Stephen Krein v. L. Price , 596 F. App'x 184 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1877
STEPHEN S. KREIN,
Plaintiff - Appellee,
v.
TROOPER L. W. PRICE, individually and in his official
capacity,
Defendant – Appellant,
and
WEST VIRGINIA STATE POLICE; TROOPER W. S. SNYDER,
individually and in his official capacity,
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:11-cv-00962)
Argued: September 17, 2014 Decided: December 19, 2014
Before KING and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion. Senior Judge
Hamilton wrote a dissenting opinion.
ARGUED: Michael Deering Mullins, STEPTOE & JOHNSON, PLLC,
Charleston, West Virginia, for Appellant. Richelle Keener
Garlow, Charleston, West Virginia, for Appellee. ON BRIEF:
Robert L. Bailey, II, STEPTOE & JOHNSON, PLLC, Charleston, West
Virginia, for Appellant. Michael Thane Clifford, LAW OFFICE OF
MICHAEL T. CLIFFORD, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this 42 U.S.C. § 1983 action, we consider whether a
police officer who used deadly force is entitled to qualified
immunity. In December 2008, two West Virginia State Police
troopers, W.S. Snyder and appellant L.W. Price, blocked appellee
Stephen Krein’s vehicle at a gas station in Roane County, West
Virginia. When Krein pulled forward in an attempt to evade the
troopers, Price fired twice at Krein’s vehicle, striking him in
the head and leaving him permanently disabled.
In December 2010, Krein sued Price, Snyder, and the State
Police in West Virginia state court, alleging, inter alia,
violations of his civil rights under § 1983. After the
defendants removed the case to federal court, the district court
denied the defendants’ motion for summary judgment, finding that
several disputed issues of material fact precluded judgment as a
matter of law on their qualified immunity defense.
As explained below, we find that sufficient evidence exists
for a factfinder to determine that Price’s second shot was
objectively unreasonable and thus constituted “excessive force”
prohibited by the Fourth Amendment. We also conclude that the
Fourth Amendment’s prohibition on excessive force in this
circumstance was a “clearly established” constitutional right,
and that Price, as a West Virginia trooper, was charged with
3
notice of this clearly established constitutional right.
Accordingly, we affirm.
I.
A.
W.S. Snyder and appellant L.W. Price are troopers of the
West Virginia State Police. On December 1, 2009, they set out
to serve arrest warrants on appellee Stephen S. Krein. The
warrants stemmed from an incident occurring a week earlier when
two other officers attempted to arrest Krein for misdemeanor
domestic violence. That time, Krein successfully fled and almost
drove into one of the officers.
Price and Snyder located Krein’s white Chevrolet truck at a
gas station in Roane County, West Virginia. Although witnesses 1
disagree about the relative positions of the vehicles and
individuals during the confrontation, witness testimony supports
the following: Krein’s truck was backed into a parking space and
faced the adjoining road. Facing the same direction, a maroon
car was parked ten feet to the left of the truck. At least one
set of fuel pumps was located ten feet to the right of the
1
Krein, who was seriously injured in the incident, does not
remember the confrontation at the gas station. The following
sequence of events stems from the statements of Price, Snyder,
and two witnesses—Billy James Jett and Richard McKinney—who were
waiting in the parking lot to pick up their wives from work.
4
truck, and another set of pumps was located either next to
Krein’s truck or behind it.
When the officers arrived at the store, Krein was pulling
forward in his truck. To prevent Krein from escaping, Price
positioned his cruiser at an angle in front of Krein’s truck,
with the cruiser’s passenger-side door facing the truck. Krein
then backed up, hitting a fuel pump. Price and Snyder exited
the cruiser. Price left the passenger-side door open. Krein
pulled forward and bumped the passenger-side door of the cruiser
with enough force to close it. Krein then “backed up and . . .
cut[] his wheel to come out in between a small opening [between
the cruiser and the maroon car]. He was trying to get out.”
J.A. 43. Both Price and Snyder drew their service weapons and
repeatedly told Krein to stop and exit the vehicle. Snyder was
standing near the truck’s driver-side door and close to the
maroon car. Price walked in front of the truck and stood
between the truck and the cruiser.
