Medeiros v. O'Connell

• Decision Date: 15 July 1998
• Docket Number: No. 97-7355,97-7355
• Citation: 150 F.3d 164
• Parties: Joanne MEDEIROS, Individually and as Administratrix of Estate of Joshua Sawicki, Plaintiff-Appellant, v. Shawn O'CONNELL, Jack Drumm, Samuel Izzarelli, Robert Hart, David Brundage, Michael Demaio, Ronald Bastura, Richard Wheeler, John Duly, and John Rearick, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 164

150 F.3d 164

Joanne MEDEIROS, Individually and as Administratrix of Estate of Joshua Sawicki, Plaintiff-Appellant, v. Shawn O'CONNELL, Jack Drumm, Samuel Izzarelli, Robert Hart David Brundage, Michael Demaio, Ronald Bastura Richard Wheeler, John Duly, and John Rearick, Defendants-Appellees.

No. 97-7355.

United States Court of Appeals Second Circuit.

Argued Nov. 25, 1997.

Decided July 15, 1998.

Kerin Margaret Woods, Anderson & Ferdon, P.C., Norwich, CT, for Plaintiff-Appellant.

Stephen R. Sarnoski (Richard Blumenthal, Attorney General, Hartford, CT, of counsel), for Defendants-Appellees.

Before: WALKER and JACOBS, Circuit Judges, and BRIEANT, District Judge. ^*

JACOBS, Circuit Judge:

Joshua Sawicki was a teenager riding in a school van that was commandeered by an armed robber who was being pursued by the state police. Joshua was held hostage, together with the driver and another schoolchild, until the robber was shot dead by a state trooper. One bullet, fired by the same trooper, ricocheted off a metal part of the van interior and injured Joshua. Joshua died fifteen months later, although the parties disagree as to whether his death is attributable to the stray bullet or other causes. Appellant Joanne Medeiros brought suit, in her individual capacity and as administratrix of Joshua's estate, against the police officers who rescued her son, seeking damages under 42 U.S.C. § 1983 for violations of Joshua's Fourth and Fourteenth Amendment rights.

As to the Fourth Amendment claim, we affirm the grant of summary judgment in favor of defendants on the ground (stated by the district court) that Joshua had not been seized within the meaning of the Amendment. As to the Fourteenth Amendment claim, the district court dismissed on the ground that the defendants, all of whom are Connecticut state troopers, are entitled to qualified immunity. We affirm the dismissal of the Fourteenth Amendment claim, but in light of authority that post-dates the district court's opinion, we do so on other grounds.

BACKGROUND

On January 11, 1993, Dwight Pink visited a Ford dealership in East Lyme, Connecticut, and went with a salesman to test drive a 1990 Mustang. Pink shot and robbed the car salesman, who was found wandering along Interstate 95 by a passing motorist. The motorist notified the state police about the shooting and Pink's flight in the stolen Mustang.

A bulletin describing Pink and the stolen car was dispatched to all Connecticut state police. About an hour later, Trooper Jack Drumm (a defendant) saw the Mustang on Route 82 in East Haddam, Connecticut, and gave pursuit. Pink lost control of the car, ending up in a ditch near an intersection in East Haddam. Drumm emerged from his car and ordered Pink to throw down his gun and surrender. Pink responded by firing several shots at Drumm. Drumm took cover but did not return fire because he saw that a school van was approaching the intersection.

Pink also noticed the school van; he shoved his gun against the van's windshield and screamed, "I'll kill you, I'll kill you!" Pink then boarded the van and took hostage the driver and her two teenaged passengers. A gun to her head, the driver obeyed Pink's order to drive away.

Trooper Drumm followed and radioed for assistance; Pink repeatedly fired at him. Other state troopers, including the remaining defendants, joined a procession of vehicles that passed through several rural towns. Pink continued to fire on the troopers, repeatedly threatened to kill the hostages, and periodically held his gun to the driver's head. The troopers held their fire to avoid hurting hostages. Pleas to Pink to release the hostages were unsuccessful.

As ordered by radio, the troopers at first allowed the van to proceed unmolested; but as the van approached a more populated area, the troopers were ordered to halt the van at the intersection of Routes 66 and 17, a still-rural area where the road widened from two lanes to four with a grassy median. As the van neared the roadblock, Pink continued to shoot at the troopers and ordered the driver to evade the police cars. She obeyed by driving up the median and continuing westbound on Route 66.

