Schultz v. Braga
| Decision Date | 31 July 2006 |
| Docket Number | No. 05-1610.,No. 05-1604.,05-1604.,05-1610. |
| Citation | 455 F.3d 470 |
| Parties | Joseph C. SCHULTZ, Plaintiff-Appellee, and Kristen M. Harkum, Plaintiff, v. Christopher BRAGA, Defendant-Appellant, and Henry F. Hanburger; Lawrence S. Brosnan; Federal Bureau of Investigation, Defendants. Kristen M. Harkum, Plaintiff-Appellant, and Joseph C. Schultz, Plaintiff, v. Christopher Braga, Defendant-Appellee, and Henry F. Hanburger; Lawrence S. Brosnan; Federal Bureau of Investigation, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Susan Quarngesser Amiot, Silverman, Thompson & White, L.L.C., Baltimore, Maryland, for Christopher Braga. Arnold Murray Weiner, Weiner & Weltchek, Lutherville, Maryland, for Joseph C. Schultz; Steven Aaron Allen, Hodes, Ulman, Pessin & Katz, P.A., Towson, Maryland, for Kristen M. Harkum. ON BRIEF: Andrew C. White, Donna M.B. King, Silverman, Thompson & White, L.L.C., Baltimore, Maryland, for Appellant/Cross-Appellee Christopher Braga. Barry L. Gogel, David M. Kowitz, Weiner
& Weltchek, Lutherville, Maryland, for Appellee Joseph C. Schultz.
Before WILKINSON and TRAXLER, Circuit Judges, and RICHARD L. WILLIAMS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge WILLIAMS joined.
Plaintiffs Joseph Schultz and Kristen Harkum brought these actions against Special Agent Christopher Braga of the Federal Bureau of Investigation, alleging that Agent Braga unconstitutionally employed excessive force against them when he shot Schultz, who was seated next to Harkum in the passenger seat of her vehicle, after the vehicle had been stopped by an FBI arrest team. Agent Braga moved for summary judgment on the basis of qualified immunity, which the district court denied as to Schultz's claim, but granted as to Harkum's claim. We affirm.
Because this is an appeal from the grant of summary judgment to the defendant, we review the facts in the light most favorable to the plaintiffs. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
On February 20, 2002, an Allfirst Bank branch in Pasadena, Maryland, was robbed by a single gunman who fled the scene in a stolen pickup truck driven by a second man. FBI Agent Lawrence Brosnan was assigned to investigate the robbery. Approximately one week after the robbery, an Anne Arundel County detective received an anonymous tip that Michael Blottenberger, a heroin and crack addict who had been recently released from prison, had robbed the bank.
In the course of investigating Blottenberger as a suspect, Agent Brosnan interviewed Timothy King, a friend and coemployee of Blottenberger who had also rented Blottenberger the basement area of his home. King began cooperating with Agent Brosnan in the investigation and, on March 1, 2002, told Agent Brosnan that Blottenberger had confessed to driving the getaway car for the robbery. King also found two silver and black air pistols and a sweat suit in the basement which matched the description of the gun and clothing used by the robber. Based upon his investigation, Agent Brosnan received verbal authority to arrest Blottenberger and began the process of seeking a formal arrest warrant.
In the meantime, Blottenberger contacted King and told him that the FBI was looking for him. Blottenberger asked King to bring him some personal clothing and money so that he could flee the area. King immediately reported this information to Agent Brosnan and told Agent Brosnan that Blottenburger might be suicidal. When Agent Brosnan relayed this information to his superiors, he again received verbal authorization to arrest Blottenberger and began working on an operational plan to arrest Blottenberger when Blottenberger met with King. An FBI arrest team was assembled and briefed by Agent Henry Hanburger, who was Agent Brosnan's partner. The team members included Agent Christopher Braga, Agent Stephen Stowe, Agent Donald Kornek, and Agent Brad Sheafe. During the briefing, the agents were told that Blottenberger was a heroin and crack addict with an extensive criminal record (including convictions for drug charges, assault with a weapon and attempted murder), and that he should be considered armed and dangerous. The agents were also told that Blottenberger intended to flee the area, was determined not to be returned to prison, was possibly suicidal, and might pose a "suicide-by-cop" risk.
