd, were “hanging out” in a parking lot behind a convenience store near the intersections of Lowry and Lyndale Avenues in North Minneapolis, Minnesota, when an occupant in a car traveling eastbound on Lowry Avenue fired five to seven shots in the direction of the group. Though Moore attempted to run, he tripped and fell to the ground. After the car passed, Moore ran to the corner of a building to see if he could identify the car, and Loyd stepped out into the street, pulled a pistol, and fired two or three shots towards the fleeing car. Moore was not armed at that time.
At that samе time, Officers Peter Hafs-tad and Kurt Indehar were traveling in a marked Minneapolis Police Department patrol car northbound on Lyndale Avenue to answer an unrelated call. When they heard the shots being fired, they turned right onto Lowry Avenue and began driving eastbound, the same direction as the car from which the shots had been fired. Having heard gunfire, both officers drew their weapons while still traveling in their patrol car. Upon seeing Loyd, both officers noticed that he was holding a handgun. The officers turned into the parking lot behind a convenience store. Moore began fleeing when he saw the infrared laser from one of the officer’s guns. As they ran away, Loyd was between Moore and the police car, approximately ten feet behind Moore. While the car was still in motion, Officer Indehar fired multiple shots in Moore and Loyd’s direction from the passenger-side window.
A friend drove Moore to an emergency room where hospital personnel contacted police authorities to report that a gunshot victim was being treated. After Moore was treated, a police officer took him into
Moore brought suit against Officer Inde-har under 42 U.S.C. § 1983, alleging a violation of his Fourth Amendment right to be free from the use of excessive force. Officer Indehar moved for summary judgment asserting a defense of qualified immunity. The district court granted summary judgment, and Moore appeals.
II.
“The right to be free from excessive force is a clearly established right under the Fourth Amendment’s prohibition against unreasonable seizures of the person.” Guite v. Wright,
We employ a two-step process when considering an officer’s claim of qualified immunity. First, viewing the evidence in the light most favorable to the plaintiff, we determine whether the officer’s conduct violated a constitutional right. Saucier, 533 U.S. at 201,
A.
In this action, Moore asserts that he was subjected to excessive force in violation of the Fourth Amendment when Officer Indehar shot him in the arm. We begin the qualified immunity analysis by determining if Officer Indehar violated Moore’s constitutional rights. “To establish a violation of the Fourth Amendment in a section 1983 action, the claimant must demonstrate a seizure occurred and the seizure was unreasonable.” McCoy v. City of Monticello,
Officer Indehar argues that, under Brower, because he was shooting at Loyd, Moore could not have been seized because Moore was not the object of “means intentionally applied.” Moore responds that Officer Indehar’s subjective intent should not be considered because Officer Indehar intentionally discharged his gun in the direction of Moore, and therefore Officer Indehar seized him using “means intentionally applied” as explained in Brower. Moorе further asserts that the Supreme Court has specifically provided that, even if Officer Indehar had intended to shoot Loyd, Moore could still be seized for Fourth Amendment purposes based on Brower’s statement that “[a] seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Id. at 596,
In both Hill v. California,
The question presented here is not one of mistaken identity, rather one of intent. As other circuits have explained, bystanders are not seized for Fourth Amendment purposes when struck by an errant bullet in a shootout. See Claybrook v. Birchwell,
Moore points to evidence in the record that contradicts Officer Indehar’s claim that he was aiming at Loyd, not Moore. That evidence includes (1) a police report from Sergeant Chuck Peter, Officer Indehar’s supervisor, in which Sgt. Peter reported that either Officer Hafstad or Officer Indehar had “air[ed] information regarding 2 suspects [who] were running south and east from the SE area of Lowry
Officer Indehar’s sworn deposition testimony describing the incident constitutes some evidence regarding his intentions upon firing his weapon. According to Officer Indehar, when he and Officer Hafstad arrived upon a scene at which gun shots had been fired, Loyd was holding a firearm, and Loyd made a gesture which Officer Indehar interpreted as Loyd preparing to shoot at them. In response to Loyd’s actions, Officer Indehar fired at Loyd, but missed his target, striking Moore in the arm. If we considered only Indehar’s deposition testimony as proof of intent, Moore was not seized for purposes of the Fourth Amendment and, thus, failed to show that Officer Indehar’s actions violated his Fourth Amendment rights. This is not, however, a situation where Moore’s only chance at defeating qualified immunity rests with “thе hope that the jury might disbelieve [Indehar’s] testimon[y].” Thompson v. Hubbard,
Our responsibility is to view the facts in the light most favorable to Moore, see O’Neil v. City of Iowa City,
“However, as Brower makes clear, a seizure, standing alone, is not sufficient for section 1983 liability. The seizure must be unreasonable.” McCoy,
Assuming the facts in the light most favorable to Moore, a jury could decide that Officer Indehar’s decision to use
B.