When Krein drove forward toward Price, Price fired a shot
that either hit the truck’s grill or went under the truck.
Krein then ducked inside the truck, turned the steering wheel,
and accelerated toward Snyder. Snyder moved toward the maroon
car to get out of Krein’s way, and Price “stepped off to the
side.” J.A. 53. Both Price and Snyder stated that Price was
trapped. See J.A. 45 (“I tried the best to get out of the way
5
because I didn’t have anywhere to go.”); J.A. 52 (“[I]t was kind
of like a triangle shape and . . . Trooper Price was wedged in
the center of it, didn’t have no way to escape.”). A witness
claims, however, that Price got out of harm’s way when he
stepped to the side. See J.A. 60 (“Mr. Krein would have hit the
trooper with his truck if the trooper had not taken a quick step
to his right[.]”). Price then fired a second shot, which went
through the truck’s passenger-side window and struck Krein in
the head. The entire encounter lasted approximately one minute.
After Price shot Krein, the truck coasted through the gap
between the maroon car and cruiser and stopped in the road. A
witness called 911 and said, “Two state troopers, a truck tried
to run over them there and they had to fire shots.” J.A. 71.
He also said that the troopers “fired shots when [Krein] was
pulling around them.” Id. Price and Snyder removed Krein from
the truck and administered first aid until the paramedics
arrived. Krein survived the gunshot wound to his head, but due
to his injury, he cannot walk, speak properly, or care for
himself.
B.
In December 2010, Krein sued Price and Snyder (individually
and in their official capacities) and the West Virginia State
Police (collectively, “Defendants”) in state court. The
6
Defendants removed the action to federal court. After the
district court ruled on a motion to dismiss, five claims
remained, including a 42 U.S.C. § 1983 claim alleging that Price
used excessive force in violation of the Fourth Amendment. In
January 2013, the State Police and Price moved for summary
judgment. As to the § 1983 claim, the district court denied
summary judgment because a reasonable factfinder could conclude
that Price did not act reasonably when he used deadly force.
According to the district court, the evidence demonstrates that
Price may have shot Krein simply to prevent Krein’s escape
rather than to save Price’s or another’s life. Thus, the
district court found that Price was not entitled to qualified
immunity. Price appeals that determination.
II.
A.
This Circuit has jurisdiction to review a district court’s
denial of qualified immunity at summary judgment if the court’s
decision turned on an issue of law. Mitchell v. Forsyth, 472
U.S. 511, 530 (1985); Cooper v. Sheehan, 735 F.3d 153, 157 (4th
Cir. 2013). Qualified immunity acts as “an immunity from suit
rather than a defense to liability.” Mitchell, 462 U.S. at 526.
“As a result, pretrial orders denying qualified immunity
generally fall within the collateral order doctrine.” Plumhoff
7
v. Rickard, 134 S. Ct. 2012, 2019 (2014) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 671-672 (2009)). Immunity—as a defense to
prosecution in the first instance—is a separate issue from the
merits and “could not be effectively reviewed on appeal from a
final judgment because by that time the immunity from standing
trial will have been irretrievably lost.” Id. (citations
omitted).
B.
We review a district court’s denial of summary judgment on
qualified-immunity grounds de novo. Pritchett v. Alford, 973
F.2d 307, 313 (4th Cir. 1992). In doing so, we view the
evidence in the light most favorable to the nonmoving party, and
can grant summary judgment only if there is no genuine issue of
material fact. Iko v. Shreve, 535 F.3d 225, 230, 235 (4th Cir.
2008). Similarly, in reviewing a district court’s denial of
qualified immunity, we generally accept the facts as the
district court found them, Winfield v. Bass, 106 F.3d 525, 530
(4th Cir. 1997) (en banc), though we must also view them in the
light most favorable to the nonmoving party. Henry v. Purnell,
652 F.3d 524, 531 (4th Cir. 2011) (en banc). Price, as the
public official asserting qualified immunity, bears the burden
of proof. Meyers v. Balt. Cnty., 713 F.3d 723, 731 (4th Cir.
