Haugen v. Brosseau

Decision Date04 August 2003
Docket NumberNo. 01-35954.,01-35954.
Citation339 F.3d 857
PartiesKenneth J. HAUGEN, Plaintiff-Appellant, v. Rochelle BROSSEAU, Puyallup Police Department; The City of Puyallup, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Randy W. Loun, Loun & Tyner, Bremerton, Washington, for the plaintiff-appellant.

Mary Ann McConaughy, Keating Bucklin & McCormack, Seattle, WA, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-01-05018-RJB.

Before: REINHARDT, W. FLETCHER, and GOULD, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD.

OPINION

WILLIAM W. FLETCHER, Circuit Judge.

On February 21, 1999, Officer Rochelle Brosseau of the Puyallup, Washington, Police Department shot Kenneth Haugen in the back as he tried to flee from police in his vehicle. Haugen filed a § 1983 suit in district court alleging a violation of his constitutional rights, and the court granted summary judgment to Brosseau. Construing the evidence in the light most favorable to Haugen, we inquire whether Brosseau's use of deadly force violated the Fourth Amendment and, if it did, whether she is entitled to qualified immunity. We conclude that the evidence, so construed, shows that Brosseau's conduct violated the Fourth Amendment, and, further, that her conduct violated clearly established law governing the use of deadly force as set forth in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). We therefore reverse the district court's grant of summary judgment.

I. Background

Kenneth Haugen and Glen Tamburello were in business together selling drugs and occasionally fixing cars. At some point, their relationship soured, and Haugen decided to dissolve the partnership. On February 20, 1999, he took some of his tools from Tamburello's shop. Tamburello wanted the tools back and wanted retribution. He went to the police station, and, in an interview with Officer Rochelle Brosseau, reported that Haugen had burglarized his shop. Tamburello also contacted the Riddles, neighbors of Haugen's mother, and requested that they call him should they see Haugen at his mother's house.

Haugen, his girlfriend Deanna Nocera, and Nocera's daughter went to Haugen's mother's residence the night of February 20, where they did some laundry and spent the night. The next morning, Haugen began to spray-paint his 1984 Jeep Cherokee in his mother's driveway. He had a warrant out for his arrest and apparently thought he might evade detection driving a yellow rather than a white Jeep. It was a windy morning, and the Riddles complained to Haugen that the spray paint was blowing into their yard. When Haugen refused to stop, the Riddles called Tamburello. Tamburello drove with Matt Atwood to Haugen's mother's house where they accosted Haugen. Haugen began to run away, but Tamburello caught him, threw him to the ground, and began to beat him up. Haugen and Nocera begged Tamburello to stop, and, after being persuaded by several punches, Haugen agreed to give the tools back. Tamburello and Atwood then forcibly led Haugen into the pickup and planned to drive to a storage facility where Haugen had stashed the tools, but Irene Riddle, having seen the brouhaha outside, had already dialed 911.

After her interview with Tamburello on February 20th, Officer Brosseau had learned that there was a felony no-bail warrant out for Haugen's arrest based on drug and other offenses. The next morning, while in the midst of a traffic stop nearby, Brosseau heard the report of the ruckus at Haugen's mother's house. She responded quickly, and when she arrived Tamburello and Atwood were in the process of getting Haugen into the pickup. Haugen took advantage of the distraction caused by Brosseau's arrival and broke away from his would-be captors. He ran up the driveway, past his mother's house, and into the backyard. Brosseau gave chase for only a few steps and then called for back-up, including a K-9 unit to help locate Haugen. Over the next half hour or so, Brosseau and other officers interviewed the witnesses still at the scene and set up a containment perimeter for the search. To avoid interfering with the K-9's efforts to locate Haugen by scent, the officers instructed Tamburello and Atwood to remain in Tamburello's pickup and instructed Nocera and her daughter to remain in her Honda. The pickup was parked in the street in front of the driveway. The Honda was parked in the driveway in front of the Jeep. The Jeep was in the driveway facing the Honda and the street and was angled somewhat to the left.

