                                        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
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                                               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
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—    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
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—    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
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     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
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       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
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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.