2013).
8
III.
Having concluded that we have jurisdiction, we turn to
Price’s contention that qualified immunity shields him from
Krein’s § 1983 claim.
A.
Qualified immunity protects “government officials
performing discretionary functions . . . 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). The doctrine of qualified immunity
“balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009).
To receive qualified immunity, Price must prove either
(1) that his conduct did not violate the constitutional right at
issue (here, the Fourth Amendment’s prohibition on excessive
force) or (2) that the right was not “clearly established” at
the time of the incident. Id. at 232, 236. For purposes of
summary judgment, Price cannot satisfy either prong.
9
B.
Price contends that he satisfies the first prong because
his conduct did not constitute excessive force prohibited by the
Fourth Amendment. In support, Price argues that the district
court improperly considered his subjective intent in shooting
Krein. Although Price correctly notes that his subjective
intent is irrelevant to the Fourth Amendment analysis for
objective reasonableness, there is sufficient evidence in the
record for a reasonable factfinder to conclude that Price’s
second shot—fired from the side of Krein’s vehicle—was
excessive.
The Fourth Amendment protects “people . . . against
unreasonable . . . seizures.” U.S. Const. amend. IV. This
prohibition “includes the right to be free of ‘seizures
effectuated by excessive force.’” Henry v. Purnell, 652 F.3d
524, 531 (4th Cir. 2011) (en banc) (quoting Schultz v. Braga,
455 F.3d 470, 476 (4th Cir. 2006)). Courts analyze whether an
officer used excessive force using an “objective reasonableness”
test. Id. (citing Scott v. Harris, 550 U.S. 372, 381 (2007)).
Under this standard, a court considers officers’ behavior “in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). Indeed, “[a]n
officer’s evil intentions will not make a Fourth Amendment
10
violation out of an objectively reasonable use of force.”
Graham, 490 U.S. at 397.
An officer acts unreasonably if he or she “shoots a fleeing
suspect without ‘probable cause to believe that the suspect
poses a significant threat of death or serious physical injury
to the officer or others.’” Henry, 652 F.3d at 531-32 (quoting
Tennessee v. Garner, 471 U.S. 1, 3 (1985)). This assessment
occurs at the moment that force is used. Elliott v. Leavitt, 99
F.3d 640, 643 (4th Cir. 1996).
Therefore, we must ask whether the facts—viewed in the
light most favorable to Krein—demonstrate that Krein posed a
serious threat to Price, Snyder, or the other individuals
present at the scene when Price fired the second shot. 2
Based on our review of the record, a reasonable factfinder
could conclude that Krein no longer posed a serious threat to
the troopers at the time that Price fired his second shot.
Admittedly, the record contains conflicting information
regarding whether Price and Snyder were at risk of being struck
when Price fired the second shot. Price and Snyder testified
that Price was still in danger when he fired the second shot.
Price explained that he “tried the best to get out of the way
2
Price’s second shot is the only one at issue in this case.
The parties do not dispute whether Price’s first shot was
objectively reasonable.
11
because [he] didn’t have anywhere to go” and that he “felt [his]
life was threatened.” J.A. 45, 47. He also explained that Krein
“could possibly have cut a hard left but then Trooper Snyder’s
life would have been in danger.” Id. at 47-48. Trooper Snyder
said that Price “had no way to escape” and that “if [Krein] had
come forward any more . . . Trooper Price would have been pinned
between the vehicle and his truck.” Id. at 52, 57. Jett and
McKinney, the two bystanders, similarly believed that Price was
in serious danger. Id. at 61 (Jett); Id. at 66 (McKinney).
