          United States Court of Appeals
                        For the First Circuit


No. 14-2116

                        JONATHAN E. MITCHELL,

                        Plaintiff, Appellant,

                                  v.

                            ROBERT MILLER,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                    Howard, Thompson, and Barron,
                           Circuit Judges.



     Michael J. Waxman for Jonathan E. Mitchell.
     Mark E. Dunlap, with whom Norman, Hanson & DeTroy, LLC was
on brief, for Robert Miller.


                            June 15, 2015
            THOMPSON, Circuit Judge.    We seldom do our best thinking

in the murky hours when late night seeps into early morning.     What

strikes one as a fine idea in the darkness may reveal itself to be

a brilliant mistake in the cold light of dawn.         Decisions made

well past 4 a.m. by two men -- one a suspect, the other a police

officer -- are at the heart of this appeal.     Jonathan E. Mitchell,

once the suspect, now the plaintiff, decided to break in to his

estranged wife's apartment to talk about their relationship, and

then opted to lead police on a car chase.        He now contends that

Officer Robert Miller violated his Fourth Amendment rights when

Miller shot him as he sped away.          The district court granted

summary judgment to Miller, finding that the officer was entitled

to qualified immunity.    Although Mitchell appeals that judgment,

because we find the district court reached the right decision, we

affirm.

                                 I.

                             Background

            On the evening of April 9, 2011 in Portland, Maine,

Jonathan E. Mitchell spent time drinking at a bar and smoking

marijuana before deciding to help himself to a friend's Volkswagen

Jetta.    In the wee small hours of the 10th, Mitchell had the idea

of visiting his estranged wife to talk "about their relationship."

Perhaps anticipating the reception he might receive, instead of


                                - 2 -
calling or ringing the bell, Mitchell broke into the sleeping

woman's apartment.   He then woke her and talked to her in what he

characterizes as an attempt "to rekindle their relationship."

Unsurprisingly, she viewed his behavior as more of a criminal act

than a display of ardor, and, once Mitchell made his exit, she

called the police.   The woman reported the break-in at 4:39 a.m.,

and provided a description of the Jetta, as well as the direction

in which Mitchell was driving when he left.

          The   police   dispatcher,    in   turn,   passed   along   the

information to patrol officers and added that: Mitchell's driver's

license had been revoked as a habitual offender; he was a sexually-

violent convicted felon; and he was reported to be under the

influence of alcohol or drugs and "possibly unstable."         Portland

Police Officer Robert Miller was on patrol that evening when he

heard the report of the residential burglary, spotted the Jetta,

and began to follow Mitchell. A video camera mounted to Mitchell's

cruiser recorded the subsequent events.1

          Mitchell turned into a residential neighborhood and

drove at a normal rate of speed, stopping at stop signs and using


     1 Both Mitchell and Miller rely on the factual summary in the
district court's order. The district court, in turn, relied on
the videotape from Miller's cruiser, as well as that of Officer
Schertz, who also responded to the radio call. Because the facts
are largely undisputed, we too shall rely on the district court's
recitation, and our own review of the videotapes.

                                - 3 -
his turn signal.        After Miller confirmed that this was the Jetta

he had been looking for, he turned on his blue lights and siren.

Rather than pull over, Mitchell continued to drive at a moderate

speed for over a minute.           At this point, Officer David Schertz

joined the pursuit in his own cruiser.

            Mitchell, now tailed by two cruisers, sped up and drove

down residential side streets at speeds of up to sixty-five miles

per hour.       After another forty seconds, Mitchell turned down a

dead-end residential street and, at the end of the street, veered

up onto an embankment, coming to rest three to four feet above

street level.      The remainder of the incident, captured on video,

took only twenty-six seconds to unfold.

            As Miller parked his cruiser behind the Jetta, and

Schertz parked behind Miller, Mitchell began backing the Jetta

down the embankment. Miller emerged from the cruiser, and Mitchell

pulled   the    Jetta   abruptly    forward   two   to   three   feet   before

stopping.      Miller approached the Jetta with his gun drawn, yelling

loudly to Mitchell to get out of the car.           Schertz then exited his

cruiser and followed Miller.           When Mitchell did not obey his

commands, Miller opened the driver's side door of the Jetta with

his left hand, keeping the gun pointed at Mitchell with his right.

As Miller held the door, the Jetta again lurched forward.               Schertz

also grabbed the door of the Jetta with his left hand.                   Miller


                                     - 4 -
then reached into the passenger compartment and began to grapple

with Mitchell.   At one point, Miller stepped back slightly and the

car rolled backwards.     As Miller continued to try to get hold of

Mitchell, the Jetta lurched forward several feet, and its wheels

turned sharply to the left.      Both officers sidestepped to keep

pace with the moving car.

