Pellegrino v. United States

Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Chief Judge WALLACE.

MICHAEL DALY HAWKINS, Circuit Judge:

This is one of those difficult cases for which there is no simple solution. It arises in the context of the use of deadly force by federal law enforcement agents and deals, at bottom, with the reasonableness of their actions. Marie Pellegrino, individually and in her capacity as administratrix of the estate of John Pellegrino (“John”), and Joseph Pelle-grino (“Joseph”), who was present at the scene of the shooting, filed an action (“the Pellegrino claims”) against United States Customs Agents Stephen Fanter (“Fanter”) and Jeffrey Woods (‘Woods”) under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Woods and Fanter moved to dismiss or for summary judgment arguing that they were entitled to qualified immunity. The district court granted summary judgment as to Fan-ter and Woods on the basis of qualified immunity on all claims against Woods and all those against Fanter save those alleging Fanter’s use of excessive force. As to this claim, the district court concluded that a genuine issue of material fact existed concerning Fanter’s location at the time the shots were fired and whether Fanter reasonably believed his life was in danger. Both parties appeal; Fanter from the district court’s order denying him qualified immunity and the Pellegrinos urging that the facts do not justify qualified immunity protection for either agent.

I. Background Facts

The basic facts are essentially undisputed.¹ In the early morning hours of December 19, 1987, Agents Fanter and Woods were on an undercover surveillance assignment at a San Diego pier. The agents saw a vehicle approach the far end of the parking lot they were parked in. The agents presumed that the occupants of the vehicle, a man and a woman, were there for romantic reasons. Sometime later, the attention of the agents was drawn to the car. Through their binoculars they observed movements inside the car which looked like one person striking another. The agents decided to investigate. When they approached the ear, they observed a man on top of a woman with his pants down. When the agents approached, the woman inside the car started screaming for help. The agents announced themselves as law enforcement agents and ordered the occupants out of the ear.

John, who appeared clearly intoxicated to the agents, was ordered to leave the vehicle. When John persisted in his refusal to get out, Agent Fanter reached in and forcibly removed him from the car. Before Fanter could apply handcuffs to John, John was able to break free, jump back into the ear and attempt to drive off. A struggle ensued, in which Fanter struck John on the back of the head with his weapon. Agent Woods, in the meantime, was keeping an eye on the woman, who had previously extricated herself from the car.

At this moment, John’s brother Joseph ran up to the scene. Seeing his brother approach, John cried out: “Joey, Joey ... They’re no cops. They ain’t no cops, they ain’t no cops.” Able to start the car, John put it in reverse gear and raced backwards with Agent Fanter holding on to the door with one hand and his weapon with the other.

From this point, the parties are in sharp dispute as to the facts. Agent Fanter’s version has him in fear for his life and holding on to the speeding car for dear life when he fired three shots, at least two of which hit and fatally wounded John. The Pellegrinos contend that Fanter had jumped clear of the vehicle and was safely out of harm’s way when he fired.

It is this precise factual dispute which the district court could not resolve:

“Although the majority of the evidence ... weighs in favor of a finding of qualified immunity, ... the facts raised by plaintiffs, particularly on the issue of how far Fanter was [from the car] when he shot the decedent [John Pellegrino] and whether he [Agent Fanter] reasonably believed his life was in danger, do introduce a genuine issue of fact.”

II. Jurisdiction & The Merits

A. The Pellegrino Appeal

We have jurisdiction of the Pellegrino appeal under 28 U.S.C. § 1331 and we affirm. With respect to Woods, the district court properly ruled that Bivens liability is premised on proof of direct personal responsibility. Leonhard v. United States, 633 F.2d 599, 621 n. 30 (2d Cir.1980) cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981). Nor, in the absence of such proof, can Woods be held vicariously liable for the conduct of another. Sportique Fashions, Inc. v. Sullivan, 597 F.2d 664, 666 (9th Cir.1979).

The district court was also on solid ground in granting summary judgment with respect to the false imprisonment claims against both agents. The decision of a law enforcement officer to approach and temporarily detain someone in order to gather more information has been a fixed star in the law of arrest since Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889 (1968). Such investigatory stops do not require probable cause to arrest, but are reviewed under the standard of “founded suspi-eion” that criminal activity may be afoot. United States v. Taylor, 716 F.2d 701, 708 (9th Cir.1983). Nor is the use of force during a Terry “stop” in and of itself unreasonable where the force is justified by concern for the safety of the officer or others. United States v. Harrington, 923 F.2d 1371, 1373 (9th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991).

The decision of the district court to enter summary judgment as to Agent Woods on all counts and to also enter summary judgment as to Agent Fanter on the false imprisonment claims was well founded and supported by the record.

B. The Fanter Appeal

Unlike the Pellegrino appeal, we question whether we have jurisdiction with respect to the appeal of Agent Fanter. After this matter was argued and submitted, the Supreme Court decided Johnson v. Jones, — U.S. -, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), which held that, in a qualified immunity case, a district court determination that a summary judgment record raising genuine issues of fact is not a “final judgment” within the meaning of 28 U.S.C. § 1291 and is therefore not appealable. — U.S. at -, 115 S.Ct. at 2156.² The Supreme Court in Johnson framed the issue as follows:

“This case concerns governmental officials — entitled to assert a qualified immunity defense in a ‘constitutional tort’ action — who seek an immediate appeal of a district court order denying their motions for summary judgment. The order in question resolved a fact-related dispute about the pretrial record, namely whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial.”

Id. at-, 115 S.Ct. at 2153.

In dealing with the issue before us, we are mindful of the Supreme Court’s admonition in Johnson:

“[T]he issue here at stake — the existence, or non-existence of a triable issue of fact— is the kind of issue that trial judges, not appellate judges, confront almost daily. Institutionally speaking, appellate judges enjoy no comparative expertise in such matters.”

Id. at-, 115 S.Ct. at 2157.

III. Conclusion

We believe this case falls squarely within the teaching of Johnson. The district court could not resolve the disputed facts with respect to the remaining claims against Fan-ter and neither should we. A jury will need to sort them out. Accordingly, we dismiss Agent Fanter’s appeal (No. 93-56236) for lack of jurisdiction and affirm the district court with respect to those issues raised in the Pellegrino appeal (No. 93-56225). Each party is to bear its own costs.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

1 . Agent Fanter, it turns out, was wearing a concealed tape recorder which captured the audible sounds of the events at issue.

2 . We considered the post-argument briefs of the parties as to the impact of Johnson on this appeal.