                                   UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                   No. 13-1877


STEPHEN S. KREIN,

                     Plaintiff - Appellee,

           v.

TROOPER L.      W.    PRICE,     individually    and   in    his      official
capacity,

                     Defendant – Appellant,

           and

WEST   VIRGINIA  STATE   POLICE;   TROOPER             W.        S.    SNYDER,
individually and in his official capacity,

                     Defendants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:11-cv-00962)


Argued:   September 17, 2014                     Decided:        December 19, 2014


Before KING and         FLOYD,    Circuit   Judges,    and       HAMILTON,     Senior
Circuit Judge.


Affirmed by unpublished per curiam                opinion.            Senior    Judge
Hamilton wrote a dissenting opinion.


ARGUED: Michael Deering Mullins, STEPTOE                     &    JOHNSON, PLLC,
Charleston, West Virginia, for Appellant.                        Richelle Keener
Garlow, Charleston, West Virginia, for Appellee.       ON BRIEF:
Robert L. Bailey, II, STEPTOE & JOHNSON, PLLC, Charleston, West
Virginia, for Appellant. Michael Thane Clifford, LAW OFFICE OF
MICHAEL T. CLIFFORD, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      In this 42 U.S.C. § 1983 action, we consider whether a

police officer who used deadly force is entitled to qualified

immunity.      In    December    2008,    two   West       Virginia    State      Police

troopers, W.S. Snyder and appellant L.W. Price, blocked appellee

Stephen Krein’s vehicle at a gas station in Roane County, West

Virginia.      When Krein pulled forward in an attempt to evade the

troopers, Price fired twice at Krein’s vehicle, striking him in

the head and leaving him permanently disabled.

      In December 2010, Krein sued Price, Snyder, and the State

Police    in   West    Virginia       state   court,       alleging,     inter     alia,

violations      of    his     civil    rights      under     §   1983.     After     the

defendants removed the case to federal court, the district court

denied the defendants’ motion for summary judgment, finding that

several disputed issues of material fact precluded judgment as a

matter of law on their qualified immunity defense.

      As explained below, we find that sufficient evidence exists

for   a   factfinder     to     determine     that    Price’s    second     shot     was

objectively unreasonable and thus constituted “excessive force”

prohibited by the Fourth Amendment. We also conclude that the

Fourth    Amendment’s       prohibition       on     excessive     force     in     this

circumstance was a “clearly established” constitutional right,

and that Price, as a West Virginia trooper, was charged with



                                          3
notice     of   this     clearly    established      constitutional    right.

Accordingly, we affirm.



                                         I.

                                         A.

     W.S. Snyder and appellant L.W. Price are troopers of the

West Virginia State Police.             On December 1, 2009, they set out

to serve arrest warrants on appellee Stephen S. Krein.                     The

warrants stemmed from an incident occurring a week earlier when

two other officers attempted to arrest Krein for misdemeanor

domestic violence. That time, Krein successfully fled and almost

drove into one of the officers.

     Price and Snyder located Krein’s white Chevrolet truck at a

gas station in Roane County, West Virginia.               Although witnesses 1

disagree    about      the   relative    positions   of   the   vehicles   and

individuals during the confrontation, witness testimony supports

the following: Krein’s truck was backed into a parking space and

faced the adjoining road.          Facing the same direction, a maroon

car was parked ten feet to the left of the truck.                At least one

set of fuel pumps was located ten feet to the right of the

     1
       Krein, who was seriously injured in the incident, does not
remember the confrontation at the gas station.      The following
sequence of events stems from the statements of Price, Snyder,
and two witnesses—Billy James Jett and Richard McKinney—who were
waiting in the parking lot to pick up their wives from work.



                                         4
truck,   and    another    set   of   pumps      was    located     either       next   to

Krein’s truck or behind it.

       When the officers arrived at the store, Krein was pulling

forward in his truck.            To prevent Krein from escaping, Price

positioned his cruiser at an angle in front of Krein’s truck,

with the cruiser’s passenger-side door facing the truck.                           Krein

then backed up, hitting a fuel pump.                    Price and Snyder exited

the cruiser. Price left the passenger-side door open.                              Krein

pulled forward and bumped the passenger-side door of the cruiser

with enough force to close it.                 Krein then “backed up and . . .

cut[] his wheel to come out in between a small opening [between

the cruiser and the maroon car].                  He was trying to get out.”