          Miller continued to tussle with Mitchell as the car once

again rolled backwards.     Schertz repositioned himself somewhat,

moving from Miller's left and in front of the open driver's side

door, to behind Miller.     The Jetta's engine began to rev and its

tires squealed as Mitchell threw the car into a rapid u-turn to

the left (the side where the officers were standing).       Miller,

still holding the door, was briefly pulled around by the car, but

did not fall. Miller then fired two shots in Mitchell's direction.

          The Jetta sped away.     Mitchell, with one bullet lodged

in his shoulder (the other having passed through his neck), drove

to a friend's house and ingested some opiates.        He was later

apprehended at the friend's house.

          In April 2013, Mitchell filed suit against Miller, the

city of Portland, and its chief of police.   The lawsuit originally

alleged four counts, two of which, against the city and the police

chief, were voluntarily dismissed.      As to the remaining counts,

Mitchell alleged that Miller had violated his Fourth Amendment


                                - 5 -
rights, and had committed common law assault.            Miller moved for

summary judgment, arguing that he had used reasonable force, and

that he was protected by qualified immunity.             On September 26,

2014, the district court awarded summary judgment to the defendant

on the grounds of qualified immunity (for the 42 U.S.C. § 1983

claim) and discretionary act immunity (for the assault claim).

This appeal followed.

                                    II.

                                 Discussion

             Mitchell   argues   that   the   district   court   erred   by

concluding "that Defendant Miller 'could reasonably have believed

at least one other person in the immediate vicinity was in great

danger,'" and by holding that Miller was entitled to qualified

immunity.2

             We review a grant of summary judgment de novo, drawing

all reasonable inferences in the light most favorable to the non-

moving party.     Alicea v. Machete Music, 744 F.3d 773, 778 (1st

Cir. 2014).    Here, the inferences that can reasonably be drawn are



     2 Mitchell makes no separate argument regarding his state law
claim and discretionary authority. Miller contends, and Mitchell
does not dispute, that although the terminology differs, the
standard for determining discretionary authority for the state
tort claim is the same as the standard for determining qualified
immunity for the federal claim, so we will address them as one.
Richards v. Town of Eliot, 780 A.2d 282, 292 (Me. 2001).

                                   - 6 -
limited by the existence of video evidence.            See Scott v. Harris,

550 U.S. 372, 380-81 (2007).      We will affirm the grant of summary

judgment only if "there is no genuine dispute as to any material

fact" and the moving party is "entitled to judgment as a matter of

law."     Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 10

(1st Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).             We may affirm

the grant of summary judgment on any basis apparent from the

record.    Id.

            A claim that a police officer used excessive force "is

governed by the Fourth Amendment's 'reasonableness' standard."

Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014).            To determine

whether an officer's actions were objectively reasonable, we must

balance    "the   nature   and   quality    of   the    intrusion   on   the

individual's Fourth Amendment interests against the countervailing

governmental interests at stake."          Id. (internal quotation marks

and citation omitted).      In so doing, we analyze the totality of

the circumstances, taking the "perspective of a reasonable officer

on the scene, rather than . . . the 20/20 vision of hindsight."

Id. (internal quotation marks omitted).

            Even if it is not clear that the use of force was

reasonable, under the doctrine of qualified immunity, a police

officer is protected from liability for civil damages under § 1983

"unless it is shown that the [officer] violated a statutory or


                                  - 7 -
constitutional right that was clearly established at the time of

the challenged conduct."       McGrath v. Tavares, 757 F.3d 20, 29 (1st

Cir. 2014) (quoting Plumhoff, 134 S. Ct. at 2023).                  "An officer

cannot be said to have violated a clearly established right unless

the    right's    contours    were    sufficiently       definite       that     any

reasonable official in [his] shoes would have understood that he

was violating it, meaning that existing precedent . . . placed the

statutory or constitutional question beyond debate."                    City and

Cnty. of San Francisco, California v. Sheehan, 135 S. Ct. 1765,

1774   (2015)    (internal   quotation     marks   and    citations      omitted)

(alterations in original).

            The plaintiff bears the burden of demonstrating that the

law was clearly established at the time of the alleged violation,

and it is a heavy burden indeed.           McGrath, 757 F.3d at 29.            "This

exacting standard gives government officials breathing room to

make reasonable but mistaken judgments by protecting all but the

plainly incompetent or those who knowingly violate the law."

Sheehan, 135 S. Ct. at 1774 (internal quotation marks, alteration,

and citation omitted) (bracket omitted).              For reasons that will

become clear, because we find that Miller is protected by qualified

immunity,   we    do   not   reach   the   question      of   whether    he     used

reasonable force.




