     Case: 17-60515    Document: 00514502094       Page: 1   Date Filed: 06/06/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                    No. 17-60515                      June 6, 2018
                                                                    Lyle W. Cayce
SUMMER GORMAN,                                                           Clerk


             Plaintiff - Appellee

v.

ROBERT SHARP,

             Defendant - Appellant




                 Appeal from the United States District Court
                   for the Northern District of Mississippi


Before ELROD, COSTA, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      The circumstances that led to this lawsuit are unquestionably tragic—
an accidental fatal shooting during an officer training session.                But the
Constitution does not afford a cure for every tragedy. And it does not here for
one simple reason: Under established Supreme Court precedent, the Fourth
Amendment concerns only intentional, not accidental, searches and seizures.
Nor have the parties given any indication that the Supreme Court should
revisit its precedent in light of the text or original understanding of the Fourth
Amendment.
      There is a pending tort action in state court arising out of this same
tragedy. That state court action may very well provide a means of recovery—
    Case: 17-60515       Document: 00514502094     Page: 2   Date Filed: 06/06/2018



                                    No. 17-60515
unlike the Fourth Amendment, state tort actions are often available in cases
that involve unintentional but negligent conduct. But this suit is based on the
Fourth Amendment, not state tort law. And there is no Fourth Amendment
violation in the absence of intentional conduct. So the district court erred in
denying qualified immunity. We have no choice but to reverse.
                                          I.
         During a preliminary safety briefing before a firearms training exercise
hosted by the Mississippi Gaming Commission, instructor and former
Commission Special Agent Robert Sharp forgot to replace his real firearm with
a “dummy” firearm. As a result, Sharp accidentally discharged his real firearm
against fellow instructor and Mississippi Gaming Commission Special Agent
John Gorman. Gorman subsequently died from the gunshot wound to his
chest.
         In this interlocutory appeal, Sharp appeals the district court’s denial of
his motion for judgment on the pleadings based on qualified immunity.
         “‘Qualified immunity attaches when an official’s conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)
(citing White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam) (alterations and
internal quotation marks omitted)). To defeat qualified immunity in a Fourth
Amendment claim under 42 U.S.C. § 1983, the plaintiff must demonstrate both
a bona fide Fourth Amendment violation on the facts alleged and that the
violation was clearly established at the time of the official’s conduct. See
Waltman v. Payne, 535 F.3d 342, 346 (5th Cir. 2008).
         The order in which a court should conduct these two inquiries is not
“rigid.” Pearson v. Callahan, 555 U.S. 223, 240 (2009). Here, Sharp both
“maintain[s] that [he] did not violate [Gorman’s] Fourth Amendment rights
and that, in any event, [his] conduct did not violate any Fourth Amendment
                                          2
    Case: 17-60515     Document: 00514502094     Page: 3   Date Filed: 06/06/2018



                                  No. 17-60515
rule that was clearly established at the time of the events in question.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014).
      The Supreme Court has long held that “a Fourth Amendment seizure
does not occur whenever there is a governmentally caused termination of an
individual’s freedom of movement . . . but only when there is a governmental
termination of freedom of movement through means intentionally applied.”
Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original).
A “[v]iolation of the Fourth Amendment requires . . . [that the] detention or
taking itself must be willful.” Id. at 596 (emphasis in original).
      This Court has faithfully applied this requirement. See, e.g., Blair v. City
of Dallas, 666 F. App’x 337, 341 (5th Cir. 2016) (“The Supreme Court has
explained that a seizure occurs for purposes of the Fourth Amendment ‘only
when there is a governmental termination of freedom of movement through
means intentionally applied.’”) (citing Brower, 489 U.S. at 596-97) (emphasis
in original); Watson v. Bryant, 532 F. App’x 453, 457 (5th Cir. 2013) (“The
Supreme Court and this circuit have long held that Fourth Amendment
violations occur only through intentional conduct.”); Young v. City of Killeen,
775 F.2d 1349, 1353 (5th Cir. 1985) (“The constitutional right to be free from
unreasonable seizure has never been equated by the [Supreme] Court with the
right to be free from a negligently executed stop or arrest. There is no question
about the fundamental interest in a person’s own life, but it does not follow
that a negligent taking of life is a constitutional deprivation.”). And our sister
circuits have construed Brower similarly. See, e.g., Gray v. Kern, 702 F. App’x
132, 139 (4th Cir. 2017) (even if Kern had employed excessive force, “he did not
have the intent to seize required to sustain a Fourth Amendment” claim);
Stewart v. City of Middletown, 136 F. App’x 881, 883 (6th Cir. 2005) (because
Stewart had no evidence suggesting “anything but negligen[ce],” there was no
seizure under the Fourth Amendment).
                                        3
    Case: 17-60515     Document: 00514502094   Page: 4   Date Filed: 06/06/2018



                                No. 17-60515
      The order denying qualified immunity did not cite Brower—nor did it
confront more generally with what constitutes a “seizure” under the Fourth
Amendment. But Brower and subsequent precedents foreclose liability under
the Fourth Amendment in the absence of intentional conduct. Under the plain
facts of this case, the shooting here of Gorman—as tragic as it was—was not
“willful[ly]” performed by Sharp. Brower, 489 U.S. at 596. Nor was Gorman’s
“termination of freedom of movement [accomplished] through means
intentionally applied.” Id. at 596-97. It is undisputed that Sharp genuinely
believed he was using a dummy firearm. His only intention in pulling the
trigger on co-instructor Gorman was to educate his audience as a firearms
training instructor.
      Accordingly, we reverse the district court’s denial of qualified immunity
and remand with instructions that the district court dismiss the remaining
Fourth Amendment claim against Sharp.




                                      4
