Abraham v. Raso

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

7-26-1999

Abraham v. Raso, et al

Precedential or Non-Precedential:

Docket 98-5405,98-5406

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Recommended Citation

"Abraham v. Raso, et al" (1999). 1999 Decisions. Paper 216.

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Filed July 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-5405 and 98-5406

VANESSA ABRAHAM, IN HER OWN RIGHT AND AS

ADMINISTRATRIX OF THE ESTATE OF

ROBERT ABRAHAM, DECEASED, AND ON BEHALF

OF ROBERT CHRISTOPHER ABRAHAM, JR.,

LABREEA VON ABRAHAM AND TAQUAN CAREY,

THE MINOR CHILDREN OF DECEDENT;

CNA INSURANCE COMPANY (Intervenor-Plaintiff in D.C.)

v.

KIMBERLY RASO, BADGE NO. 243, INDIVIDUALLY

AND IN HER OFFICIAL CAPACITY AS A TOWNSHIP

OF CHERRY HILL POLICE OFFICER; THE TOWNSHIP

OF CHERRY HILL; CHERRY HILL CENTER, INC.;

THE ROUSE COMPANY OF NEW JERSEY, INC.;

THE ROUSE COMPANY; MACY'S EAST INC.

LIBERTY MUTUAL INSURANCE COMPANY

(Intervenor-Defendant in D.C.)

(D.C. Civil No. 96-4884)

KIMBERLY RASO;

JORIS HOOGENDOORN

v.

THE ESTATE OF ROBERT C. ABRAHAM, Deceased;

VANESSA ABRAHAM, Administratrix of the Estate

of Robert C. Abraham; VANESSA ABRAHAM, Individually;

MACY'S DEPARTMENT STORE; JOHN DOE(S), a fictitious

name or names, jointly severally or in the alternative

(D.C. Civil No. 96-5146)

Vanessa Abraham,

Appellant in No. 98-5405

Kimberly Raso;

Joris Hoogendoorn,

Appellants in No. 98-5406

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 96-cv-04884)

District Judge: Honorable Joseph E. Irenas

Argued March 23, 1999

Before: BECKER, Chief Judge, COWEN, Circuit Judge,

and STAGG,* District Judge

(Filed July 26, 1999)

Alan L. Yatvin, Esq. (Argued)

Popper & Yatvin

1600 Market Street

Suite 1416

Philadelphia, PA 19103

Counsel for Appellant/Appellee

Vanessa Abraham

Louis J. Kotlikoff, Esq. (Argued)

Kotlikoff, Littlefield & Fishman

412 White Horse Pike

Audubon, NJ 08106

Counsel for Appellants

Kimberly Raso and Joris

Hoogendoorn in No. 98-5406

*Honorable Tom Stagg, U.S. District Judge for the Western District of

Louisiana, sitting by designation.

2

Mario A. Iavicoli, Esq. (Argued)

43 Kings Highway West

Haddonfield, NJ 08033

Counsel for Appellee

Kimberly Raso in No. 98-5405

John C. Simons, Esq.

Hoagland, Longo, Moran, Dunst

& Doukas

40 Paterson Street

P.O. Box 480

New Brunswick, NJ 08903

Counsel for Appellee

CNA Insurance Company

Carl D. Poplar, Esq.

Jeffrey A. Ahren, Esq. (Argued)

Poplar & Eastlack

215 Fries Mill Road

P.O. Box 8320

Turnersville, NJ 08012

Philip R. Lezenby, Jr., Esq.

Lezenby, Zane & Cure

208 White Horse Pike

P.O. Box 699

Barrington, NJ 08007

Counsel for Appellee

Township of Cherry Hill

Frank D. Allen, Esq. (Argued)

Archer & Greiner

One Centennial Square

P.O. Box 3000

Haddonfield, NJ 08033

Counsel for Appellees

Cherry Hill Center, Inc.; The

Rouse Company of New Jersey,

Inc.; and The Rouse Company

3

Steven B. Prystowsky, Esq. (Argued)

Lester, Schwab, Katz & Dwyer

120 Broadway

New York, NY 10271

Counsel for Appellee

Macy's East Inc.

Lewis K. Jackson, Esq. (Argued)

401 Route 73 North

10 Lake Center Executive Parks

Marlton, NJ 08053

Counsel for Appellee

Liberty Mutual Insurance

Company

OPINION OF THE COURT

COWEN, Circuit Judge:

Kimberly Raso, an off-duty police officer, shot and killed

Robert Abraham in a mall parking lot while Abraham was

trying to escape from a Macy's store where he had been

stealing clothes. Raso was working as a mall security guard

at the time and testified that she fired at Abraham because

he tried to hit her with his car after she blocked its path.

Abraham's estate alleges that Raso used excessive force.

According to the estate, Raso was not in front of the

vehicle, her life was never in danger, and she fired simply

to prevent Abraham from evading arrest. The estate points

to physical evidence showing the bullet shattered the

driver's side window, rather than the front windshield, and

struck Abraham in his left arm before passing into his

chest.

Vanessa Abraham filed this suit as administratrix of

Robert Abraham's estate, in her own right, and on behalf of

Robert Abraham's three children. (Collectively referred to as

"the estate.") The estate sought relief against Raso and the

Township of Cherry Hill under 42 U.S.C. S 1983 based on

violations of Robert Abraham's Fourth and Fourteenth

Amendment right to be free from unreasonable seizures.

4

The complaint also included pendent state claims against

Raso, the owners of the Cherry Hill mall that employed

Raso, and the Macy's store where Abraham had stolen the

clothes.

Raso and her husband in turn brought negligence claims

against Macy's, Abraham's estate, and Vanessa Abraham in

her individual capacity and as administratrix. Raso also

sued her own auto insurer, CNA Insurance Co., invoking an

uninsured motorist provision in her policy. CNA then sued

Liberty Mutual, the insurer for one of the mall defendants.

The District Court held on summary judgment that

regardless of whether Raso's use of deadly force was

justifiable in self-defense, Abraham posed an immediate

threat of physical harm to the public, making the shooting

objectively reasonable. Based on this "core" holding, the

District Court dismissed all the parties' claims, except for

the few remaining claims not subject to a summary

judgment motion, i.e., Raso's tort claims against Abraham's

estate and Vanessa Abraham.

We will reverse and remand for further proceedings. We

conclude that the District Court resolved genuine factual

disputes that, if a jury decides in favor of the estate, would

entitle the estate to relief. Since the District Court disposed

of all claims brought in Abraham's complaint based on the

Court's "core" holding that Raso's use of force was

objectively reasonable, we will vacate summary judgment

for all of those claims, except for the dismissal of the

estate's claim against Macy's, which we will affirm.

Turning to Raso's claims, we will similarly affirm

summary judgment in favor of Macy's for Raso's claim

against the store, but we will reverse the dismissal of Raso's

claim against her insurer, CNA Insurance Co. We conclude

that under New Jersey law, Raso may be entitled to

uninsured motorist coverage. We likewise will vacate

summary judgment on CNA's claim against Liberty Mutual

Insurance Co., the Cherry Hill mall's insurer.

I

Background

On Saturday evening, October 15, 1994, Mary Jane

Thomulka was watching Macy's security monitors when she

5

noticed Robert Abraham and his cousin, Dennis Redding,

stealing clothes in the men's clothing department.

Thomulka contacted Shawn Waters, another Macy's guard,

and asked him to investigate. Waters did but decided that

he needed help before confronting the two. Because Waters

was concerned about having Thomulka, a woman nearfifty,

involved if the suspects reacted violently, he specifically

asked to have someone from the mall's security force back

him up. Thomulka called Carmen Inverso, a security officer

for the mall, who then put out a call to Raso and David

Washick, the two off-duty police officers patrolling the mall.

