                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                              Nos. 02-2941/02-2942
                                  ___________

Ronnie McCoy; Lori McCoy,              *
                                       *
           Appellees/Cross Appellants, *
                                       *
      v.                               *       Appeals from the United States
                                       *       District Court for the
City of Monticello; Mayor Harold       *       Eastern District of Arkansas.
West; Monticello Police Department;    *
Police Chief Sam Norris,               *
                                       *
           Defendants/Cross Appellees, *
                                       *
Ken Ouellette,                         *
                                       *
           Appellant/Cross Appellee. *

                                   ___________

                             Submitted: March 10, 2003

                                 Filed: September 8, 2003
                                  ___________

Before HANSEN,1 Chief Judge, RILEY and MELLOY, Circuit Judges.
                              ___________




      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
RILEY, Circuit Judge.

      On December 31, 2000, Ken Ouellette (Ouellette), an auxiliary police officer
with the Monticello Police Department, participated with Officer Hank Hollinger
(Hollinger) in a police pursuit of a vehicle driven by Ronnie McCoy (McCoy). The
pursuit ended when police forced McCoy’s truck off the ice-covered road into a ditch.
As Ouellette approached the vehicle with his gun drawn, he fell on the ice, his gun
discharged, and a bullet struck McCoy in the chest. McCoy and his wife (collectively
McCoys) sued the City of Monticello (City), its mayor, police chief, and Ouellette
under 42 U.S.C. § 1983, alleging violations of McCoy’s Fourth Amendment rights.
The district court granted summary judgment in favor of the City, but denied
Ouellette’s motion for summary judgment based on qualified immunity. Ouellette
appeals the denial of qualified immunity, and the McCoys cross appeal the entry of
summary judgment in favor of the City. We reverse the ruling on qualified immunity,
and decline to exercise jurisdiction over the cross appeal.

I.     BACKGROUND
       The McCoys celebrated New Year’s Eve at the Timberline Club in Monticello,
Arkansas. Shortly before midnight they left the club. Snow and sleet blanketed the
area, causing slippery road conditions. McCoy’s truck slid sideways as it exited the
parking lot and pulled onto Highway 425. Ouellette and Hollinger observed
McCoy’s truck sliding sideways or fishtailing and followed the truck, activating the
police cruiser’s blue lights and siren.

       McCoy claims he drove for a mile without incident and was unaware of the
police car behind him. McCoy testified he saw a white truck pull onto the roadway.
At some point, McCoy heard a siren and saw police lights. Assuming the police were
pursuing the white truck, McCoy continued driving. The police car passed and pulled
in front of McCoy’s truck. McCoy swerved to miss the police car, and his truck
landed in a ditch. McCoy exited his truck and raised his arms into the air. McCoy


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did not have a weapon. He next observed two officers approaching him. Hollinger
had fallen and was getting up. With his arms extended over his head and hands
clasped, as if holding a handgun, Ouellette ran towards McCoy. When Ouellette was
within a few feet of McCoy, Ouellette slipped, his gun discharged, and a bullet struck
McCoy in the chest, severely injuring him. McCoy was never charged with any
crime.2

       The McCoys filed a section 1983 action against Ouellette, and municipal
defendants Mayor Harold West, the Monticello Police Department, Police Chief Sam
Norris, and the City. The district court granted summary judgment in favor of the
municipal defendants, but denied Ouellette’s motion for summary judgment based on
qualified immunity. The district court found Ouellette seized McCoy, and ruled “a
genuine issue of fact [existed] as to whether a reasonable officer would have known
that his actions in drawing his gun were unreasonable and, therefore, unlawful under
the circumstances.”

      Ouellette seeks an interlocutory review of the denial of his summary judgment
motion, contending the district court erred because (1) Ouellette did not seize McCoy,
and (2) no genuine issue of fact exists as to the reasonableness of the force used. The
McCoys cross appeal, claiming the district court erred in granting summary judgment
in favor of the municipal defendants.

II.   DISCUSSION
      A.    Qualified Immunity
      We review de novo a denial of qualified immunity. Holloway v. Reeves, 277
F.3d 1035, 1037 (8th Cir. 2002). Individual defendants are entitled to qualified


      2
     Ouellette described a significantly different version of the encounter than the
McCoys. For summary judgment purposes, we accept the McCoys’ version.


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immunity unless their alleged conduct violated “clearly established statutory or
constitutional rights of which a reasonable person [in their positions] would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The law is clearly
established if it gives the defendant official “fair warning” that his conduct violated
an individual’s rights when the official acted. Hope v. Pelzer, 536 U.S. 730, 739-40
(2002).

