Lytle v. Bexar County, Tex.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 23, 2009

No. 08-50217 Charles R. Fulbruge III

Clerk

ERNEST LYTLE, Individually and as Representative of the Estate of

Heather Lytle, Deceased

Plaintiff-Appellee

v.

BEXAR COUNTY TEXAS; BEXAR COUNTY SHERIFF’S OFFICE; ROBERT

O’DONNELL, in his Individual Capacity

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, BARKSDALE, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Bexar County Sheriff’s Deputy Robert O’Donnell (“O’Donnell”) fired his

sidearm at the rear of a vehicle, striking and killing fifteen-year-old passenger

Heather Lytle. Heather Lytle’s father, Ernest Lytle (“Lytle”), brought suit

individually and on behalf of his daughter’s estate against Bexar County, the

Bexar County’s Sheriff’s Office, and O’Donnell, alleging violations of Heather

Lytle’s civil rights. O’Donnell moved to dismiss the suit against him on the basis

of qualified immunity. The district court denied this motion, and O’Donnell now

brings this interlocutory appeal. Because genuine issues of material fact

preclude a determination of qualified immunity, we dismiss this appeal.

No. 08-50217

I. BACKGROUND

A. Factual Background

On February 28, 2006, O’Donnell responded to a report that a

complainant’s ex-boyfriend had made threats of violence against her. The

complainant stated that her ex-boyfriend was driving a stolen, primer-grey Ford

Taurus. O’Donnell contacted a detective in the county auto theft unit and

learned that the ex-boyfriend was a known car thief. O’Donnell also learned that

the ex-boyfriend was on bond for charges of felony theft and unlawfully carrying

a weapon. O’Donnell later spotted a primer-black Ford Taurus—a possible

match to the ex-boyfriend’s vehicle—at a known drug location. After the Taurus

left the location, O’Donnell began to follow it.

Shortly after O’Donnell began following the Taurus, it changed lanes

without signaling. O’Donnell activated his emergency lights in an effort to

initiate a traffic stop. Instead of stopping, the Taurus turned right and began

to accelerate. O’Donnell activated his siren and pursued the Taurus for a

quarter-to-half mile. O’Donnell characterizes the chase as exceeding sixty-five

miles per hour, while Lytle asserts that the speed was “well over” the thirty mile

per hour speed limit. After this brief chase, the Taurus attempted to make a

right turn, but it took the turn too widely and collided with a vehicle in the

oncoming lane. The Taurus came to a stop and O’Donnell pulled his police

cruiser twelve-to-fifteen feet behind the Taurus. The Taurus then began backing

up toward O’Donnell’s police cruiser.

The parties dispute what exactly happened next. In any event, sometime

after O’Donnell stopped his police cruiser, he twice fired at the rear of the

Taurus. Heather Lytle was sitting in the center of the back seat of the vehicle,

and one of the shots struck and killed her. After firing, O’Donnell returned to

his police cruiser and continued the pursuit. Upon later crashing the Taurus

into a car port and fleeing on foot, the driver of the Taurus was apprehended.

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No. 08-50217

B. Procedural Background

Lytle brought suit against O’Donnell, Bexar County, and the Bexar County

Sheriff’s Department, alleging, inter alia, that O’Donnell violated Heather

Lytle’s constitutional rights by unreasonably seizing her in violation of the

Fourth Amendment. O’Donnell filed a motion to dismiss on the basis of qualified

immunity. Because O’Donnell had referenced material outside the pleadings,

the district court treated his motion as one for summary judgment. See F ED. R.

C IV. P. 12(d).

The district court ultimately concluded that a genuine issue of material

fact precluded granting summary judgment on qualified immunity. The district

court found that the parties genuinely disputed the direction and distance that

the Taurus had traveled at the moment O’Donnell fired: O’Donnell asserted that

he fired as or immediately after the Taurus backed up toward him, but Lytle

contended that the Taurus was three or four houses down the block when

O’Donnell fired. The district court indicated that O’Donnell would be entitled

to qualified immunity were the facts as he alleged—implying that O’Donnell

would not be entitled to qualified immunity were the facts as Lytle alleged—but

stated that O’Donnell’s entitlement to qualified immunity hinged on the

resolution of this factual issue. The district court thus found a genuine issue of

material fact that would have to be resolved by the factfinder and denied

O’Donnell’s motion. O’Donnell filed this interlocutory appeal.

II. JURISDICTION AND STANDARD OF REVIEW

“The denial of a motion for summary judgment based on qualified

immunity is immediately appealable under the collateral order doctrine ‘to the

extent that it turns on an issue of law.’” Flores v. City of Palacios, 381 F.3d 391,

393 (5th Cir. 2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

Where the district court has determined that genuine issues of material fact

preclude a determination of qualified immunity, we have jurisdiction only to

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address the legal question of whether the genuinely disputed factual issues are

material for the purposes of summary judgment. See Wagner v. Bay City, 227

F.3d 316, 320 (5th Cir. 2000) (“In deciding an interlocutory appeal of a denial of

qualified immunity, we can review the materiality of any factual disputes, but

not their genuineness.”); see also Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir.