Raso responded that she was near Macy's while Washick,

who was further away, headed toward Macy's. Mall guards

Eriberto Avilez and Gary Saraceni also responded.

According to Raso, she was told the suspects were possibly

intoxicated.

Abraham and Redding initially walked together as they

left the mall but soon parted apparently because they

realized they were being followed. With Raso and Avilez

walking steadily after them, the two suspects headed

towards Abraham's car, parked facing west in aisle 68.

Shortly after exiting the mall, Raso and Avilez also

separated so that they could approach the suspects from

different directions.

Abraham reached his car first and entered on the driver's

side while Raso called out to him to stop. As Raso

approached from the rear of the car, Avilez arrived near the

front and tried in vain to pull Abraham from the car. With

Avilez trying to stop Abraham, Redding fumbled at the door

on the passenger's side of the car, but was unable to get in.

(Redding was so intoxicated at the time that he does not

recall the shooting.) Saraceni and Waters meanwhile were

driving up aisle 68 in an unmarked mall pickup truck.

Raso, who was in police uniform, testified that she

repeatedly commanded Abraham to stop, but by the time

she reached the rear driver's side of the car, he had begun

backing. Either before or shortly after Abraham's backing,

Avilez grabbed Redding and called out that he had him. The

mall truck was very close at this point, withinfive or six

feet of Abraham's car according to Saraceni, giving Saraceni

and Waters a view of events. All witnesses agree that

6

Abraham backed out of his parking spot in an east-

southeast direction and hit a white Ford Mustang parked in

the opposing row of cars.

Photographs of the rear of Abraham's car and the

Mustang show that Abraham's car left a black mark

roughly a foot long and an inch wide where his car hit the

rear bumper of the Mustang. Abraham's car was left with a

shorter, wider white mark on its rear bumper. Neither car's

bumper appears in the photographs to have been dented in

any way.

Raso testified that Abraham began backing "very fast,"

forcing her to "jump out of the way." Abraham App. at 173.

In an interview conducted by the Cherry Hill Police

Department on October 31, 1994, roughly two weeks after

the shooting, Raso said that Abraham backed up "in a

reckless fashion" and she heard a "loud crash" when he hit

the Mustang. Raso App. at 198.

Waters agreed that Abraham's car struck the Mustang

forcefully, but his testimony conflicted with the physical

evidence and differed in a number of details from Raso's

account. On June 26, 1997, several years after the

incident, he testified in his deposition that:

To the best of my recollection, [Abraham's car] hit the

front of the parked car. I believe he did damage to the

front passenger side and he broke glass. I don't know

if it was on the car that he struck or his own vehicle.

And his back -- the back of his car was damaged. I

don't know to what extent... [It] was a severe accident.

He hit -- struck the car so hard he actually moved it

out of its spot.

Abraham App. at 137-138. Waters's testimony also

conflicted with Raso's account when he stated in his

deposition that as Abraham began backing, Raso was"on

the passenger side of the car towards the front of the

vehicle." Raso App. at 468. In a statement taken the day

after the shooting, Avilez agreed with Raso and Waters

about how fast Abraham drove and said that Abraham"just

floored it" in reverse and "smashed into another car." Raso

App. at 508.

7

Because the parties dispute how much of a threat

Abraham posed to others when he began backing, it is

important to understand how close surrounding cars were

and to what extent they hemmed in the officers and

Redding. Video footage taken immediately before the

shooting by a mall surveillance camera shows a car that

the estate identifies as Abraham's with two open spaces on

the driver's side and one open space on the passenger's

side. A view of the same area just after the shooting shows

the car is missing, leaving four empty spaces. Raso stated

at one point in her deposition, however, that a car was

immediately next to Abraham's car on the passenger's side

where Redding stood. Raso App. at 438-39. At oral

argument, the parties did not dispute the estate's account

of where Abraham's car was parked, but following the

arguments, counsel for one of the mall defendants

submitted a letter questioning the location of the car.

Although the estate's identification of the car's position

appears compelling, for our purposes all that matters is

that the estate has established a genuine factual dispute

about how close other cars were.

The video tape from the surveillance camera bears special

mention. The camera shows Raso and Avilez exiting Macy's

and follows Avilez after he separated from Raso and began

working his way between cars up aisle 68. The tape then

abruptly switches back inside, and filming of events outside

resumes shortly after the shooting. According to testimony

by Thomulka and Waters, Macy's has well over twenty

cameras but only one or two video tapes to capture the

various cameras' signals. Since the estate has not drawn

any incriminating inferences from this unfortunate switch

in the taping, we also have not.

After Abraham hit the Mustang, Avilez reported that Raso

"got in front of the car" and stood "more towards the

center." Raso App. at 508. Avilez continued that Abraham

"inched his vehicle towards police officer Raso" while she

told him "to stop the car." Id. Avilez described the last

moments before the shooting as follows:

She drawed her weapon and said, "please don't let.

Don't, please don't force me to do this. Please don't let

me do this. Stop the car." That's when he floored it,

8

um, catching officer Raso in her left leg when um, at

the time she was falling she fired and discharged her

weapon towards the driver's side window.

Id. at 509.

Saraceni testified that when Raso walked in front of

Abraham's car, she stood "[t]o the driver's side in front of

the headlight." Abraham App. at 202. Saraceni estimated

that Raso told Abraham to get out of his car "between eight

and ten" times, and after the sixth or seventh time,

according to Saraceni, she drew her weapon and said,

"please, please don't make me do this. Just get out." Id. at

203. Saraceni continued: "After about the fourth plea from

officer Raso, I heard a distinct sound of Abraham's foot

hitting the floorboards in the car, like stomping down on

the accelerator. The car lunged forward. It didn't spin the

wheels or anything." Id. at 204. He added: "When officer

Raso fired the shot, everything was in motion. So she was

moving out of the way. She was being struck at the same

time. The car was moving forward. And the shot wasfired

at that point." Id. at 205.

Raso similarly testified in a deposition taken on July 30,

1997 that she stood in front of the car before the shooting,

by her account about two-and-a half feet towards the

center of the car on the driver's side. She stated that as she

walked closer towards the car, "he moved up maybe a foot

or so." Id. at 174. At that point, she says she backed up,

continuing to yell at him to stop, but Abraham moved

forward a second time, about "six inches, a foot. I don't

know." Id. at 176. Abraham then began"inching up, and at

this time is when I pulled my weapon." Id. at 180. "It was

like - he kept inching and inching up towards me. And it

was a standoff. And I was looking to go - and I couldn't get

out of his way" because "[t]here were vehicles there." Id. at

181-82. She said, "he looked right at me. And all I heard

and saw was he slammed the accelerator to the floor. And

I could see him go back as one would when the vehicle

excels, [sic] and you're sitting in the driver's seat." Id. at

183. Raso testified that she fired at Abraham because "[i]f

I didn't, I was going to be killed." Raso App. at 442.

9

In her statement on October 31, 1994, she testified that

she did not remember when she pulled her gun and

recounted:

I remember just bringing the gun up and pointing it at

the windshield and screaming for him to stop, and

that's when I remember him hitting the accelerator and

I tried to jump out of the way, and I couldn't, and I

remember my left leg got caught, on the car, andfired

a round, into the windshield, pointing it at the

windshield, fired a round at the driver in order to stop

him.

Raso App. at 199. Her testimony here is contradicted by the

physical evidence showing that the bullet did not go

through the front windshield, but entered from the side of

the vehicle.

The estate points out that Raso had initially testified that

she could not remember whether she was hit by the car or

carried by her own momentum, and later she claimed to

recall having her leg caught by the car as she moved out of

the way. But as the estate notes, when the mall

surveillance video returned to the parking lot view

immediately after the shooting, Raso is shown walking

around without difficulty.

