Morales v. United States ( 2005 )

No. 03-1743
File Name: 05a0448n.06
Filed: May 27, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JUAN-JOSE GUERRA MORALES, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
UNITED STATES OF AMERICA, ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
Before: NELSON and COOK, Circuit Judges, and WEBER, District Judge.*
DAVID A. NELSON, Circuit Judge. This is an appeal from a judgment for the
United States in an assault-and-battery action brought against it under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b)(1) and 2671 et seq. Sitting as the trier of fact, the district
court found that a federal agent was in reasonable fear for her life when she shot and
seriously injured the plaintiff. We are not persuaded that this finding was clearly erroneous.
The challenged judgment will therefore be affirmed.
*
The Honorable Herman J. Weber, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 03-1743
Page 2
I
Special Agent Dawn Ohanian, of the United States Drug Enforcement Agency, shot
the plaintiff, Juan-Jose Guerra Morales, while he was participating in an armed robbery
attempt during an undercover drug transaction. A bullet struck Mr. Morales in the spine,
paralyzing him from the waist down.
Mr. Morales sued the United States and Agent Ohanian under Michigan law, the
Federal Tort Claims Act, and the United States Constitution. After certifying that Agent
Ohanian was acting within the scope of her employment at the time of the shooting, the
United States was substituted for the agent as a party defendant with respect to certain of the
claims. The district court dismissed the constitutional claims against both defendants, and
a negligence claim was dismissed by agreement of the parties. The case went to trial on the
theory that Agent Ohanian’s actions constituted an assault and battery for which the United
States was liable under the Federal Tort Claims Act.
The district court’s factual findings included the following:
— Agent Ohanian was a trained DEA agent with five years of law-enforcement
experience. Her training and experience taught her that robberies can occur
during drug transactions and that participants in drug transactions are often
armed. She understood that law enforcement officers are permitted to use
deadly force if their own or third parties’ lives are in imminent danger.
No. 03-1743
Page 3
— On December 3, 1997, a confidential informant introduced Agent Ohanian to
Raul Guerrero. The agent showed Mr. Guerrero a bag containing $48,000 in
cash and arranged to purchase cocaine from him the following day, using the
money to pay for the drugs.
— Mr. Guerrero, Mr. Morales, and a third man, Walt Morris, met later in the day
and made plans to rob Agent Ohanian at gunpoint. The gun was not to be
loaded.
— On December 4, 1997, Agent Ohanian arranged to meet Mr. Guerrero at a
motel in Taylor, Michigan, to complete the sale of cocaine. Mr. Guerrero
drove to the motel in one car, while Messrs. Morales and Morris were driven
there by Guerrero’s sister in a second car. The group did not bring any cocaine
with them.
— At least 12 law enforcement officers were stationed in and around the motel.
Seven were in automobiles in the immediate vicinity, and four were in a room
adjacent to Room 204, the room where Agent Ohanian planned to complete the
cocaine transaction. Officer Ronald Bodek was carrying the purchase money.
The officers, all of whom were armed, could communicate with one another
using radios, pagers, and wireless telephones. Video surveillance of events in
Room 204 was conducted by the officers in the adjacent room.
No. 03-1743
Page 4
— Agent Ohanian met Mr. Guerrero in the motel parking lot. Guerrero’s sister
parked nearby and remained in the car as Messrs. Morales and Morris got out.
The agent noticed them and asked Mr. Guerrero whether they were “his
people.” When Guerrero said that they were, the agent told him to call them
over. He did so.
— At that point Mr. Morales took the lead in dealing with Agent Ohanian. He
demanded to see the $48,000. The agent phoned Officer Bodek and another
officer, and they agreed that Bodek would meet her and one of the sellers in
Room 204 with the cash. The agent chose Morales to accompany her to the
room.
— While awaiting Officer Bodek’s arrival, Agent Ohanian sat on the edge of a
bed in the middle of the room. Mr. Morales sat in a chair next to the door.
From talking with Morales and observing his demeanor, the agent concluded
that he was experienced in the drug trade.
— Before Officer Bodek reached Room 204, he saw Mr. Morris in the open-air
corridor outside the room. Morris approached the officer, who told him to
keep his hands out of his pockets. The two men then walked up to the door,
and the officer knocked.