1997). “A genuine issue of material fact exists if a reasonable jury could enter

a verdict for the non-moving party.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th

Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). If

the determination of qualified immunity would require the resolution of a

genuinely disputed fact, then that fact is material and we lack jurisdiction over

the appeal. See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 483 (5th

Cir. 2001) (“[T]he threshold issue is whether the facts the district judge

concluded are genuinely disputed are also material. If they are material, we lack

jurisdiction.”); see also Estate of Starks v. Enyart, 5 F.3d 230, 232–33 (7th Cir.

1993) (“If . . . we cannot decide the qualified immunity question without

resolving an issue of disputed fact, then we lack jurisdiction over the question.

Therefore, if the record read favorably to the plaintiff supports a version of the

facts which would not entitle the defendants to immunity, we will dismiss the

interlocutory appeal for lack of jurisdiction.” (citation omitted)).

Since we are limited solely to legal questions for this interlocutory appeal,

we “are required to view the facts and draw reasonable inferences in the light

most favorable to the party opposing the summary judgment motion.” Scott v.

Harris, 127 S. Ct. 1769, 1774 (2007) (quotation marks and alteration omitted).

“Thus, a defendant challenging the denial of a motion for summary judgment on

the basis of qualified immunity ‘must be prepared to concede the best view of the

facts to the plaintiff and discuss only the legal issues raised by the appeal.’”

Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007) (quoting Gonzales v. Dallas

County, 249 F.3d 406, 411 (5th Cir. 2001)). If the defendant would still be

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entitled to qualified immunity under this view of the facts, then any disputed

fact issues are not material, the district court’s denial of summary judgment was

improper, and we must reverse; otherwise, the disputed factual issues are

material and we lack jurisdiction over the appeal.

We therefore adopt Lytle’s version of the facts and make all reasonable

inferences in his favor for the purposes of this appeal. We assume that after the

Taurus made the wide right turn and collided with the car in the oncoming lane,

O’Donnell stopped his police cruiser behind it. The Taurus reversed course and

began backing up toward O’Donnell’s police cruiser in an effort to free itself from

the collision. The Taurus then began to drive away and made it three or four

houses down the block. At this point, there were no bystanders in the path of

the vehicle, and, according to Lytle, neither the Taurus nor any of its occupants

posed a threat of harm to O’Donnell or others. When the Taurus was three to

four houses down the block, O’Donnell twice fired at it. O’Donnell did not issue

a warning before firing and was not aiming for the driver or any other individual

inside the Taurus. Although this account leaves several factual gaps, we make

all reasonable inferences in Lytle’s favor when filling those gaps.

Once we have narrowed the interlocutory appeal solely to issues of law, we

review the district court’s resolution of these issues de novo. Ramirez v.

Knoulton, 542 F.3d 124, 128 (5th Cir. 2008); Freeman, 483 F.3d at 410.

III. DISCUSSION

Qualified immunity protects government officials “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). To determine whether a

government official is entitled to qualified immunity for an alleged constitutional

violation, we conduct the two-step analysis of Saucier v. Katz, 533 U.S. 194

(2001), overruled in part by Pearson v. Callahan, 129 S. Ct. 808 (2009).

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No. 08-50217

Although Saucier’s rigid “order of battle”—requiring courts to always

address the constitutional issue of whether alleged conduct violated the

constitution—is now advisory under Pearson, our ultimate conclusion that

O’Donnell is not entitled to qualified immunity mandates a full Saucier inquiry.

We therefore first ask the threshold “constitutional violation question” of

whether, taking the facts in the light most favorable to the plaintiff, the officer’s

alleged conduct violated a constitutional right. Id. at 201. If we determine that

the alleged conduct did not violate a constitutional right, our inquiry ceases

because there is no constitutional violation for which the government official

would need qualified immunity. Id. If, however, the alleged conduct amounts

to a constitutional violation, then we ask the “qualified immunity question” of

whether the right was clearly established at the time of the conduct. Id.

Qualified immunity allows for officers to make reasonable mistakes about

whether their conduct violates the law, and an officer’s mistake is reasonable

when there are insufficient indicia that the conduct in question was illegal. See

Freeman, 483 F.3d at 415. “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202. If we answer both the constitutional violation and

qualified immunity questions affirmatively, the officer is not entitled to qualified

immunity.

