Cowan ex rel. Estate of Cooper v. Breen

• Decision Date: 18 December 2003
• Docket Number: Docket No. 02-9179.
• Citation: 352 F.3d 756
• Parties: Margaret COWAN, Administratrix of the ESTATE OF Victoria COOPER, Plaintiff-Appellee, v. Michael BREEN, Defendant-Appellant, Town of North Branford, Consolidated-Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

352 F.3d 756

Margaret COWAN, Administratrix of the ESTATE OF Victoria COOPER, Plaintiff-Appellee, v. Michael BREEN, Defendant-Appellant, Town of North Branford, Consolidated-Defendant-Appellant.

Docket No. 02-9179.

United States Court of Appeals, Second Circuit.

Argued: September 22, 2003.

Decided: December 18, 2003.

THOMAS R. GERARDE (John J. Radshaw III, on the brief), Howd & Ludorf, Hartford, CT, for Defendants-Appellants.

DAVID N. ROSEN, Rosen & Dolan, PC, New Haven, CT, for Plaintiff-Appellee.

Before: FEINBERG and RAGGI, Circuit Judges, and McKENNA, District Judge.^*

FEINBERG, Circuit Judge.

Defendants-appellants Michael Breen, a police officer in the Town of North Branford, and the Town of North Branford (the "Town") appeal from an order of the United States District Court for the District of Connecticut (Dominic J. Squatrito, J.), adopting the Recommended Ruling of United States Magistrate Judge Thomas P. Smith and denying defendants' motion for summary judgment. Plaintiff-appellee Margaret Cowan, administrator of the estate of Victoria Cooper, sued Breen and the Town pursuant to 42 U.S.C. § 1983, alleging that Breen used excessive force in fatally shooting Cooper. Breen and the Town moved for summary judgment, arguing that Breen was entitled to qualified immunity because when he shot Cooper he had an objectively reasonable belief that his life or person was in danger. The Town also argued that it was entitled to summary judgment on Cowan's Monell claims.¹ The Recommended Ruling of Magistrate Judge Smith denied summary judgment to Breen and the Town, on the ground that there were genuine issues of material fact to be tried as to the circumstances confronting Breen when he shot Cooper and as to Cowan's Monell theories of liability. For the reasons set forth below, we affirm the order of the district court.

I. Background

A. The Shooting of Cooper

This suit arises out of events that took place in the early morning hours of July 13, 1999. Many of the facts leading up to the shooting are undisputed. That morning, Breen was on patrol in his police cruiser. As he passed the Xtramart store in North Branford, a parked Camaro with two occupants aroused his suspicion. Breen decided to monitor the vehicle and had its license plate checked by the police dispatcher. The dispatcher reported that the vehicle was registered to John Guerrette, who had a prior criminal history. When the Camaro left the parking lot, Breen followed it eastbound onto Route 80. After noticing some erratic driving, Breen turned on his flashing lights, pulled the Camaro over onto the shoulder of the road, and parked his police cruiser behind it. At that point Route 80 was a two-lane road. Breen then approached the front passenger side of the vehicle. Breen asked the driver, later identified as Steven Guerrette, to provide his driver's license and vehicle registration. Guerrette stated that he did not have his license with him, and that the car was registered to his brother. Breen then asked the passenger, later identified as Victoria Cooper, for her license, but she indicated that she was not carrying identification. Breen had no further communication with Cooper. Breen ordered Guerrette out of the Camaro and asked him to step to the rear of the car. After a search of Guerrette revealed that he was carrying a substance that resembled narcotics, Breen attempted to arrest him. Guerrette, however, broke away and ran easterly along Route 80 into a wooded area next to the roadway. Breen pursued Guerrette and called for backup, but his portable radio was dead. Breen eventually lost Guerrette in the woods. Giving up the chase, Breen headed west on Route 80 to return to his cruiser.

At this point, the accounts of what happened diverge. According to defendant-appellant Breen, as he walked back on Route 80 to his police cruiser, the Camaro came towards him with its headlights on. Cooper had moved from the passenger seat and was now driving the car. Breen asserts that he waved his arms, signaling the vehicle to stop, but to no avail. He claims that, fearing for his safety, he drew his service weapon and fired twice at the on-coming car. The first shot hit the Camaro's hood. The second shot went through the driver's side window, killing Cooper.

