ROCHELLE BROSSEAU v. KENNETH J. HAUGEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Officer Rochelle Brosseau, a member of the Puyallup, Washington, Police Department, shot Kenneth Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action in the United States District Court for the Western District of Washington pursuant to Rev. Stat. §1979, 42 U.S.C. § 1983. He alleged that the shot fired by Brosseau constituted excessive force and violated his federal constitutional rights.1 The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed. 339 F.3d 857 (2003). Following the two-step process set out in Saucier v. Katz, 533 U.S. 194 (2001), the Court of Appeals found, first, that Brosseau had violated Haugens Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. Brosseau then petitioned for writ of certiorari, requesting that we review both of the Court of Appeals determinations. We grant the petition on the second, qualified immunity question and reverse.
The material facts, construed in a light most favorable to Haugen, are as follows.2 On the day before the fracas, Glen Tamburello went to the police station and reported to Brosseau that Haugen, a former crime partner of his, had stolen tools from his shop. Brosseau later learned that there was a felony no-bail warrant out for Haugens arrest on drug and other offenses. The next morning, Haugen was spray-painting his Jeep Cherokee in his mothers driveway. Tamburello learned of Haugens whereabouts, and he and cohort Matt Atwood drove a pickup truck to Haugens mothers house to pay Haugen a visit. A fight ensued, which was witnessed by a neighbor who called 911.
Brosseau heard a report that the men were fighting in Haugens mothers yard and responded. When she arrived, Tamburello and Atwood were attempting to get Haugen into Tamburellos pickup. Brosseaus arrival created a distraction, which provided Haugen the opportunity to get away. Haugen ran through his mothers yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers arrived with a K9 to help track Haugen down. During the search, which lasted about 30 to 45 minutes, officers instructed Tamburello and Atwood to remain in Tamburellos pickup. They instructed Deanna Nocera, Haugens girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburellos pickup was parked in the street in front of the driveway; Noceras small car was parked in the driveway in front of and facing the Jeep; and the Jeep was in the driveway facing Noceras car and angled somewhat to the left. The Jeep was parked about 4 feet away from Noceras car and 20 to 30 feet away from Tamburellos pickup.
An officer radioed from down the street that a neighbor had seen a man in her backyard. Brosseau ran in that direction, and Haugen appeared. He ran past the front of his mothers house and then turned and ran into the driveway. With Brosseau still in pursuit, he jumped into the drivers side of the Jeep and closed and locked the door. Brosseau believed that he was running to the Jeep to retrieve a weapon.
Brosseau arrived at the Jeep, pointed
her gun at Haugen, and ordered him to get out of the vehicle.
Haugen ignored her command and continued to look for the keys
so he could get the Jeep started. Brosseau repeated her
commands and hit the drivers side window several times
with her handgun, which failed to deter Haugen. On the third
or fourth try, the window shattered. Brosseau unsuccessfully
attempted to grab the keys and struck Haugen on the head with
the barrel and butt of her gun. Haugen, still undeterred,
succeeded in starting the Jeep. As the Jeep started or shortly
after it began to move, Brosseau jumped back and to the left.
She fired one shot through the rear drivers side window
at a forward angle, hitting Haugen in the back. She later
explained that she shot Haugen because she was
Despite being hit, Haugen, in his
When confronted with a claim of
qualified immunity, a court must ask first the following
question: Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the
officers conduct violated a constitutional right?
Saucier v. Katz, 533 U.S., at 201. As the Court
of Appeals recognized, the constitutional question in this case
is governed by the principles enunciated in Tennessee v.
Garner, 471 U.S.
1 (1985), and Graham v. Connor, 490 U.S. 386 (1989).
These cases establish that claims of excessive force are to be
judged under the Fourth
We express no view as to the correctness of the Court of Appeals decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.3
Qualified immunity shields an officer
from suit when she makes a decision that, even if
constitutionally deficient, reasonably misapprehends the law
governing the circumstances she confronted. Saucier v.
Katz, 533 U.S., at 206 (qualified immunity
operates to protect officers from the sometimes
hazy border between excessive and acceptable
It is important to emphasize that this inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id., at 201. As we previously said in this very context:
[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton,] that the right the official is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. 483 U.S. [635,] 640 [(1987)]. 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. Id., at 201202.
The Court of Appeals acknowledged this
statement of law, but then proceeded to find fair warning in
the general tests set out in Graham and Garner.
339 F.3d, at 873874. In so doing, it was mistaken.
Graham and Garner, following the lead of the Fourth
Amendments text, are cast at a high level of
generality. See Graham v. Connor, supra,
at 396 (
We therefore turn to ask whether, at
the time of Brosseaus actions, it was
In these cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others. Cole v. Bone, supra, at 1333 (holding the officer had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves); Smith v. Freland, 954 F.2d, at 347 (noting a car can be a deadly weapon and holding the officers decision to stop the car from possibly injuring others was reasonable). Smith is closer to this case. There, the officer and suspect engaged in a car chase, which appeared to be at an end when the officer cornered the suspect at the back of a dead-end residential street. The suspect, however, freed his car and began speeding down the street. At this point, the officer fired a shot, which killed the suspect. The court held the officers decision was reasonable and thus did not violate the Fourth Amendment. It noted that the suspect, like Haugen here, had proven he would do almost anything to avoid capture and that he posed a major threat to, among others, the officers at the end of the street. Ibid.
Haugen points us to Estate of Starks v. Enyart, 5 F.3d 230 (CA7 1993), where the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect. There, the court concluded that the threat created by the fleeing suspects failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force. Id., at 234.
These three cases taken together
undoubtedly show that this area is one in which the result
depends very much on the facts of each case. None of them
squarely governs the case here; they do suggest that
Brosseaus actions fell in the
The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1. Haugen also asserted pendent state-law claims and claims against the city and police department. These claims are not presently before us.
2. Because this case arises in the posture of a motion for summary judgment, we are required to view all facts and draw all reasonable inferences in favor of the nonmoving party, Haugen. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
3. We have no occasion in this case to reconsider our instruction in Saucier v. Katz, 533 U.S. 194, 201 (2001), that lower courts decide the constitutional question prior to deciding the qualified immunity question. We exercise our summary reversal procedure here simply to correct a clear misapprehension of the qualified immunity standard.
4. The parties point us to a number of other cases in this vein that postdate the conduct in question, i.e., Brosseaus February 21, 1999, shooting of Haugen. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 763 (CA2 2003); Pace v. Capobianco, 283 F.3d 1275, 12811282 (CA11 2002); Scott v. Clay County, Tennessee, 205 F.3d 867, 877 (CA6 2000); McCaslin v. Wilkins, 183 F.3d 775, 778779 (CA8 1999); Abraham v. Raso, 183 F.3d 279, 288296 (CA3 1999). These decisions, of course, could not have given fair notice to Brosseau and are of no use in the clearly established inquiry.