Mitchell v. Miller

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: THOMPSON, Circuit Judge.
• Citation: Mitchell v. Miller, 790 F.3d 73 (1st Cir. 2015)
• Decision Date: 15 June 2015
• Docket Number: No. 14–2116.,14–2116.
• Parties: Jonathan E. MITCHELL, Plaintiff, Appellant, v. Robert MILLER, Defendant, Appellant.

790 F.3d 73

Jonathan E. MITCHELL, Plaintiff, Appellant

v.Robert MILLER, Defendant, Appellant.

No. 14–2116.

United States Court of Appeals, First Circuit.

June 15, 2015.

Michael J. Waxman, for Jonathan E. Mitchell.

Mark E. Dunlap, with whom Norman, Hanson & DeTroy, LLC was on brief, for Robert Miller.

Before HOWARD, THOMPSON, and BARRON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

We seldom do our best thinking in the murky hours when late night seeps into early morning. What strikes one as a fine idea in the darkness may reveal itself to be a brilliant mistake in the cold light of dawn. Decisions made well past 4 a.m. by two men—one a suspect, the other a police officer—are at the heart of this appeal. Jonathan E. Mitchell, once the suspect, now the plaintiff, decided to break in to his estranged wife's apartment to talk about their relationship, and then opted to lead police on a car chase. He now contends that Officer Robert Miller violated his Fourth Amendment rights when Miller shot him as he sped away. The district court granted summary judgment to Miller, finding that the officer was entitled to qualified immunity. Although Mitchell appeals that judgment, because we find the district court reached the right decision, we affirm.

I.Background

On the evening of April 9, 2011 in Portland, Maine, Jonathan E. Mitchell spent time drinking at a bar and smoking marijuana before deciding to help himself to a friend's Volkswagen Jetta. In the wee small hours of the 10th, Mitchell had the idea of visiting his estranged wife to talk “about their relationship.” Perhaps anticipating the reception he might receive, instead of calling or ringing the bell, Mitchell broke into the sleeping woman's apartment. He then woke her and talked to her in what he characterizes as an attempt “to rekindle their relationship.” Unsurprisingly, she viewed his behavior as more of a criminal act than a display of ardor, and, once Mitchell made his exit, she called the police. The woman reported the break-in at 4:39 a.m., and provided a description of the Jetta, as well as the direction in which Mitchell was driving when he left.

The police dispatcher, in turn, passed along the information to patrol officers and added that: Mitchell's driver's license had been revoked as a habitual offender; he was a sexually-violent convicted felon; and he was reported to be under the influence of alcohol or drugs and “possibly unstable.” Portland Police Officer Robert Miller was on patrol that evening when he heard the report of the residential burglary, spotted the Jetta, and began to follow Mitchell. A video camera mounted to Mitchell's cruiser recorded the subsequent events.¹

Mitchell turned into a residential neighborhood and drove at a normal rate of speed, stopping at stop signs and using his turn signal. After Miller confirmed that this was the Jetta he had been looking for, he turned on his blue lights and siren. Rather than pull over, Mitchell continued to drive at a moderate speed for over a minute. At this point, Officer David Schertz joined the pursuit in his own cruiser.

Mitchell, now tailed by two cruisers, sped up and drove down residential side streets at speeds of up to sixty-five miles per hour. After another forty seconds, Mitchell turned down a dead-end residential street and, at the end of the street, veered up onto an embankment, coming to rest three to four feet above street level. The remainder of the incident, captured on video, took only twenty-six seconds to unfold.

As Miller parked his cruiser behind the Jetta, and Schertz parked behind Miller, Mitchell began backing the Jetta down the embankment. Miller emerged from the cruiser, and Mitchell pulled the Jetta abruptly forward two to three feet before stopping. Miller approached the Jetta with his gun drawn, yelling loudly to Mitchell to get out of the car. Schertz then exited his cruiser and followed Miller. When Mitchell did not obey his commands, Miller opened the driver's side door of the Jetta with his left hand, keeping the gun pointed at Mitchell with his right. As Miller held the door, the Jetta again lurched forward. Schertz also grabbed the door of the Jetta with his left hand. Miller then reached into the passenger compartment and began to grapple with Mitchell. At one point, Miller stepped back slightly and the car rolled backwards. As Miller continued to try to get hold of Mitchell, the Jetta lurched forward several feet, and its wheels turned sharply to the left. Both officers sidestepped to keep pace with the moving car.

