Moore v. Indehar

• Decision Date: 01 February 2008
• Docket Number: No. 06-4047.,06-4047.
• Citation: 514 F.3d 756
• Parties: Adam MOORE, Appellant, v. Kurt INDEHAR, in his individual capacity, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

514 F.3d 756

Adam MOORE, Appellant, v. Kurt INDEHAR, in his individual capacity, Appellee.

No. 06-4047.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2007.

Filed: February 1, 2008.

David L. Shulman, argued, Minneapolis, MN, for appellant.

Jeff M. Heffern, C. Lynne Fundingsland, and Stephen H. Norton, argued, Minneapolis, for appellees.

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Adam Moore appeals from the district court's decision to grant Officer Kurt Indehar'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 out 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 Hafstad 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 custody. 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 Indehar 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 must 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...