According to the estate, Raso never stood in front of the

car with Abraham driving toward her. Rather, Abraham

backed out, and Raso shot him from the side as he drove

away. In the alternative, the estate argues that even if Raso

was at some point in front of the car, she was never in

danger and did not fire until she was safely out of the way

and standing along side the car.

The estate notes that all of the witnesses who say Raso

stood in front of the car and fired from that position are

security officers working for the mall or for Macy's. These

witnesses' testimony, the estate urges, could be rejected by

a jury as self-serving. Relying on various pieces of physical

evidence, the estate argues that the officers inflated the

damage to the Mustang and hence the speed Abraham was

driving, and the estate maintains that cars were not parked

immediately beside Abraham's car as Raso suggested. A

proper reading of the physical evidence, the estate argues,

10

deflates the charge that Abraham was driving recklessly

and threatening lives. More importantly, physical evidence

shows Raso's shot went through the driver's side window,

not the front windshield, as Raso claimed in her statement

on October 31, 1994. Autopsy photographs show the bullet

struck Abraham in the back of his arm, and the medical

examiner's report concluded, "The course of the gunshot

wound is from left to right. In the chest it is slightly from

front to back and slightly from above downward." Abraham

App. at 247.

The parties also refer to the testimony of two bystanders,

Lisa Brittingham and her boyfriend, Bill Duhart, a reporter

for a local newspaper. Brittingham and Duhart were leaving

the mall just as Abraham and Redding walked out and

soon found themselves in the midst of the officers' pursuit.

Recognizing that a confrontation was about to occur,

Duhart and Brittingham hurried inside their car and then

watched what they could. According to Duhart, the officers

and suspects were "approximately twenty-five to thirty-five

yards in front of us in a couple of lanes over..." Abraham

App. at 312. Because their view was obscured, neither

Duhart nor Brittingham observed the shooting. When the

police took Brittingham's statement, she was specifically

asked, "You say you heard what sounded ah, to you like a

gun shot. Did you see anyone fire a weapon?" She

responded, "No." Abraham App. at 307. Duhart likewise

was asked in a deposition, "After [Abraham's car] has

struck [the Mustang]... what position is the police officer,

the female officer, in at that point relative to[Abraham's]

car, as best you can tell?" Duhart replied, "I couldn't tell.

Primarily, she was on the driver's side rear of the car before

it took off." Raso App. at 330. In short, Brittingham and

Duhart have no relevant testimony about where Raso stood

or what Abraham did after he backed up.

Brittingham and Duhart do confirm what all witnesses

agree happened after the shooting. With the mall pickup in

pursuit, Abraham continued driving away from the scene

for several hundred yards before finally coming to a stop.

Officers quickly surrounded him and found he was mortally

wounded. Abraham was pronounced dead upon arrival at

Cooper Hospital.

11

To establish Cherry Hill's liability under Monell v. New

York City Department of Social Servs., 436 U.S. 658, 98

S.Ct. 2018 (1978), the estate relied on a variety of evidence.

Prior to the shooting, several citizen complaints had been

filed against Raso, and the Cherry Hill Police Department

had disciplined her for "mouthing off " at roll call, getting in

"verbal altercations" with other officers, wearing a gym suit

for roll call, and going to the gym when she was supposed

to be on patrol. In early 1991 the police department,

prompted by concerns about stress and fatigue Raso was

experiencing, reduced her authorized hours of secondary

employment. For a number of years, Raso had had

problems with anxiety and depression which led her to seek

treatment, and at the time of the shooting, she was taking

Xanax and Prozac, two prescription drugs used to treat

those conditions. In response to Raso's ongoing treatment,

the police department consulted on several occasions with

Raso's health care providers, who responded that neither

Raso's mental health nor the drugs she was taking would

prevent her from performing her duties. Following the

shooting, Raso's mental health has worsened, leaving her

unable to work.

The parties initiated this action in two separate suits: (1)

the estate's case against Raso, the Cherry Hill Township,

and the various mall defendants, and (2) Raso and her

husband's suit against the estate, Macy's, and Raso's

insurer. After consolidating the two cases, the District

Court dismissed on summary judgment all claims brought

by the estate, as well as Raso's claims against Macy's and

her insurers, leaving only Raso and her husband's claim

against Abraham's estate. The parties filed notices of

appeal, but we dismissed the appeals on July 22, 1998 for

lack of jurisdiction, as there was no final order disposing of

all claims. The parties returned to the District Court and

jointly requested a final judgment pursuant to Fed.R.Civ.P.

54(b). Since the estate apparently was uninsured and

without funds, the claims remaining in the District Court,

i.e., those brought by Raso and her husband against the

estate, evidently were of little value absent reinstatement of

the claims against CNA and Liberty Mutual. Consequently,

the District Court entered a Rule 54(b) order dated August

11, 1998. This appeal followed.

12

II

We have jurisdiction pursuant to 28 U.S.C. S 1291, and

we exercise plenary review of a district court's grant of

summary judgment. Barnes v. American Tobacco Co., 161

F.3d 127, 138 (3d Cir. 1998). On a motion for summary

judgment, the court must determine whether the evidence

shows that "there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law." Fed.R.Civ.P. 56(c). Any factual dispute

invoked by the nonmoving party to resist summary

judgment must be both material in the sense of bearing on

an essential element of the plaintiff's claim and genuine in

the sense that a reasonable jury could find in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248-251, 106 S.Ct. 2505, 2510-12 (1986). In opposing

summary judgment, a party "must do more than simply

show that there is some metaphysical doubt as to material

facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56 (1986), but a

court should not prevent a case from reaching a jury simply

because the court favors one of several reasonable views of

the evidence. "[T]he judge's function is not himself to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial."

Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Thus, while

the nonmoving party must present enough evidence to

demonstrate a dispute is genuine, all inferences in

interpreting the evidence presented by the parties should

be drawn in favor of the nonmoving party. See , e.g., Boyle

v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir.

1998). Cases that turn crucially on the credibility of

witnesses' testimony in particular should not be resolved on

summary judgment. Id.

III

To state a claim under 42 U.S.C. S 1983, "a plaintiff must

allege the violation of a right secured by the Constitution

and the laws of the United States, and must show that the

alleged deprivation was committed by a person acting

under color of state law." West v. Atkins, 487 U.S. 42, 48,

108 S.Ct. 2250, 2254-55 (1988). Before we examine

13

whether Raso violated Abraham's federal rights by shooting

him, the central issue in this case, we will first analyze the

requirement that Raso acted under color of state law.

The Supreme Court has explained, "The traditional

definition of acting under color of state law requires that

the defendant in a S 1983 action have exercised power

`possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state

law.' " West, 487 U.S. at 49, 108 S.Ct. at 2255 (quoting,

United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031,

1042-43 (1941)). In Griffin v. Maryland, 378 U.S. 130, 135,

84 S.Ct. 1770, 1772-73 (1964), the Court held that a

deputy sheriff acting as a security guard for a private park

operator satisfied the state action requirement under the

Fourteenth Amendment because the deputy wore a sheriff's

badge, identified himself as a deputy sheriff while escorting

the plaintiff off park property, and arrested the plaintiff for

criminal trespass. As we have previously noted, conduct

qualifying as state action under the Fourteenth Amendment

also counts as acting under the color of state law for the

purposes of S 1983, although the reverse is not necessarily

true. Groman v. Township of Manalapan, 47 F.3d 628, 638

n.15 (3d Cir. 1995)(citing Lugar v. Edmondson Oil Co., 457

U.S. 922, 935 n.18, 102 S.Ct. 2744, 2752 n.18 (1982)).

Based on Griffin, it is clear that even though Raso was

working off duty as a security guard, she was acting under

color of state law: she was wearing a police uniform,

ordered Abraham repeatedly to stop, and sought to arrest

him.