       In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court framed the
threshold question: “Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the [defendant’s] conduct violated a constitutional
right?” “If no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified immunity.
On the other hand, if a violation could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the right was clearly
established.” Id. “The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Id. at 202. An officer does
not lose his qualified immunity because of a mistaken, yet reasonable belief, nor does
an officer lose his immunity because of a reasonable mistake as to the legality of his
actions. Id. at 205-06.

      1.    Seizure
      To establish a violation of the Fourth Amendment in a section 1983 action, the
claimant must demonstrate a seizure occurred and the seizure was unreasonable.
Hawkins v. City of Farmington, 189 F.3d 695, 702 (8th Cir. 1999). A Fourth
Amendment seizure occurs when an officer restrains the liberty of an individual
through physical force or show of authority. Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968). Although seizure requires restraint of an individual’s liberty, not every
government act resulting in a restraint of an individual’s liberty constitutes a seizure.
See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989). To be a violation of the

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Fourth Amendment, the restraint in liberty must be effectuated “through means
intentionally applied.” Id. at 597; see Hawkins, 189 F.3d at 701. A Fourth
Amendment “seizure” requires an intentional act by a governmental actor.3 Brower


      3
       The shooting was unintentional, thereby raising an interesting question of law:
after an intentional Fourth Amendment seizure has occurred, does an accidental
shooting implicate the Fourth Amendment? The Second Circuit has indicated the
answer may be no. In Dodd v. City of Norwich, 827 F.2d 1, 7-8 (2d Cir. 1987) (on
reargument), the Second Circuit explained:

      The fourth amendment . . . only protects individuals against
      “unreasonable” seizures, not seizures conducted in a “negligent”
      manner. The Supreme Court has not yet extended liability under the
      Fourth Amendment to include negligence claims. Only cases involving
      intentional conduct have been considered by the Supreme Court.
      Negligence, in fact, has been explicitly rejected as a basis for liability
      under the Fourteenth Amendment. See Daniels v. Williams, 474 U.S.
      327, 106 S. Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474
      U.S. 344, 106 S. Ct. 668, 88 L.Ed.2d 677 (1986).

 See Owl v. Robertson, 79 F. Supp.2d 1104, 1114 (D. Neb. 2000) (reasoning “if the
shooting was truly accidental, then there was no violation of Owl’s Fourth
Amendment rights since the act of drawing the weapon and the act of forcing Owl to
the ground were not . . . excessive under the Fourth Amendment . . . . This is because
the Fourth Amendment protects citizens against willful shootings and not accidental,
but otherwise reasonable, ones.”); Troublefield v. City of Harrisburg, 789 F. Supp.
160, 166 (M.D. Pa. 1992) (finding Brower “requires that some nature of volitional act
on the part of the state actor must cause the harm to plaintiff for a fourth amendment
excessive force claim to sound. . . . However, as Troublefield was injured by a bullet
fired by accident, no fourth amendment rights have been trampled upon because [the
officer] did not intend the bullet to bring plaintiff within his control or to, perhaps,
settle him down were he struggling to break free.”); see also Kathryn R. Urbonya,
“Accidental” Shootings As Fourth Amendment Seizures, 20 Hastings Const. L. Q.
337, 363-67 (Winter 1993). Because we hold Officer Ouellette’s post-seizure
conduct was objectively reasonable, we need not decide this issue.


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at 596-97. In Brower, the Supreme Court explained “the Fourth Amendment
addresses ‘misuse of power,’ . . . not the accidental effects of otherwise lawful
government conduct.” Id. (citation omitted).

       In Hawkins, we held a Fourth Amendment seizure occurred when a police
officer moved his car onto the highway to stop a speeding motorcycle, reasoning that
the police officer had accomplished the stop through means intentionally applied. Id.
at 702. Viewing the material facts in the light most favorable to the McCoys, the
district court correctly found Ouellette and Hollinger intended to stop McCoy’s
vehicle and to terminate McCoy’s freedom of movement by a show of authority
intentionally applied. Ouellette also drew his gun with the intent to cause McCoy to
submit to Ouellette’s authority by threat of force, thereby satisfying the “through
means intentionally applied” standard. Brower, 489 U.S. at 597. In response to this
display of force, McCoy stated he exited his truck and raised his hands above his
head, thereby establishing a seizure.