Our consideration of a qualified immunity defense does not end with the determination of whether an officer’s conduct violated a constitutional right. Next, we must consider whether Moore’s right to be free from excessive force is clearly established. In reaching this dеtermination, we must decide “whether a reasonable official would understand his conduct violated” Moore’s right to be free from excessive force. Henderson v. Munn,
Since 1985, it has been established by the Supreme Court that the use of deadly force against a fleeing suspect who does not pose a significant threat of death or serious physical injury to the officer or others is not permitted. Garner,
III.
Accordingly, we reverse the district court’s grant of summary judgment based on qualified immunity and remand for further proceedings.
Notes
. Officer Indehar states in his deposition that he observed Loyd "look back” and assumed Loyd was "going to start shooting again.” He claims that Loyd had shot at the squad car as they made the turn from Lyndale onto Lowry Avenue. At sentencing, Loyd testified that he never shot at the squad car. There is no indication in the record that Officer Inde-har objected to the use of Loyd’s sentencing transcript for purposes of summary judgment, thus at this stage of the proceeding, we must accept as true that Loyd never shot at the squad car. Cf. Walker v. Wayne County,
. Officer Indehar testified that to maintain his law enforcement certification he is required to demonstrate accuracy with his handgun twice a year and that over the previous ten years he had passed the qualification tests on the first attempts except on two occasions. On those two occasions he was able to pass the qualification tests on his second attempts.
. We note that Officer Hafstad testified in his deposition that he indeed fired his weapon at Moore and not Loyd. He did so through the windshield of the squad car and while driving the vehicle. We note this testimony to demonstrate the flaw in the dissent’s reliance upon the fact that Moore and Loyd were running away in a "straight-line path” with Loyd closer to the squad car as support for Officer Indehar’s claim that he was intending to shoot Loyd, the closer individual.
Dissenting Opinion
dissenting.
The district court correctly invoked the qualified immunity privilege to protect Officer Kurt Indehar from Adam Moore’s unsupported constitutional claim, granting summary judgment and dismissal. The panel majority (“court” or “panel”) now reverses this holding. From this result, I respectfully dissent.
Police officers assigned to street duty in populous urban locations have difficult and dangerous jobs, especially in high crime areas and more especially at places where gangs of armed young men congregate and tend to shoot at each other and even at
The qualified immunity privilege Inde-har asserts is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth,
As noted by Judge Shepherd, the United States Supreme Court has delineated a two-part qualified immunity analysis. Saucier v. Katz,
In this case, however, we need only answer the first question: did Indehar through use of excessive force directed at Moore, violate Moore’s Fourth Amendment rights? The answer to this inquiry is a resounding “no.”
In determining whether a constitutional violation has occurred, we are required to make a factual determination based upon the evidence in the record. See Scott v. Harris, — U.S. -,
At the summary judgment stage, the facts asserted by Moore need to be viewed in the light most favorable to him as the non-moving party, but only if he establishes a “ ‘genuine’ dispute as to those facts.” Scott,
Althоugh qualified immunity is an affirmative defense, the burden is on the plaintiff to plead and, if presented with a properly supported motion for summary judgment, to present evidence from which a reasonable jury could find that the defendant officer has violated the plaintiffs constitutional rights. Otey v. Marshall,
As indicated, Moore asserts that his Fourth Amendment rights were violated because Indehar subjected him to excessive force. I agree with the court that “[t]o establish a violation of thе Fourth Amendment in a section 1983 action, the claimant must demonstrate a seizure occurred and the seizure was unreasonable.” McCoy v. City of Monticello,
With this legal framework in mind, I turn to the undisputed material facts, many of them taken directly from Judge Shepherd’s opinion.
