PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENDA HOWERTON, Administratrix
of the Estate of Daryl Eugene
Howerton,
Plaintiff-Appellant,

v.
                                                                    No. 98-2795
CHARLES C. FLETCHER, Individually
and in his official capacity; JOSE
EMILIO BLANCO, Individually and in
his official capacity; CITY OF
GREENSBORO,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-97-414-1)

Argued: March 2, 2000

Decided: May 12, 2000

Before WILKINS and LUTTIG, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.

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Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkins and Senior Judge Michael joined.

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COUNSEL

ARGUED: Marvin Ray Sparrow, Durham, North Carolina, for
Appellant. Joseph Robert Beatty, HILL, EVANS, DUNCAN, JOR-
DAN & DAVIS, P.L.L.C., Greensboro, North Carolina, for Appel-
lees. ON BRIEF: Polly D. Sizemore, Joseph P. Gram, HILL,
EVANS, DUNCAN, JORDAN & DAVIS, P.L.L.C., Greensboro,
North Carolina, for Appellees.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

A jury returned a verdict against plaintiff-appellant Brenda Hower-
ton in her suit under 42 U.S.C. § 1983 against two members of the
City of Greensboro police department, in which she alleged that the
use of excessive force by the police officers caused her son's death.
Howerton now challenges the district court's instruction that, in
deciding whether the force used against her son was"excessive," the
jury was not to consider the risk posed to third parties by the officers'
actions. Concluding that the district court did not err in its instruction,
we affirm.

I.

On September 8, 1994, Daryl Howerton, who was mentally dis-
abled, was walking into a barber shop, wearing only a cap and sun-
glasses and carrying a knife, when two Greensboro, North Carolina
police officers, appellees Charles Fletcher and Jose Blanco, arrived on
the scene in response to a telephone call from an employee at a
nearby business. As the officers exited their car, several people were
leaving the barber shop, and one of these individuals told the officers
that there was a naked man with a knife inside. According to the offi-
cers' testimony, Howerton began to approach a third party, Jamie
Moore, who was standing just outside the barber shop. Perceiving that
he was attempting to attack Moore, and after unsuccessfully trying to
subdue him with mace, the officers shot and killed Howerton.1
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1 Plaintiff's witnesses testified at trial that Howerton never actually
advanced on or acted aggressively toward Moore. However, the jury was
instructed that it could find the use of deadly force to be reasonable
under the Fourth Amendment if such force was used to defend an officer

                     2
Howerton's mother filed this section 1983 action, alleging that the
officers used excessive force, and that the city of Greensboro was
deliberately indifferent in training its police officers as to issues
regarding the use of deadly force against the mentally disabled. The
district court granted summary judgment to the municipality on the
deliberate indifference claim. The excessive force claim against the
officers proceeded to trial.

During the trial jury's deliberations, the jury informed the court
that eleven jurors had agreed on a verdict, but that one wanted to
abstain. The next morning, the district court explained to the jury that
abstention was impermissible. Roughly one hour later, the jury fore-
man submitted to the court a note that read:

          Could we have a clarification on the Greensboro Police
          Department definition of public safety as it pertains to their
          policy number 1.6.3, "use of force."

J.A. 93. The court was unsure of exactly what the jury meant to ask
and, in an effort at clarification, the court asked the foreman if the
jury meant the note to refer to official "disregard for public safety of
other people in the area." J.A. 94. The foreman confirmed that the
note was so intended, and the court instructed the jury that it was not
to consider risks to persons other than Howerton:

           [I]n this case, you are not to consider in reaching your deter-
           mination the public safety of other individuals. The only suit
           here is the determination of whether excessive force was
           used against the deceased or not used -- [ ] there was either
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or a third person from the imminent infliction of deadly force on that per-
son. See J.A. 71 ("The law provides that an officer may use his firearm
or other deadly force to defend himself or a third person from what he
reasonably believes to be the . . . immediate/imminent use of deadly
physical force."). We assume of course that the jury followed this
instruction, and the appellants do not suggest otherwise. Given that the
jury found in favor of the officers, the jury thus must have found that the
use of deadly force by Howerton against either the officers or Moore was
immediate or imminent at the time the officers opened fire on Howerton.

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          excessive force used against the deceased, or there was not
          excessive force used against the deceased.

           The fact that other people or property may have been hit
          by bullets is not for your consideration in this matter. You
          will confine yourselves to a determination of the matter
          involving the deceased and the officers shooting.

J.A. 94-95. Fifteen minutes after the jury resumed its deliberations, it
returned a verdict in favor of the officers.

Brenda Howerton now appeals, claiming that the district court's
above-quoted instruction was in error.

II.