J.A. 43.       Both Price and Snyder drew their service weapons and

repeatedly told Krein to stop and exit the vehicle.                        Snyder was

standing   near    the    truck’s     driver-side       door      and   close     to    the

maroon   car.      Price     walked   in       front   of   the    truck   and     stood

between the truck and the cruiser.

       When Krein drove forward toward Price, Price fired a shot

that   either    hit   the   truck’s    grill      or   went      under    the    truck.

Krein then ducked inside the truck, turned the steering wheel,

and accelerated toward Snyder.                 Snyder moved toward the maroon

car to get out of Krein’s way, and Price “stepped off to the

side.”     J.A. 53.       Both Price and Snyder stated that Price was

trapped.    See J.A. 45 (“I tried the best to get out of the way

                                           5
because I didn’t have anywhere to go.”); J.A. 52 (“[I]t was kind

of like a triangle shape and . . .              Trooper Price was wedged in

the center of it, didn’t have no way to escape.”).                         A witness

claims,     however,    that   Price    got    out    of    harm’s   way    when    he

stepped to the side.         See J.A. 60 (“Mr. Krein would have hit the

trooper with his truck if the trooper had not taken a quick step

to his right[.]”).          Price then fired a second shot, which went

through the truck’s passenger-side window and struck Krein in

the head.      The entire encounter lasted approximately one minute.

       After Price shot Krein, the truck coasted through the gap

between the maroon car and cruiser and stopped in the road.                          A

witness called 911 and said, “Two state troopers, a truck tried

to run over them there and they had to fire shots.”                         J.A. 71.

He also said that the troopers “fired shots when [Krein] was

pulling around them.”          Id.    Price and Snyder removed Krein from

the    truck    and    administered    first    aid        until   the    paramedics

arrived.       Krein survived the gunshot wound to his head, but due

to    his   injury,    he   cannot   walk,    speak    properly,     or    care    for

himself.



                                        B.

       In December 2010, Krein sued Price and Snyder (individually

and in their official capacities) and the West Virginia State

Police      (collectively,      “Defendants”)         in     state       court.    The

                                        6
Defendants         removed      the     action       to    federal    court.      After   the

district          court    ruled      on   a    motion       to    dismiss,    five    claims

remained, including a 42 U.S.C. § 1983 claim alleging that Price

used excessive force in violation of the Fourth Amendment.                                 In

January       2013,       the   State      Police     and    Price     moved   for    summary

judgment.           As to the § 1983 claim, the district court denied

summary judgment because a reasonable factfinder could conclude

that Price did not act reasonably when he used deadly force.

According to the district court, the evidence demonstrates that

Price       may    have    shot    Krein       simply      to     prevent   Krein’s    escape

rather       than    to    save    Price’s       or       another’s    life.      Thus,   the

district court found that Price was not entitled to qualified

immunity.         Price appeals that determination.



                                                II.

                                                 A.

      This Circuit has jurisdiction to review a district court’s

denial of qualified immunity at summary judgment if the court’s

decision turned on an issue of law. Mitchell v. Forsyth, 472

U.S. 511, 530 (1985); Cooper v. Sheehan, 735 F.3d 153, 157 (4th

Cir. 2013). Qualified immunity acts as “an immunity from suit

rather than a defense to liability.” Mitchell, 462 U.S. at 526.

“As     a    result,        pretrial        orders        denying     qualified      immunity

generally fall within the collateral order doctrine.” Plumhoff

                                                 7
v. Rickard, 134 S. Ct. 2012, 2019 (2014) (citing Ashcroft v.

Iqbal, 556 U.S. 662, 671-672 (2009)). Immunity—as a defense to

prosecution in the first instance—is a separate issue from the

merits and “could not be effectively reviewed on appeal from a

final judgment because by that time the immunity from standing

trial    will     have   been       irretrievably     lost.”     Id.       (citations

omitted).



                                         B.

