                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 30, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    BERTINA RAE OLSETH,

                Plaintiff-Appellant,
                                                        No. 10-4015
    v.                                         (D.C. No. 2:02-CV-01122-CW)
                                                          (D. Utah)
    MATTHEW D. LARSON, an
    individual,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.


         Bertina Rae Olseth appeals from an order granting summary judgment to

Salt Lake City police officer Matthew D. Larson on qualified immunity grounds

on her civil rights complaint brought pursuant to 42 U.S.C. § 1983. Because we

conclude that Officer Larson was entitled to qualified immunity, we affirm the

judgment of the district court.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                 BACKGROUND

      On May 15, 1998, Officer Larson and another Salt Lake City police officer,

Officer Mark Schuman, arrested Ms. Olseth on suspicion of buying cocaine.

Officer Larson removed Ms. Olseth from a van in which she was a passenger,

handcuffed her with her hands behind her back, and placed her in the front

passenger seat of his police car. He left the car’s engine running while he spoke

briefly to the van’s driver, who was sitting on the bumper of the police car.

      As he came around the front of the car to enter the driver’s side door,

Officer Larson saw Ms. Olseth slide over to the driver’s seat. What happened

next is in dispute. Officer Larson averred that Ms. Olseth brought her still-

handcuffed hands to the side, where the vehicle’s gearshift was. He stated he saw

her looking at him as she manipulated the gearshift. Ms. Olseth maintains,

however, that she scooted into the driver’s seat to talk to Officer Larson, then lost

her balance and fell against the steering wheel and gearshift.

      The police vehicle lurched backwards. 1 Officer Larson yelled for

Ms. Olseth to stop. He ran in pursuit of the vehicle, which was accelerating in

reverse, and threw his collapsible baton at it, cracking or breaking the windshield.

A witness later estimated the vehicle was moving backwards at five to ten miles

1
       Officer Schuman stated that he heard the vehicle’s tires spin backwards.
David G. Lord, an expert witness for Ms. Olseth, testified that given the co-
efficient of friction and the vehicle’s maximum acceleration capability, Officer
Schuman could not have heard the tires squeal. This does not amount to a
material fact dispute that would preclude summary judgment.

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per hour. Officers Larson and Schuman continued to chase the vehicle, yelling at

Ms. Olseth to stop.

      Ms. Olseth acknowledges that the car rolled backwards, but she contends it

was only moving slowly. When Officer Larson’s baton hit the windshield, she

stated, she lost her balance and fell against the gearshift, knocking it into “drive.”

She stated that she did not and could not have touched the accelerator or brake

pedals. During the incident, she was facing backwards, toward the rear of the car.

      The officers heard the noise of changing gears. The car shifted from

reverse into drive and moved forward toward them. Officer Larson was closer to

the car than Officer Schuman. Nearby non-police witnesses testified that it

appeared Officer Larson was in danger of being run over by the police car.

Officer Larson and Officer Schuman also stated they believed that he was in

danger of being run over.

      In her affidavit, Ms. Olseth does not deny that she was in the car’s driver’s

seat, having put it in gear, or that the car was moving. Moreover, she admits she

could not see Officer Larson during the events that followed.

      Officer Larson drew his pistol and fired four shots through the windshield

of the police car. Three of the bullets hit Ms. Olseth, in the back and arm,

wounding her. Officer Larson stated that the car slowed after he fired the shots,

so that he was able to catch up with it. He opened the driver’s side door and




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pressed the brake pedal with his foot. He then removed Ms. Olseth from the

vehicle and placed her on the pavement. 2

      Ms. Olseth hired two experts, each of whom submitted an affidavit in

opposition to Officer Larson’s motion for summary judgment. David G. Lord

identified himself an expert in the field of accident reconstruction. He testified

that given all the circumstances, in his opinion, the car must have been traveling

less than five miles per hour during the incident.

      Charles Hinson, who claimed expertise in the field of ballistics, submitted

an affidavit detailing his conclusions based on the investigation of the shooting

conducted by the Salt Lake City Police Department. The police investigator used

the “dowel” method to determine the path of the bullets. Based on the path of the

bullets disclosed by this methodology, Mr. Hinson concluded that (1) “Officer

Larson was taking careful aim with each shot,” Aplt. App. at 149; (2) by the time

he fired one of the shots, “bullet A,” he was “extremely close to the windshield of

the car” but “not in the path of the car” and could see Ms. Olseth and know that

he was shooting her in the back, id. at 151-52; (3) Officer Larson actually moved

toward the car as he fired, and it was unreasonable for him to be in fear that he

would be hit by the car; (4) Officer Larson was not in the path of the car when he


2
      Ms. Olseth stated that Officer Larson “threw [her] on the pavement.” Aplt.
App. at 169. Any difference in characterization between “placing” and
“throwing” is not a material issue of fact that would require reversal of summary
judgment.

