Joseph C. Schultz v.  Christopher Braga

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOSEPH C. SCHULTZ,
Plaintiff-Appellee,
and
KRISTEN M. HARKUM,
Plaintiff,
v.
No. 05-1604  CHRISTOPHER BRAGA,
Defendant-Appellant,
and
HENRY F. HANBURGER; LAWRENCE S.
BROSNAN; FEDERAL BUREAU OF
INVESTIGATION,
Defendants. 

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 KRISTEN M. HARKUM,
Plaintiff-Appellant,
and
JOSEPH C. SCHULTZ,
Plaintiff,
v.
No. 05-1610  CHRISTOPHER BRAGA,
Defendant-Appellee,
and
HENRY F. HANBURGER; LAWRENCE S.
BROSNAN; FEDERAL BUREAU OF
INVESTIGATION,
Defendants. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-03-556-JFM; CA-03-562-JFM)
Argued: May 22, 2006
Decided: July 31, 2006
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.
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COUNSEL
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, Mary-
land, for Appellant/Cross-Appellee Christopher Braga. Barry L.
Gogel, David M. Kowitz, WEINER & WELTCHEK, Lutherville,
Maryland, for Appellee Joseph C. Schultz.
OPINION
TRAXLER, Circuit Judge:
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 sum-
mary 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.
I.
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 (2001).
On February 20, 2002, an Allfirst Bank branch in Pasadena, Mary-
land, 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
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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 Blot-
tenberger who had also rented Blottenberger the basement area of his
home. King began cooperating with Agent Brosnan in the investiga-
tion 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 Don-
ald 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 Blot-
tenberger 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
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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 Bros-
nan 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 Blot-
tenberger, 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 pro-
cedures 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
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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 contin-
ued 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 pas-
senger 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
1The movements of the agents are consistent with the testimony
regarding standard procedures in a dynamic vehicle stop. Agents Kornek
and Sheafe, as the drivers of the FBI vehicles, approached the driver’s
side of the vehicle from opposite directions, but it is expected that would
be slightly behind their passengers because they must secure their own
vehicles before exiting. Thus, Agent Stowe, the first to arrive, focused
momentarily on the suspect until Agent Braga arrived from the rear and
assumed that duty. Agent Stowe then turned his attention to the driver.
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he moved his "whole upper body so he could see my hands . . . .
[b]ecause he said, keep your hands up." 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. How-
ever, 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 Shultz 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 that of Harkum and
Schultz. He confirms that he was the first to reach the car and that he
yelled "police" and "show me your hands" several times. J.A. 779. He
went straight to the passenger door to open it and drag the suspect out,
but found it locked. He then backed up a step or two, looked at the
driver, pointed at the driver, and "said, unlock the door." J.A. 780. By
that time, Agent Braga had arrived and was a half step behind Agent
Stowe on his left side, and Agent Stowe had turned his attention to
Harkum. According to Agent Stowe, Agent Braga was yelling "show
me your hands," J.A. 781, and Agent Stowe "was telling [Harkum] to
unlock the door." J.A. 782. As Harkum was "complying with
[Stowe’s] demands" and "goes over toward the door lock," "that’s
when the window exploded" from the gunshot. J.A. 782. He testified
that he was focused on Harkum because he knew Agent Braga was
watching the suspect.
Harkum estimated that approximately ten seconds elapsed between
the time she stopped her car and Schultz was shot. Agent Sheafe, who
did not make it into position before the shot was fired, estimated that
no more than five seconds passed between the time Agent Braga got
out of the FBI vehicle and the window shattered.
Agent Braga’s account of these seconds differs from that of
Schultz. According to Agent Braga, when he approached the car,
Agent Stowe was pointing the gun at the passenger saying "police,
FBI, get your hands up." J.A. 210. When he arrived, he also claims
to have yelled "numerous times, in a loud voice," J.A. 211, for
Schultz to show his hands. Agent Braga testified that he did not hear
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Agent Stowe yell any commands after he arrived at the car. Accord-
ing to Agent Braga, "Agent Stowe didn’t issue any more commands
once I had arrived and I was in the better position to address who we
thought . . . [wa]s Blottenberger." J.A. 212. He denied ever hearing
Agent Stowe command the occupants to unlock the car doors. Agent
Braga testified that Schultz did not have his hands up and refused to
show his hands after being instructed to do so four or five times.