Howerton contends that, because a jury is to consider "the totality
of the circumstances," Tennessee v. Garner, 471 U.S. 1, 8-9 (1985),
in determining whether excessive force has been used, the district
court erred in instructing the jury that it was not to consider risk to
bystanders as one such "circumstance." Her claim is a novel one. The
parties conceded at argument that they were unable to find a case in
which such a claim was ever advanced, and such a claim has never
been addressed by the Supreme Court or any Court of Appeals. While
we do not dismiss the argument out of hand, upon reflection we reject
the argument because we conclude that its premise, that the danger to
which third persons are exposed is directly relevant to the question
whether excessive force was employed against the plaintiff, is incor-
rect.

In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court
articulated the framework within which excessive force claims are to
be evaluated:

          In addressing an excessive force claim brought under
          § 1983, analysis begins by identifying the specific constitu-
          tional right allegedly infringed by the challenged application
          of force. . . . The validity of the claim must then be judged
          by reference to the specific constitutional standard which

                     4
          governs that right, rather than to some generalized"exces-
          sive force" standard.

Id. at 394. When, as here, the excessive force claim is asserted under
the Fourth Amendment, the plaintiff in effect argues that his personal
freedom of movement was unreasonably restrained by the official
conduct. The question that must be resolved, therefore, is whether it
was objectively reasonable to use the force that was used in order to
affect that individual's seizure. See id. at 395-96. The resolution of
this question turns upon the conduct of the plaintiff which prompted
the attempted seizure in the first place, the amount of force employed
to affect the seizure, and the justification for the particular force used.

As such, the question is not whether the officer acted reasonably
vis-a-vis the world at large. Rather, the question is whether the officer
acted reasonably as against the plaintiff. See Archuleta v. McShan,
897 F.2d 495, 497 (10th Cir. 1990) ("[A] section 1983 claim must be
based upon the violation of plaintiff's personal rights, and not the
rights of someone else."). That inquiry is not dependent at all on
whether the officer did or did not subject third parties to risk, or even
on whether he employed unreasonable force against them. Third par-
ties to an officer's employment of force may have available to them
section 1983 causes of action against the officer for the force that was
used indirectly against them, although such causes of action may gen-
erally be available under the Fourteenth Amendment, rather than the
Fourth Amendment. Compare Landol-Rivera v. Cruz Cosme, 906
F.2d 791, 794-97 (1st Cir. 1990), with Roach v. City of Frederick-
town, 882 F.2d 294, 297 (8th Cir. 1989). But whether excessive force
was employed against the principal excessive force plaintiff is in no
way dependent upon the extent to which that force was or was not
impermissibly used against third persons, or the extent to which third
persons were or were not exposed to risk by the officer's employment
of force.

Indeed, to recognize the risk posed to third parties by the official
use of force as a component of the excessive force inquiry would be,
in effect (though admittedly not in fact) to afford the section 1983
plaintiff standing to seek and obtain relief for the unreasonable use of
force against third parties. Cf. Rakas v. Illinois, 439 U.S. 128, 140,
150 (1978) (holding that a defendant cannot assert the Fourth Amend-

                     5
ment's protection against unreasonable searches unless his own rea-
sonable expectation of privacy was violated, regardless whether the
search at issue violated some third person's reasonable expectation of
privacy); Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) ("[I]f, for
example, the [police] department bans high-speed chases in order to
save gas, or to protect bystanders, a suspect arrested after an unautho-
rized chase can't complain about the violation of a rule not intended
for his benefit.").2

We would not permit an officer to defend against an excessive
force allegation on the ground (even in part) that the force employed
was reasonable because no one other than the plaintiff either sustained
force or was otherwise exposed to risk as a result of the officer's action.3
We see no more reason to permit the excessive force plaintiff to rely
offensively on the harm or risk to third persons when attempting to
prove that excessive force was used against him.

Although, as noted, the Supreme Court has never addressed the
specific question we address herein, our holding finds full support in
the guidance that the Court has provided with respect to excessive
force claims. First, when the Court has identified the factors relevant
to the excessive force inquiry, it has never mentioned any factor that
could be understood to relate to the harm or risk to which third per-
sons were exposed by police action. In Graham , for example, the
Court provided the following (non-exhaustive) list of factors to be
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2 We are mindful that, in Sacramento v. Lewis, 523 U.S. 833 (1998),
the Supreme Court, in the course of discussing the substantive due pro-
cess claim at issue there, noted that an officer's decision whether to
engage in a high-speed automobile chase is an extremely difficult one
because the officer must consider in a split-second a host of factors,
including the risk that the chase would pose to bystanders. See id. at 853.
However, the Court did not there hold (nor has it held elsewhere) that an
officer's consideration of risk to bystanders amounts to a constitutional
duty -- the derogation of which could amount to the violation of the con-
stitutional rights of the suspect actionable under section 1983 -- as
opposed to an ordinary aspect of the officer's job.
3 Were it otherwise, the absence of bystanders could in a different case
serve as a basis for excusing the increased use of force by officers in a
situation in which they could otherwise use little force.