Moore and several others, including Rufus Loyd, were “hanging out” in a parking lot behind a convenience store near the intersections of Lowry and Lyndale Avenues in North Minneapolis, Minnesota, when an occupant in a car traveling eastbound on Lowry Avenue fired five to seven shots in the direction of the [Moore-Loyd] group. Though Moore attempted to run, he tripped and fell to the ground. After the car passed, Moore ran to the corner of a building to see if he could identify the car, and Loyd stepped out into the street, pulled a pistol, and fired two or three shots towards the fleeing car. Moore was not armed.... [4 ]
At that same time, Officers Peter Hafs-tad and Kurt Indehar were traveling in a marked Minneapolis Police Department patrol car northbound on Lyndale Avenue to answer an unrelated call. When they heard the shots being fired, they turned right onto Lowry Avenue and began driving eastbound, the same direction as the car from which the shots had been fired. Having heard gunfire, both officers drew their weapons while still traveling in their patrol car. Upon seeing Loyd, both officers noticed that he was holding a handgun. The officers turned into the parking lot behind a convenience store.
Ante at 757-59. Loyd and Moore ran away across the lot. For a short distance they ran side-by-side. Then Moore outdistanced Loyd аnd they ran one behind the other in more or less a direct line toward a hole in the fence. App’x at 59-60, 166, 229. At relevant times, Loyd was between Moore and the police car and approximately ten feet behind the fleeing Moore. App’x at 166. While the car was still in motion, Officer Indehar fired “more than one” shot in Moore and Loyd’s direction
As Loyd and Moore ran across the parking lot with the police car following, Inde-har fired .at Loyd because “I [Indehar] observed [Loyd] look back, and I thought he was going to start shooting again.” App’x at 169. Indehar also testified that he “didn’t intend to shoot Mr. Moore.”
Despite this dearth of evidence supportive of Moore’s claim, the panel appears to bottom its decision to reverse the district court on a purported responsibility to “view the facts in the light most favorable to Moore.” Ante at 761. It is worth repeating, however, that this rule of eviden-tiary gloss applies only to facts that are material to the legal issue under consideration, i.e., the occurrence of a Fourth Amendment seizure, Federal Rule of Civil Procedure 56(c), and to such facts that are genuinely in dispute. Scott,
Upon analysis of the available facts, it appears that the court’s ultimate conclusion relies upon four evidentiary or credibility inferences. I review each in order.
First, the panel attempts to depreciate the value of Indehar’s deposition declarations made under oath, intimating that his words constitute self-serving statements. Ante at 761. Of course Indehar’s words are self-serving as are the testimonial words of virtually any party to any litigation, including, in this case, the testimony and statements of Moore and Loyd. But self-serving
Second, the panel hints at some qualitative weighing that arises from the idea that a “ ‘jury might disbelieve [Indehar’s] testimon[y],’ ” ante at 761 (alterations in original) (quoting Thompson,
Third, the majority points to the undisputed fact that Indehar aimed his gun and fired in Moore’s direction. Ante at 761. More importantly, however, the evidence is undisputed that Indehar also fired in Loyd’s direction and, indeed, at Loyd.
Fourth, the court strangely refers to evidence that after Moore and Loyd disappeared through the hole in the fence, Inde-har “secured by handcuffing four other males who remained in the parking lot.” Ante at 761. This, the panel says, “rebuts Officer Indehar’s” testimony that he was aiming at Loyd and not Moore, thus, presenting a genuine issue of fact as to Inde-har’s state of mind at an earlier time at a different location under different circumstances. How this evidence bears the weight placed upon it by the court is not
In sum, Indehar’s testimony that he fired at Loyd and that he did not intend to shoot Moore is offset only by testimony that Indehar fired “more than one” shot in Moore and Loyd’s direсtion and by the fact that he later handcuffed four individuals in the vicinity of the convenience store. Given this evidence, there simply is no proof that a Fourth Amendment seizure occurred, making summary judgment for Indehar mandatory under this circuit’s McCoy v. City of Monticello two-part test. Ante at 759-60.