Turning to Abraham's claim of excessive force under the

Fourth and Fourteenth Amendments, we note that

excessive force in the course of an arrest is properly

analyzed under the Fourth Amendment, not under

substantive due process. Graham v. Connor, 490 U.S. 386,

393-94, 109 S.Ct. 1865, 1870-71 (1989). The Fourth

Amendment provides, "The right of the people to be secure

in their persons... against unreasonable searches and

seizures, shall not be violated." To state a claim for

excessive force as an unreasonable seizure under the

Fourth Amendment, a plaintiff must show that a "seizure"

occurred and that it was unreasonable. Brower v. County of

14

Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 1382-83 (1989).

Abraham obviously was "seized" when shot. As the

Supreme Court recognized in Tennessee v. Garner , 471 U.S.

1, 7, 105 S.Ct. 1694, 1699 (1985), "there can be no

question that apprehension by the use of deadly force is a

seizure subject to the reasonableness requirement of the

Fourth Amendment." The pivotal question is when the use

of deadly force is reasonable.

Deadly force will only be considered reasonable, the

Court held in Garner, when "it is necessary to prevent

escape and the officer has probable cause to believe that

the suspect poses a significant threat of death or serious

physical injury to the officer or others." 471 U.S. at 3, 105

S.Ct. at 1697. Applying this rule, Garner held

unconstitutional a state statute that authorized officers to

use deadly force, as the law in many states did at the time,

against any felon fleeing or resisting arrest. The specific use

of force challenged in Garner was a police officer's decision

to shoot an eighth grader who had broken into an

unoccupied house and stolen ten dollars and a purse, a

crime that indisputably constituted a felony under state

law.

While investigating a call from a neighbor, the officer had

walked behind the unoccupied house and spotted the

decedent scaling a chain link fence. The officer called out to

the decedent to stop and, when he did not, shot him in the

back of the head. Although it was dark outside, the officer

frankly admitted that he had no reason to believe the

decedent was armed or dangerous and explained that his

reason for firing was that the decedent would have escaped

and very likely never would have been apprehended.

The Supreme Court held it was unreasonable to rely on

the technical, legal classification of the offense to determine

when deadly force was justified. Instead, the Court required

that deadly force must be necessary to prevent escape and

the fleeing suspect must pose "a significant threat of death

or serious physical injury to the officer or others." Id. at 3,

105 S.Ct. at 1697. The Supreme Court expressly recognized

that suspects who do not pose a significant threat and

successfully flee may never be apprehended: "we proceed

on the assumption that subsequent arrest is not likely."

15

471 U.S. at 9 n.8, 105 S.Ct. at 1700 n.8. But applying a

balancing approach, the Court concluded that the

government's interest in effective law enforcement was

insufficient to justify killing fleeing felons who did not pose

a significant threat of death or serious injury to anyone.

Weighty interests militate against the unrestrained pursuit

of arrest. As the Supreme Court explained, "The suspect's

fundamental interest in his own life need not be elaborated

upon. The use of deadly force also frustrates the interest of

the individual, and of society, in judicial determination of

guilt and punishment." 471 U.S. at 9, 105 S.Ct. at 1700.

Echoing the concepts that defendants are entitled to the

procedural protections of a trial, must be shown to be

guilty beyond a reasonable doubt, and should be punished

according to the proportional scheme embodied in

sentencing law, the Supreme Court emphasized, "It is not

better that all felony suspects die than that they escape."

Id. at 11, 105 S.Ct. at 1701.

Subsequently, in Graham v. Connor, 490 U.S. at 394, 109

S.Ct. at 1871, the Court amplified on the reasonableness

standard applied under the Fourth Amendment while

considering a claim that did not involve deadly force. How

much force is permissible to effectuate an arrest, the Court

explained, is determined based on the "totality of the

circumstances."

Our Fourth Amendment jurisprudence has long

recognized that the right to make an arrest or

investigatory stop necessarily carries with it the right

to use some degree of physical coercion or threat

thereof to effect it. See Terry v. Ohio, 392 U.S. 1, 22-27,

88 S.Ct. 1868, 1880-83, 20 L.Ed.2d 889 (1968).

Because "[t]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or

mechanical application, Bell v. Wolfish, 441 U.S. 520,

559, 99 S.Ct. 1861, 1884 (1979), however, its proper

application 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 resisting arrest or

attempting to evade arrest by flight. See Tennessee v.

16

Garner, 471 U.S. at 8-9, 105 S.Ct. at 1699-1700 (the

question is "whether the totality of the circumstances

justifie[s] a particular sort of... seizure").

Graham, 490 U.S. at 396, 109 S.Ct. at 1871-72.

After explaining that reasonableness should be assessed

in light of the "totality of the circumstances," the Supreme

Court emphasized that the test is "whether the officers'

action are `objectively reasonable' in light of the facts and

circumstances confronting them, without regard to their

underlying intent or motivations." Id. at 396, 109 S.Ct. at

1872.

Objective reasonableness, the Court made clear, has two

important implications: First, if the shooting was not

objectively reasonable under the circumstances, it is

irrelevant that the officer was acting in good faith. Second,

if the shooting was objectively reasonable, by contrast, then

any bad faith motivating the officer would not matter for

the purposes of the Fourth Amendment. "An officer's evil

intentions will not make a Fourth Amendment violation out

of an objectively reasonable use of force." Id. at 396, 109

S.Ct. at 1872.

The Court cautioned that what force is objectively

reasonable "must embody allowance for the fact that police

officers are often forced to make split-second judgments --

in circumstances that are tense, uncertain, and rapidly

evolving -- about the amount of force that is necessary in

a particular situation." Id. at 396, 109 S.Ct. at 1872. As

Justice Holmes memorably said in a different context,

"Detached reflection cannot be demanded in the presence of

an uplifted knife." Brown v. United States, 256 U.S. 335,

343, 41 S.Ct. 501, 502 (1921).

Combining the standards announced in Garner and

Graham, our inquiry for the use of deadly force is as

follows: Giving due regard to the pressures faced by the

police, was it objectively reasonable for the officer to believe,

in light of the totality of the circumstances, that deadly

force was necessary to prevent the suspect's escape, and

that the suspect posed a significant threat of death or

serious physical injury to the officer or others? In

determining the reasonableness of all degrees of force, the

17

Supreme Court has said that the factors to consider

include the "severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the

officer or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight." Graham v. Connor,

490 U.S. at 396, 109 S.Ct. at 1872.

Because we are applying this standard on a summary

judgment motion, we must address to what extent

questions of "reasonableness" can be resolved on summary

judgment. Reasonableness under the Fourth Amendment

resembles tort law in its attention to how a specific,

concrete circumstance should affect an officer's judgment.

This sensitivity to context suggests that regardless of

whether objective reasonableness invokes a different and

heightened standard from negligence, reasonableness under

the Fourth Amendment should frequently remain a

question for the jury. To put the matter more directly, since

we lack a clearly defined rule for declaring when conduct is

unreasonable in a specific context, we rely on the

consensus required by a jury decision to help ensure that

the ultimate legal judgment of "reasonableness" is itself

reasonable and widely shared.

While analyzing an excessive-force claim under the

Fourth Amendment, the Ninth Circuit has explained that

even though reasonableness traditionally is a question

of fact for the jury, see, e.g., White v. Pierce County,

797 F.2d 812, 816 (9th Cir. 1986); Akhil R. Amar, The

Bill of Rights as a Constitution, 100 Yale L.J. 1131,

1179 (1991), defendants can still win on summary

judgment if the district court concludes, after resolving

all factual disputes in favor of the plaintiff, that the

officer's use of force was objectively reasonable under

the circumstances.