Allegations that an officer used excessive force in conducting a seizure

complicates the Saucier inquiry. This complexity stems from having to make

two “overlapping objective reasonableness inquir[ies].” Id. at 210 (Ginsburg, J.,

concurring in the judgment). We must first answer the constitutional violation

question by determining whether the officer’s conduct met the Fourth

Amendment’s reasonableness requirement, as discussed below. If we find that

the officer’s conduct was not reasonable under the Fourth Amendment, we must

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then answer the qualified immunity question by determining whether the law

was sufficiently clear that a reasonable officer would have known that his

conduct violated the constitution. In other words, at this second step, we must

ask the somewhat convoluted question of whether the law lacked such clarity

that it would be reasonable for an officer to erroneously believe that his conduct

was reasonable. Despite any seeming similarity between these two questions,

they are distinct inquiries under Saucier, and we must conduct them both.*

We therefore face two questions: (1) whether O’Donnell’s alleged conduct

violated Heather Lytle’s constitutional rights, and if so, (2) whether those rights

were clearly established at the time of the shooting. We address each in turn.

A. The Constitutional Violation

Lytle asserts that O’Donnell used excessive force when he fired at the

Taurus, implicating his daughter’s Fourth Amendment right to be free from an

unreasonable seizure. The parties do not dispute that this claim is governed by

the Fourth Amendment’s requirement that a seizure be objectively reasonable,

see Graham v. Connor, 490 U.S. 386, 396–97 (1989), or that Heather Lytle was

“seized” within the meaning of the Fourth Amendment when O’Donnell’s bullet

struck her. The only remaining question, then, is whether O’Donnell’s conduct

was “objectively reasonable.” See Scott, 127 S. Ct. at 1776; Ramirez, 542 F.3d at

128–29; Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).

1. Objective Reasonableness

Assessing the reasonableness of a police officer’s use of force involves “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 (quoting Tennessee v. Garner, 471 U.S. 1, 8

*

The Court in Pearson did not address Saucier’s other holding that, even in qualified

immunity claims involving allegations of excessive force, we must still conduct two separate

reasonableness inquiries.

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(1985)). This balancing “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.” Id. We judge the reasonableness of an officer’s conduct

“objectively,” that is, without reference to the subjective intent or motivation

that underlies the officer’s conduct. Id. at 397. We must also look at the facts

and circumstances “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Id. at 396. And we must

account for the difficult and often split-second decisions that police officers must

make in carrying out their duties. Id. at 396–97.

There are few, if any, bright lines for judging a police officer’s use of force;

when determining whether an officer’s conduct violated the Fourth Amendment,

“we must . . . slosh our way through the factbound morass of ‘reasonableness.’”

Scott, 127 S. Ct. at 1777–78; see also id. (rejecting “an easy-to-apply legal test in

the Fourth Amendment context”). Moreover, the reasonableness of an officer’s

conduct under the Fourth Amendment is often a question that requires the input

of a jury. This is not only because the jury must resolve disputed fact issues but

also because the use of juries in such cases strengthens our understanding of

Fourth Amendment reasonableness. As the Third Circuit stated in Abraham v.

Raso, 183 F.3d 279, 290 (3d Cir. 1999),

[R]easonableness 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.

Our standard of review on this interlocutory appeal—namely, whether a

reasonable jury could enter a verdict for the non-moving party—emphasizes the

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No. 08-50217

importance of juries in cases of alleged excessive force. Indeed, we can find no

constitutional violation when an officer’s conduct, even viewed in the light most

favorable to the plaintiff, falls into that category of conduct that is reasonable as

a matter of law. In such cases, we would hold that no rational jury could find

that the officer acted unreasonably. But in those cases where the officer’s

conduct is less clear and an assessment of reasonableness mandates a number

of factual inferences, the case falls within the province of a jury. Thus, when

determining whether the officer’s alleged conduct violated the constitutional

right to be free from unreasonable seizures, we must remain mindful of the role

that the jury can play in this determination.

This approach comports with the Supreme Court’s decision in Scott.

Granted, the Scott Court stated that, “[a]t the summary judgment stage, . . . once

we have determined the relevant set of facts and drawn all inferences in favor

of the nonmoving party to the extent supportable by the record, the

reasonableness of [a police officer’s] actions . . . is a pure question of law.” 127

S. Ct. at 1776 n.8 (citation omitted). Thus, when facts are undisputed and no

rational factfinder could conclude that the officer acted unreasonably, we can

hold that an officer acted reasonably as a matter of law. See, e.g., Ramirez, 542

F.3d at 128–31. But when facts are disputed and significant factual gaps remain

that require the court to draw several plaintiff-favorable inferences, our analysis

is more tentative. In these cases, we must consider what a factfinder could

reasonably conclude in filling these gaps and then assume the conclusion most

favorable to the plaintiff.

What this means for the present interlocutory appeal is that we can only

find no constitutional violation if, even under the version of the facts most

favorable to Lytle, O’Donnell’s conduct was objectively reasonable. In such a

case, no rational jury could conclude that O’Donnell violated the Fourth

Amendment, and any genuinely disputed fact issues would be thus immaterial

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because their resolution would not alter the ultimate conclusion. But if a

factfinder could conclude that O’Donnell violated the constitution, we must move

on to the qualified immunity question.

