Moore v. Indehar

Adam 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 *758out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). Initially and on appeal, the courts are obligated to construe the “record in the light most favorable to the non-moving party ... and ... afford him all reasonable inferences to be drawn from that record.” Davis v. Hall, 375 F.3d 703, 711 (8th Cir.2004). “In qualified immunity cases, this usually means adopting ... the plaintiffs version of the facts.” Scott v. Harris, — U.S. -, 127 S.Ct. 1769, 1775, 167 L.Ed.2d 686 (2007). However, in construing the record, the “court may consider only the portion of the submitted materials that is admissible or useable at trial.” Walker v. Wayne County, 850 F.2d 433, 434 (8th Cir.1988). On appeal, “[w]e review the district court’s grant of summary judgment de novo, applying the same standards as the district court.” Grayson v. Ross, 454 F.3d 802, 808 (8th Cir.2006). With this charge, we recite the facts of this case, construed in the light most favorable to Moore.

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 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. 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.1 Within the first couple of shots being fired, one of Officer Indehar’s bullets hit Moore in the left arm. Moore continued to run through the parking lot and escaped the area through a hole in a fence in the back of the lot.

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 *759custody. Moore was interrogated, booked into the jail, and charged with first-degree assault for allegedly shooting at Officers Hafstad and Indehar. Moore was jailed for a month until his charge was dropped for lack of evidence. Loyd, who was also charged with first-degree assault for attempting to shoot at the officers, eventually pled guilty to reckless discharge of a firearm within a municipality.

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, 147 F.3d 747, 750 (8th Cir.1998) (citations omitted). A section 1983 action is supported when a police officer violates this constitutional right. Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir.2003). However, under the doctrine of qualified immunity, a police officer is entitled to dismissal of such an action if his “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Sanders v. City of Minneapolis, 474 F.3d 523, 526 (8th Cir.2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity is not just a defense to liability, it constitutes immunity from suit.” Hanig v. Lee, 415 F.3d 822, 824 (8th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

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, 121 S.Ct. 2151. If we determine that the officer violated a constitutional right, only then must we consider “whether the right was clearly established at the time of the deprivation such that a reasonable official would understand his conduct was unlawful in the situation he confronted.” Vaughn v. Greene County, 438 F.3d 845, 850 (8th Cir.2006) (citing Saucier, 533 U.S. at 202, 121 S.Ct. 2151). “This second step is a fact-intensive inquiry and must be undertaken in light of the specific context of the case, not as a broad general proposition.” Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir.2006) (internal quotations omitted).

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, 342 F.3d 842, 846 (8th Cir.2003) (citing Hawkins v. City of Farmington, 189 F.3d 695, 702 (8th Cir.1999)). When an officer restrains an individual’s liberty through physical force or a show of authority, a Fourth Amendment seizure occurs. Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, not every police officer act that results in a restraint on liberty necessarily constitutes a seizure, rather the restraint *760must be effectuated “through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).

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. Moore 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 596,109 S.Ct. 1378 (internal citations omitted).

In both Hill v. California, 401 U.S. 797, 802-04, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), and Maryland v. Garrison, 480 U.S. 79, 85-89, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), the cases upon which the Court relied in Brower, the seizures resulted from factual mistakes as to identity. See Brower, 489 U.S. at 596, 109 S.Ct. 1378. In Hill, the police mistakenly arrested a man who was in Hill’s apartment believing that man to be Hill, see 401 U.S. at 802-04, 91 S.Ct. 1106, and in Garrison, the police obtained a search warrant for the third floor apartment at a specific address mistakenly believing that there was only one apartment on the third floor, see 480 U.S. at 85-89, 107 S.Ct. 1013.

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, 199 F.3d 350, 355, 359 (6th Cir.2000) (determining that plaintiff, who was struck by errant bullet during police shootout with her father-in-law, was not seized because officers were aiming at her father-in-law and did not realize she was hiding in nearby parked car); Childress v. City of Arapaho, 210 F.3d 1154, 1156-57 (10th Cir.2000) (finding, in hostage shooting case, no Fourth Amendment “seizure” because “[t]he officers intended to restrain the minivan and the fugitives, not [the hostages]”); Medeiros v. O’Connell, 150 F.3d 164, 167-69 (2nd Cir.1998) (holding that where a hostage is struck by an errant bullet, the governing principle is that such consequences cannot form the basis of a Fourth Amendment violation); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.1991) (explaining that Brower “does not mean ... that a seizure occurs just so long as the act of restraint itself is intended ... though it restrains one not intended to be restrained”); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-96 (1st Cir.1990) (declining to hold that hostage was seized for Fourth Amendment purposes when police officers fired at suspect’s getaway car and accidentally struck the hostage). Thus, Moore must show that Officer Inde-har intended to seize Moore through the means of firing his weapon at Moore to establish a Fourth Amendment claim.

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 *761and Lyndale,” and that Sgt. Peter had “found out that Officer Indehar had also shot at the 2 people that had fled on foot,” (2) a recommendation from Sgt. Peter that Officer Indehar receive a Medal of Honor for his actions in this incident wherein Sgt. Peter states, “Officer Indehar shot at Moore,” and (3) Moore’s subsequent arrest and one-month detention for assaulting the officers. Before the district court, Indehar challenged Sgt. Peter’s police report and the recommendation he submitted as inadmissible evidence. The district court properly declined to consider this evidence, finding that it constituted hearsay and, thus, was inadmissible. See Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir.2001) (“While we review the record in the light most favorable to ... the non-moving party, we do not stretch this favorable presumption so far as to consider as evidence statements found only in inadmissible hearsay.”); Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir.1993) (“The district court must base its determination regarding the presence or absence of a material issue of factual dispute on evidence that will be admissible at trial.”); Walker, 850 F.2d at 434-35 (interviews in police report constituted inadmissible hearsay). Furthermore, Moore’s charge for allegedly assaulting Officers Hafstad and Indehar does not create a genuine issue as to Officer Indehar’s intent at the time he fired his weapon, and there is no evidence that Officer Indehar was involved in the decision to arrest and charge Moore.

