Landol-Rivera v. Cruz Cosme

• Decision Date: 03 April 1990
• Docket Number: No. 89-2009,LANDOL-RIVERA,89-2009
• Citation: 906 F.2d 791
• Parties: Bradier Steve, etc., et al., Plaintiffs, Appellees, v. Gilberto CRUZ COSME and Jaime Cintron Ramos, Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 791

906 F.2d 791

59 USLW 2054

Bradier Steve LANDOL-RIVERA, etc., et al., Plaintiffs, Appellees, v. Gilberto CRUZ COSME and Jaime Cintron Ramos, Defendants, Appellants.

No. 89-2009.

United States Court of Appeals First Circuit.

Heard April 3, 1990.

Decided June 20, 1990.

Jorge E. Perez-Diaz, Sol. Gen., Dept. of Justice, San Juan, P.R., with whom Vannessa Ramirez, Asst. Sol. Gen., was on brief, for defendants, appellants.

Francisco M. Dolz-Sanchez, on brief, Old San Juan, P.R., for plaintiffs, appellees.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

COFFIN, Senior Circuit Judge.

On August 31, 1985, plaintiff Bradier Steve Landol Rivera was working as night manager of the Golden Skillet fast-food restaurant in Guaynabo, Puerto Rico, when a robber entered, jumped over the counter and, at gunpoint, demanded all of the available cash. Landol managed to telephone the police, and several officers drove up to the restaurant while the robber was still inside. The suspect grabbed Landol and started to leave through the back door, where he confronted two officers, weapons drawn. The police yelled at the suspect that he was not going to get out; the suspect yelled back that, "[i]f you don't let me get out, I'll kill him."

The robber returned inside and escaped through the front door, still holding plaintiff at gunpoint. He ran into the street and commandeered a passing car, taking over the driver's position with Landol on his lap. When the car moved slightly, the pursuing officers fired. One bullet hit plaintiff in the jaw, severely injuring him. The robber was apprehended immediately thereafter, and Landol was taken to a hospital.

Based on this incident, Landol brought a damages suit under 42 U.S.C. Sec. 1983, alleging that the police actions violated various constitutional provisions. ¹ A jury found that three officers violated his Fourth Amendment right to be free from an unreasonable seizure, and awarded him $105,000 in damages. ² Two of the officers assert on appeal several reasons why they may not be held liable: ³ (1) plaintiff had no Fourth Amendment claim; (2) he failed to show which officer fired the shot that struck him, and thereby caused his injury; (3) the officers are entitled to qualified immunity. After carefully reviewing the record and the caselaw, we have concluded that the jury's verdict was legally unsound. We therefore reverse the district court's denial of defendants' motion for judgment notwithstanding the verdict, and remand to that court so that it may enter judgment for defendants.

I.

A.

The Fourth Amendment to the United States Constitution protects individuals against "unreasonable searches and seizures." Defendants argue that the primary issue before us is whether plaintiff's shooting by a police officer may be termed a "seizure" that implicated the Fourth Amendment. They claim that the Fourth Amendment is inapplicable here because the police officers who fired their weapons were not attempting to restrain plaintiff's freedom but were attempting only to apprehend the robber.

This is a compelling argument that, ordinarily, we would not consider because it was not raised below. "It is a fundamental principle that, except in rare cases where paramount considerations of justice require, we do not review on appeal issues that were not first presented to the district court." Rodriguez Rodriguez v. Munoz Munoz, 808 F.2d 138, 140 (1st Cir.1986). This case strikes us as exceptional, however, because the question raised by defendants concerns the very premise of plaintiff's claim for damages and because any perceived legitimation of that premise would be fraught with mischief. We therefore think it appropriate to consider it despite the technical default. "[W]e address the issue of whether any constitutional right of the plaintiff has been violated because of its central and essential character in this Section 1983 action." Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467, 471 n. 4 (1st Cir.1990) (emphasis in original) (considering sua sponte whether plaintiff had Equal Protection claim).