2. O’Donnell’s Use of Force

O’Donnell asserts that his use of force was a reasonable response to the

threat of harm that the Taurus posed to himself and the public. He further

contends that this threat was ever-present, and thus suggests any dispute over

the distance or direction that the Taurus had traveled was necessarily

immaterial. In other words, according to O’Donnell, the threat that the Taurus

posed was sufficiently grave whether the Taurus was immediately in front of

him or four houses down the block. Therefore, O’Donnell argues, even if the

disputed factual issues are resolved in favor of the plaintiff, he would still be

entitled to qualified immunity, rendering any factual disputes immaterial.

O’Donnell misunderstands the issue, however, to be merely one of distance

and direction. Although the district court noted this dispute in denying

summary judgment, the remainder of its order reveals that resolution of this

disputed fact is essential to determining whether the Taurus posed a threat of

harm at the time O’Donnell fired and the reasonableness of any response

thereto.

As the district court indicated, if the facts were as O’Donnell alleges—that

is, he fired as or immediately after the Taurus was backing up toward him—he

would likely be entitled to qualified immunity. This is due to the threat of

immediate and severe physical harm that the reversing Taurus likely posed to

O’Donnell himself. As discussed below, however, the threat of harm was

potentially much different under Lytle’s version of the facts. O’Donnell is thus

mistaken in asserting that the distance and direction the Taurus traveled are

irrelevant because the Taurus always posed a threat. They are instead relevant

to whether the Taurus posed a threat.

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Further, because we must look at all of the facts and circumstances

relevant to the reasonableness of O’Donnell’s conduct, he is mistaken to focus

entirely on the threat of harm. Even were we to agree with O’Donnell as to the

threat the Taurus posed, we would be remiss not to consider O’Donnell’s conduct

in response to that threat. It is unclear how firing at the back of a fleeing vehicle

some distance away was a reasonable method of addressing the threat. Indeed,

there is some evidence in the record that O’Donnell had been previously

informed of the potential danger and futility of shooting at a vehicle. Were a

jury to accept Lytle’s version of the facts, it might very well be troubled by

O’Donnell’s act of firing his sidearm at the back of a vehicle three or four houses

down the block of a residential area when he was unlikely to have a shot at—and

apparently was not aiming for—the driver. A jury might also find that

O’Donnell’s act of firing at a vehicle driving away from him in a residential area

posed a risk that the shots might strike an unintended target. Thus, even if we

assumed that the Taurus posed a significant threat of harm, a jury could

conclude that O’Donnell’s conduct in response to that threat was unreasonable.

In other words, under the plaintiff’s version of the facts, O’Donnell’s conduct

itself weighs against a conclusion of reasonableness.

Moreover, we agree with the district court that the distance and direction

that the Taurus had traveled is essential to determining the extent of the threat

that the Taurus actually posed—to both O’Donnell and the public in general—at

the time O’Donnell fired. O’Donnell points to several factors that he argues

indicate the severity of the threat posed by the vehicle. There was, first, the

threat of harm that the Taurus posed to O’Donnell himself as it was backing up

toward him. Further, O’Donnell reasonably believed (1) that the driver of the

Taurus was the same individual that was on bond for charges of felony theft and

unlawfully carrying a weapon, and (2) that the driver was driving a stolen

vehicle. O’Donnell also knew that the driver of the Taurus (1) had committed

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No. 08-50217

the felony of fleeing from a police officer, (2) had left a known drug location,

(3) had led O’Donnell on a high-speed chase through a residential area with

children playing somewhere nearby, (4) had collided with an occupied car while

attempting to make a right turn, (5) had refused orders to stop, (6) had reversed

the Taurus toward O’Donnell, and (7) was fleeing into the neighborhood.

As a preliminary matter, by the time the Taurus was three or four houses

away, a jury could conclude that any immediate threat to O’Donnell had ceased.

To be sure, the Taurus might have posed an immediate and significant threat

of harm to O’Donnell when it was backing up toward him. But an exercise of

force that is reasonable at one moment can become unreasonable in the next if

the justification for the use of force has ceased. See Abraham, 183 F.3d at 294

(“A passing risk to a police officer is not an ongoing license to kill an otherwise

unthreatening suspect.”); 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.”); see also

Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“We therefore hold that

force justified at the beginning of an encounter is not justified even seconds later

if the justification for the initial force has been eliminated.”). Thus, even were

we to assume that shooting at the Taurus was reasonable at the moment it was

backing up toward O’Donnell, that does not necessarily make his firing at the

vehicle when it was driving away from him equally reasonable.

O’Donnell retorts that the events unfolded so quickly that, even if the

vehicle was driving away when he fired, he should not be faulted for failing to

recognize that the threat to him had passed. O’Donnell is correct on the law. In

Hathaway v. Bazany, 507 F.3d 312, 322 (5th Cir. 2007), a police officer who was

on foot fired at a vehicle immediately after it struck him. We determined that

the vehicle, which had accelerated toward the officer after he had attempted to

pull it over, posed such a threat to the officer that the use of deadly force was

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objectively reasonable even if the officer had fired immediately after the vehicle

struck him. Id. We reasoned that the “extremely brief period of time” between

when the car accelerated toward and struck the officer and the officer’s firing of

his weapon was insufficient for the officer to perceive “new information

indicating the threat was past.” Id. Under Hathaway’s reasoning—and

assuming that the Taurus posed a significant threat of harm to O’Donnell at that

time—O’Donnell’s conduct might be objectively reasonable if he fired

immediately after the Taurus had backed up toward him.