                                     - 8 -
                                Analysis

            We "employ a two-prong analysis" to determine whether an

officer is protected by qualified immunity.       Mlodzinski v. Lewis,

648 F.3d 24, 32 (1st Cir. 2011).     We first determine "whether the

facts alleged or shown by the plaintiff make out a violation of a

constitutional right."    Id.   If such a violation is shown, we then

determine whether the law "was clearly established at the time of

the defendant's alleged violation."      Id. (internal quotation marks

omitted).

            This two-step process is not mandatory; courts have the

discretion, where warranted, to proceed directly to the second

prong.   Pearson v. Callahan, 555 U.S. 223, 236 (2009).       In fact,

the Supreme Court has urged us to "think carefully before expending

scarce judicial resources to resolve difficult and novel questions

of constitutional or statutory interpretation that will have no

effect on the outcome of the case."        Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2080 (2011) (internal quotation marks and citation

omitted).    The district court took this approach, and we will

likewise move straight to the second prong.

                       1. Clearly Established

            Mitchell has the burden of demonstrating that as of April

10, 2011, the time of the alleged violation, the law was clearly

established such that a reasonable officer in Miller's shoes would


                                 - 9 -
be on notice that his actions would violate the Fourth Amendment.

McGrath, 757 F.3d at 29.        Although "[w]e do not require a case

directly on point . . . existing precedent must have placed the

statutory or constitutional question beyond debate."       Taylor v.

Barkes, 575 U.S. ___, No. 14-939, slip op. at 4 (U.S. June 1, 2015)

(internal quotation marks and citation omitted).     To determine the

state of the law as of that date, we first turn to the Supreme

Court's opinion in Brosseau v. Haugen, 543 U.S. 194 (2004).

          The conduct at issue in Brosseau occurred in February

1999.   Id. at 200 n.4.    Police Officer Brosseau responded to a

fight in progress and chased one of the participants (Haugen) on

foot.   Id. at 196.    When Haugen jumped into a parked Jeep and

locked the doors, refusing to exit the vehicle, Officer Brosseau

struck the Jeep's window several times with her handgun before

shattering it.   Id.   She then reached into the car and attempted

to wrest the keys from Haugen.         Id.   Haugen prevailed in the

struggle, managing to start the Jeep and throw it into gear,

driving in the direction of an occupied vehicle and forcing

Brosseau to jump back.    Id.    Brosseau fired one shot as the Jeep

drove off, hitting Haugen in the back.        Id. at 196-97.   Haugen

filed a § 1983 action alleging that Brosseau used excessive force.

Id. at 194-95.   Officer Brosseau argued that she fired her gun in

reasonable fear for the safety of other officers in the area,


                                 - 10 -
passengers in the occupied vehicle, and "any other citizens who

might be in the area."     Id. at 197.   The district court granted

summary judgment to Brosseau on the grounds of qualified immunity,

and the Ninth Circuit reversed.     Id. at 195.    The Supreme Court

"express[ed] no view as to the correctness of the Court of Appeals'

decision on the constitutional question," but held that the right

was not clearly established, and Brosseau was entitled to qualified

immunity.   Id. at 198.   As the Supreme Court has since instructed,

"Brosseau makes plain that as of February 21, 1999 -- the date of

the events at issue in that case -- it was not clearly established

that it was unconstitutional to shoot a fleeing driver to protect

those whom his flight might endanger."      Plumhoff, 134 S. Ct. at

2023.

            In McGrath, a more recent case involving a police officer

who fired on a fleeing driver, we determined that there were two

paths a plaintiff could take to avoid summary judgment under the

second prong of the qualified immunity analysis: "a plaintiff would

have to show at a minimum that the officer's conduct is materially

different from the conduct in Brosseau or that between February

21, 1999 and the date of the alleged constitutional violation there

emerged either controlling authority or a robust consensus of cases

of persuasive authority that would alter our analysis of the

qualified immunity question."     McGrath, 757 F.3d at 30 (quoting


                                - 11 -
Plumhoff, 134 S. Ct. at 2023) (internal quotation marks omitted).

Although   Mitchell   argues    that   Miller's     conduct    is   materially

different from that of Officer Brosseau, he does not argue that

either controlling authority or a robust consensus has arisen in

the years since Brosseau that would render unreasonable a police

officer's use of deadly force in a case such as this.3 See McGrath,

757 F.3d at 30.    Accordingly, our task is further narrowed and we

will focus solely on whether Miller's conduct was materially

different from the conduct in Brosseau.