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). While we

agree with this statement and find it difficult to improve

upon, we are aware that it does not resolve the

fundamental issue: how willing should district courts be to

find a use of force objectively reasonable assuming a given

set of undisputed facts? To the extent that there is a

general answer to this question, it depends on a court

18

discerning differences in degree familiar in evaluating

factual questions on summary judgment. As the Supreme

Court said in Anderson, "the judge's function is not himself

to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial."

477 U.S. at 249, 106 S.Ct. at 2511.

Since the District Court relied on the risk Abraham posed

to others in granting summary judgment, we will consider

first whether there are genuine disputes that Abraham

posed a "significant threat of death or serious physical

injury" to members of the public. Finding there are such

disputes, we turn to the alternative ground not reached by

the District Court; namely, are there any genuine disputes

about whether Raso's actions were justifiable in self-

defense? On this issue, we also find summary judgment

cannot be granted.

The District Court's conclusions were premised on the

following overview of events:

[T]his Court finds that the following material facts have

been established: (1) Raso was advised that Abraham

was intoxicated or under the influence; (2) Abraham

evaded apprehension by Mall security guard Roberto

Avilez, got into his car and disobeyed Raso's commands

that he not get into the car or that he exit the car; (3)

Abraham recklessly drove his car in reverse and at a

high rate of speed -- with Avilez, Redding and Raso all

in close proximity to the car -- out of his parking space

and rammed into another parked car; (4) Raso, in

police uniform, positioned herself towards the front of

Abraham's car and commanded him at least half a

dozen times to stop the car and get out of the car, and

effectively warned him that she would use her gun to

stop him if he kept driving at her; (5) Raso was close

to Abraham's car as Abraham inched his car towards

her and, at some point, Abraham accelerated his car

and drove it towards Raso; (6) Raso believed that

Abraham was trying to hit her or was acting with

reckless disregard for whether or not he hit her; and (7)

Raso jumped to her right out of the car's path andfired

her gun once at the driver-side window.

19

Abraham v. Raso, 15 F. Supp.2d 433, 444 (D.N.J. 1998).

We will focus first on Abraham's conduct before he

allegedly accelerated toward Raso because we find many

genuine factual disputes about how much of a threat

Abraham posed to others through that conduct. Before

describing those disputes, however, we want to express our

disagreement with those courts which have held that

analysis of "reasonableness" under the Fourth Amendment

requires excluding any evidence of events preceding the

actual "seizure." See, e.g., Cole v. Bone, 993 F.2d 1328,

1333 (8th Cir. 1993)("we scrutinize only the seizure itself,

not the events leading to the seizure"); Carter v. Buscher,

973 F.2d 1328, 1332 (7th Cir. 1992)("pre-seizure conduct is

not subject to Fourth Amendment scrutiny."); Bella v.

Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994) (quoting

Bone and Carter). The District Court alluded to similar

cases confining the reasonableness inquiry to the moment

the officer used force.

Based on these cases, we apparently should not consider

any of the circumstances before the moment Abraham was

actually struck by Raso's bullet because, following

California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547

(1991), a suspect is not seized until he submits to the

police's show of authority or the police subject him to some

degree of physical force. Bone, Carter , and Bella might be

understood as only excluding evidence that helps the

plaintiff show the force was excessive, so on this more

narrow reading, we could consider Abraham's pre-seizure

conduct if it undermines the estate's case. But even apart

from the problematic justification for such a distinction,

there are considerable practical problems with trying to

wrest from a complex series of events all and only the

evidence that hurts the plaintiff. (What do we say about

Abraham's inching forward before he began accelerating?

Assuming the inching occurred, does it help him by

showing he really did not want to hit Raso and was just

wondering whether she would shoot when he drove past

her, or does it show that he weighed his options and

decided he would hit her? If the evidence can only be

considered on the latter interpretation, should a limiting

instruction be available upon request?) In any event, since

20

the cases purport to exclude all pre-seizure conduct and do

not expressly draw any distinction between who the

evidence helps, our discussion will assume the rule applies

generally to all pre-seizure conduct.

We reject the reasoning of Bone, Carter, and Bella

because we do not see how these cases can reconcile the

Supreme Court's rule requiring examination of the"totality

of the circumstances" with a rigid rule that excludes all

context and causes prior to the moment the seizure is

finally accomplished. "Totality" is an encompassing word. It

implies that reasonableness should be sensitive to all of the

factors bearing on the officer's use of force.

A more fundamental point is that it is far from clear what

circumstances, if any, are left to be considered when events

leading up to the shooting are excluded. How is the

reasonableness of a bullet striking someone to be assessed

if not by examining preceding events? Do you include what

Raso saw when she squeezed the trigger? Under at least

some interpretations of Hodari, Abraham evidently was not

seized until after the bullet left the barrel and actually

struck him. See Hodari D., 499 U.S. at 630, 111 S.Ct. at

1552 (dissenting opinion)(suggesting that under the

majority's analysis, there may be no seizure when the police

shoot and miss). If we accept both this interpretation of

Hodari as well as the rule that pre-seizure conduct is

irrelevant, then virtually every shooting would appear

unjustified, for we would be unable to supply any rationale

for the officer's conduct.

Courts that disregard pre-seizure conduct no doubt think

they could avoid this problem. But even rejecting the

rigorous interpretation of Hodari, courts are left without

any principled way of explaining when "pre-seizure" events

start and, consequently, will not have any defensible

justification for why conduct prior to that chosen moment

should be excluded.

The Supreme Court has allowed events prior to a seizure

to be considered in analyzing the reasonableness of the

seizure. In Brower, the Court remanded for a determination

of whether the police acted reasonably in constructing a

roadblock used to seize a suspect in a car chase. The

21

suspect's estate alleged that the police designed the

roadblock in a way likely to kill by placing a tractor trailer

behind a curve and directing car headlights to blind the

suspect as he rounded the curve. Brower, 489 U.S. at 599,

109 S.Ct. at 1383. Under the analysis encouraged in Bone,

Carter, and Bella, preparations predating the moment of

seizure, i.e., the moment the car actually collided with the

tractor trailer, must be barred from consideration. But if

preceding conduct could not be considered, remand in

Brower would have been pointless, for the only basis for

saying the seizure was unreasonable was the police's pre-

seizure planning and conduct. Hodari itself cited Brower

but did not suggest the Supreme Court was now rejecting

Brower's implication that pre-seizure conduct is relevant to

the reasonableness of a seizure.

We agree with the First Circuit which concluded that

Bone, Carter, and other courts following their rule are

mistaken and misread Hodari when they suggest the case

supports their rule. As the First Circuit explained:

[T]he question in [Hodari] was not whether the seizure

was reasonable, which requires an examination of the

totality of the circumstances, but whether there had

been a seizure at all. We do not read this case as

forbidding courts from examining circumstances

leading up to a seizure, once it is established that there

has been a seizure. We understand Hodari to hold that

the Fourth Amendment does not come into play unless

there has been a seizure...

St. Hilaire v. City of Laconia, 71 F.3d 20, 26 n.4 (1st Cir.

1995)(emphasis in original). In sum, we think all of the

events transpiring during the officers' pursuit of Abraham

can be considered in evaluating the reasonableness of

Raso's shooting. Cf. Rowland v. Perry, 41 F.3d 167, 173

(4th Cir. 1994) ("The better way to assess the objective

reasonableness of force is to view it in full context, with an

eye toward the proportionality of the force in light of all the

circumstances. Artificial divisions in the sequence of events

do not aid a court's evaluation of objective

reasonableness.").

We are not saying, of course, that all preceding events

are equally important, or even of any importance. Some

22

events may have too attenuated a connection to the officer's

use of force. But what makes these prior events of no

consequence are ordinary ideas of causation, not doctrine

about when the seizure occurred.