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 “the hope that the jury might disbelieve [Indehar’s] testimon[y].” Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir.2001) (quoting Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir.1996)).

Our responsibility is to view the facts in the light most favorable to Moore, see O’Neil v. City of Iowa City, 496 F.3d 915, 917 (8th Cir.2007) (“In deciding a motion for summary judgment, ‘courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.’ ” (quoting Scott, 127 S.Ct. at 1774) (alteration in original)), and one critical set of facts-that when Officer Inde-har arrived on a scene where gun shots had been fired, Moore began fleeing; that Officer Indehar aimed his gun and fired with his handgun pointed at Moore;2 that Officer Indehar’s bullet hit Moore; and that after the shooting, Officer Indehar secured by handcuffing four other males who remained in the parking lot-rebuts Officer Indehar’s deposition testimony that he was aiming at Loyd and did not intend to shoot Moore, thus presenting a genuine issue as to Officer Indehar’s intent when *762he fired his weapon.3 The most notable of these facts, of course, is that Officer Inde-har’s bullet struck Moore. Cf. Mercado v. City of Orlando, 407 F.3d 1152, 1155, 1158 (11th Cir.2005) (holding that, despite the officer’s claim that he was aiming for the victim’s shoulder, for summary judgment purposes the court “must assume that [the officer] was aiming for [the victim’s] head based on the evidence that [the officer] was trained to use the [“less-lethal,” baton-launching] weapon, that the weapon accurately hit targets from distances up to five yards, and that [the victim] suffered injuries to his head.”). 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. Furthermore, Officer Indehar 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. In light of these facts, a reasonable jury could find that Officer Indehar intentionally shot Moore in an effort to effect his apprehension. See Gardner, 82 F.3d at 253 (holding that although proper focus is on the seizure itself, courts should not “refuse to let juries draw reasonable inferences from evidence about events surrounding and leading up to the seizure”); see also Littrell v. Franklin, 388 F.3d 578, 586 (8th Cir.2004) (“[W]here questions of historical fact exist, the jury must resolve those questions so that the court may make the ultimate legal determination of whether officers’ actions were objectively reasonable in light of clearly established law.”).

“However, as Brower makes clear, a seizure, standing alone, is not sufficient for section 1983 liability. The seizure must be unreasonable.” McCoy, 342 F.3d at 847 (citing Brower, 489 U.S. at 599, 109 S.Ct. 1378). In situations where an officer attempts to apprehend a subject by using deadly force, courts analyze the seizure under the Fourth Amendment’s objective reasonableness standard. Craighead v. Lee, 399 F.3d 954, 961 (8th Cir.), cert. denied, 546 U.S. 957, 126 S.Ct. 472, 163 L.Ed.2d 359 (2005). “Hence, ‘[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.’ ” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). However, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Brosseau v. Haugen, 543 U.S. 194, 197-98, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Garner, 471 U.S. at 11, 105 S.Ct. 1694). “Whether an officer’s use of force is reasonable is ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” McCoy, 342 F.3d at 848 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

Assuming the facts in the light most favorable to Moore, a jury could decide that Officer Indehar’s decision to use *763deadly force to seize Moore was objectively unreasonable. When Officer Indehar arrived on the scene, shots had been fired and he saw Loyd holding a gun. While Loyd and Moore began running away from the officers, it was Loyd, not Moore, who moved in such a manner as to suggest to Officer Indehar that Loyd might begin shooting at the officers. Officer Indehar specifically states that he did not see Moore with a gun and that Moore did not pose a threat to his safety. Thus, assuming the facts as we must, Officer Indehar’s use of excessive force against an unarmed man who was simply fleeing from the officers was unreasonable and a violation of the Fourth Amendment.

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 determination, we must decide “whether a reasonable official would understand his conduct violated” Moore’s right to be free from excessive force. Henderson v. Munn, 439 F.3d 497, 503 (8th Cir.2006). “The key distinction between [this reasonableness inquiry and the one made under the first step of the qualified immunity analysis] is that the right allegedly violated must be defined at the appropriate level of specificity before a court can determine whether it was clearly established.” Craighead, 399 F.3d at 962 (citing Saucier, 533 U.S. at 202, 121 S.Ct. 2151).

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, 471 U.S. at 11, 105 S.Ct. 1694; see Samuelson, 455 F.3d at 877 (“The right to be free from excessive force in the context of an arrest is a clearly established right under the Fourth Amendment’s prohibition against unreasonable seizures.” (internal quotation and alteration omitted)). On the facts we are required to assume at this point in the case, Moore posed no threat to Officers Indehar and Hafstad or to any other person; Officer Indehar admitted as much in his deposition and in his responses to Moore’s interrogatories. When Officer In-dehar arrived on the scene, shots had been fired, however he specifically noted that Moore was not holding a firearm and the only action Moore took was to flee the scene. Thus, a reasonable officer would have known shooting Moore was a violation of Moore’s constitutional rights; as such, a right to be free from the use of excessive force in Moore’s situation was clearly established.

III.

Accordingly, we reverse the district court’s grant of summary judgment based on qualified immunity and remand for further proceedings.