— Agent Ohanian stood up and went across the room to answer the knock. Mr.
Morales remained seated. When the agent opened the door, Officer Bodek
No. 03-1743
Page 5
stepped forward. Mr. Morris moved forward as well and pulled out an
unloaded semi-automatic pistol. Officer Bodek grabbed Mr. Morris’ hands or
arms, and the two men retreated into the corridor as they grappled for the gun.
— Agent Ohanian pulled out her own pistol. Mr. Morales, meanwhile, got up
from his chair and moved behind Agent Ohanian, raising his arms from his
sides. Morales moved out the doorway, coming into contact with Agent
Ohanian’s back. The agent saw Morales move behind her, felt him touch her
back, and concluded that Morales, like Morris, posed a deadly threat.
— Agent Ohanian fired three shots at Mr. Morris from close range. Morris
continued to struggle after being hit, but he was soon subdued by Officer
Bodek. Mr. Morris later died from his injuries.
— When Mr. Morales heard the first shot, he turned away from Agent Ohanian
and began to run down the hallway to his left. The agent turned after firing at
Morris and briefly made eye contact with Morales, who glanced behind him
as he went. The agent came closer to Morales and saw his left hand move in
front of his body. Agent Ohanian feared that Morales was reaching for a gun
and might shoot if he could reach the corner of the hallway and use it for
cover. The corner was about 20 feet from the door to Room 204.
— Agent Ohanian fired two shots at Mr. Morales. One bullet hit him and lodged
in his spine. Morales fell and the agent immediately stopped firing. From the
No. 03-1743
Page 6
first shot at Mr. Morris to the last shot at Mr. Morales, the incident took less
than three seconds.
— Mr. Morales was not armed at the time of the shooting.
— Agent Ohanian did not announce that she was a law enforcement officer before
opening fire.
On the basis of these facts the district court concluded that it was objectively
reasonable for Agent Ohanian to believe that Mr. Morales presented a threat of imminent
danger. In the court’s view, “Ohanian was reasonably fearful that Morales would very
quickly reach a place of cover at the near end of the corridor, from where he would be able
to shoot at Ohanian and/or Bodek.” The court also found that it was not feasible for Agent
Ohanian to announce her status before shooting and that it would not have been “prudent or
professional” for the agent to seek cover in Room 204 rather than engaging Morales.
After the district court entered judgment in favor of the United States, Mr. Morales
perfected a timely appeal.
II
Because the shooting occurred in Michigan, the law of that state governs Mr. Morales’
claim under the Federal Tort Claims Act. See 28 U.S.C. § 1346(b); Price v. United States,
728 F.2d 385, 387 (6th Cir. 1984). Michigan law is such that the United States cannot be held
liable if Agent Ohanian reasonably believed, at the time of the shooting, that Morales posed
No. 03-1743
Page 7
an imminent threat of death or serious bodily harm. See Price, 728 F.2d at 387; Alexander
v. Riccinto, 481 N.W.2d 6, 8 (Mich. App. 1991), appeal denied, 485 N.W.2d 564 (Mich.
1992). See also People v. Heflin, 456 N.W.2d 10, 18-19 (Mich. 1990) (holding that the use
of deadly force is justified “if the defendant honestly and reasonably believes that his life is
in imminent danger or that there is a threat of serious bodily harm”). Such a belief “does not
have to [have been] warranted as a matter of actual fact so long as it [was] reasonable.”
Price, 728 F.2d at 387.
“[W]hat constitutes a reasonable belief of great danger is to be determined by the
jury” – or, in this case, by the court in its role as fact-finder – “on the basis of all the facts and
circumstances as they appeared to the party [who used deadly force] at the time of the
incident.” Alexander, 481 N.W.2d at 8. The district court’s findings of fact may not be
disturbed on appeal unless they are clearly erroneous. See Fed. R. Civ. P. 52(a); Overton
Distributors, Inc. v. Heritage Bank, 340 F.3d 361, 366 (6th Cir. 2003).