But at the summary judgment stage, we must view the facts
in the light most favorable to Krein. Waterman v. Batton, 393
F.3d 471, 473 (4th Cir. 2005). Taken in that light, the record
contains numerous indications that Price and Snyder would have
been able to escape Krein’s truck without Price firing the
second shot. 3 Most importantly, Price’s second shot entered
3
As Price notes, the district court made repeated
references to Price’s motivations in firing on Krein, stating
that “Trooper Price’s admission that Krein had previously
escaped his custody should suggest that a desire to prevent a
similar escape rather than the fear of harm motivated Trooper
Price’s actions.” J.A. 84. Price’s motivation, in the district
court’s view, precluded qualified immunity: “If, as Krein
appears to suggest, Trooper Price fired the second shot not out
of fear for his or Trooper Snyder’s safety or concern that Krein
might present a threat to another, but merely to thwart Krein’s
escape, granting qualified immunity would be improper.” Id. at
89. Although the district court may have improperly considered
Price’s subjective intent, any such error is irrelevant because
we review the district court’s denial of qualified immunity de
novo. Pritchett, 973 F.2d at 313.
12
through the passenger side window of Krein’s truck, strongly
suggesting that Price was not in front of the truck when he
fired on Krein the second time. Multiple statements also
indicate that Price and Snyder were not in danger when Price
fired the second time. Price explained that he “got out of the
way” when he fired the second shot. J.A. 45. Snyder said he
“went down the side of the vehicle that was parked beside Mr.
Krein to get away from him.” Id. at 52. He also said that Price
was “at like a 45 degree angle off” from Krein’s truck when
Price fired the second time. Id. at 55. Jett, one of the
bystanders, said that “Mr. Krein would have hit the trooper with
his truck if the trooper had not taken a quick step to the
right.” Id. at 60. When Jett called 911, he stated, “[t]wo state
troopers, a truck tried to run over them there and they had to
fire shots” but also stated that the troopers “fired shots when
[Krein] was pulling around then.” Id. at Ex. A. McKinney said
that Price “jumped back out of the way.” Id. at 66.
It is true that “[t]he calculus of reasonableness must
embody allowances 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.” Park v. Shiflett,
250 F.3d 843, 853 (4th Cir. 2001) (quoting Graham, 490 U.S. at
396-97). But even allowing Price some leeway to account for the
13
tense, hurried nature of the incident cannot change the fact
that the record contains numerous indications that a reasonable
officer would have realized that deadly force was not necessary
to protect himself or others when he was no longer in the
direction of Krein’s vehicle. Accordingly, viewing the facts in
the light most reasonable to Krein, a reasonable fact-finder
could conclude that Price acted unreasonably when he shot Krein.
C.
Price also cannot satisfy the second prong of the qualified
immunity test because the constitutional right that Price
violated was “clearly established.” Harlow, 457 U.S. at 818-19.
The right at issue here is the right to be “free from
unreasonable seizures, a right which includes seizures
accomplished by excessive force.” Waterman, 393 F.3d at 475. “A
defendant cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite
that any reasonable official in the defendant’s shoes would have
understood that he was violating it.” Plumhoff v. Rickard, 134
S. Ct. 2012, 2023 (2014) (citing Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2083-84 (2011)). Although courts should not “define
clearly established law at a high level of generality,” al-Kidd,
131 S. Ct. at 2084, this Court need not determine that the “very
action in question has previously been held unlawful,” Doe ex
14
rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 176
(4th Cir. 2010) (citation omitted). “[O]fficials can still be
on notice that their conduct violates established law even in
novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741
(2002).
Our decision in Waterman v. Batton demonstrates that the
right Price allegedly violated is clearly established. 393 F.3d
at 483; see also Estate of Rodgers ex rel. Rodgers v. Smith, 188
F. App’x 175, 183-184 (4th Cir. 2006) (determining that the law
established in Waterman was clear). In that case, a police
officer attempted to initiate a traffic stop of Waterman for
speeding, but Waterman refused. 393 F.3d at 473. Officers then
pursued Waterman. Id. One officer reported that Waterman tried
to run him off the road. Id. at 474. When Waterman reached a
toll plaza, five uniformed officers stood in front of his
vehicle, “only a few feet to the passenger side of the vehicle’s
projected path.” Id. at 474-75. Waterman coasted at about 11
miles per hour and then began “lurching or lunging forward” as
he began to accelerate toward the toll plaza and the officers.