Haugen, meanwhile, hid in various bushes and other locations around the neighborhood as he tried to watch what was happening at his mother's house. Apparently seeking help, Haugen knocked on the back door of Margaret Rounds, a neighbor who lived down the street. No one answered, so Haugen left. Rounds was at home and was aware of the situation outside because she had been listening to a police scanner, but she had no inclination to help Haugen. Instead, she called police and said that there was a man in her backyard. Brosseau and the two other officers on foot, Officers Subido and Pashon (with the K 9), ran to Rounds's backyard. Subido told Brosseau to circle around the front, and as Brosseau rounded the house, she saw Haugen about fifty feet ahead of her running toward his Jeep.

Haugen got into the Jeep and tried to start it. Brosseau ran to the Jeep with her handgun drawn and ordered him to stop. As Haugen fumbled with his keys, Brosseau hit the driver's side window several times with her handgun, and, on the third or fourth try, she broke the window. Brosseau had mace and a baton but did not use them. Instead, she tried to reach in the car to grab the keys, but just after she broke through the window, Haugen succeeded in starting the Jeep. Either before Haugen pulled away, or just after he started to do so (the evidence is conflicting on this point), Brosseau shot him in the back. From Brosseau's position when she shot, Haugen was in front of her, and beyond Haugen were Nocera, Nocera's daughter, Tamburello, and Atwood. Brosseau said that she was "aware of the background exposure," but she nonetheless believed she had a safe shot because she thought the bullet would be stopped by the Jeep's engine block before reaching the bystanders. Because Haugen did not stop, Brosseau believed she had missed him, but Brosseau did not take a second shot because she thought the risk became too great as he began to drive away.

The bullet entered Haugen's back near the left shoulder blade and lodged in his chest. Despite the wound, Haugen managed, in his words, to "stand on the gas" and to drive out of the driveway, across the neighbor's yard, and onto the street. Photographs in the record show tire tracks on the driveway due to displacement of gravel. After Haugen escaped, some of the officers gave chase. Haugen's injury made it difficult for him to drive. Once he realized he had been shot, he used one hand to hold the wound and the other to drive. According to Haugen, he never got the Jeep past third gear and never drove faster than forty-five miles per hour. Before long, Haugen had difficulty breathing and pulled over to the side of the road, where he passed out. He was apprehended and taken to the hospital.

The precise circumstances of the shooting are disputed. In his deposition, Haugen testified that he believed the gun may have discharged accidentally while Brosseau was reaching through the driver's window grappling with him. Brosseau, on the other hand, says she shot Haugen intentionally. According to Brosseau, she stepped back and away from the driver's window once the Jeep started moving and fired one shot through the rear side window on the driver's side.

When parties dispute the facts, we typically accept the non-moving party's version when ruling on a summary judgment motion. In this case, however, we accept Brosseau's statement that she shot Haugen intentionally. No gun shot residue was found on Haugen's clothes, and the forensic scientist determined that the bullet hit another object before it struck Haugen. Most tellingly, photos of Haugen's Jeep show a bullet hole in the rear side window. When asked about the bullet hole in the window, Haugen responded: "That's something I can't explain." The parties do not dispute that only one shot was fired. Because the evidence unmistakably indicates that Brosseau shot Haugen through the rear side window, we accept Brosseau's statement that she intentionally shot Haugen through that window rather than Haugen's speculation that the gun discharged accidentally inside the Jeep.

Haugen recovered from the gunshot and filed suit in district court under 42 U.S.C. § 1983 claiming that Brosseau, the Puyallup Police Department, and the City of Puyallup deprived him of his Fourth Amendment rights. He also alleged causes of action based on Washington tort law. The defendants moved for summary judgment, and the district court granted their motion. It held that, even if the shooting constituted excessive force under the Fourth Amendment, Brosseau had not violated a clearly established right and was therefore protected by qualified immunity. The district court also held that Haugen had not pointed to any official practice that led to a constitutional violation, and so he could not pursue a suit against the police department or the City of Puyallup. Finally, the court held that Haugen could not pursue state tort claims because his injury occurred during the commission of a felony.

Haugen appealed. We review a grant of summary judgment de novo. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).

II. Discussion
A. Fourth Amendment Claim Against Brosseau

Officer Brosseau argues that she is entitled to...

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