       We review a district court’s denial of summary judgment on

qualified-immunity grounds de novo.                  Pritchett v. Alford, 973

F.2d    307,    313   (4th   Cir.    1992).     In    doing    so,    we    view   the

evidence in the light most favorable to the nonmoving party, and

can grant summary judgment only if there is no genuine issue of

material fact.        Iko v. Shreve, 535 F.3d 225, 230, 235 (4th Cir.

2008).      Similarly, in reviewing a district court’s denial of

qualified      immunity,     we     generally   accept    the     facts      as    the

district court found them, Winfield v. Bass, 106 F.3d 525, 530

(4th Cir. 1997) (en banc), though we must also view them in the

light most favorable to the nonmoving party.                   Henry v. Purnell,

652 F.3d 524, 531 (4th Cir. 2011) (en banc).                         Price, as the

public official asserting qualified immunity, bears the burden

of proof.       Meyers v. Balt. Cnty., 713 F.3d 723, 731 (4th Cir.

2013).

                                         8
                                              III.

       Having    concluded       that     we    have       jurisdiction,        we    turn    to

Price’s     contention         that    qualified       immunity         shields      him   from

Krein’s § 1983 claim.



                                               A.

       Qualified            immunity         protects           “government          officials

performing      discretionary          functions       .    .    .   from     liability       for

civil damages insofar as their conduct does not violate clearly

established       statutory       or     constitutional              rights    of     which     a

reasonable person would have known.”                       Harlow v. Fitzgerald, 457

U.S.    800,     818    (1982).        The     doctrine         of    qualified       immunity

“balances       two    important        interests—the            need    to    hold     public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.”                                  Pearson

v. Callahan, 555 U.S. 223, 231 (2009).

       To   receive         qualified    immunity,         Price      must    prove     either

(1) that his conduct did not violate the constitutional right at

issue   (here,        the    Fourth     Amendment’s        prohibition         on    excessive

force) or (2) that the right was not “clearly established” at

the time of the incident.                 Id. at 232, 236.               For purposes of

summary judgment, Price cannot satisfy either prong.



                                               9
                                                    B.

        Price contends that he satisfies the first prong because

his conduct did not constitute excessive force prohibited by the

Fourth Amendment.                 In support, Price argues that the district

court improperly considered his subjective intent in shooting

Krein.         Although          Price       correctly       notes        that    his     subjective

intent        is    irrelevant          to    the     Fourth         Amendment      analysis       for

objective reasonableness, there is sufficient evidence in the

record    for        a    reasonable         factfinder         to     conclude     that       Price’s

second        shot—fired           from       the     side        of      Krein’s        vehicle—was

excessive.

        The        Fourth        Amendment       protects            “people      . . .        against

unreasonable             . . .    seizures.”             U.S.    Const.       amend.     IV.     This

prohibition          “includes          the     right       to       be    free     of    ‘seizures

effectuated by excessive force.’”                           Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc) (quoting Schultz v. Braga,

455 F.3d 470, 476 (4th Cir. 2006)). Courts analyze whether an

officer used excessive force using an “objective reasonableness”

test.     Id. (citing Scott v. Harris, 550 U.S. 372, 381 (2007)).

Under this standard, a court considers officers’ behavior “in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.”                                    Id. (quoting

Graham    v.        Connor,       490    U.S.       386,    397      (1989)).      Indeed,      “[a]n

officer’s          evil     intentions         will      not     make     a    Fourth     Amendment

                                                    10
violation   out     of      an    objectively      reasonable       use     of   force.”

Graham, 490 U.S. at 397.

      An officer acts unreasonably if he or she “shoots a fleeing

suspect   without       ‘probable       cause    to   believe      that    the   suspect

poses a significant threat of death or serious physical injury

to the officer or others.’”                Henry, 652 F.3d at 531-32 (quoting

Tennessee v. Garner, 471 U.S. 1, 3 (1985)).                          This assessment

occurs at the moment that force is used.                    Elliott v. Leavitt, 99

F.3d 640, 643 (4th Cir. 1996).