According to Agent Braga, there was "no response at all," and instead
of complying with the order to show his hands, "the passenger turn-
[ed] towards the console area and lean[ed] forward, as if he’s reaching
down, into the — between the seats, the console area," J.A. 215, "as
if he’s looking down and reaching down to grab something." J.A. 216.
Agent Braga testified that he fired the shot because he believed, based
upon the passenger’s noncompliant movement to the left, that the pas-
senger was going for a gun to shoot the agents and possibly the driver
and himself. Agent Braga estimated that approximately 20 to 30 sec-
onds elapsed between the time Schultz was ordered to raise his hands
and the time the shot was fired.
Immediately after the shooting, Schultz and Harkum were dragged
from the car and handcuffed. Agent Brosnan and King then arrived
at the scene and realized that Schultz and Harkum had been mistaken
for Blottenberger and his girlfriend. It was later determined that the
bullet fired by Agent Braga struck the glass of the car window and
the seatbelt "d-ring" located inside the passenger compartment, caus-
ing fragments to ricochet and enter Schultz’s face. As a result of the
shooting, Schultz sustained multiple fractures and other injuries to his
head, face and mouth, which necessitated reconstructive surgery.
Harkum sustained psychological injuries, including depression, anxi-
ety, and post-traumatic stress disorder.
In March 2003, Schultz and Harkum brought separate Bivens
actions against Agents Brosnan, Hanburger, and Braga, alleging that
the agents violated their Fourth Amendment rights by seizing them
without probable cause, and that Agent Braga unconstitutionally
employed excessive force when he fired his rifle. See Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
389 (1971) (holding that violation of the Fourth Amendment right "by
a federal agent acting under color of his authority gives rise to a cause
of action for damages consequent upon his unconstitutional con-
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duct"). The cases were consolidated by the district court, and defen-
dants filed a motion to dismiss based upon qualified immunity. The
district court granted Agent Brosnan’s motion in its entirety, granted
the motion of Agent Hanburger, except for the claim that Hanburger’s
order to stop the car was without probable cause, and denied the
motion of Agent Braga on the excessive force claim. See Schultz v.
Braga, 290 F. Supp. 2d 637 (D. Md. 2003).
Following discovery, Agents Braga and Hanburger filed motions
for summary judgment, again on the ground that they were entitled
to qualified immunity. The district court granted Agent Hanburger
summary judgment on the remaining claim against him. With regard
to Agent Braga, the district court concluded that there were genuine
issues of material fact regarding the circumstances surrounding Agent
Braga’s use of force against Schultz and denied Agent Braga’s motion
as to Schultz’s claim. However, the district court granted Agent
Braga’s motion as to Harkum’s claim because she had failed to dem-
onstrate that Agent Braga violated her Fourth Amendment right by
seizing her by means of the alleged excessive force. The district then
certified its decision regarding her claim for interlocutory appeal
along with Agent Braga’s appeal from the decision in Schultz’s case.
II.
We begin with Agent Braga’s appeal from the district court’s
denial of his motion for qualified immunity from Schultz’s claim of
excessive force.
A.
Under the doctrine of qualified immunity, police officers perform-
ing discretionary duties "are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity protects law enforcement officers from "bad guesses in
gray areas" and ensures that they are liable only "for transgressing
bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992). It protects "all but the plainly incompetent or those who know-
ingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
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When qualified immunity is asserted, the court must consider the
requisites of the defense in the proper sequence. See Saucier, 533
U.S. at 200. We must first evaluate whether, viewing the facts in the
light most favorable to the plaintiff, the officer has violated a particu-
lar constitutional right; if so, we proceed to determine whether that
right was clearly established at the time of the violation. See id. With
regard to the latter question, the relevant inquiry is whether "it would
be clear to an objectively reasonable officer that his conduct violated
[the constitutional] right." Brown v. Gilmore, 278 F.3d 362, 367 (4th
Cir. 2002).
Because "[q]ualified immunity is an entitlement not to stand trial
or face the other burdens of litigation . . . rather than a mere defense
to liability," it is important to "resolv[e] immunity questions at the
earliest possible stage in litigation." Saucier, 533 U.S. at 200-01
(internal quotation marks and citations omitted). Ordinarily, this
would be at the summary judgment stage. See Willingham v. Crooke,
412 F.3d 553, 558 (4th Cir. 2005). However, qualified immunity does
not "override the ordinary rules applicable to summary judgment pro-
ceedings." Id. at 559. "[T]he purely legal question of whether the con-
stitutional right at issue was clearly established ‘is always capable of
decision at the summary judgment stage,’" but "a genuine question of
material fact regarding ‘[w]hether the conduct allegedly violative of
the right actually occurred . . . must be reserved for trial.’" Id. (quot-
ing Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992)).