Further, under element two of the McCoy v. City of Monticello requirements, even had there been a seizure, Indehar’s actions were not unreasonable. As the district court correctly noted, the reasonableness of an officer’s use of force must be judged from the “ ‘perspective of a reasonable officer on the scene’ in light of the fact that 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 necеssary in a particular situation.’ ” App’x at 15-16 (quoting Graham v. Connor,
Finally, under the undisputed material facts in this matter, it is not possible, again for the reasons set forth by the district court, App’x at 19, that a reasonable police officer in the same or similar circumstances could have believed that he or she was violating Moore’s constitutional rights. Anderson v. Creighton,
“We review de novo the legal issue relating of the existence of qualified immunity.” Guite v. Wright,
Accordingly, I dissent.
. Officer Hafstad testified that Moore had a gun both in the street and in the parking lot and aimed it at the officers as they pulled into the parking lot. App’x at 224, 231. However, Moore denies this claim. So, for purposes of the summary judgment motion, we must assume that he was not armed.
. The court states that “Officer Indehar aimed his gun and fired with his handgun pointed at Moore.” Ante at 761. This may be a technically correct statement, but it is misleading. It is undisputed that as Moore and Loyd ran away from the police car, they ran generally side-by-side for a short distance and then Moore outdistanced Loyd as they proceeded in a straight line toward a hole in the parking lot fence. App’x at 59, 162-170, 227-232. Accordingly, it is not possible for Inde-har to have pointed his handgun in Moore’s direction without also pointing the weapon in Loyd’s direction as well.
. In the court’s footnote 3, ante at 761-62, the majority attempts to attack the credibility of Officer Indehar's testimony on this issue by pointing out that Officer Hafstad "fired his weapon at Moore and not Loyd.” Hafstad’s actions are not proof of Indehar’s intent. While there is no evidence as to exactly when eaсh officer fired his weapon, it is clear that initially Moore was slightly to the left of Loyd and that Hafstad, the driver, fired his weapon through the windshield in front of him while Indehar fired his weapon from a different angle, that is, out the right passenger-side window. Both officers discharged their guns while the car was moving. Accordingly, any evidentiary flaw lies with the court’s attempt to adjust Indehar’s unrebutted deposition testimony that he did not intend to fire at Moore. Further, a fair analysis of the deposition testimony of the officers, especially their markings on Ex. J, App'x at 59; Ex. K, App’x at 60, indicates that there never was a time relevant to this fast-moving situation when -Loyd was not positioned close to Moore or between Moore and Indehar. .
. The court attempts to discredit Indehar by citing Mercado v. City of Orlando,
. The court boldly states that "[a] genuine dispute of fact remains as to whether Officer Indehar intended to seize Moore, or Loyd, or both Moore and Loyd, when Officer Indehar fired his weapon.” Ante at 762 This contention voices both an irrelevancy and an unsupportable conclusion. There is no dispute that both officers fired their weapоns. The crucial issue is whether Officer Indehar intentionally fired at Moore rather than at Loyd when he discharged his firearm.
. The court says "[f]urthermore, Officer Inde-har clearly intended, as demonstrated by his handcuffing of the four males who remained in the area, to detain, at least temporarily, all individuals in the area, evincing a reasonable inference that Officer Indehar was seeking to seize Moore when Officer Indehar shot Moore." Ante at 762. Under the facts of the situation, the officers clearly had probable cause to detain Moore and Loyd. However, the fighting issue here is the use of excessive force to do so. How this handcuffing of persons in the parking lot after Moore and Loyd had departеd through the hole in the fence bears upon the discrete issues in this appeal is not explained. The record indicates that after Moore and Loyd disappeared, a group of people had congregated around a nearby parked car with one male, whose hand could not be seen, reaching into the vehicle from the car's open door. Officer Indehar "thought he had a gun.” App’x at 173. Concerned for their safety, the officers ordered the men to show their hands. When the one man did not, he was more forcefully ordered to do so and the area was then secured by the handcuffing of the four men. App’x at 173-76. How this act "evinc[ed] a reasonable inference that Officer Indehar was seeking to seize Moore" through excessive force, is not readily evident.