                         i. Materially Different

           Mitchell attempts to distinguish the facts of this case

from Brosseau, arguing that neither Miller nor anyone else was in

danger of death or serious injury.                There are some striking

parallels between this case and Brosseau: both cases involve a

suspect who refused to exit a vehicle; an officer with gun drawn

who wrestled with the suspect for control of the car; and shots

fired as the suspect drove away.       Mitchell focuses his argument on

the distinctions that exist between the two cases: that there was

no active arrest warrant for Mitchell as there was for the suspect

in   Brosseau;   that,   in   Brosseau,    "the    officer    believed   other



      3"[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

                                  - 12 -
officers were in the immediate area" of the escaping vehicle; and

that, unlike Brosseau, no person or vehicle was directly in the

Jetta's path.    As we shall discuss, these are distinctions without

a difference.

             Although a warrant had not been issued for Mitchell's

arrest, Miller was aware that Mitchell was a sexually-violent

convicted felon suspected of breaking into his estranged wife's

apartment, and that he was reported to be driving without a license

while under the influence of alcohol or drugs and "possibly

unstable."     It is likely, therefore, that Miller and Brosseau had

similar reasons for concern, and certainly more than probable cause

to arrest.

             Mitchell's second distinction, if correct, would be more

compelling. He points out that, in Brosseau, "the officer believed

other officers were in the immediate area" of the escaping vehicle.

At oral argument, Mitchell's attorney distinguished this fact by

stating that Officer Miller said nothing in his police report about

fearing for the safety of Officer Schertz.     According to counsel,

that motivation surfaced for the first time during Officer Miller's

deposition.     Curious, we dug a little deeper.   Although Mitchell

did not include the police report in the record submitted to us,

we found that it was attached to the deposition in the district




                                - 13 -
court docket.   The following is from the very end of the narrative

in that report:

          Knowing the danger of a motor vehicle being
          driven recklessly I felt my life and Ofc.
          Schertz's life were in imminent danger. At no
          time did Mitchell obey any of our verbal
          commands nor did he show any concern for our
          lives or the general public.     There was no
          question in my mind that Mitchell would have
          stopped at nothing to get away.

Clearly, despite counsel's representation to the contrary, Officer

Miller has consistently stated that he was motivated by fear for

his own life as well as that of Officer Schertz.4

          Mitchell argues that Miller could not reasonably have

believed (as Brosseau claimed to) that he or anyone else was in

danger because neither the officers nor anyone else were in the

path of the Jetta.5   However, the test is not whether a person was

actually directly in the path of the car, but whether it was

reasonable for Miller to believe -- at the point when events were



     4 "[A] genuine dispute as to a material fact cannot be created
by relying on the hope that the jury will not trust the credibility
of the witness. There must be some affirmative evidence that the
officer[] [is] lying. There is none in this case, and there is
nothing inherently unbelievable" about Officer Miller's testimony.
McGrath v. Tavares, 757 F.3d 20, 30 n.13 (1st Cir. 2014) (internal
quotation marks and citation omitted).
     5 We note that while Brosseau asserted that she acted out of

fear for her fellow officers, for occupants in vehicles in Haugen's
path and other citizens, the Supreme Court expressed no view as to
whether her use of force was reasonable. Brosseau v. Haugen, 543
U.S. 194, 198 (2004).

                               - 14 -
rapidly unfolding -- that someone was at risk of serious physical

harm.   Plumhoff, 134 S. Ct. at 2021 (citing Scott, 550 U.S. at

381).   Both men were standing close to the Jetta at the point at

which Mitchell threw the car into a rapid, tight U-turn, and Miller

was still holding onto the car's door at the time.           As the video

reveals, although Schertz had repositioned himself shortly before

the turn, Miller's focus was trained on Mitchell and he likely did

not see Schertz move in his peripheral vision.          Miller did not

have a duty to "turn around and pin down [his partner's] exact

location."     McGrath, 757 F.3d at 28.     We "must account 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."      Id. at 25-26 (internal quotation marks

and citation omitted). Miller faced just such a circumstance here;

the confrontation with Mitchell -- following what was at times a

high-speed chase -- lasted only twenty-six seconds.

             Our review of the evidence leads us to conclude that in

all material ways, the facts of this case are similar to that of

Brosseau, in which the Supreme Court held that it was not clearly

established    that   the   officer's   conduct   violated    the   Fourth

Amendment.     Because this case is not materially different from

that of Brosseau, and in the absence of any subsequent contravening


                                 - 15 -
authority, Mitchell has failed to demonstrate that it was clearly

established   that    Miller's      conduct    was   constitutionally

unreasonable in these circumstances.          We hold that Miller is

protected by qualified immunity.

                                  III.

                            Conclusion

          Our de novo review reveals no genuine dispute as to any

material fact, therefore Miller is entitled to judgment as a matter

of law.   Accordingly, we affirm the District Court's entry of

summary judgment.




                                 - 16 -