When the District Court found that Abraham posed a

significant threat of death or serious physical injury to

others, it emphasized the violence of Abraham's efforts to

flee. In doing so, the District Court did not read the

evidence in the light most favorable to the estate and failed

to rely on the estate's version of events where there were

genuine factual disputes. According to the District Court,

Abraham "recklessly" drove in reverse at "a high rate of

speed" with people in "close proximity" before he "rammed"

into a parked car. A jury may ultimately accept this version

of the facts, but they also may not.

We begin by noting that the pursuit of Abraham in the

parking lot appears to have been measured, not frantic.

When the mall's surveillance video showed the actors out in

the parking lot, they were all walking. As Avilez headed up

aisle 68 just a short distance from where Abraham's car

was located, he took his time, talking into a radio and

maneuvering in between two rows of cars parked head to

rear against each other. How frenzied this initial pursuit

was does not necessarily show anything about Abraham's

conduct once in his car, but it does at least suggest that

Abraham's actions were less desperate, giving the officers

more time for considered action and less reason to fear his

acts.

Much more significantly, when Abraham began backing,

it is far from clear just how close Redding, Avilez, and Raso

were and consequently whether they were put in jeopardy

by the backing. The estate maintains, with considerable

plausibility, that the video shows there was one open

parking space next to Abraham's car on its passenger side

and two open spaces to the driver's side. Testimony also

suggests Avilez and Redding were standing near the front

end of the car, leaving them much less exposed as

Abraham backed away from them. Raso testified that she

was approaching the car from the rear, leaving doubt about

how close she was and whether Abraham really was at risk

of hitting her as he backed. She did say in her deposition

23

taken on July 30, 1997, she had to "jump" out of the way

when the car backed up. But in her statement taken just

two weeks after the shooting, her description was less

dramatic: "as the driver accelerated in reverse... I had to

move back away from the vehicle so he didn't hit me then."

Raso App. at 198. Raso also suggested that a car was next

to Abraham's, making the space tight. The video tape

evidence suggests otherwise. A reasonable jury could decide

she embellished.

How fast Abraham drove in reverse is also not beyond

rational dispute. The District Court stated that Abraham

"rammed" into a parked car, and it is true that witnesses

testified that Abraham accelerated quickly out of his spot

and collided forcefully with a Mustang parked behind him.

But the photographs we have in the record of both

Abraham's car and the Mustang do not show any damage

to either car beyond smudges of paint on their bumpers.

Based on that physical evidence, a reasonable jury could

reject the witnesses' recollections as inaccurate. A more

fundamental point is that given the doubts about whether

Abraham was close to hitting someone when he backed, the

fact that he collided forcefully with a parked car (if it is a

fact) does not by itself show that Abraham posed a

significant threat of death or serious physical injury to

other people.

In sum, the undisputed facts are that Abraham had

stolen some clothing, resisted arrest, hit or bumped into a

car, and was reasonably believed to be intoxicated. Given

these facts, a jury could quite reasonably conclude that

Abraham did not pose a risk of death or serious bodily

injury to others and that Raso could not reasonably believe

that he did. The remaining crucial fact obviously is that

Raso and the security officers allege that Abraham tried to

hit her with his car, or at least gave her the reasonable

belief that he was going to hit her.

Although the District Court expressly avoided finding on

summary judgment that Raso's decision to shoot was

justifiable in self-defense, instead relying on the risk

Abraham posed to others, the District Court did say that

"Raso believed that Abraham was trying to hit her or was

acting with reckless disregard for whether or not he hit

24

her." Abraham, 15 F. Supp.2d at 444. Since at this point

the evidence that Abraham was a threat to the public turns

largely, if not entirely, on the threat to Raso, we turn now

to whether a court can decide on summary judgment that

Raso's shooting was objectively reasonable in self-defense.

We disagree with the District Court that there is no

genuine dispute that Raso was in front of the car. Although

it is true that the security officers all testified that Raso was

in front of the car, the fatal shot indisputably came through

the driver's side window. The District Court emphasized

that the autopsy report described the path of the bullet in

Abraham's chest as "slightly from front to back and slightly

from above downward." Abraham App. at 247. While that

trajectory may rule out that Raso was behind the vehicle, it

hardly precludes a jury from finding that Rasofired from

somewhere along the front side of the vehicle and that she

was never in front of the vehicle. The bullet indisputably

shattered the driver's side window, struck Abrahamfirst in

his arm, and then passed into his chest. It is true that the

autopsy report stated that the path of the bullet was

"slightly from front to back," but the report also was quite

clear that "[t]he course of the gunshot wound is from left to

right." Based on this physical evidence, a jury could

reasonably decide to reject the security officers' testimony.

Considering the physical evidence together with the

inconsistencies in the officer's testimony, a jury will have to

make credibility judgments, and credibility determinations

should not be made on summary judgment. Boyle , 139

F.3d at 393.

As the Ninth Circuit has recognized, since the victim of

deadly force is unable to testify, courts should be cautious

on summary judgment to "ensure that the officer is not

taking advantage of the fact that the witness most likely to

contradict his story -- the person shot dead -- is unable to

testify." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

"[T]he court may not simply accept what may be a self-

serving account by the officer. It must also look at the

circumstantial evidence that, if believed, would tend to

discredit the police officer's story, and consider whether

this evidence could convince a rational fact finder that the

officer acted unreasonably." Id. See also Hopkins v.

Andaya, 958 F.2d 881, 885 (9th Cir. 1992).

25

Even assuming there is no genuine dispute that Raso

was in front of the car at some point, the video tape of the

parking lot shows a wide lane between the rows of parked

cars and open parking spaces near where Abraham backed

out. Raso is shown walking around immediately after the

shooting, suggesting that even if hit or brushed by the car,

she was not significantly injured. Together with the

questions about how fast Abraham accelerated, these facts

raise genuine disputes about whether Raso had room to get

out of the way. Again, the fact that Raso's shot wasfired

through the driver's side window and hit Abraham in the

left arm suggests she may have had time to get out of the

way, take aim, and fire. A jury might not believe the

officers' testimony that Raso was simultaneously in front of

the car, being struck by it, jumping out of the way, and

firing through the driver's side window.

We want to be clear that the ultimate question is not

whether Raso really was in danger as a matter of fact, but

is instead whether it was objectively reasonable for her to

believe that she was. A jury will have to determine, after

deciding what the real risk to Raso was, what was

objectively reasonable for an officer in Raso's position to

believe about her safety, giving due regard to the pressures

of the moment. After weighing the evidence, the jury may

very well conclude that Raso had an objectively reasonable

belief that she faced a significant threat of death or serious

physical injury, but this is a question for the jury. In light

of the record so far, we cannot say as a matter of law that

it was objectively reasonable for Raso to believe that she

was in danger.

Even assuming Raso was in front of the car and was in

danger at some point, a jury could find, notwithstanding

her testimony, that she did not fire until it was no longer

objectively reasonable for her to believe she was in peril. A

passing risk to a police officer is not an ongoing license to

kill an otherwise unthreatening suspect. See, e.g., Ellis v.

Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) ("When an

officer faces a situation in which he could justifiably shoot,

he does not retain the right to shoot at any time thereafter

with impunity."). We can, of course, readily imagine

circumstances where a fleeing suspect would have posed

26

such a dire threat to an officer, thereby demonstrating that

the suspect posed a serious threat to others, that the officer

could justifiably use deadly force to stop the suspect's flight

even after the officer escaped harm's way. But in our case,

if the jury decides that Raso did not fire until safely out of

harm's way, the jury could also reasonably decide that

Abraham's conduct was not so dangerous as to warrant

Raso's use of deadly force.