As the day progressed, the plan for Blottenberger's arrest centered on King's arrangement to meet him at a 7-Eleven convenience store with a bag containing the requested personal items. Agents Kornek and Stowe, and Agents Sheafe and Braga, riding in two unmarked vehicles, set up surveillance of the 7-Eleven store. Agents Brosnan and Hanburger, also in separate vehicles, were in the vicinity, but not within eyesight of the 7-Eleven. The surveillance agents were told that King would park his pickup truck in the parking lot and go inside. Blottenberger was expected to be wearing a white baseball cap and to arrive in a red vehicle being driven by a woman with red hair.
During surveillance, the four agents observed a red vehicle, driven by a woman with red hair, pull into the 7-Eleven parking lot and park next to King's truck. A male passenger, wearing a white baseball cap, got out of the car and entered the 7-Eleven. When he returned to the car, the woman drove him away. These observations were relayed to Agent Brosnan, who ordered the surveillance team to follow the car. The lead FBI vehicle was driven by Agent Kornek with Agent Stowe as his passenger. Following close behind was the vehicle driven by Agent Sheafe, with Agent Braga as his passenger.
All of the agents believed that the passenger in the red car was Blottenberger, and that the driver was Blottenberger's girlfriend, Lisa. In actuality, the occupants were 16-year-old Harkum and her 20-year-old boyfriend Schultz, who had stopped at the 7-Eleven on the way home from the local mall. King, who was still at the 7-Eleven, saw Blottenberger and Lisa drive by in another red car, but they did not stop. Unfortunately, King's efforts to get this message to Agent Brosnan and the other arrest team members failed.
As Harkum's car approached an intersection with a traffic light, the surveillance agents radioed Agents Brosnan and Hanburger and asked if they should stop the vehicle. Due to a radio failure, Agent Brosnan was unable to respond. Agent Hanburger, having concluded that there was probable cause to believe that the vehicle was occupied by Blottenberger, gave the order to stop the vehicle.
After stopping briefly at the intersection, Harkum turned right on red and began to proceed down the street. At that moment, the agents began a "dynamic vehicle stop" in accordance with their standard procedures in such circumstances, the object of which is to approach the suspect rapidly and forcibly remove him from the car before he has an opportunity to react dangerously. Agent Kornek pulled alongside Harkum's car and Agent Stowe, with gun drawn, ordered Harkum to pull over. Agent Kornek then pulled ahead of Harkum's car and angled in front of it to force Harkum to the side of the road. Agent Sheafe stopped his vehicle directly behind Harkum's vehicle.
As each vehicle came to rest, the agents immediately exited and approached the car with rifles aimed at the occupants. Agent Stowe was the first to arrive at Harkum's car. He approached the passenger side of the car from the front wearing an FBI vest and yelling "police" or "FBI" and "put your hands up." When he arrived at the passenger window, he stood facing Schultz, pointing the gun at him, and continued to identify himself and command the occupants to raise their hands. Agent Kornek also approached from the front and, facing Harkum, pointed his rifle at her, but Harkum never looked away from Agent Stowe, who was continuously yelling commands from the passenger side of the car. Agent Braga approached the passenger side of the vehicle from the rear, stood behind Schultz, and pointed his gun at the back of Schultz's head, at which point Agent Stowe turned his attention and rifle towards Harkum. Seconds later, Agent Braga fired his weapon through the glass window, striking Schultz in the face. Agent Sheafe, the driver of the rear FBI vehicle, was approaching the car from the rear, but did not arrive at his position until after Agent Braga fired his weapon.1
The parties disagree about the events that took place immediately after Agent Braga arrived at Harkum's vehicle. According to Schultz and Harkum, they were both focused on Agent Stowe — who had arrived first and was yelling commands from the passenger side of the vehicle — and immediately raised their hands as he commanded. Agent Stowe tried to open the door, but it was locked. He then backed up a step or two, and ordered the occupants to unlock the door. According to Schultz, "my hands were up and when he said, unlock the door, I moved over to unlock it." J.A. 712. Schultz testified that he moved his J.A. 712. The door lock was on the door panel next to the handle, which would require Schultz to move his hands towards the right and slightly down to comply. However, Schultz testified that as soon as he started to move to the right, he was shot. Harkum testified that she was looking directly at Agent Stowe and, therefore, could see in her line of sight that Schultz was holding his hands up. She also testified that Agent Stowe tried to open the door while telling them to put their hands up, and then told them to unlock the door. Harkum testified that before she could move to unlock the door, there was a loud noise and glass hit her face and legs.
Agent Stowe's testimony is consistent with...
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