                                         -4-
fired the shots; and (5) the close pattern of the shots was consistent with a speed

of zero to five miles per hour.

      As a result of the incident, Ms. Olseth was criminally charged with

aggravated assault by a prisoner on Officer Larson; aggravated assault by a

prisoner on Officer Schuman; unlawful possession of a controlled substance; and

escape. Notwithstanding her testimony at her criminal trial that she did not

intend to operate the motor vehicle or to escape from the officers, a jury

convicted her on the escape count. But it deadlocked on the count of aggravated

assault on Officer Larson, and acquitted her of the other two counts.

                                     ANALYSIS

      1. Summary Judgment Standard--Qualified Immunity

      In general, we review the district court’s grant of summary judgment de

novo, considering all evidence in the light most favorable to the nonmoving party.

Clark v. Edmunds, 513 F.3d 1219, 1221-22 (10th Cir. 2008). Summary judgment

is appropriate only if “there is no genuine issue as to any material fact and . . . the

movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A

fact is “material” if it could affect the outcome of the litigation. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      When a defendant moves for summary judgment and argues he is entitled to

qualified immunity, however, our review takes a slightly different course. In the

qualified immunity context, the burden shifts to plaintiff to establish that the

                                          -5-
defendant violated a constitutional right, and that the constitutional right was

clearly established at that time. Thomson v. Salt Lake County, 584 F.3d 1304,

1312 (10th Cir. 2009). Only if plaintiff has made such a showing will the

defendant assume the normal burden of showing that there are no disputed

material facts and that he is entitled to judgment as a matter of law. Clark, 513

F.3d at 1222. In resolving a government official’s claim of qualified immunity,

we need not determine whether the facts alleged or shown by the plaintiff make

out a claim for the violation of a constitutional right. Pearson v. Callahan, 129

S. Ct. 808, 818 (2009). Where judicial economy or other concerns dictate, we

may instead begin with the question of whether the right asserted is clearly

established. See id. In this case, we affirm the district court’s conclusion that

even if Ms. Olseth demonstrated a genuine issue of material fact concerning

whether her constitutional rights were violated, Officer Larson was entitled to

qualified immunity because his actions did not violated clearly-established law.

      2. Excessive Force

      An officer using force in the course of a seizure of a citizen is entitled to

qualified immunity unless the level of force used violated clearly-established

Fourth Amendment law. See Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d

1255, 1259 (10th Cir. 2008); see also Graham v. Connor, 490 U.S. 386, 395

(1989) (“[A]ll claims that law enforcement officers have used excessive force . . .

in the course of an arrest . . . of a free citizen should be analyzed under the Fourth

                                         -6-
Amendment and its ‘reasonableness’ standard . . . .”) “Qualified immunity

shields an officer from suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the

circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

“If the law at [the time of the officer’s conduct] did not clearly establish that the

officer’s conduct would violate the Constitution, the officer should not be subject

to liability or, indeed, even the burdens of litigation.” Id.

      Ms. Olseth has failed to point us to clearly-established law, in effect at the

time Officer Larson shot Ms. Olseth, that would have informed him that his

actions were illegal. Officer Larson shot her on May 15, 1998. In Brosseau, the

Supreme Court surveyed the law as it existed on February 21, 1999, a date

roughly contemporaneous to but actually subsequent to Officer Larson’s actions.

See id. at 200, n.4. Although the facts in Brosseau differed in some particulars

from those of this case, the Court extracted a general principle from existing law

at that time that there is generally “no Fourth Amendment violation when an

officer shot a fleeing suspect who presented a risk to others.” Id. at 200.

      Moving away in a car she admittedly could not control, Ms. Olseth

represented a significant threat to the officers and others who might be hit by the

car. Even if Officer Larson managed to side-step the car by the time he fired, as

Ms. Olseth’s experts opine, he would still have had to consider the danger to




                                          -7-
others. He did not act unreasonably in assessing that danger as sufficiently

serious to require him to shoot in an attempt to stop the car.

      Ms. Olseth contends that she was not attempting to elude the officers. But

a jury convicted her beyond a reasonable doubt of attempting to escape from

official custody. Officer Larson could reasonably have concluded that Ms. Olseth

was attempting to escape in the patrol car.

      Finally, Officer Larson was not required to find a less forceful means of

stopping the vehicle. So long as an officer’s conduct is reasonable, he does not

have to use the least restrictive means to extinguish an immediate threat to

himself and the public. Marquez v. City of Albuquerque, 399 F.3d 1216, 1222

(10th Cir. 2005).

                                  CONCLUSION

      Officer Larson’s actions did not violate clearly-established law. The

judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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