Taking the facts in the light most favorable to the plaintiff, however,

O’Donnell could have had sufficient time to perceive that any threat to him had

passed by the time he fired. Although O’Donnell asserts that the time between

the Taurus backing up toward him and the moment he fired was very brief, it

was at least enough time for the Taurus to go from a full stop to a distance three

or four houses down the block. Depending upon the width of the neighborhood

lots and the Taurus’s speed and acceleration, this interval could have been

anywhere from three to ten seconds, perhaps even more. While the scant record

at this point in the proceedings precludes any certainty regarding the amount

of time this took, when drawing all reasonable inferences in the plaintiff’s favor,

we must assume that the Taurus backing up toward O’Donnell and the shooting

were not “in near contemporaneity.” Cf. id. We must therefore infer that

sufficient time might have passed for O’Donnell to perceive that the threat to

him had ceased. Consequently, a jury could find that there was no threat to

O’Donnell at the time of the shooting, and this lack of a threat weighs against

a conclusion of reasonableness.

Turning to the other indicia of the threat the Taurus posed to the public

in general, O’Donnell asserts that it is only reasonable to conclude that the

Taurus was a clear menace. Invoking the Supreme Court’s statement in Scott

that “[a] police officer’s attempt to terminate a dangerous high-speed car chase

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that threatens the lives of innocent bystanders does not violate the Fourth

Amendment, even when it places the fleeing motorist at risk of serious injury or

death,” 127 S. Ct. at 1779, O’Donnell argues that the threat that the fleeing

Taurus posed to the public renders his use of force objectively reasonable.

In Scott, the Court held that an officer’s use of force to stop a fleeing

motorist was reasonable in part because the suspect posed “an actual and

imminent threat to the lives of any pedestrians who might have been present,

to other civilian motorists, and to the officers involved in the chase.” Id. at 1778.

In the words of the Court, the suspect engaged in “a Hollywood-style car chase

of the most frightening sort, placing police officers and innocent bystanders alike

at great risk of serious injury.” Id. at 1775–76; see also id. at 1778

(characterizing the pursuit as a “reckless, high-speed flight” that stretched

nearly ten miles). The Court thus concluded that “[t]he car chase that [the

suspect] initiated . . . posed a substantial and immediate risk of serious physical

injury to others; no reasonable jury could conclude otherwise.” Id. at 1779. For

this reason and others, the Court held that the officer’s use of force in Scott was

objectively reasonable. Id.

Although it stated that “[a] police officer’s attempt to terminate a

dangerous high-speed car chase that threatens the lives of innocent bystanders

does not violate the Fourth Amendment, even when it places the fleeing motorist

at risk of serious injury or death,” id., the Court’s decision in Scott did not

declare open season on suspects fleeing in motor vehicles. As Justice Ginsburg

pointed out in her concurrence, Scott did not “articulat[e] a mechanical, per se

rule.” Id. at 1779 (Ginsburg, J., concurring).

The inquiry described by the Court is situation specific. Among

relevant considerations: Were the lives and well-being of others

(motorists, pedestrians, police officers) at risk? Was there a safer

way, given the time, place, and circumstances, to stop the fleeing

vehicle?

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Id. (citation omitted). Indeed, the reasoning of Scott itself—requiring courts to

“slosh [their] way through the factbound morass of ‘reasonableness,’” id. at 1778

(majority opinion)—belies such a per se approach. Consequently, the Taurus’s

flight does not necessarily render O’Donnell’s conduct objectively reasonable.

Nearly any suspect fleeing in a motor vehicle poses some threat of harm to the

public. As the cases addressing this all-too-common scenario evince, the real

inquiry is whether the fleeing suspect posed such a threat that the use of deadly

force was justifiable.

For example, in Cole v. Bone, 993 F.2d 1328, 1330–31 (8th Cir. 1993), a

police officer shot the driver of an eighteen-wheeler after the suspect led police

on a fifty-mile chase exceeding speeds of ninety miles per hour, passed traffic on

both shoulders, attempted to ram several police cruisers, ran a road block, and

forced over one hundred vehicles out of its way. The Eighth Circuit held that the

officer’s conduct was reasonable because the officer was justified in believing

that “the truck posed an imminent threat of serious physical harm to innocent

motorists as well as to the officers themselves.” Id. at 1333. Similarly, in

Williams v. City of Grosse Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007), the