It is beyond dispute, we believe, that when Agent Ohanian saw and felt Mr. Morales
move behind her as she stepped forward to aid Officer Bodek, she reasonably believed that
Morales posed a threat to her life. The agent’s training and experience told her that Morales
was probably armed. She knew that Morales’ accomplice, Mr. Morris, had drawn a gun and
that the drug transaction had turned into an attempted armed robbery. When she saw
Morales move behind her and felt something touch her back, she knew that Morales was an
No. 03-1743
Page 8
active participant in the robbery. At that time she concluded that Morales posed “a deadly
threat.” We have no reason to suppose that her conclusion was anything but reasonable.
Mr. Morales contends that it was unreasonable of Agent Ohanian not to revise her
assessment of the threat when, after shooting Mr. Morris, she turned to her left and saw
Morales moving away from her. We are not persuaded that the district court committed clear
error in rejecting that contention. For one thing, Morales’ flight did not rule out the
possibility of an attack. Morales’ glance at the agent, the movement of his hand in front of
his body, and the proximity of a corner that could provide him cover all suggested that
Morales could still pose a threat.
Moreover, these events occurred very quickly and fluidly. The district court found
that “this was not a series of discrete events which can be separated into two distinct
shootings requiring Ohanian to respond to Morales’ threat in a manner different from that
with which she responded to the threat from Morris. It was, rather, one continuous response
to a rapidly evolving situation in which four people were involved.” Having reviewed the
evidence, including an audio/video recording taken from the inside of Room 204, we see no
basis for rejecting that finding.1 In the circumstances presented here, we do not think it was
1
Because it was made from inside the motel room, the video recording captured only
the portion of the corridor that was directly in front of the open doorway. The video shows
Agent Ohanian moving towards Officer Bodek and Mr. Morris, Mr. Morales moving behind
the agent, Morales turning and running to his left, and the agent turning and following
Morales, but it does not show agent Ohanian shooting Morales. Nor does it show how
Morales was positioned, or what he was doing, when he was shot.
No. 03-1743
Page 9
unreasonable for Agent Ohanian to act without pausing to reassess the question of whether
Mr. Morales posed a deadly threat.
Mr. Morales argues that this case is controlled by Price v. United States, where a DEA
agent was held not to have been justified in shooting the plaintiff’s decedent in the back. It
seems to us, however, that Price is distinguishable. The man who was shot in Price had “not
done anything to arouse fear in police officers” before the agent opened the man’s car door
and pointed a gun at him. Price, 728 F.2d at 388. The agent fired when the man started
driving toward two other officers, even though those officers “had time to move out of the
car’s path and to shoot its front tires.” Id. We concluded that there had been no point at
which it was reasonable for the agent to fear imminent danger to himself or the other agents.
See id. at 389.
In the case at bar, by contrast, it was obviously reasonable for Agent Ohanian to
believe there was imminent danger when Mr. Morales moved behind her and touched her
back during the attempted armed robbery. The real question, in our view, is whether it was
reasonable for the agent to continue in that belief once Morales began moving away from
her. Price does not speak to this question, let alone compel a negative answer.
Citing authority for the proposition that “[d]eadly force is a last resort,” Price, 728
F.2d at 388, Mr. Morales argues that Agent Ohanian should have announced herself as a
federal agent before shooting. He also argues that instead of shooting she should have
retreated into Room 204. But given the “rapidly evolving situation” in which Agent Ohanian
No. 03-1743
Page 10
found herself – a situation that spanned less than three seconds – we cannot say that the
district court clearly erred in finding that a shouted warning was not feasible. Mr. Morales
might have drawn a weapon and fired in the time it took Agent Ohanian to announce her
identity. Nor can we say that the court clearly erred in finding that it would have been
irresponsible of Agent Ohanian to retreat into the room, thereby leaving Officer Bodek
exposed in the corridor.
The key to this case, it seems to us, is the fact that Agent Ohanian reasonably
perceived Mr. Morales to pose a deadly threat approximately three seconds before she shot
him. We do not think law enforcement officers can be expected to revise such perceptions
on a second-by-second basis in fast-moving situations such as the one in which Agent
Ohanian found herself. In circumstances of this sort, where a second or two might mean the
difference between life and death, officers must be permitted to protect themselves and one
another without waiting to see whether a mortal threat dissipates. We are satisfied that the
district court did not clearly err in finding that Agent Ohanian’s fear of death or serious
bodily harm was reasonable at the moment Mr. Morales was shot.
AFFIRMED.