In this case, the constitutional right in question is plaintiffs’ Fourth
Amendment right to be free from unreasonable searches and seizures,
which encompasses the right to be free of arrests, investigatory stops,
or other seizures effectuated by excessive force. See Graham v. Con-
nor, 490 U.S. 386, 388 (1989). A claim that a law enforcement officer
used excessive force in the context of a seizure is analyzed under the
"objective reasonableness" standard of the Fourth Amendment. Id. An
officer’s actions are not excessive if they "are ‘objectively reasonable’
in light of the facts and circumstances confronting [him], without
regard to [his] underlying intent or motivation." Id. at 397.
"To gauge objective reasonableness, a court examines only the
actions at issue and measures them against what a reasonable police
officer would do under the circumstances." Rowland v. Perry, 41 F.3d
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167, 172 (4th Cir. 1994). "Subjective factors involving the officer’s
motives, intent, or propensities are not relevant." Id. at 173. However,
"the immunity inquiry must be filtered through the lens of the offi-
cer’s perceptions at the time of the incident in question." Id.
Such a perspective serves two purposes. First, using the offi-
cer’s perception of the facts at the time limits second-
guessing the reasonableness of actions with the benefit of
20/20 hindsight. Second, using this perspective limits the
need for decision-makers to sort through conflicting ver-
sions of the "actual" facts, and allows them to focus instead
on what the police officer reasonably perceived. In sum, the
officer’s subjective state of mind is not relevant to the quali-
fied immunity inquiry, but his perceptions of the objective
facts of the incident in question are.
Id. (citations omitted).
Determining the reasonableness of the challenged actions ulti-
mately "requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake." Graham, 490 U.S. at
396 (citation and internal quotation marks omitted). Proper applica-
tion of the test of reasonableness also "requires careful attention to the
facts and circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resist-
ing arrest or attempting to evade arrest by flight." Id. "Because ‘police
officers are often forced to make split-second judgments - in circum-
stances that are tense, uncertain, and rapidly evolving,’ the facts must
be evaluated from the perspective of a reasonable officer on the scene,
and the use of hindsight must be avoided." Waterman v. Batton, 393
F.3d 471, 476-77 (4th Cir. 2005) (quoting Graham, 490 U.S. at 397)
(internal citation omitted).
Nevertheless, "[t]he intrusiveness of a seizure by means of deadly
force is unmatched." Tennessee v. Garner, 471 U.S. 1, 9 (1985). And
it is a clearly established principle of law that law enforcement offi-
cers may employ deadly force "[w]here the officer has probable cause
to believe that the suspect poses a threat of serious physical harm,
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either to the officer or to others." Id. at 11. "Where [a] suspect poses
no immediate threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify the use of
deadly force to do so." Id. But "if the suspect threatens the officer
with a weapon or there is probable cause to believe that he has com-
mitted a crime involving the infliction or threatened infliction of seri-
ous physical harm, deadly force may be used if necessary to prevent
escape, and if, where feasible, some warning has been given." Id. at
11-12.
B.
Here, the FBI’s decision to stop Harkum’s car unquestionably
implicated significant governmental interests. The agents were
charged with arresting Blottenberger, a known drug addict with an
extensive criminal record, who was reported to be armed, dangerous,
possibly suicidal, and in the process of fleeing capture for an armed
bank robbery. Agent Braga and his colleagues reasonably believed
that the occupants of the vehicle were Blottenberger and his girl-
friend, and they had probable cause to stop the car and seize the occu-
pants. Accordingly, our evaluation of Agent Braga’s use of deadly
force must be viewed from this perspective, without regard to the fact
that the occupants of the vehicle were later discovered to be an inno-
cent couple tragically mistaken to be the suspect Blottenberger and
his girlfriend Lisa. See Mazuz v. Maryland, 442 F.3d 217, 225 (4th
Cir. 2006) ("‘Because many situations which confront officers in the
course of executing their duties are more or less ambiguous, room
must be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men, acting on facts leading sensibly to
their conclusions of probability.’") (quoting Brinegar v. United States,
338 U.S. 160, 176 (1949)).
Despite the serious and dangerous nature of the situation at hand,
however, genuine issues of material fact remain as to whether Schultz
was making a noncompliant, dangerous movement in the split second
before Agent Braga fired his gun and whether Agent Braga, when he
responded with deadly force to Schultz’s movements, "ha[d] probable
cause to believe that the suspect pose[d] a threat of serious physical
harm" to the agents or to Harkum. Garner, 471 U.S. at 11.