Sixth Circuit found the shooting of a fleeing motorist to be objectively

reasonable. After the suspect’s vehicle collided with a police cruiser, one officer

approached the driver’s window and stuck his gun into the vehicle, pointing it

at the suspect’s head. Id. at 484. The suspect began to drive away, knocking the

officer to the ground. Id. The court in Williams found a second officer’s shooting

of the driver to be objectively reasonable based upon the threat that the driver

posed to both the downed officer and the public. Id. at 487. And in Abney v. Coe,

493 F.3d 412, 418 (4th Cir. 2007), the Fourth Circuit held that an officer’s

conduct was reasonable where the officer stopped a suspect fleeing on a

motorcycle by ramming the suspect with his police cruiser. The court found

“abundant and uncontradicted evidence” that the suspect posed a substantial

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threat of harm to the public, including the fact that the suspect led police on an

eight mile chase during “which he committed numerous dangerous traffic

violations” and ran another motorist off the road. Id. at 416–17. This threat of

harm rendered the officer’s conduct objectively reasonable. Id. at 418; see also

Long v. Slaton, 508 F.3d 576, 580–81 (11th Cir. 2007), cert. denied, 129 S. Ct.

725 (2008); Beshers v. Harrison, 495 F.3d 1260, 1268 (11th Cir. 2007); Martin v.

Dishong, 102 F. App’x 780, 782–83 (4th Cir. 2004) (per curiam); Vanvorous v.

Burmeister, 96 F. App’x 312, 314 (6th Cir. 2004) (per curiam); Scott v. Clay

County, 205 F.3d 867, 878 (6th Cir. 2000); Smith v. Freland, 954 F.2d 343, 347

(6th Cir. 1992).

In contrast, a number of courts have found police officers’ shooting of

fleeing motorists to be unreasonable—or at least potentially so, for the purposes

of qualified immunity appeals—where the driver posed a lesser risk of harm to

others. For example, in Adams v. Speers, 473 F.3d 989, 991 (9th Cir. 2007), a

suspect had led police on a chase, “largely within the speed limit,” for over an

hour. An officer twice rammed the suspect’s vehicle and later, without warning,

shot and killed the suspect as the suspect’s vehicle rolled away. Id. at 991–92.

The Ninth Circuit found it “obvious” that “[n]o officer acting reasonably in these

circumstances could have believed that he could use deadly force to apprehend”

the suspect. Id. at 993–94. Similarly, in Smith v. Cupp, 430 F.3d 766, 770 (6th

Cir. 2005), a police officer shot a suspect after the suspect had stolen the officer’s

police cruiser and began to drive away. The Sixth Circuit recognized that a

suspect fleeing in a stolen police cruiser posed some danger to the public but held

that the danger “was not so grave as to justify the use of deadly force.” Id. at

773. As the plaintiff’s version of the facts did not mention any bystanders

“whose physical safety could have been endangered by [the suspect’s] actions,”

id. at 774, the court held that a jury would “be entitled to determine that [the

police officer’s] use of force was unreasonable and accordingly unconstitutional,”

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id. at 775. And in Vaughan v. Cox, 343 F.3d 1323, 1326–27 (11th Cir. 2003), a

police officer shot a passenger in a fleeing vehicle after a suspect had led police

on a highway chase exceeding eighty miles per hour and had collided with a

police cruiser. The Eleventh Circuit found that “[g]enuine issues of material fact

remain[ed] as to whether [the suspects’] flight presented an immediate threat

of serious harm to [the police officer] or others at the time [the officer] fired the

shot.” Id. at 1330. Since the suspects in Vaughan were little more than

“suspects who were evading arrest and who had accelerated to eighty to eighty-

five miles per hour in a seventy-miles-per-hour zone in an attempt to avoid

capture, . . . a reasonable jury could find that [the suspects’] escape did not

present an immediate threat of serious harm to [the police officer] or others on

the road.” Id.; see also Tubar v. Clift, 286 F. App’x 348, 351 (9th Cir. 2008)

(mem.); Kirby v. Duva, 530 F.3d 475, 482–83 (6th Cir. 2007); Murray-Ruhl v.

Passinault, 246 F. App’x 338, 346 (6th Cir. 2007); Jones v. City of Atlanta, 192

F. App’x 894, 897 (11th Cir. 2006) (per curiam); Sigley v. City of Parma Heights,

437 F.3d 527, 536 (6th Cir. 2006); Cowan ex rel. Cooper v. Breen, 352 F.3d 756,

763 (2d Cir. 2003); Lewis v. Boucher, 35 F. App’x 64, 69–70 (4th Cir. 2002) (per

curiam); Ribbey v. Cox, 222 F.3d 1040, 1043 (8th Cir. 2000); McCaslin v. Wilkins,

183 F.3d 775, 779 (8th Cir. 1999); Abraham, 183 F.3d at 294–95; Starks, 5 F.3d

at 233.

As these decisions indicate, a suspect that is fleeing in a motor vehicle is

not so inherently dangerous that an officer’s use of deadly force is per se

reasonable. In assessing the reasonableness of a police officer’s use of force, we

must instead delve into the facts and circumstances of each case.