Id. at 474 (internal quotation marks omitted). The officers
shot at the vehicle, which avoided them by several feet as it
passed. Id. at 475. The officers continued to fire on Waterman
as he drove away. Id. Waterman sustained five gunshot wounds
and died from his injuries. Id.
15
As we explained, “the reasonableness of an officer’s
actions is determined based on the information possessed by the
officer at the moment that force is employed.” Id. at 481
(emphasis added). Based on that principle, we concluded 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.” Id. We distinguished when
Waterman’s car was passing the officers—finding that they
reasonably feared for their safety at that point—from when
Waterman’s car had passed them—finding that the danger had also
passed. Id. at 482. The shots fired at Waterman after he had
passed the officers in his car constituted excessive force. Id.
At that point, the officers and bystanders were not endangered
by Waterman’s vehicle. Id.
A similar distinction between two sets of gunshots can be
made here. Like the officers in Waterman, Price was in danger
when he fired the first shot because he was directly in front of
the vehicle. But just seconds later, he was on the passenger
side of the vehicle and thus was no longer in danger of being
hit. The other officer, Snyder, was similarly not threatened
when Price fired the second time. As our decision in Waterman
demonstrates, these types of fine distinctions must be made to
give proper effect to the Fourth Amendment’s prohibition on
excessive force.
16
Indeed, the overall circumstances in this case were less
dangerous than in Waterman. There, the officers fired at
Waterman in the context of a high-speed chase. Here, however,
Krein’s vehicle was effectively trapped by the troopers’ vehicle
and Krein was not driving at a high speed. Viewing the evidence
in the light most favorable to Krein, Price and Snyder were not
at serious risk of being struck by Krein’s vehicle when Price
fired the second shot. As such, Price’s second shot violated
the clearly established law this Circuit set out in Waterman.
IV.
For the foregoing reasons, the district court’s order
denying Price’s motion for summary judgment is
AFFIRMED.
17
HAMILTON, Senior Circuit Judge, dissenting:
In conducting its own de novo review of the record, the
majority holds that Trooper Price acted unreasonably when he
fired the second shot that injured Krein. * With all due respect
to the majority, in my view, Trooper Price reasonably believed
that Krein posed a serious threat of physical injury to both
himself and Trooper Snyder at the time he fired the second shot.
Accordingly, I dissent from the majority’s denial of qualified
immunity to Trooper Price.
A police officer acts unreasonably if he “shoots a fleeing
suspect without ‘probable cause to believe that the suspect
poses a significant threat of death or serious physical injury
to the officer or others.” Henry v. Purnell, 652 F.3d 524, 531-
32 (4th Cir. 2011) (en banc) (quoting Tennessee v. Garner, 471
U.S. 1, 3 (1985)). Thus, as recognized in Henry, we must
analyze whether Krein posed a serious threat of physical injury
*
The majority understandably does not uphold the flawed
analysis of the district court, which denied qualified immunity
principally on the basis that Trooper Price shot Krein because
he wanted to prevent him from escaping. As noted by the
majority, ante at 12 n.3, Trooper Price’s subjective motivation
in firing the second shot is irrelevant to the qualified
immunity analysis. See also Graham v. Connor, 490 U.S. 386, 397
(1989) (“An officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.”).
18
to Trooper Price, Trooper Snyder, or the others on the scene
when Trooper Price fired the second shot. Id. Whether the
force used was reasonable is determined “from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396; see also
Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (noting
that “the reasonableness of an officer’s actions is determined
based on the information possessed by the officer at the moment
that force is employed”).
Importantly, in analyzing the reasonableness of a police
officer’s actions, we must make “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.” Graham, 490 U.S. at 397. We make such
allowance because the “qualified immunity standard ‘gives ample
room for mistaken judgments’ by protecting ‘all but the plainly
incompetent or those who knowingly violate the law.’” Hunter v.
Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)); see also United States v. Phillips, 588
F.3d 218, 227 (4th Cir. 2009) (noting that reasonableness “does
not, by definition, entail perfection”); Anderson v. Russell,
247 F.3d 125, 132 (4th Cir. 2001) (noting that the Fourth
Amendment “‘does not require omniscience’” and that police
19
officers “‘need not be absolutely sure . . . of the nature of
the threat or the suspect’s intent to cause them harm’” before
using force) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th
Cir. 1996)); Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir.