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As an initial matter, we note that Schultz claims that he was mov-
ing his whole upper body, hands raised, right towards the door handle
to unlock the door as commanded by Agent Stowe. By contrast,
Agent Braga contends that the suspect failed to comply with repeated
commands to raise his hands and moved his body to the left, towards
the inner console of the car, with his hands down as if to retrieve a
gun between the seats. Fearing that the suspect might attempt to shoot
the agents, or perhaps even the driver and himself, Agent Braga
argues that he reasonably employed deadly force to stop Schultz’s
noncompliant movement.2 Thus, the factual circumstances prompting
Agent Braga’s use of deadly force are very much in dispute.
For his part, Agent Braga acknowledges that there is a genuine dis-
pute between the parties as to whether Schultz moved left or right
after Agent Braga arrived at the car and shouted orders for him to put
his hands up. However, Agent Braga contends that he is entitled to
qualified immunity because, even assuming Schultz’s version of the
facts to be true (as we must), it would still have been objectively rea-
sonable for an officer to fire upon a suspect who, after being repeat-
edly instructed to keep his hands up and in full view, instead moved
his hands to the right and downward. Agent Braga further contends
that, even if Agent Stowe shouted a conflicting command with which
Schultz was complying, it was objectively reasonable for Braga not
to have heard it or for the command not to have registered as a con-
flicting command under the tense, uncertain, and exigent circum-
stances present at the time.
Although we do appreciate the tense nature of the situation at hand,
the issue before us on summary judgment is fairly narrow. We deter-
mine only whether, viewing the evidence in the light most favorable
to Schultz, we can say, as a matter of law, that a reasonable police
2See e.g., Anderson v. Russell, 247 F.3d 125, 132 (4th Cir. 2001)
(holding that shooting of suspect who initially complied with officers’
order to raise his hands, but then lowered them without explanation, was
objectively reasonable as a matter of law, even though it turned out that
the suspect had not been reaching for a weapon); McLenagan v. Karnes,
27 F.3d 1002, 1007-08 (4th Cir. 1994) (noting that a noncompliant
movement indicating the presence of a weapon may justify the use of
deadly force).
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officer in Agent Braga’s position could have believed that the suspect
was making a noncompliant movement that "pose[d] a threat of seri-
ous physical harm, either to the officer or to others," warranting the
use of deadly force. Id. We are unable to do so here. Viewing the evi-
dence in the light most favorable to Schultz, Agent Braga fired his
weapon between five to ten seconds after exiting his vehicle. During
this time, Schultz raised his hands, in plain view of the agents, and
kept them raised until ordered by Agent Stowe to unlock the door.
Agent Stowe was standing approximately 18 inches from Agent
Braga when Agent Stowe gave the command to unlock the door in a
voice that was at least loud enough for both Harkum and Schultz to
hear it inside the vehicle with the windows rolled up. Yet, Agent
Braga shot Schultz immediately upon the latter moving his raised
hands and upper body towards the right side of vehicle to comply
with Agent Stowe’s command.
In sum, there remain genuine issues of material fact as to the cir-
cumstances leading up to Agent Braga’s decision to fire his weapon
at Schultz, including whether Agent Braga heard and registered the
conflicting command of Agent Stowe to unlock the door and whether,
in view of the conflicting command and all of the other facts and cir-
cumstances surrounding it, a reasonable officer in Agent Braga’s
position could have believed that Schultz was making a noncompl-
iant, dangerous movement warranting the use of deadly force to pro-
tect himself and others from an immediate and deadly threat. There
are, undoubtedly, a number of other factual scenarios that the jury
might endorse under which Agent Braga might still be entitled to
qualified immunity as a matter of law, but these are matters for the
district court to revisit, where appropriate, on remand. "We decide[ ]
only that the forecasted evidence, when viewed in the light most
favorable to [Schultz], established a violation of clearly established
law." Willingham, 412 F.3d at 559 (emphasis in original). "Because
we d[o] not decide what a reasonable officer would have known
regarding the lawfulness of his actions under any other version of
events, the qualified immunity defense remain[s] viable after our
decision." Id. (emphasis added). "[T]he district court should submit
factual questions to the jury and reserve for itself the legal question
of whether the defendant is entitled to qualified immunity on the facts
found by the jury." Id. at 560.