                     6
considered: "the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight." Id. at 396. Second, the Court's instructions regarding the
determination whether a particular use of force is"reasonable" under
the Fourth Amendment focus not on the nature of the force used, gen-
erally speaking, but on the extent to which the force used violated the
constitutional rights of the specific section 1983 plaintiff before the
court. See Garner, 471 U.S. at 8 ("To determine the constitutionality
of a seizure `[w]e must balance the nature and quality of the intrusion
on the individual's Fourth Amendment interests against the impor-
tance of the governmental interests alleged to justify the intrusion.'"
(quoting United States v. Place, 462 U.S. 696, 703 (1983))) (empha-
sis added); Graham, 490 U.S. at 396. And third, the specific test
announced by the Supreme Court for determining whether the use of
deadly force, in particular, is constitutionally unreasonable, certainly
does not take account of the risk that official action poses to third par-
ties, and in fact leaves little or no room for the consideration of such:

          Where the officer has probable cause to believe that the sus-
          pect poses a threat of serious physical harm, either to the
          officer or to others, it is not constitutionally unreasonable to
          prevent escape by using deadly force. Thus, if the suspect
          threatens the officer with a weapon or there is probable
          cause to believe that he has committed a crime involving the
          infliction or threatened infliction of serious physical harm,
          deadly force may be used if necessary to prevent escape,
          and if, where feasible, some warning has been given.

Garner, 471 U.S. at 11-12; see also id . at 3 ("[Deadly] force may not
be used unless it is necessary to prevent the escape and the officer has
probable cause to believe that the suspect poses a significant threat of
death or serious physical injury to the officer or others.").4
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4 Significantly, the Court has emphasized that the use of force by police
officers in circumstances requiring them to make split-second judgments
as to whether to use force cannot serve as a basis for section 1983 culpa-
bility under either the Eighth Amendment (in the case of prison riots) or
the Fourteenth Amendment (in the case of high-speed automobile

                     7
For the foregoing reasons, we are persuaded that the risk posed to
third parties by the official use of force is not to be considered in
determining whether that use of force was excessive as against a par-
ticular section 1983 plaintiff. We thus conclude that the district court
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chases) if the officers were merely deliberately indifferent to the risk
posed by the force used. See Lewis, 523 U.S. at 852-54 (1998). Rather,
officers can be held culpable under section 1983 only if they applied
force "maliciously and sadistically for the very purpose of causing
harm," Whitely v. Albers 475 U.S. 312, 320-21 (1986) (quotation marks
omitted) (citation omitted) (Eighth Amendment), or with "a purpose to
cause harm," Lewis, 523 U.S. at 854 (Fourteenth Amendment). Relat-
edly, under the Fourth Amendment, a "seizure" cannot occur acciden-
tally. Rather, a Fourth Amendment seizure occurs only where an officer
intentionally restrains an individual's freedom of movement. See Brower
v. County of Inyo, 489 U.S. 593, 596 (1989) ("Violation of the Fourth
Amendment requires an intentional acquisition of physical control.");
Apodaca v. Rio Arriba County Sheriff's Department, 905 F.2d 1445,
1447 (10th Cir. 1990) ("Only unreasonable intentional detentions violate
the Constitution.").

In the case before us, Howerton does not allege that officers Fletcher
and Blanco intended to harm third parties. Yet she contends that the jury
below should have been instructed to consider the risk posed to third par-
ties by the officers' actions. Thus, she necessarily believes (lest she con-
cede the harmlessness of any error below) that, had the jury been so
instructed, it would have returned a verdict in her favor. But to allow the
officers to be held liable under section 1983 for their split-second deci-
sion to open fire when they believed that Howerton posed an imminent
threat to Moore, based on the risk (no harm was actually inflicted on
third parties here) that their decision imposed on third parties, would be,
in effect, to adopt as the liability standard, with respect to risk posed to
third parties in Fourth Amendment excessive force cases, the deliberate
indifference standard rejected by the Supreme Court in the Eighth and
Fourteenth Amendment contexts. Such would also have the perverse
effect of allowing the requirement that the exertion of force amounting
to a Fourth Amendment seizure be intentional to be satisfied by risk
unintentionally imposed on third parties.

                    8
did not err in so instructing the jury in this case. 5 The judgment of the
district court is, accordingly, affirmed.

AFFIRMED
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5 Brenda Howerton also challenges the district court's grant of sum-
mary judgment to the defendant-appellee City of Greensboro on her
claim that the city's municipal police training program was deliberately
indifferent to circumstances in which force must be employed against the
mentally disabled. Because we affirm the judgment below, entered pur-
suant to the jury's verdict, that Daryl Howerton was not subjected to
excessive force, this municipal liability claim brought by Brenda Hower-
ton must fail, as a municipality cannot be held liable under section 1983
for inadequate training where individuals subject to the training program
at issue did not violate the plaintiff's constitutional rights. See Hinkle v.
City of Clarksburg, 81 F.3d 416, 420-21 (4th Cir. 1996).

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