24 F.3d 1251 (10th Cir. 1994), 93-2092, Bella v. Chamberlain

Docket Nº:93-2092.
Citation:24 F.3d 1251
Party Name:Charles BELLA, Plaintiff-Appellee, v. Lee CHAMBERLAIN and Curtis Meyers, Defendants-Appellants.
Case Date:May 20, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1251

24 F.3d 1251 (10th Cir. 1994)

Charles BELLA, Plaintiff-Appellee,

v.

Lee CHAMBERLAIN and Curtis Meyers, Defendants-Appellants.

No. 93-2092.

United States Court of Appeals, Tenth Circuit

May 20, 1994

Page 1252

Edward Himmelfarb (Don Svet, U.S. Atty. and Larry Gomez, U.S. Atty., Albuquerque, NM, Stuart E. Schiffer, Acting Asst. Atty. Gen. and Frank W. Hunger, Asst. Atty. Gen. and Barbara L. Herwig, Civ. Div., Dept. of Justice, Washington, DC, were with him on the briefs), Civ. Div., Dept. of Justice, Washington, DC, for defendants-appellants.

Elizabeth E. Simpson (Thomas R. Logan, Cedar Crest, NM, was with her on the brief), Tomita & Simpson, P.C., Albuquerque, NM, for plaintiff-appellee.

Before WHITE, Associate Justice (Ret.), [*] TACHA and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff Charles Bella brought this action against defendants Lee Chamberlain and Curtis Meyers, two officers of the United States Customs Service, alleging that they used excessive force against him in violation of the Fourth and Fifth Amendments. Defendants both moved to dismiss Mr. Bella's complaint for failure to state a constitutional claim, also arguing that they were entitled to qualified immunity. The district court issued an order denying the motions. Defendants

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appeal. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and reverse.

I. Background

  1. Facts

    The allegations in Mr. Bella's complaint, which we must accept as true, read like a Hollywood script. Mr. Bella is the owner and chief pilot of Bear Helicopters. On July 11, 1988, Mr. Bella piloted his Aerospacial Gazelle helicopter ("Gazelle" or "helicopter") from El Paso to the Santa Fe Airport where he met Beverly Shoemaker to fly her over some real estate located near Santa Fe. Ms. Shoemaker had told Mr. Bella that she was the secretary to people who were interested in the real estate. After she and Mr. Bella boarded the helicopter and left the Santa Fe Airport, Ms. Shoemaker pulled a gun on Mr. Bella and ordered him to fly to the New Mexico State Penitentiary to assist in the escape of some inmates.

    Following Ms. Shoemaker's orders, Mr. Bella landed the helicopter in the prison yard, where three inmates climbed on board. Mr. Bella then took off as ordered. Shortly after takeoff, one of the inmates handcuffed Mr. Bella to the helicopter. At the direction of the inmates, Mr. Bella piloted the helicopter to Los Lunas, New Mexico, and landed at the Mid-Valley Air Park. There, Ms. Shoemaker and the inmates disembarked, leaving Mr. Bella handcuffed to the helicopter.

    Defendant Lee Chamberlain, an officer of the United States Customs Service, was piloting a Customs Service Blackhawk helicopter ("Blackhawk") when he observed the Gazelle helicopter on the ground at Mid-Valley Air Park. Officer Chamberlain landed the Blackhawk approximately seventy feet in front of the Gazelle. Defendant Curtis Meyers, a Customs Service officer, and Customs Service Agent Ken Hebert (who is not a defendant in this case) were passengers on the Blackhawk. Agent Hebert exited the Blackhawk and approached the Gazelle. At the same time, one of the inmates returned to the Gazelle, held a gun to Mr. Bella's head, and ordered him to take off. Agent Hebert was less than ten yards from the front of the Gazelle and was pointing an AR-15 semiautomatic rifle at the cockpit. Mr. Bella alleges that Officer Chamberlain saw that the inmate had a gun to Mr. Bella's head and was trying to hide behind Mr. Bella and to use him as a shield. According to Mr. Bella, Officer Chamberlain knew at that point that Mr. Bella was an innocent hostage.

    In an effort to prevent the Gazelle's takeoff, Officer Chamberlain hovered the Blackhawk within twenty to fifty feet directly in front of and above the Gazelle. Mr. Bella managed to get the Gazelle off the ground, narrowly avoiding a collision with the Blackhawk. As the Gazelle left Mid-Valley Air Park, Officer Meyers, still aboard the Blackhawk, fired three rounds from a semiautomatic weapon at the Gazelle, one of which struck the fleeing helicopter. Officer Chamberlain then landed the Blackhawk, picked up Agent Hebert, and began to pursue the Gazelle, which was flying north in the direction of Albuquerque with Mr. Bella and the inmate on board.

    The Blackhawk chased the Gazelle for forty to fifty minutes. Following the inmate's orders, Mr. Bella landed the Gazelle briefly at Coronado Airport in northern Albuquerque and took off again heading south for Albuquerque International Airport. A New Mexico State Police helicopter joined the chase at this time, flying to the right of the Gazelle as the Blackhawk flew to the left. Mr. Bella alleges that the Blackhawk and the State Police helicopters "boxed in" the Gazelle, flying "dangerously close" to the Gazelle and forcing Mr. Bella to maneuver so as to avoid a collision. Mr. Bella finally landed the Gazelle at the Albuquerque International Airport where he and the inmate were taken into custody.

  2. Procedural History

    Mr. Bella brought this action in July 1991 in the United States District Court for the District of New Mexico alleging that Officers Chamberlain and Meyers used excessive force against him. In his complaint, Mr. Bella alleges that Officer Meyers violated his rights under both the Fourth and Fifth Amendments by firing at, and hitting, the Gazelle helicopter when Officer Meyers knew or should have known that Mr. Bella was an

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    innocent hostage. Mr. Bella alleges that Officer Chamberlain violated his Fifth Amendment rights by flying the Blackhawk helicopter dangerously close to the Gazelle, thus threatening Mr. Bella's life and safety, when Officer Chamberlain knew or should have known that Mr. Bella was an innocent hostage. Mr. Bella seeks damages 1 for injury to his Gazelle helicopter and for mental anguish and distress.

    Officers Meyers and Chamberlain separately moved to dismiss Mr. Bella's complaint under Rule 12(b)(6). 2 Raising the defense of qualified immunity, the officers argued as a threshold matter that the complaint failed to state a constitutional claim. They also argued that, even if the complaint did state a constitutional claim, they were still entitled to qualified immunity because their actions were objectively reasonable. The district court held that the complaint stated a claim under the Fourth and Fifth Amendments and that the qualified immunity defense did not otherwise shield the defendants from liability. Making the same arguments they made below, Officers Meyers and Chamberlain now bring this appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (holding that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment").

    II. Discussion

  3. Qualified Immunity

    We review de novo the denial of qualified immunity. Powell v. Gallentine, 992 F.2d 1088, 1090 (10th Cir.1993). Qualified immunity shields "government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). In Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the Supreme Court made it clear that "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Id. at 231, 111 S.Ct. at 1793 (emphasis added); see also Maldonado v. Josey, 975 F.2d 727, 729 (10th Cir.1992) (citing Siegert and noting that the threshold inquiry in analyzing a qualified immunity claim is whether the complaint states a constitutional claim), cert. denied, --- U.S. ----, 113 S.Ct. 1266, 122 L.Ed.2d 662...

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