Miller continued to tussle with Mitchell as the car once again rolled backwards. Schertz repositioned himself somewhat, moving from Miller's left and in front of the open driver's side door, to behind Miller. The Jetta's engine began to rev and its tires squealed as Mitchell threw the car into a rapid u-turn to the left (the side where the officers were standing). Miller, still holding the door, was briefly pulled around by the car, but did not fall. Miller then fired two shots in Mitchell's direction.

The Jetta sped away. Mitchell, with one bullet lodged in his shoulder (the other having passed through his neck), drove to a friend's house and ingested some opiates. He was later apprehended at the friend's house.

In April 2013, Mitchell filed suit against Miller, the city of Portland, and its chief of police. The lawsuit originally alleged four counts, two of which, against the city and the police chief, were voluntarily dismissed. As to the remaining counts, Mitchell alleged that Miller had violated his Fourth Amendment rights, and had committed common law assault. Miller moved for summary judgment, arguing that he had used reasonable force, and that he was protected by qualified immunity. On September 26, 2014, the district court awarded summary judgment to the defendant on the grounds of qualified immunity (for the 42 U.S.C. § 1983 claim) and discretionary act immunity (for the assault claim). This appeal followed.

II.Discussion

Mitchell argues that the district court erred by concluding “that Defendant Miller ‘could reasonably have believed at least one other person in the immediate vicinity was in great danger,’ ” and by holding that Miller was entitled to qualified immunity.²

We review a grant of summary judgment de novo, drawing all reasonable inferences in the light most favorable to the nonmoving party. Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.2014). Here, the inferences that can reasonably be drawn are limited by the existence of video evidence. See Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). We will affirm the grant of summary judgment only if “there is no genuine dispute as to any material fact” and the moving party is “entitled to judgment as a matter of law.” Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 10 (1st Cir.2013) (quoting Fed.R.Civ.P. 56(a) ). We may affirm the grant of summary judgment on any basis apparent from the record. Id.

A claim that a police officer used excessive force “is governed by the Fourth Amendment's ‘reasonableness' standard.” Plumhoff v. Rickard, ––– U.S. ––––, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014). To determine whether an officer's actions were objectively reasonable, we must balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. (internal quotation marks and citation omitted). In so doing, we analyze the totality of the circumstances, taking the “perspective of a reasonable officer on the scene, rather than ... the 20/20 vision of hindsight.” Id. (internal quotation marks omitted).

Even if it is not clear that the use of force was reasonable, under the doctrine of qualified immunity, a police officer is protected from liability for civil damages under § 1983 “unless it is shown that the [officer] violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” McGrath v. Tavares, 757 F.3d 20, 29 (1st Cir.2014) (quoting Plumhoff, 134 S.Ct. at 2023 ). “An officer cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it, meaning that existing precedent ... placed the statutory or constitutional question beyond debate.” City and Cnty. of San Francisco, California v. Sheehan, –––U.S. ––––, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (internal quotation marks and citations omitted) (alterations in original).

The plaintiff bears the burden of demonstrating that the law was clearly established at the time of the alleged violation, and it is a heavy burden indeed. McGrath, 757 F.3d at 29. “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Sheehan, 135 S.Ct. at 1774 (internal quotation marks, alteration, and citation omitted) (bracket omitted). For reasons that will become clear, because we find that Miller is protected by qualified immunity, we do not reach the question of whether he used reasonable force.

Analysis

We “employ a two-prong analysis” to determine whether an officer is protected by qualified immunity. Mlodzinski v. Lewis, 648 F.3d 24, 32 (1st Cir.2011). We first determine “whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right.”Id. If such a violation is shown, we then determine whether the law “was clearly established at the time of the defendant's alleged violation.” Id. (internal quotation marks omitted).

This two-step process is not mandatory; courts have the discretion, where warranted, to proceed directly to the second prong. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In fact, the Supreme Court has urged us to “think...