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III.
We now turn to Harkum’s appeal from the district court’s grant of
qualified immunity to Agent Braga on her Fourth Amendment claim.
The district court ruled that Harkum could not prevail on her claim
of excessive force because she was not "seized" by Agent Braga
within the meaning of the Fourth Amendment in the first instance. We
agree.
A.
The Fourth Amendment protects "[t]he right of the people to be
secure in their persons . . . against unreasonable searches and sei-
zures." U.S. Const. amend. IV. Persons seized by a federal agent in
an unreasonable manner, such as by excessive force, may sue the
agent personally and recover monetary damages against him, see
Bivens, 403 U.S. at 389, so long as "it would be clear to an objec-
tively reasonable officer that his conduct violated" the Fourth Amend-
ment. Brown, 278 F.3d at 367. Only if the plaintiff can first establish
that she has been "seized" within the meaning of the Fourth Amend-
ment by means of excessive force do we proceed to a determination
of whether the force employed was "objectively unreasonable" under
the circumstances.
It is well established that "not all personal intercourse between
policemen and citizens involves ‘seizures’ of persons" for purposes of
the Fourth Amendment. United States v. Mendenhall, 446 U.S. 544,
552 (1980) (internal quotation marks omitted). Rather, it is "[o]nly
when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen" that we may "conclude
that a ‘seizure’ has occurred." Id. (internal quotation marks omitted).
Liberty has been restrained, and "a person has been ‘seized’ within
the meaning of the Fourth Amendment . . . if, in view of all the cir-
cumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave." Id. at 554 (footnote omitted).
Because a seizure within the meaning of the Fourth Amendment
always "requires an intentional acquisition of physical control,"
Brower v. County of Inyo, 489 U.S. 593, 596 (1989), it does not
extend to "accidental effects" or "unintended consequences of govern-
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ment action." Id. Although a seizure may "occur[ ] even when an
unintended person or thing is the object of the detention or taking, . . .
the detention or taking [of the person or thing] itself must be willful.
This is implicit in the word ‘seizure,’ which can hardly be applied to
an unknowing act." Id.
Relying upon Brower, we have declined to extend the protections
of the Fourth Amendment to an innocent bystander, who was uninten-
tionally killed by a police officer attempting to seize a fleeing crimi-
nal. Because the victim "was not the intended object of the shooting
by which he was injured," he had not been "‘seized’ within contem-
plation of the fourth amendment." Rucker v. Harford County, Md.,
946 F.2d 278, 281 (4th Cir. 1991). And, other courts have similarly
refused to allow hostages to bring Fourth Amendment claims against
police officers who accidentally shot them while attempting to seize
their captors, even though the means applied (the gunfire) was inten-
tional, because there was no intent to seize the hostage. See Childress
v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000) (holding
that innocent hostages injured by police gunfire could not bring an
action under the Fourth Amendment because there was no intent to
"seize" the hostages); Medeiros v. O’Connell, 150 F.3d 164, 168-69
(2d Cir. 1998) (holding that no Fourth Amendment seizure occurred
when a hostage was injured by police gunfire because the victim was
not the object of an intentional act of seizure); Landol-Rivera v.
Cosme, 906 F.2d 791, 798 (1st Cir. 1990) (holding that the Fourth
Amendment is not implicated when a hostage is inadvertently shot
during a police pursuit of a robbery suspect because "the individual
alleging harm was [not] the object of the challenged police conduct").
In sum, "a Fourth Amendment seizure does not occur whenever
there is a governmentally caused termination of an individual’s free-
dom of movement," such as in the case of an innocent passerby who
is injured when he is inadvertently struck by the force employed, "nor
even whenever there is a governmentally caused and governmentally
desired termination of an individual’s freedom of movement," such
as in the case of a fleeing felon who is unknowingly and unintention-
ally stopped by an officer. Brower, 489 U.S. at 596-97 (emphasis in
original). Rather, a Fourth Amendment seizure occurs "only when
there is a governmental termination of freedom of movement through
means intentionally applied." Id. at 597 (emphasis omitted). It is not
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necessary that the seizure be effectuated exactly as intended when the
force is applied, but the person must nonetheless have been "stopped
by the very instrumentality set in motion or put in place in order to
achieve that result." Id. at 599.