      Therefore,       we   must     ask   whether       the   facts—viewed      in   the

light most favorable to Krein—demonstrate that Krein posed a

serious   threat       to   Price,      Snyder,       or    the    other    individuals

present at the scene when Price fired the second shot. 2

      Based on our review of the record, a reasonable factfinder

could conclude that Krein no longer posed a serious threat to

the   troopers    at     the     time   that     Price     fired   his     second   shot.

Admittedly,       the       record      contains         conflicting        information

regarding whether Price and Snyder were at risk of being struck

when Price fired the second shot. Price and Snyder testified

that Price was still in danger when he fired the second shot.

Price explained that he “tried the best to get out of the way

      2
       Price’s second shot is the only one at issue in this case.
The parties do not dispute whether Price’s first shot was
objectively reasonable.



                                            11
because [he] didn’t have anywhere to go” and that he “felt [his]

life was threatened.” J.A. 45, 47. He also explained that Krein

“could possibly have cut a hard left but then Trooper Snyder’s

life would have been in danger.” Id. at 47-48. Trooper Snyder

said that Price “had no way to escape” and that “if [Krein] had

come forward any more . . . Trooper Price would have been pinned

between the vehicle and his truck.” Id. at 52, 57. Jett and

McKinney, the two bystanders, similarly believed that Price was

in serious danger. Id. at 61 (Jett); Id. at 66 (McKinney).

       But at the summary judgment stage, we must view the facts

in the light most favorable to Krein.                Waterman v. Batton, 393

F.3d 471, 473 (4th Cir. 2005).              Taken in that light, the record

contains numerous indications that Price and Snyder would have

been       able   to   escape    Krein’s   truck   without   Price   firing   the

second       shot. 3   Most     importantly,    Price’s   second   shot   entered

       3
        As Price notes, the district court made repeated
references to Price’s motivations in firing on Krein, stating
that “Trooper Price’s admission that Krein had previously
escaped his custody should suggest that a desire to prevent a
similar escape rather than the fear of harm motivated Trooper
Price’s actions.” J.A. 84. Price’s motivation, in the district
court’s view, precluded qualified immunity: “If, as Krein
appears to suggest, Trooper Price fired the second shot not out
of fear for his or Trooper Snyder’s safety or concern that Krein
might present a threat to another, but merely to thwart Krein’s
escape, granting qualified immunity would be improper.” Id. at
89. Although the district court may have improperly considered
Price’s subjective intent, any such error is irrelevant because
we review the district court’s denial of qualified immunity de
novo. Pritchett, 973 F.2d at 313.


                                           12
through the passenger side window of Krein’s truck, strongly

suggesting that Price was not in front of the truck when he

fired     on    Krein   the    second    time.   Multiple      statements       also

indicate that Price and Snyder were not in danger when Price

fired the second time. Price explained that he “got out of the

way” when he fired the second shot. J.A. 45. Snyder said he

“went down the side of the vehicle that was parked beside Mr.

Krein to get away from him.” Id. at 52. He also said that Price

was “at like a 45 degree angle off” from Krein’s truck when

Price   fired     the   second   time.    Id.    at   55.    Jett,   one   of    the

bystanders, said that “Mr. Krein would have hit the trooper with

his truck if the trooper had not taken a quick step to the

right.” Id. at 60. When Jett called 911, he stated, “[t]wo state

troopers, a truck tried to run over them there and they had to

fire shots” but also stated that the troopers “fired shots when

[Krein] was pulling around then.” Id. at Ex. A. McKinney said

that Price “jumped back out of the way.” Id. at 66.

     It    is    true   that   “[t]he    calculus     of    reasonableness      must

embody allowances 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.” Park v. Shiflett,

250 F.3d 843, 853 (4th Cir. 2001) (quoting Graham, 490 U.S. at

396-97). But even allowing Price some leeway to account for the

                                         13
tense, hurried nature of the incident cannot change the fact

that the record contains numerous indications that a reasonable

officer would have realized that deadly force was not necessary

to    protect     himself      or    others       when      he     was    no   longer      in    the

direction of Krein’s vehicle. Accordingly, viewing the facts in

the light most reasonable to Krein, a reasonable fact-finder

could conclude that Price acted unreasonably when he shot Krein.



                                                 C.