       2.     Objective Reasonableness
       However, as Brower makes clear, a seizure, standing alone, is not sufficient for
section 1983 liability. The seizure must be unreasonable. Brower, 489 U.S. at 599;
Hawkins, 189 F.3d at 702. We analyze an excessive force claim under the Fourth
Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386,
395-97 (1989). Reasonableness of a seizure is determined by the totality of the
circumstances and must be judged from the viewpoint of a reasonable officer on the
scene, irrespective of the officer’s underlying intent or motivation. Id. at 396-97;
Hawkins, 189 F.3d at 702. The reasonableness of force depends on the facts and
circumstances of each case accounting for “[(1)] the severity of the crime at issue,
[(2)] whether the suspect poses an immediate threat to the safety of the officer or
others, and [(3)] whether he is actively resisting arrest or attempting to evade arrest
by flight.” Id. at 396. Whether an officer’s use of force is reasonable is “judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

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of hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must
embody 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.” Id. at 396-97.

              a.    Traffic Stop
       Ouellette observed McCoy’s truck slide sideways or fishtail while exiting the
parking lot of the Timberline Club around midnight on New Year’s Eve. Although
the roads had recently become slick, a reasonable officer could suspect McCoy’s
driving abilities were impaired due to intoxication, and could believe McCoy posed
a serious and immediate danger to himself and to others. McCoy testified he was not
aware he was being pursued and assumed the police were pursuing a white truck.
The police pursuit of McCoy’s truck continued for at least a mile. A reasonable
officer could believe the McCoys were actively fleeing to resist arrest. Under these
circumstances, the police had probable cause to stop McCoy’s truck. The intentional
act of stopping McCoy’s truck constituted a seizure and was, under the totality of the
circumstances, objectively reasonable.

             b.     Display of Force
       The problem here occurred when Ouellette drew, but did not cock, his gun and
hurried down the slippery terrain toward McCoy’s truck in the ditch. Within a few
feet of approaching McCoy, Ouellette apparently slipped on the ice, and his gun
discharged accidentally, seriously injuring McCoy. Thus, the relevant inquiry is not
whether Ouellette’s act of firing his gun was “objectively reasonable,” but whether,
under the totality of the circumstances, his act of drawing his gun was “objectively
reasonable.”

       Ouellette and Hollinger observed McCoy’s truck leaving a night club on New
Year’s Eve near midnight. The officers next saw McCoy’s truck sliding sideways or
fishtailing on a road surface covered with recent snow and sleet. The officers

                                          7
activated their vehicle’s flashing blue lights and siren. McCoy did not pull over.
Ouellette and Hollinger actively pursued McCoy for a mile or more before the
officers passed and pulled in front of McCoy. McCoy’s truck swerved off the road
and slid backwards into a ditch. The officers had reason to believe McCoy was
driving while intoxicated and was attempting to avoid arrest for that reason, or for
some other illegal purpose.

       In opposing summary judgment, McCoy argued the City had a custom or
regular police practice of officers drawing their firearms when approaching a felony
stop, which included a traffic stop of a driver who has fled. Hollinger testified that,
as he exited the police cruiser, he drew his firearm and pointed it at McCoy’s truck.
The McCoys’ evidence does not indicate whether the officers saw, or could have
seen, McCoy exit his truck in the ditch, at night, with his hands above his head. The
McCoys’ evidence also does not show whether Ouellette saw, or was in a position
where he could have seen, Hollinger slip and fall on the ice, or whether Ouellette was
otherwise on notice of the treacherous footing.

       Based on the totality of circumstances, and viewing the summary judgment
facts in a light most favorable to the McCoys, we conclude a jury could not properly
find Ouellette’s act of drawing his gun was objectively unreasonable, entitling
Ouellette to qualified immunity. Any other interpretation of this record is gleaned
from 20/20 hindsight as opposed to judging the circumstances from the perspective
of a reasonable officer following customary police practices. See Graham, 490 U.S.
at 396.

      B.      Cross Appeal
      The McCoys cross appeal the district court’s grant of summary judgment in
favor of the municipal defendants on claims alleging (1) a failure to train properly,
and (2) an unconstitutional practice or custom regarding an officer’s use of a firearm
incidental to traffic stops. The district court did not enter its order pursuant to Federal

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Rule of Civil Procedure 54(b), which would make the order final for the purpose of
appeal under 28 U.S.C. § 1291. See Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th
Cir. 1999). To entertain this cross appeal would require us to exercise pendent
appellate jurisdiction. Kincade v. City of Blue Springs, 64 F.3d 389, 394 (8th Cir.
1995).

       Pendent appellate jurisdiction is appropriate “where [an] otherwise
nonappealable decision is ‘inextricably intertwined’ with the appealable decision, or
where review of the nonappealable decision is ‘necessary to ensure meaningful
review’ of the appealable one.” Id. (quoting Moore v. City of Wynnewood, 57 F.3d
924, 930 (10th Cir. 1995)). A claim is inextricably intertwined “when the appellate
resolution of the collateral appeal necessarily resolves the pendent claim as well.” Id.
(quoting Moore, 57 F.3d at 930). The factual issues involved in the municipal claims
are separate and distinct from those involved in the qualified immunity defense. We
decline to exercise pendent appellate jurisdiction.

III. CONCLUSION
     For the foregoing reasons, we reverse the district court’s denial of qualified
immunity and dismiss the cross appeal for lack of jurisdiction.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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