Taking the facts of the present case in the light most favorable to Lytle, a

jury could conclude that the Taurus posed some threat of harm; the chase took

place at high speeds within a residential area, there were children playing

somewhere nearby, and the Taurus had collided with another vehicle. But we

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No. 08-50217

do not agree with O’Donnell that the Taurus was so menacing under Lytle’s

version of the facts that any use of force in an attempt to stop it would be

objectively reasonable as a matter of law. A jury accepting Lytle’s version of the

facts could conclude that the Taurus did not pose a sufficient threat of harm

such that the use of deadly force was reasonable. O’Donnell had pursued the

Taurus for only a quarter-to-half mile before the shooting occurred, raising a

question of whether O’Donnell had sufficient indicia to conclude that the Taurus

posed such a threat of harm. Also, there were no children or bystanders in the

path of the vehicle, indicating that no one was in immediate danger. The

Taurus’s collision with the oncoming vehicle while making a wide right turn does

give us some pause, but we think the jury should assess the depravity that this

collision evidenced. Thus, while any threat of harm to the public would weigh

in favor of finding O’Donnell’s conduct reasonable, the threat was not so great

under Lytle’s version of the facts that O’Donnell’s conduct is beyond question.

When we consider the totality of the circumstances, we conclude that

O’Donnell’s conduct may not have been objectively reasonable. A rational jury

could conclude that the Taurus did not pose an especially significant threat of

harm such that the use of deadly force was justified. Further, when weighing

the threat of harm posed by the Taurus against O’Donnell’s chosen course of

conduct—firing at the back of the vehicle from some distance—the jury could

conclude that O’Donnell’s conduct was not a reasonable response to any threat.

We emphasize this last point: the facts in this interlocutory appeal merely

indicate that O’Donnell’s conduct is not beyond question. We are holding only

that a jury considering all relevant circumstances—O’Donnell’s conduct, the

threat of harm to O’Donnell and the public, etc.—could determine that O’Donnell

acted unreasonably. The meager record at this point of the proceedings has

mandated a number of inferences, and the factual assumptions on which we

have decided this appeal might bear little resemblance to what the factfinder

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No. 08-50217

ultimately determines. But it is the job of the factfinder, not this court, to

ultimately resolve the factual disputes and make the inferences that fill the gaps

in the facts. On an interlocutory appeal, we are limited to assuming that any

and all questions are resolved in the plaintiff’s favor, tempered by the limits of

reasonableness. We therefore conclude that a jury could determine that

O’Donnell acted unreasonably in firing at the back of the Taurus and thus

violated Heather Lytle’s constitutional rights. This is sufficient to affirmatively

answer the constitutional violation question of our inquiry. We thus turn to the

question of whether those rights were clearly established at the time of the

incident.

B. The Clearly Established Right

At the second step of the qualified immunity inquiry, we ask whether the

violated constitutional right was clearly established at the time of the violation.

When conducting this inquiry, “[t]he central concept is that of ‘fair warning’:

The law can be clearly established ‘despite notable factual distinctions between

the precedents relied on and the cases then before the Court, so long as the prior

decisions gave reasonable warning that the conduct then at issue violated

constitutional rights.’” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en

banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)). “Thus, while the right

to be free from excessive force is clearly established in a general sense, the right

to be free from the degree of force employed in a particular situation may not

have been clear to a reasonable officer at the scene.” Bush, 513 F.3d at 502

(citing Saucier, 533 U.S. at 201–02).

We need not dwell on this issue. It has long been clearly established that,

absent any other justification for the use of force, it is unreasonable for a police

officer to use deadly force against a fleeing felon who does not pose a sufficient

threat of harm to the officer or others. See Kirby, 530 F.3d at 483–84. This

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No. 08-50217

holds as both a general matter, see Garner, 471 U.S. at 11–12, and in the more

specific context of shooting a suspect fleeing in a motor vehicle, see, e.g., Kirby,

530 F.3d at 484; Vaughan, 343 F.3d at 1332–33. The right in question was

therefore clearly established on February 28, 2006, and this is sufficient to

affirmatively answer the qualified immunity question of our inquiry.

We therefore hold that, were a jury to accept Lytle’s version of the facts,

it could conclude that O’Donnell had violated Heather Lytle’s clearly established

constitutional right to be free from an unreasonable seizure. Because Lytle’s

version of disputed facts permits a decision adverse to O’Donnell, the district

court was correct to conclude that O’Donnell’s entitlement to qualified immunity

turns on the resolution of these factual issues. These disputed factual issues are

thus material as to whether O’Donnell is entitled to qualified immunity, and we

consequently lack jurisdiction over this interlocutory appeal.

IV. CONCLUSION

We agree with the district court that O’Donnell’s entitlement to qualified

immunity turns on genuine issues of material fact that the factfinder must

resolve. We therefore DISMISS O’Donnell’s interlocutory appeal for a lack of

jurisdiction.