       Price also cannot satisfy the second prong of the qualified

immunity        test    because       the     constitutional              right     that     Price

violated was “clearly established.” Harlow, 457 U.S. at 818-19.

The     right     at    issue       here    is        the    right       to    be   “free       from

unreasonable           seizures,       a      right         which        includes         seizures

accomplished by excessive force.” Waterman, 393 F.3d at 475.                                      “A

defendant cannot be said to have violated a clearly established

right    unless        the   right’s       contours         were    sufficiently          definite

that any reasonable official in the defendant’s shoes would have

understood that he was violating it.”                            Plumhoff v. Rickard, 134

S. Ct. 2012, 2023 (2014) (citing Ashcroft v. al-Kidd, 131 S. Ct.

2074,    2083-84        (2011)).           Although         courts       should     not    “define

clearly established law at a high level of generality,” al-Kidd,

131 S. Ct. at 2084, this Court need not determine that the “very

action in question has previously been held unlawful,” Doe ex

                                                 14
rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 176

(4th Cir. 2010) (citation omitted).            “[O]fficials can still be

on notice that their conduct violates established law even in

novel factual circumstances.”        Hope v. Pelzer, 536 U.S. 730, 741

(2002).

       Our decision in Waterman v. Batton demonstrates that the

right Price allegedly violated is clearly established.               393 F.3d

at 483; see also Estate of Rodgers ex rel. Rodgers v. Smith, 188

F. App’x 175, 183-184 (4th Cir. 2006) (determining that the law

established in Waterman was clear).             In that case, a police

officer attempted to initiate a traffic stop of Waterman for

speeding, but Waterman refused.          393 F.3d at 473.    Officers then

pursued Waterman.      Id.    One officer reported that Waterman tried

to run him off the road.         Id. at 474.     When Waterman reached a

toll   plaza,   five   uniformed    officers    stood   in   front    of   his

vehicle, “only a few feet to the passenger side of the vehicle’s

projected path.”       Id. at 474-75.      Waterman coasted at about 11

miles per hour and then began “lurching or lunging forward” as

he began to accelerate toward the toll plaza and the officers.

Id. at 474 (internal quotation marks omitted).                The officers

shot at the vehicle, which avoided them by several feet as it

passed.   Id. at 475.        The officers continued to fire on Waterman

as he drove away.       Id.     Waterman sustained five gunshot wounds

and died from his injuries.        Id.

                                     15
       As    we    explained,         “the     reasonableness         of    an    officer’s

actions is determined based on the information possessed by the

officer at the moment that force is employed.”                                Id. at 481

(emphasis added).             Based on that principle, we concluded that

“force      justified      at     the       beginning    of    an   encounter       is   not

justified      even     seconds        later     if    the    justification        for   the

initial force has been eliminated.”                     Id.    We distinguished when

Waterman’s        car   was      passing       the     officers—finding          that    they

reasonably        feared    for       their    safety    at    that    point—from        when

Waterman’s car had passed them—finding that the danger had also

passed.      Id. at 482.             The shots fired at Waterman after he had

passed the officers in his car constituted excessive force.                              Id.

At that point, the officers and bystanders were not endangered

by Waterman’s vehicle.               Id.

       A similar distinction between two sets of gunshots can be

made here. Like the officers in Waterman, Price was in danger

when he fired the first shot because he was directly in front of

the vehicle.          But just seconds later, he was on the passenger

side of the vehicle and thus was no longer in danger of being

hit.     The other officer, Snyder, was similarly not threatened

when Price fired the second time. As our decision in Waterman

demonstrates, these types of fine distinctions must be made to

give   proper      effect       to    the     Fourth    Amendment’s        prohibition    on

excessive force.

                                               16
     Indeed, the overall circumstances in this case were less

dangerous    than   in   Waterman.    There,     the   officers   fired   at

Waterman in the context of a high-speed chase. Here, however,

Krein’s vehicle was effectively trapped by the troopers’ vehicle

and Krein was not driving at a high speed.             Viewing the evidence

in the light most favorable to Krein, Price and Snyder were not

at serious risk of being struck by Krein’s vehicle when Price

fired the second shot.        As such, Price’s second shot violated

the clearly established law this Circuit set out in Waterman.



                                     IV.

