4A4C 2006: Jury Must Decide Furtive Movement Shooting Of Wounded Man, But Unwounded Woman Wasn't "Seized"

SCHULTZ v. BRAGA, USCA-4 No. 05-1604, 05-1610, 455 F.3d 470, 2006 U.S.App. LEXIS 19170, on appeal from USDC-MDD, before Circuit Judges Wilkinson and Traxler and USDJ-VAED Williams, opinion by Traxler, filed 31 July 2006.

LONG STORY SHORT: When an FBI agent mistook an innocent car passenger for a bank robber, and fired a shot him when he appeared to be reaching for a weapon, but the passenger and others testified that he made no such move, the firing agent was not entitled to qualified immunity, and a jury would have to resolve the conflicting testimony. However, the driver of the car had no claim because the agent did not use any force on her and could not have seized her under the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: FBI agents were surveilling a 7-Eleven, where Agent Bronson had told them they would see a male bank robbery suspect wearing a white baseball cap arrive in a red vehicle being driven by the suspect's red-haired girlfriend. The suspect, a career criminal and drug addict believed to be seeking suicide by cop, had confessed his involvement in the robbery to King, who told the suspect he would wait in the 7-Eleven to give the suspect clothes and money to help him escape. The suspect did not know that King was cooperating with FBI. As expected, the agents observed a red vehicle park beside the King's truck. A male wearing a white baseball cap got out of the red vehicle, entered the 7-Eleven where the CI was waiting, and returned to the red vehicle, driven by a red-haired female. The arrest team followed this red vehicle.

Agent Hanburger, commanding the arrest team, decided that probable cause existed to stop the red vehicle, and the arrest team executed a dynamic stop, exiting their vehicles yelling "Police," "FBI," "put your hands up," with rifles ready. Agent Kornek positioned himself forward of Harkum (driver), aiming his rifle at her. Agent Stowe, wearing an FBI vest, approached Plaintiff's (passenger) side from the front, aiming his rifle at Plaintiff while continuing to shout verbal commands. Defendant arrived behind Plaintiff, aiming his rifle [according to news reports, the rifle was a 5.56mm M4, the carbine version of the M16] at the back of Plaintiff's head, whereupon Agent Stowe shifted his aim to Harkum. Seconds later, Defendant fired one rifle bullet, which shattered Plaintiff's car window and fragmented on the D-ring of Plaintiff's seat belt, driving numerous metal and glass fragments into Plaintiff's face, seriously injuring him.

The agents extracted Plaintiff and Harkum from their vehicle and handcuffed them, just before Agent Brosnan and King arrived. King had been trying unsuccessfully to communicate to the agents that they were following the wrong red vehicle; the suspect and his girlfriend had driven by the 7-Eleven without stopping. Some blood drops and tiny fragments from Defendant's shot may have hit Harkum but did not injure her. She subsequently suffered from depression and PTSD.

Agent Stowe testified that he arrived first at the subject vehicle. Defendant arrived a second later and began ordering Plaintiff "show me your hands." Agent Stowe tried to open Plaintiff's (passenger) door, to find it locked, and then backpedaled a step, aiming his rifle at Harkum (driver) and ordering her to unlock the door, relying on Defendant to cover the "bank robber," actually Plaintiff. Plaintiff and Harkum testified that they were both focused on Agent Stowe. Harkum testified that she was looking right at Agent Stowe and therefore could see Plaintiff's hands raised up as ordered. Plaintiff testified that he kept his hands in view and began leaning to the right to unlock his door when Defendant's rifle discharged.

Defendant, however, testified that he ran up to the car as Agent Stowe was yelling "Police, FBI, get your hands up," but then Agent Stowe fell silent; Defendant never heard Agent Stowe order anyone to unlock a door. Defendant saw Plaintiff's hands still down, but after the fourth or fifth order from Defendant to raise his hands, Plaintiff instead turned to the left and reached down toward the center console. Since Plaintiff appeared to be trying to reach a weapon, Defendant fired one shot to stop him.