Moreover, our consideration of this issue will not "sandbag" the trial judge with a legal problem he had no reason to contemplate. In his decision on defendants' motion for summary judgment, the district judge questioned whether the police officers' actions here should be construed as a seizure under the Fourth Amendment in light of the unintentional nature of plaintiff's shooting. The court concluded that Fourth Amendment analysis was required based on a First Circuit case stating that " 'a law enforcement officer "seizes" someone by shooting him.' " Opinion and Order on Summary Judgment at 7 n. 3 (quoting Fernandez v. Leonard, 784 F.2d 1209, 1216-17 (1st Cir.1986)). As we explain below, this is a mistaken view of the law, and we think it worth clearing up the misunderstanding. Cf. Rodriguez Rodriguez, 808 F.2d at 140. ⁴

We therefore now turn to the question of whether Landol was "seized" within the meaning of the Fourth Amendment. ⁵

B.

In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court considered whether the Fourth Amendment was violated when a police officer fatally shot an unarmed burglary suspect who was attempting to escape. In the course of deciding that shooting the suspect was constitutionally impermissible in the circumstances of that case, the Court observed that, "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Id. at 7, 105 S.Ct. at 1699. The Court held that deadly force is permissible only if it is necessary to prevent a suspect's escape and if "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. at 3, 105 S.Ct. at 1697.

The district court in this case, in its response to defendants' motion for summary judgment, relied on Garner in concluding that the use of deadly force against the fleeing robbery suspect was reasonable. We quote its well-stated explanation:

[T]here is no question of fact, whatsoever, as to whether the defendant police officers had probable cause to believe that the suspect posed a threat of serious physical harm to the officers or to others. ... At the time the police employed the alleged "deadly force," they were aware of the following: that the suspect had committed armed robbery in a public restaurant and was fleeing from the police; that the suspect was keeping the plaintiff hostage at gunpoint and had threatened to kill plaintiff if he was not allowed to "get out;" that he had attempted to hijack a private vehicle at gunpoint; and that he had successfully hijacked a second vehicle and its driver at gunpoint, in a public traffic intersection. Such undisputed facts would clearly constitute probable cause sufficient to justify an officer's use of deadly force against the fleeing suspect in this case.

Opinion and Order on Motion for Summary Judgment, at 5-6 (emphasis deleted). We think it is beyond doubt that the conditions for the use of deadly force were met in this case, at least with respect to the fleeing suspect.

The district court went on, however, to discuss whether the officers' use of deadly force constituted an unreasonable seizure of plaintiff Landol. As noted above, the court felt compelled to deem Fourth Amendment analysis applicable to plaintiff's claim because of our decision in Fernandez v. Leonard, 784 F.2d at 1217, where we had observed that, "All nine Justices [in Garner ] agreed that a law enforcement officer 'seizes' someone by shooting him." Fernandez involved a hostage situation in which, according to the plaintiffs' version of the facts, police officers fired deliberately at an unarmed hostage at least five times, killing him. We denied the defendant's motion for summary judgment based on qualified immunity, finding that a factual dispute remained concerning whether the seizure-by-shooting had been unreasonable, and thus a violation of the deceased's Fourth Amendment rights. Id.

The district court in this case followed the Fernandez course. It held that a jury must resolve the factual dispute over whether "the police in this case effected an unreasonable seizure upon plaintiff by shooting him (while attempting to apprehend the suspect), which would amount to a violation of plaintiff's constitutional rights under the Fourth Amendment...." Id. at 8 (emphasis in original). The district court thus concluded that Landol had been "seized" within the meaning of the Fourth Amendment, but it left to the jury the determination whether that seizure was unreasonable.

C.

After the summary judgment decision, but before the trial in this case, the Supreme Court further expounded on the use of excessive force by police officers pursuing a criminal suspect. In Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the fleeing suspect was killed when his car crashed into a police roadblock. His heirs, the plaintiffs, claimed the roadblock had been set up intentionally in such manner as to be likely to kill him. In the course of its decision reversing dismissal of plaintiffs' complaint, the Court stated that, "[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control." Id. 109 S.Ct. at 1381 (emphasis added). The Court restated the principle at greater length later in the opinion:

[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement ..., nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement ..., but only when there is a governmental termination of freedom of movement through means intentionally applied.

Id. (emphasis in original; other emphasis deleted).

Defe...