B.
In this case, Harkum first asserts that her Fourth Amendment right
to be free from a seizure effectuated by excessive force was violated
when Agent Braga fired his rifle at her passenger because she had not
yet submitted to the agents’ authority when the shot was fired. In
other words, Harkum contends that it was Agent Braga’s gunshot that
ended her freedom of movement and accomplished her seizure. How-
ever, the evidence, viewed in the light most favorable to Harkum,
simply does not support this version of the facts. Harkum was forced
to the side of the road by Agent Kornek and moments later was held
by Agents Kornek and Stowe at gunpoint. Although Harkum did not
initially understand that the persons forcing her off the road were law
enforcement officers, she recognized that Agent Stowe wore an iden-
tifying FBI vest when he exited his vehicle and approached her, and
Agent Stowe continuously identified himself as "FBI" or police as he
approached. According to Harkum, Agent Stowe alone gave com-
mands to her, she only looked in his direction, and she was either
moving to comply with Agent Stowe’s command or intending to do
so when the shot was fired. Clearly, when Harkum pulled over,
stopped the car, and raised her hands in compliance with the Agent
Stowe’s orders, she was acknowledging the agents’ authority over her
and their seizure of her for purposes of the Fourth Amendment was
complete. See Mendenhall, 446 U.S. at 554 (noting as "[e]xamples of
circumstances that might indicate a seizure, even where the person
did not attempt to leave, . . . the threatening presence of several offi-
cers, the display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be com-
pelled").
Nor did Agent Braga intend to seize Harkum when he fired his
weapon. Agent Braga was not driving the car that forced Harkum’s
vehicle to the side of the road, never pointed his weapon at Harkum,
and never issued any commands to her. From the moment he exited
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his vehicle, Agent Braga’s intent was to seize the robbery suspect sit-
ting in the passenger seat of the vehicle. Additionally, Agent Braga
intentionally angled himself to the back of the passenger, as he was
trained to do, so as not to endanger the driver of the vehicle. More-
over, Agent Braga did not remove Harkum from the car, handcuff her,
or detain her in any other way after he fired his weapon at Schultz.
In sum, because Harkum was seized before Agent Braga fired his
weapon and Agent Braga had no intent to seize Harkum by firing his
weapon, Agent Braga’s firing of his weapon on the other side of the
vehicle cannot reasonably be viewed as the act which brought
Harkum into submission and terminated her freedom.
C.
Harkum next contends that, even if she had been "seized" by the
other officers before Agent Braga fired his weapon and Agent Braga
did not intend to seize her by virtue of the firing of his weapon, she
may nevertheless recover from Agent Braga because it was reason-
ably foreseeable to Agent Braga that a bullet might ricochet and strike
her when he fired at Schultz. Harkum argues that, unlike in the case
of an innocent bystander or hostage, she was an intended target of sei-
zure by the FBI agents and is entitled to recover for any injuries
(including purely emotional injuries) she sustained as a result of
Agent Braga firing his weapon at Schultz.
The fatal flaw in Harkum’s argument, however, is that the Fourth
Amendment does not protect persons who were merely "reasonably
foreseeable victims" of excessive force inflicted upon another, even
if they were themselves targets of a seizure. The Fourth Amendment
protects persons who have been personally subjected to a "govern-
mental termination of freedom of movement through means intention-
ally applied" that are unreasonable. Brower, 489 U.S. at 597
(emphasis omitted). In short, it protects persons who are actually
seized by unreasonable means.
Harkum’s reliance upon cases from other circuits which have
allowed suspects to pursue Fourth Amendment claims of excessive
force against police officers who inadvertently shot them are not to
the contrary. In each case, an excessive force claim was allowed to
proceed not because the plaintiff was a "foreseeable victim" of the
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officer’s gunfire, but because each was a desired target of seizure and
each was, in fact, stopped or "seized" by the bullet intentionally fired
by the officer. See, e.g., Vaughan v. Cox, 343 F.3d 1323, 1329 (11th
Cir. 2003) (allowing claim of passenger who was shot by officer fir-
ing at fleeing vehicle’s driver because the officer fired his weapon to
stop both men and the plaintiff "was hit by a bullet that was meant
to stop him," i.e., he was "‘stopped by the very instrumentality set in
motion or put in place in order to achieve that result’") (quoting
Brower, 489 U.S. at 599); Fisher v. City of Memphis, 234 F.3d 312,
318-19 (6th Cir. 2000) (allowing claim of passenger who was shot
when the officer fired his gun through the driver’s window of a flee-
ing car because the passenger was also "a deliberate object of the[ ]
exertion of force" and "[b]y shooting at the driver of the moving car,
[the officer] intended to stop the car, effectively seizing everyone
inside, including the [p]laintiff")(citation and internal quotation marks
omitted); see also Yang v. Murphy, 796 F. Supp. 1245, 1250 (D.