We find instructive the Ninth Circuit's decision in

Hopkins, a case testing the limits of an officer's self-

defensive use of deadly force. In Hopkins, a police officer

responded to a call about a suspect, Stancill, who was

creating a disturbance. Although the officer noticed Stancill

was acting strangely, the officer made no arrest and left

after deciding he was not "a danger to himself or others." A

short time later, the officer observed Stancill"howling or

braying" under a traffic light. When the officer got out of his

patrol car, approached Stancill, and tried to frisk him,

Stancill allegedly grabbed the officer's baton and began

hitting him, knocking him down in the process. The officer

claimed that as he rose from the ground, deflecting the

blows, he fired six shots at Stancill from a range of three to

four feet, visibly wounding him and apparently knocking

him to the ground. Despite the officer's commands to stay

down, Stancill continued to advance, the officer said,

causing the two to wrestle for a minute. Breaking free, the

officer had enough time to get away, radio for help, reload

his weapon and cross a street. Once across the street, the

officer said that, after warning Stancill again to stop, he

fired four more shots at him at close range. This time the

shots were fatal.

The Ninth Circuit held that even apart from a number of

disputes about the accuracy of the officer's story which

precluded summary judgment, the court could not accept

as a matter of law that the officer acted reasonably when he

fired the final shots. Even though Stancill was attacking the

officer, "[a]t the time of the second shooting, it was far from

clear that [the officer] reasonably feared for his life."

Hopkins, 958 F.2d at 887. The officer knew help was on the

way, had a number of weapons besides his gun, could see

that Stancill was unarmed and bleeding from multiple

27

gunshot wounds, and had a number of opportunities to

evade him. Two of the total shots, all of which had been

fired from a distance of four feet or less, struck Stancill in

the head. "To endorse [the officer's] chosen course of action

-- firing four more shots -- would be to say that a police

officer may reasonably fire repeatedly upon an unarmed,

wounded civilian even when alternative courses of action

are open to him." Id. (emphasis in original) In short, the fact

that a suspect attacked an officer, giving the officer reason

to use deadly force, did not justify continuing to use lethal

force.

In seeking reversal, the estate has argued that Raso's use

of force would still be unreasonable even if a jury found

that she fired while she was in front of Abraham's car and

in danger. According to the estate, if Raso jumped in front

of the car to block Abraham's escape, she would have

violated police department policy and, through that breach

of policy, would have unreasonably created the need for

deadly force. Because we find other grounds for reversal, we

do not reach this issue. We note that a number of courts

have refused to find officers liable based on their lapses in

following police department procedures, even though those

lapses may have contributed to the use of force. See, e.g.,

Drewitt v. Pratt, 999 F.2d 774, 779-80 (4th Cir. 1993);

Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir.

1992). By contrast, where an officer's conduct amounted to

more than a minor departure from internal department

policy, and in particular where the officer engaged in

intentional misconduct, courts have found that the officer's

acts creating the need for force are important in evaluating

the reasonableness of the officer's eventual use of force.

See, e.g., Gilmere v. City of Atlanta, 774 F.2d 1495, 1501-

02 (11th Cir. 1985)(en banc). Similarly, in Estate of Starks

v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993), the court

concluded that if an officer jumped in front of the

decedent's car after the car began accelerating, the officer

"would have unreasonably created the encounter that

ostensibly permitted the use of deadly force." We will leave

for another day how these cases should be reconciled.

IV

Raso and the estate each sued Macy's for negligence. For

the sound reasons given by the District Court, wefind no

28

merit to these claims and, therefore, will affirm summary

judgment for all claims against Macy's, including any

claims by the estate for gross negligence, negligence per se,

assault, battery, negligent hiring, and negligent supervision.

The estate brought a number of other claims, including

a S 1983 claim against the Township of Cherry Hill,

negligence against Raso and the mall defendants (not

including Macy's), negligent hiring and negligent

supervision against the mall defendants, punitive damages

against Raso and the mall defendants, and assault and

battery against Raso and the mall defendants. Because the

District Court's analysis of all these other claims was

premised on the "core" holding that Raso's use of force was

objectively reasonable as a matter of law, a holding we have

now reversed, we will vacate summary judgment on these

other claims and afford the District Court an opportunity to

reassess those claims in light of our decision.

In analyzing the state assault and battery claim, the

District Court provided an extended discussion of the state

law granting officers a privilege to commit battery. We note

that the parties have not raised or discussed in any way

whether state law could, for the purposes of state tort

liability, allow officers greater immunity for using force than

the Fourth Amendment permits. Consequently, the parties

have not discussed whether reversing summary judgment

on the estate's S 1983 claim necessarily implies that the

state battery claim must also be vacated. Because the

parties have not briefed this issue, we will not reach it. We

will simply vacate the grant of summary judgment on the

estate's assault and battery claims against Raso and the

mall defendants and remand for the issue to be resolved in

the District Court.

V

Both Raso and her insurer, CNA Insurance Co., filed

cross-motions for summary judgment on whether Raso was

entitled to uninsured motorist coverage under CNA's policy.

Liberty Mutual, which provided a business automobile

insurance policy to one of the Cherry Hill mall defendants,

also filed a motion for summary judgment. Liberty Mutual

29

became involved in the case because once Raso sued CNA,

CNA sued Liberty Mutual as a third-party defendant,

arguing that Liberty Mutual must share in any liability CNA

might be found to have. In Liberty Mutual's motion for

summary judgment, it argued, as did CNA, that uninsured

motorist coverage did not apply when Abraham's car

allegedly struck Raso.

We enter this thicket of claims to address a single,

narrow issue: under New Jersey law governing uninsured

motorist claims, should courts look at the tort victim's

perspective or the tortfeasor's in deciding whether there

was an "accident?" If a court looks to the tortfeasor's

perspective, then assuming Abraham intended to hit Raso,

he committed an intentional tort, making the incident no

"accident." (Raso takes the incongruous position that even

if the tortfeasor's perspective is used, Abraham did not

really intend to hit her.) If the victim's perspective is used,

on the other hand, then Raso maintains that she never

intended for Abraham to strike her with his car, making

any injuries she sustained an accident.

While we recognize that New Jersey law leaves room for

doubt on the issue, we predict that the New Jersey

Supreme Court would hold that what counts as an accident

for the purposes of uninsured motorist insurance should be

judged from the victim's perspective. Thus, we will reverse

summary judgment for CNA and Liberty Mutual and

remand for further proceedings. We express no further view

on the merits of Raso's claim against CNA or on the claim

against Liberty Mutual.

CNA's uninsured motorist provision states:

We pay damages which you or any covered person are

legally entitled to recover from the owner or operator of

an uninsured motor vehicle or boat because of bodily

injury: 1. Sustained by you or any covered person; and

2. Caused by a motor vehicle or boat accident... The

owner's or operator's liability for these damages must

arise out of the ownership, maintenance or use of the

uninsured or under insured motor vehicle or boat.

"Accident" or "Occurrence" means an event or series of

related events resulting from continuous or repeated

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exposure to the same general conditions that

unexpectedly, unintentionally, and suddenly causes

bodily injury or property damage during the policy

period.

Raso App. at 121 and 133.

Under the terms of the policy, "accidents" must be

"unexpected" and "unintentional." The difficulty, of course,

is that the policy does not say from whose perspective

the injury-causing events must be unexpected and

unintentional. Contract language aside, the policy could not

provide less uninsured motorist coverage than state law

requires. See, e.g., Allstate Insurance Co. v. Malec, 514 A.2d

832, 834 (N.J. 1986). Unfortunately, the state statute

governing uninsured motorist insurance also does not

define whose perspective should be used in determining

what is an "accident." See N.J.S.A.S 17:28-1.1(a). And New

Jersey courts have made conflicting statements about

whose perspective should be used.

In Continental Insurance Co. v. Miller, 654 A.2d 514 (N.J.

Super. Ct. Law Div. 1994), a case that granted uninsured

motorist benefits to two police officers who were

intentionally hit by an uninsured car thief, the court

reviewed what had been up to that point a clear line of

cases in New Jersey supporting use of the victim's

perspective for uninsured motorist claims. See , e.g.,

Sciascia v. American Ins. Co., 443 A.2d 1118, 1120 (N.J.