DISMISSED.

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No. 08-50217

JERRY E. SMITH, Circuit Judge, dissenting:

I respectfully dissent. The majority errs, primarily in light of Scott v. Har-

ris, 550 U.S. 372 (2007). The situation faced by the officers in Scott and the in-

stant case are not different in any way that should make a difference. Scott is

the clearly-established law that governs here for purposes of the qualified im-

munity analysis.

As the majority states, we base our analysis on the facts that are undis-

puted and on the disputed facts as alleged by the plaintiff. Majority op. at 4-5.

The majority admits that Officer O’Donnell “would likely be entitled to qualified

immunity” if, as he claims, “he fired as or immediately after the Taurus was

backing up toward him.” Id. at 10. But Lytle contends, to the contrary, that, as

the majority describes it, “the Taurus was three or four houses down the block

when O’Donnell fired.” Id. at 3. The question is whether that disputed issue of

factSSalbeit genuineSSis material. See id. at 4. It is not.

The majority goes astray in diminishing the importance of the threat to

others, including not only the officers but also pedestrians, the occupants of ve-

hicles, and even the occupants of nearby buildings. The majority errs in criticiz-

ing the fact that in his brief, O”Donnell “focus[es] entirely on the threat of

harm.” Id. at 11.

In Scott, the Court, quite properly, focused on that threatSSon what it

termed “the extreme danger to human life posed by [the suspect].” Scott, 550

U.S. at 695-96. Addressing the statement in Tennessee v. Garner, 471 U.S. 1, 11

(1985), that, under the Fourth Amendment, the fleeing suspect must have posed

an immediate threat of serious physical harm to the officer or others,” the Scott

Court relied on the fact that “it was [the suspect’s] flight itself (by means of a

speeding automobile) that posed the threat of ‘serious physical harm . . . to oth-

ers.’” Scott, 550 U.S. at 382 n.9 (quoting Garner, 471 U.S. at 11).

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No. 08-50217

We return, therefore, to the question whether, accepting Lytle’s version of

the facts, the threat to life and safety was sufficient to justify use of deadly force.

The majority accurately sets forth

several factors that [O’Donnell] argues indicate the severity of the

threat posed by [the suspect’s] vehicle. There was, first, the threat

of harm that the Taurus posed to O’Donnell himself as it was back-

ing up toward him. Further, O’Donnell reasonably believed (1) that

the driver of the Taurus was the same individual that was on bond

for charges of felony theft and unlawfully carrying a weapon, and

(2) that the driver was driving a stolen vehicle. O’Donnell also knew

that the driver of the Taurus (1) had committed the felony of fleeing

from a police officer, (2) had left a known drug location, (3) had led

O’Donnell on a high-speed chase through a residential area with

children playing somewhere nearby, (4) had collided with an occu-

pied car while attempting to make a right turn, (5) had refused or-

ders to stop, (6) had reversed the Taurus toward O’Donnell, and

(7) was fleeing into the neighborhood.

Majority op. at 11-12.

For purposes of summary judgment, we cannot credit O’Donnell’s disputed

claim that the Taurus was backing toward him. The other facts, however, are

not contested, and they closely mirror the considerations addressed in Scott, in

which the Court asked whether,

consistent with the Fourth Amendment, [an officer can] attempt to

stop a fleeing motorist from continuing his public-endangering flight

. . . . Put another way: Can an officer take actions that place a flee-

ing motorist at risk of serious injury or death on order to stop the

motorist’s flight from endangering the lives of innocent bystanders?

Scott, 550 U.S. at 374. The Court answered that question in the affirmative:

Deputy Scott did not violate the Fourth Amendment. . . . [The sus-

pect] posed an actual and imminent threat to the lives of any pedes-

trians who might have been present, to other civilian motorists, and

to the officers involved in the chase. . . . A police officer’s attempt to

terminate a dangerous high-speed car chase that threatens the lives

of innocent bystanders does not violate the Fourth Amendment, even

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No. 08-50217

when it places the fleeing motorist at risk of serious injury or death.

Id. at 381, 384, 386.

The same result is called for here. It makes no difference if the dangerous

suspect was three or four houses away instead of backing toward the officer. The

obvious risk to the public was the same, as was the need for the officer to take

action. The blame for the passenger’s death falls squarely on the suspect, not

the officer, who had no intention of hitting an innocent occupant of the Taurus

with his shot.

Officer O’Donnell did not violate the Fourth Amendment. We should not

ask “whether another reasonable, or more reasonable, interpretation of the

events can be constructed . . . after the fact.” Hunter v. Bryant, 502 U.S. 224,

228 (1991) (per curiam). O’Donnell is entitled to qualified immunity, because his

“decision was reasonable, even if mistaken.” Id. at 229. His actions, despite

their unfortunate and unintended consequences, were not unreasonable.

“[N]o reasonable jury could conclude otherwise.” Scott, 550 U.S. at 386.

I respectfully dissent.

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