2001) (noting that “a mistaken understanding of the facts that
is reasonable in the circumstances can render a seizure based on
that understanding reasonable under the Fourth Amendment”).
The majority concludes that Trooper Price acted
unreasonably because “the record contains numerous indications
that Price and Snyder would have been able to escape Krein’s
truck without Price firing the second shot.” Ante at 12. But
the dispositive question is not whether the troopers would have
been able to escape without Trooper Price firing the second
shot, but rather whether Trooper Price, based on the information
he possessed, was reasonable in believing that he, Trooper
Snyder, and/or the others on the scene were in danger of serious
physical injury when he fired the second shot. While the
majority’s analytical framework may address the question of
whether Trooper Price, Trooper Snyder, and the others on the
scene were, as a matter of fact, out of danger at the time the
second shot was fired, it does not address the outcome
determinative question of whether Trooper Price reasonably
believed a serious threat of physical injury was present.
20
For obvious reasons, the majority consciously avoids the
proper analytical inquiry. The majority does not want to
address whether Trooper Price was reasonable in believing that
he, Trooper Snyder, and/or the others on the scene were in
danger when he fired the second shot. After all, it is hard to
criticize a police officer for shooting at a driver who tries to
run him over and then fires a second shot when the driver
accelerates toward a fellow officer. Moreover, the majority’s
analytical tack allows it to avoid explaining exactly what
allowances it is making for Trooper Price, who was confronted
with rapidly developing circumstances in which both he and his
partner were in peril. Finally, the majority’s chosen
analytical path allows it to avoid addressing how Trooper Price
knowingly “violate[d] the law” or was “plainly incompetent”
under the circumstances. Hunter, 502 U.S. at 229 (citation and
internal quotation marks omitted).
A careful review of the record under the correct legal
standard demonstrates that Trooper Price was reasonable in his
belief that there was a threat of serious physical injury at the
time he fired the second shot. Krein was a violent fugitive who
yet again was trying to evade capture. Upon arriving, the
troopers exited the police cruiser, which was parked at an angle
directly in front of Krein’s truck, and repeatedly ordered Krein
to “stop” and “get out” of his truck. (J.A. 43). Rather than
21
complying with the troopers’ commands, Krein attempted to flee.
He backed up his truck, striking some fuel pumps, and then drove
forward and struck the police cruiser. He backed up his truck
again, cutting the wheel so that he could escape through the
small area between the police cruiser and the maroon car. At
this point, Trooper Price positioned himself directly in front
of Krein’s truck. Both Trooper Price and Trooper Snyder
continued to order Krein to stop. Undeterred, Krein drove
directly at Trooper Price, who fired the first shot that either
hit the truck’s grill or went under the truck. After the first
shot, Krein turned the truck’s wheel to his left and accelerated
toward Trooper Snyder. Trooper Price moved to his left,
“try[ing his] best to get out of the way.” (J.A. 45). From all
accounts, Trooper Price was in a wedge between Krein’s truck,
the police cruiser, and some fuel pumps. As he was trying to
get out of the way, Trooper Price fired the second shot, which
entered the front passenger window.
Based on the undisputed evidence recited above, it is self-
evident that Trooper Price was reasonable in his belief that
Krein presented a serious threat of physical injury to both he
and to Trooper Snyder. After the first shot was fired, Krein
accelerated toward Trooper Snyder. This created a serious
threat of physical injury to Trooper Snyder, which Trooper Price
understandably tried to thwart. Moreover, as Trooper Price was
22
trying to get out of the way when he fired the second shot, he
was reasonable in believing that he was still in peril,
especially considering the tight quarters he was confined to.