Breen claims that Cooper could have avoided him by turning left off the road, or making a U-turn. Breen also argues that gunshot residue found on the driver's side of the Camaro shows that Breen was very close to the car when he fired the second shot. His expert estimates, from the pattern of broken glass scattered down the road, that the Camaro was traveling at about 20-30 miles per hour at the time of the second shot.

Plaintiff-appellee Cowan offers a different version of the facts. She claims that the evidence suggests Breen was not in danger when he fired the second, fatal shot at Cooper. First, Cowan points to evidence showing that Breen was over to the side of the vehicle, perhaps as far away as 11 feet, when he fired the second shot. This calculation comes from the reconstruction of the scene by the Connecticut State police, which showed that Breen fired the first shot from a distance of about 44 feet at a 13-degree angle. The reconstruction also revealed, based on the location of the bullet shells and the pattern of broken window glass, that the Camaro was on the far right shoulder of the road when the shots were fired. And Breen's deposition testimony confirms that the vehicle made no turns to the left or right as it traveled down the roadway. Plaintiff Cowan claims that the evidence demonstrates that the vehicle was traveling quite slowly as it came towards Breen, and may not even have been moving at all. A neighbor who saw the police cruiser out of her window and heard the shots fired said in a deposition that Breen was standing in front and to the left of the police cruiser when he fired the shots. From this, Cowan argues that Breen may have shot Cooper before the Camaro had moved even a few feet. Moreover, according to Cowan, the record shows that Breen could not have waved at the approaching car. Cowan argues that if the Camaro were traveling at the speed Breen's expert estimated — 20 to 30 miles per hour — the reconstruction evidence shows that it would have covered the distance between where it had been parked and where Breen fired the second shot in about six to six-and-a-half seconds. Cowan contends that in such a short period of time, Breen would not have been able to wave his hands, unsnap his holster, draw his firearm, and aim and fire. Additionally, in response to Breen's argument that Cooper could have turned left or made a U-turn to avoid him, Cowan argues that Cooper probably did not even see Breen, since an optometrist's report indicates that Cooper had poor night vision and depth perception.

B. The District Court's Denial of Summary Judgment

Despite the disputed versions of the shooting, defendants-appellants Breen and the Town moved for summary judgment, arguing that the court should follow the analysis set forth in Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Breen and the Town argued that this analysis would lead the court to conclude that no constitutional violation had occurred and that, in any event, Breen was entitled to qualified immunity. Defendants also contended that the analysis should proceed under the Fourteenth rather than the Fourth Amendment because there was no seizure in this case. Additionally, the Town argued that it was entitled to summary judgment on plaintiff Cowan's Monell claims, which were based on two theories of liability: (1) the Town failed to train Breen properly; and (2) the Town's "double taps" policy, encouraging police officers always to shoot twice, violated Cooper's constitutional rights.

Magistrate Judge Smith, in his Recommended Ruling, did not address whether analysis should proceed under the Fourteenth or Fourth Amendment, nor did he follow the steps set forth in Saucier. Instead, he held that there were disputed issues that precluded summary judgment:

Where the officer was standing, whether it was in the zone of danger, the speed and velocity of the Camaro, and the reasonableness vel non of the officer's alleged belief that he was in danger are issues which, among others, preclude summary judgment. Any decision on the defense of qualified immunity necessarily must await the presentation of evidence to the jury.

With respect to the Monell claims, the magistrate judge ruled that Cowan's theories of liability presented genuine issues of material fact for a jury. Judge Squatrito, in his one-paragraph order, adopted the Recommended Ruling without engaging in the Saucier analysis or determining whether the case should proceed under the Fourth or Fourteenth Amendment. This appeal by Breen and the Town followed.

II. Discussion

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact, and that when any disputed facts are viewed in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Kerman v. City of New York, 261 F.3d 229, 234-35 (2d Cir.2001). Breen argues to us that he was entitled to summary judgment because, based on the undisputed facts in the case, (1) no constitutional violation occurred since his conduct in these circumstances was objectively reasonable; and (2) in any event, he was entitled to qualified immunity because he reasonably believed that his conduct was lawful. Breen also contends that the failure of both the magistrate judge and the district judge to conduct a Saucier analysis on the qualified immunity defense mandates reversal and remand. The Town argues that judgment should be entered in its favor because if Breen is not liable, it cannot be held liable either.

Cowan argues first that we do not have jurisdiction over this interlocutory appeal. On the...