The ranking officer on the scene, Sergeant Duley, then ordered the troopers to "take out" the van. This order meant that the troopers were to stop the van by blocking or ramming it and to arrest Dwight Pink, using force if necessary. As Pink continued to fire on his pursuers, the troopers received an order over the radio that, for the protection of the hostages, there was to be "[n]o indiscriminate shooting!"

Trooper Brundage managed to pin the van between his cruiser and the guard rail, and Trooper Drumm blocked it from the rear. From inside the van, Pink continued to shoot at the troopers. Trooper Drumm, with Trooper Izzarelli alongside, fired at Pink through the driver's side window of the van; Trooper Hart approached the front of the van as Trooper O'Connell approached from the rear. As all the officers fired at Pink, he fell; Sergeant Duley ordered the troopers to cease fire; and they immediately obeyed.

The troopers ascertained that Pink was dead and that Joshua, who had been in the right front passenger seat, had been struck once and wounded. The troopers gave Joshua first aid while awaiting the arrival of an ambulance.

Later investigation established that O'Connell had fired five times at Pink from his position at the rear of the van. Of the rounds that struck Pink, O'Connell had fired the fatal bullet. It was also O'Connell's bullet that passed through the rear passenger seat, was deflected off a metal support bar, and continued through the front passenger seat to strike Joshua, who was leaning forward with his head under the dashboard.

O'Connell undoubtedly knew that there were three hostages in the van at the time he fired. When he approached the van, he observed the driver in the front left seat, Joshua in the front passenger seat, and Pink crouching on the floor between them. O'Connell immediately identified Pink; at roll call that morning O'Connell was informed that Pink had said he would not be taken into custody again. In the moments before O'Connell killed him, Pink had pointed his gun at the driver, at Joshua, and at Trooper Drumm. O'Connell then hoisted himself up through the rear window of the van and shot at Pink. The investigation after the shooting revealed that Pink had two shots remaining in his gun and an empty 50-round ammunition box. ¹

DISCUSSION

We review the grant of a motion for summary judgment de novo. See Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993).

A. The Fourth Amendment Claim

The Fourth Amendment prohibits unreasonable seizures; it is not a general prohibition of all conduct that may be deemed unreasonable, unjustified or outrageous. See Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir.1992). So the first step in any Fourth Amendment claim (or, as in this case, any section 1983 claim predicated on the Fourth Amendment) is to determine whether there has been a constitutionally cognizable seizure. See Michigan v. Summers, 452 U.S. 692, 696, 101 S.Ct. 2587, 2590-91, 69 L.Ed.2d 340 (1981).

Seizure under the Fourth Amendment is purposeful conduct:

[A] [v]iolation of the Fourth Amendment requires an intentional acquisition of physical control. 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. This is implicit in the word "seizure," which can hardly be applied to an unknowing act.

Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) (citations omitted). Appellant argues that Brower 's references to intention and wilfulness bear upon the deliberateness of the means employed, and that the troopers (particularly O'Connell) are liable to Joshua under the Fourth Amendment because they intentionally used their weapons. Defendants argue that the proper question is whether a claimant was the intended object of the officers' restraint or use of force, and that Joshua cannot state a claim under the Fourth Amendment because the troopers fully intended to seize Pink, but indisputably had no intention to curtail Joshua's freedom of movement.

We have not previously considered whether the accidental shooting of a hostage or innocent bystander can give rise to a claim under the Fourth Amendment, but other courts of appeal have had little trouble with the issue. In Landol-Rivera v. Cosme, 906 F.2d 791 (1st Cir.1990), the First Circuit addressed the claim of a fast-food worker who was taken hostage by an armed robber and was shot in the jaw by a bullet intended for his captor. The court quoted Brower for the principle that:

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. at 794 (quoting Brower, 489 U.S. at 596-97, 109 S.Ct. at 1381) (emphasis and alterations in original). Applying that principle to the hostage situation, the court stated:

We reject the notion that the "intention" requirement is met by the deliberateness with which a given action is taken. A police officer's deliberate decision to shoot at a car containing a robber and a hostage for the purpose of stopping the robber's flight does not result in the sort of willful detention of the hostage that the Fourth Amendment was designed to govern.

Id. at 795 (emphasis in original). The court reversed the jury's finding of liability and award of damages to Landol-Rivera.

Similarly, in Rucker v. Harford County, 946 F.2d 278 (4th Cir.1991), cert. denied, 502 U.S. 1097, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992), the Fourth Circuit...