Minn. 1992) (allowing plaintiff’s claim to proceed because the officer
intended to apprehend two fleeing suspects and, although he aimed at
the other suspect and hit the plaintiff’s decedent, he nonetheless
seized an intended target by the means intentionally applied).3
Harkum’s reliance upon the case of Flores v. City of Palacios, 381
F.3d 391 (5th Cir. 2004), is similarly misplaced. There, the court
allowed a Fourth Amendment claim to proceed for purely psychologi-
cal injuries caused by an officer firing upon and striking a young
woman’s vehicle, but not her person. The gunfire, however, was
directed at the plaintiff’s vehicle for the purpose of stopping the car
and terminating her freedom, and it had the desired effect of doing so.
3Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005), also relied upon by
Harkum, is not analogous to the case at hand. There, the court allowed
a Fourth Amendment claim to proceed in a case where an officer indis-
criminately fired upon two men struggling over a gun even though he
knew that one was an innocent person whom the suspect had attempted
to rob. The officer did not contend that the plaintiff was not "seized" for
purposes of the Fourth Amendment, but rather that his use of deadly
force was reasonable under the circumstances. But even if the officer had
challenged the "seizure," the case would not aid Harkum. The evidence,
viewed in the light most favorable to the victim, demonstrated that the
officer intentionally fired upon both men.
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Although Flores was not struck by the officer’s bullet, she was none-
theless an intended target of the force employed and her freedom of
movement was terminated by that show of force. See id. at 396 (not-
ing that "the termination of [plaintiff’s] freedom of movement was
accomplished by exactly the means [the officer] intentionally applied,
i.e., the shot to her car").
For the same reason, we need not tarry with Harkum’s argument
that the district court erred in finding that she had to have been struck
by the bullet in order to state a Fourth Amendment claim and her
related claim that, if a physical touching is required, she was touched
by the blood and glass set in motion by the gunshot. Contrary to
Harkum’s argument, the district court did not distinguish Harkum
from Schultz solely because she was not physically struck by the bul-
let, nor do we. Harkum’s claim is distinguishable from Schultz’s
claim because the force employed was not directed towards her, not
intended to seize her, and did not seize her. Nor have we held today
that a suspect must be physically struck by a bullet (or any other
object) to state a claim for excessive force. But, to hold an officer per-
sonally liable for violation of the Fourth Amendment, the plaintiff
must at a minimum be able to demonstrate that the officer actually
terminated her freedom of movement by means of the alleged exces-
sive force.
D.
Here, Harkum seeks to extend the scope of the Fourth Amendment
protections to persons who are "reasonably forseeable" victims of
excessive force inflicted upon another, even though they are not
actual victims of a seizure effectuated by that force. Like the district
court, we decline to stretch the scope of the Fourth Amendment so far
beyond its plain language and intended purpose. See Brower, 489
U.S. at 596 (noting that "[t]he writs of assistance that were the princi-
pal grievance against which the Fourth Amendment was directed, did
not involve unintended consequences of government action") (internal
citation omitted). Agent Braga did not intend to terminate Harkum’s
freedom of movement by firing the shot, nor did the firing of the shot
terminate Harkum’s freedom of movement. Thus, Agent Braga did
not terminate Harkum’s "freedom of movement through means inten-
tionally applied," id. at 597 (emphasis omitted), and Harkum was not
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"stopped by the very instrumentality set in motion or put in place in
order to achieve that result," id. at 599. Accordingly, the district court
correctly granted Agent Braga qualified immunity from Harkum’s
claim of excessive force under the Fourth Amendment.
IV.
For the foregoing reasons, we affirm the district court’s order deny-
ing Agent Braga’s motion for summary judgment as to Schultz’s
claims, but granting Agent Braga’s motion for summary judgment as
to Harkum’s claims.
AFFIRMED
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