PROCEDURE: Plaintiff and Harkum sued Defendant and other agents in U.S. District Court for the District of Maryland per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for excessive force in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment on grounds of qualified immunity. The trial court ruled that material facts were still in dispute as to Plaintiff's claim; QUALIFIED IMMUNITY DENIED as to him. However, the trial court also ruled that Defendant did not seize Harkum for Fourth Amendment purposes and could not have violated her rights; QUALIFIED IMMUNITY GRANTED as to her. Defendant and Harkum appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Qualified immunity protects LEOs from bad guesses in gray areas, but not those who choose to step over constitutional bright lines. While the intrusiveness of a seizure by means of deadly force is unmatched by any other type of seizure, courts must evaluate the officer's actions for objective reasonableness in light of the facts and circumstances he knew at the time of the incident, without any questions as to the officer's subjective intent and motive. Here, Defendant reasonably believed that the suspect was armed and dangerous and probably suicidal, and never mind that Plaintiff turned out not to be the suspect, a reasonable officer in Defendant's place would take appropriate defensive measures as the situation evolved.

However, Defendant and Plaintiff testified to virtually opposite facts. Defendant said he saw Plaintiff keep his hands down and then turn and reach toward the center console, where weapons could be hidden. Plaintiff said he raised his hands and began to lean away from the center console and toward the door lock as Agent Stowe was ordering him at gunpoint to do. A reasonable jury could credit the former witness and exonerate Defendant--or could credit the latter witness and find that Defendant shot Plaintiff with a highpower rifle for no good reason. DENIAL OF QUALIFIED IMMUNITY AFFIRMED in part.

As to Harkum, intentional acquisition of physical control must be present in order to constitute a seizure subject to Fourth Amendment regulation. Though the seizure may be of the wrong person or thing, the seizure must be willful. The classic example is of an officer shooting at a suspect, unintentionally missing the suspect, and unintentionally hitting an innocent bystander. The victim may claim negligence, but not wrongful seizure. A contrary example is an innocent motorist who suffers psychological injury from police gunfire aimed at her car and meant to stop her from driving off; the police achieved their goal of terminating her freedom of movement. Here, Defendant directed his force at Plaintiff, not Harkum, and if she was seized at all, it was when she submitted to a different agent's commands to raise her hands and unlock her door. Whether or not some blood drops or fragments may have struck her was irrelevant because Defendant did not mean to seize her. The Fourth Circuit would not stretch the Fourth Amendment to cover what was not a seizure. GRANT OF QUALIFIED IMMUNITY AFFIRMED in part.

EDITORIAL: What a mess, with only the slight consolation that the real suspect, Mike Blottenberger (must be a stage name), got caught not long after. Based on news reports, a Maryland grand jury got an earful about this case, including non-immunized testimony from the firing agent, and refused to indict the firing agent or any other agent. Astonishingly, to moi anyway, a lot of conservatives jumped all over the firing agent, saying he shouldn't be allowed to have a gun because this was the second time he shot an unarmed subject. Never mind that the other shoot was righteous by all accounts, some people just don't want federal agents running around armed.

I can't pass judgment at all, if this is all I know about it. I'll wait for the judge and jury to find the facts. Just to sort out what you see here took me about four hours! However, the Fourth Circuit should have not just affirmed the denial of qualified immunity, but should have dismissed that part of the appeal for lack of subject matter jurisdiction. As you and I know, appellate courts can only decide interlocutory appeals if they involve pure questions of law, and if any facts are still up in the air, no appellate court has the power to touch it. Maybe the Fourth Circuit does it a bit differently. I will also have to plumb the depths of just what is a seizure and what kind of crazy results are possible from the "intent to seize" rule. As I understand it, you walk if you misidentify an innocent man as a subject and shoot at him and miss, killing an innocent woman. That way, you get rewarded for both bad police work and bad marksmanship exercised simultaneously. I need an aspirin.