The reasonableness of Trooper Price’s actions is confirmed
by our decision in Waterman. In that case, police officers
first fired their weapons at a car that “lurched” toward them,
although the police officers were not directly in the path of
the car and indeed would only have been hit if the car had
swerved. 393 F.3d at 477. The car had been involved in a high
speed chase. Id. In finding the first shooting justified, we
focused on a number of factors, including the previous hazardous
activity of the car. Id. But central to our analysis
concerning the first shots was the limited time the police
officers had to respond and “the closeness of the officers to
the projected path of [the] vehicle.” Id. at 479. These
factors led us to conclude that the police officers were
justified in using deadly force for the first shots. Id. at
481.
We found, however, that the police officers were not
justified in firing their weapons at the car after it had passed
them and stopped. Id. This finding was based on our
observation that, after the car had passed the police officers,
the police officers had access to new information regarding the
perceived threat and should therefore have changed their
23
response accordingly. Id. Notably, then, the later shots fired
by the police officers were found unjustified because the police
officers could have actually perceived the passing of the
threat. Id.
In this case, Trooper Price had just seconds to weigh
everything before him. Krein was acting irrationally. He
struck a police cruiser with his truck. He struck diesel fuel
pumps in a lot with private citizens, including children,
present. He ignored numerous commands from two state troopers
pointing their guns at him by driving his truck at them, just
like he previously had dangerously done to other police
officers. “[T]he critical reality here” is that Trooper Price
did not “have even a moment to pause and ponder” all the
circumstances before him. Id. at 478. Indeed, unlike Waterman,
the facts of this case simply do not support the conclusion that
Trooper Price actually could have perceived the passing of the
threat posed by Krein, especially since Krein was accelerating
toward Trooper Snyder and, at the same time, Trooper Price was
trying to move out of the way of the truck when he fired the
second shot.
The majority’s use of Waterman highlights once again its
flawed analysis. It says Waterman is analogous to this case
because Trooper Price “was no longer in danger of being hit”
when he fired the second shot and because Trooper Snyder “was
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similarly not threatened when Price fired the second time.”
Ante at 16. But, as noted above, the outcome determinative
question is not whether the troopers were, in fact, out of
danger at the time Trooper Price fired the second shot, but
whether Trooper Price was reasonable in his belief that a
serious threat of physical injury was present at the time he so
fired.
Moreover, the majority’s suggestion that the circumstances
present in this case are less dangerous than the circumstances
present in Waterman borders on the absurd. The majority says
the circumstances present in Waterman are more dangerous because
that case involved “a high-speed” chase whereas Krein was
“effectively trapped” by the police cruiser. Ante at 17. This
position does not withstand scrutiny. First off, Krein
ultimately was successful in his attempt to maneuver the truck
past the police cruiser and the maroon car, so Krein’s truck was
not effectively trapped. Second, while Waterman involved a
high-speed chase, this distinction is inconsequential given the
dangerousness created by Krein’s escape-at-all-cost mentality.
More compelling, though, is that, unlike Waterman, where none of
the police officers were in the path of the car, Krein drove his
truck directly at the troopers, placing them in immediate and
concrete peril. Moreover, the plaintiff in Waterman had no
prior criminal record, whereas Krein was a fugitive from justice
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wanted for crimes involving domestic violence and assaulting
police officers. Clearly, then, the circumstances present in
this case are far more dangerous than those present in Waterman.
In the final analysis, the majority applies a standard that
requires perfection on the part of Trooper Price. He had to
know and be 100% correct in his knowledge that he, Trooper
Snyder, and/or the others at the scene were in danger of being
seriously injured when he fired the second shot to avoid being
liable under § 1983. Such a standard is incompatible with
Supreme Court, as well as this court’s, precedent. “The
Constitution simply does not require police [officers] to gamble
with their lives in the face of a serious threat of harm.”
Elliott, 99 F.3d at 641. The upshot of all of this is that the
majority is penalizing a police officer who attempted to do the
right thing under the tense, uncertain, and rapidly-evolving
dangerous circumstances with which he was confronted. Qualified
immunity is designed to protect all but the plainly incompetent.
Trooper Price is a far cry from this, and it is my hope that the
ensuing trial will be resolved in his favor. It follows that I
would vacate and remand with instructions to grant Trooper Price
qualified immunity.
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