Super. Ct. Law Div. 1982)(Fatal injuries an insured suffered

from a drive-by shooting were "unforeseen, unusual, and

unexpected" and hence an "accident" within the meaning of

uninsured motorist coverage.).

In Malec, the New Jersey Supreme Court held that an

insured was not covered by automobile liability insurance

for her own intentional, wrongful acts, but the court

specifically distinguished personal injury protection (or PIP)

insurance and uninsured motorist coverage. Malec , 514

A.2d at 836. In particular, the court described one lower

court opinion as "eminently sound" which held that for PIP

insurance the term "accident" encompasses harm caused

intentionally by someone other than the insured. Id. The

court likewise noted the opinion in Sciascia and cited it for

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the proposition that what counts as an accident for

uninsured motorist coverage should be viewed from the

injured insured's perspective. Id.

Courts adopting the victim's perspective for uninsured

motorist coverage have done so in part because they

recognized that a major rationale for using the tortfeasor's

perspective vanishes once you move from liability coverage

to uninsured motorist coverage. Liability coverage protects

the insured from the costs of his or her own acts, so for

obvious reasons, the coverage typically does not extend to

the insured's intentional wrongdoing. See, e.g., Malec, 514

A.2d at 837-38. Thus, the rule evolved in the context of

liability coverage that since the insured and the tortfeasor

are one and the same person, the insured tortfeasor's

perspective should be used for deciding when there is an

accident triggering coverage. Uninsured motorist coverage,

however, is different. Unlike liability coverage, it protects an

insured from harm caused by other people's acts, and an

insured is equally blameless and surprised regardless of

whether the tortfeasor acted negligently or intentionally.

Covering the insured under these circumstances does not

encourage the insured to commit intentional, wrongful acts

and protects the insured from unexpected losses.

One natural response is that uninsured motorist

coverage is intended to replace the coverage a tort victim

would have if the tortfeasor actually had liability insurance.

Since the tortfeasor's liability insurance would not pay for

the tortfeasor's intentional acts, the argument continues,

people are no worse off when they are denied uninsured

motorist coverage for the intentional acts of others. The

difficulty with this argument is that it begs the question.

When the tortfeasor's auto insurance denies coverage

because the insured's acts were intentional, then the tort

victim is faced with an uninsured motorist. See N.J.S.A.

S 17:28-1.1(e)(2)(b). At that point, the insured victim's

argument is that the insured motorist policy was bought to

cover unforeseen accidents caused by others who have no

insurance coverage, and we return to our original question:

whose perspective should be used in determining whether

there was an accident?

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The District Court rested its decision on dicta in

Lindstrom v. Hanover Insurance Co., 649 A.2d 1272 (1994),

a case which held that the victim of a drive-by shooting was

entitled to personal-injury insurance benefits. While

Lindstrom held that the victim's perspective should be used

to determine what was an accident for PIP insurance, the

court inexplicably grouped automobile liability insurance

and uninsured motorist coverage together and declared that

"neither... applies to injuries caused by an act that is an

accident from the victim's perspective but that is intended

by the actor." Lindstrom, 649 A.2d at 1276. The court

added that Sciascia is "no longer respectable authority." Id.

We believe the dicta in Lindstrom was ill-considered,

poorly supported, and does not accurately reflect the

position of the New Jersey Supreme Court. Consequently,

we will not follow it. See, e.g., Travelers Indemnity Co. v.

DiBartolo, 131 F.3d 343 (3d Cir. 1997)(adopting the position

taken by state superior courts over ill-considered dicta by

the state supreme court). The court in Lindstrom made no

mention of Malec, its earlier decision endorsing, albeit in

dicta, the decision in Sciascia, and the court did not

recognize that the reasons offered in Lindstrom for using

the victim's perspective for PIP insurance apply with equal

force to uninsured motorist coverage. Indeed, Lindstrom's

eventual holding on PIP insurance is actually supported by

cases such as Miller and Sciascia that adopt the victim's

perspective where the insured is not the tortfeasor.

The court apparently felt compelled to reject Sciascia

because that case held not only that the accidents are

determined from the victim's perspective for uninsured

motorist coverage, but also that a drive-by shooting did not

have a sufficient nexus with the use of an automobile to

qualify for uninsured motorist coverage. Lindstrom, by

contrast, held that a drive-by shooting was covered under

PIP insurance, notwithstanding a similar requirement of a

nexus between an automobile and the shooting. But the

requirement of a nexus between the accident and the use

of an automobile is a separate issue from the question of

whose perspective should be used to determine what is an

accident. Once this is acknowledged, it is clear that the

court's statement in Lindstrom rejecting the victim's

33

perspective for uninsured motorist coverage not only was

unnecessary to the outcome in Lindstrom, but was actually

contrary to Lindstrom's own reasoning.

We think it is telling that an uninsured motorist case

decided after Lindstrom discussed the decision but did not

follow it. See Gregory v. Allstate Insurance Co. , 716 A.2d

573, 575-76 (N.J. Super. Ct. Law Div. 1997). Gregory held

that:

Considering the fact that the law clearly mandates a

liberal interpretation of the no fault statute with the

view to providing coverage to the victim of an accident,

and taking into account the clear and plain language of

the statute which provides coverage to persons "legally

entitled to recover damages of Uninsured Motor

Vehicles," this court is compelled to conclude that the

Uninsured Motorist Coverage must be afforded to

victims of intentional automobile collisions.

Gregory, 716 A.2d at 576. As the court in Malec noted,

"Legislation involving automobile insurance must be

construed with `liberality in effecting the broadest

protection of auto accident victims consistent with the

language of the pertinent statute.' " Malec, 514 A.2d at 834

(citation omitted).

We predict that the New Jersey Supreme Court would

adopt the tort victim's perspective for uninsured motorist

coverage: all the uninsured-motorist cases raising the issue

have used the victim's perspective, and legislation involving

automobile insurance is to be interpreted broadly according

to the New Jersey courts. Lindstrom, the one New Jersey

Supreme Court decision rejecting the victim's perspective

for uninsured motorist insurance, did so in dicta, without

explanation, without addressing the substantial arguments

made by its own lower courts for the competing position,

and without recognizing that its dicta was deeply in tension

with Lindstrom's own holding. A recent state decision did

not follow Lindstrom's dicta, and finally, earlier dicta by the

New Jersey Supreme Court in Malec, also not mentioned in

Lindstrom, suggests the tort victim's perspective should be

used for uninsured motorist coverage.

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Raso raises one last argument we must address. She

contends that the scope of coverage of her insurance

coverage should have been submitted to an arbitrator, as

she asserts her insurance contract requires. The issue was

not raised before the District Court and is waived.

VI

In conclusion, we will affirm summary judgment granted

in favor of Macy's for all claims brought by Raso and

Abraham. We will reverse summary judgment granted in

favor of Raso for the estate's S 1983 claim for excessive

force, and we will reverse summary judgment in favor of

CNA for Raso's claim for uninsured motorist coverage. We

will vacate summary judgment on the following claims: (1)

the estate's S 1983 claim against the Township of Cherry

Hill; (2) the estate's assault and battery claims against Raso

and the mall defendants, excluding Macy's; (3) the estate's

claims for negligence, gross negligence, and negligence per

se against Raso and the mall defendants, excluding Macy's;

(4) the estate's claims for negligent supervision and

negligent hiring against the mall defendants, again

excluding Macy's; (5) the estate's claims for punitive

damages against Raso and the mall defendants, not

including Macy's; and (6) Raso's coverage under Liberty

Mutual's policy. For the foregoing reasons, the judgment of

the District Court is reversed or vacated in part, affirmed in

part, and remanded for further proceedings.

Each party to bear its own costs.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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