     For    the   foregoing   reasons,     the   district    court’s   order

denying Price’s motion for summary judgment is

                                                                  AFFIRMED.




                                     17
HAMILTON, Senior Circuit Judge, dissenting:

       In conducting its own de novo review of the record, the

majority holds that Trooper Price acted unreasonably when he

fired the second shot that injured Krein. *                With all due respect

to the majority, in my view, Trooper Price reasonably believed

that Krein posed a serious threat of physical injury to both

himself and Trooper Snyder at the time he fired the second shot.

Accordingly, I dissent from the majority’s denial of qualified

immunity to Trooper Price.

       A police officer acts unreasonably if he “shoots a fleeing

suspect         without   ‘probable   cause   to   believe    that   the   suspect

poses a significant threat of death or serious physical injury

to the officer or others.”            Henry v. Purnell, 652 F.3d 524, 531-

32 (4th Cir. 2011) (en banc) (quoting Tennessee v. Garner, 471

U.S.       1,   3   (1985)).    Thus,   as    recognized     in   Henry,   we   must

analyze whether Krein posed a serious threat of physical injury

       *
       The majority understandably does not uphold the flawed
analysis of the district court, which denied qualified immunity
principally on the basis that Trooper Price shot Krein because
he wanted to prevent him from escaping.        As noted by the
majority, ante at 12 n.3, Trooper Price’s subjective motivation
in firing the second shot is irrelevant to the qualified
immunity analysis. See also Graham v. Connor, 490 U.S. 386, 397
(1989) (“An officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.”).




                                         18
to Trooper Price, Trooper Snyder, or the others on the scene

when Trooper Price fired the second shot.                       Id.      Whether the

force used was reasonable is determined “from the perspective of

a reasonable officer on the scene, rather than with the 20/20

vision   of    hindsight.”         Graham,      490   U.S.   at     396;       see   also

Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (noting

that “the reasonableness of an officer’s actions is determined

based on the information possessed by the officer at the moment

that force is employed”).

      Importantly, in analyzing the reasonableness of a police

officer’s actions, we must make “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.”            Graham, 490 U.S. at 397.               We make such

allowance because the “qualified immunity standard ‘gives ample

room for mistaken judgments’ by protecting ‘all but the plainly

incompetent or those who knowingly violate the law.’”                          Hunter v.

Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)); see also United States v. Phillips, 588

F.3d 218, 227 (4th Cir. 2009) (noting that reasonableness “does

not, by definition, entail perfection”); Anderson v. Russell,

247   F.3d    125,   132   (4th     Cir.    2001)     (noting     that     the    Fourth

Amendment     “‘does   not    require       omniscience’”         and    that     police

                                           19
officers “‘need not be absolutely sure . . . of the nature of

the threat or the suspect’s intent to cause them harm’” before

using force) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th

Cir. 1996));         Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir.

2001) (noting that “a mistaken understanding of the facts that

is reasonable in the circumstances can render a seizure based on

that understanding reasonable under the Fourth Amendment”).

       The     majority           concludes         that         Trooper      Price     acted

unreasonably because “the record contains numerous indications

that Price and Snyder would have been able to escape Krein’s

truck without Price firing the second shot.”                           Ante at 12.        But

the dispositive question is not whether the troopers would have

been   able     to   escape       without      Trooper      Price     firing    the    second

shot, but rather whether Trooper Price, based on the information

he   possessed,       was     reasonable        in    believing       that     he,    Trooper

Snyder, and/or the others on the scene were in danger of serious

physical      injury       when    he   fired       the    second     shot.      While    the

majority’s      analytical         framework         may    address    the     question    of

whether Trooper Price, Trooper Snyder, and the others on the

scene were, as a matter of fact, out of danger at the time the

second       shot    was     fired,       it   does        not    address      the    outcome

determinative        question        of    whether         Trooper     Price     reasonably

believed a serious threat of physical injury was present.



                                               20
      For obvious reasons, the majority consciously avoids the

proper      analytical     inquiry.           The       majority    does    not    want    to

address whether Trooper Price was reasonable in believing that

he,   Trooper       Snyder,   and/or      the      others      on   the    scene    were    in

danger when he fired the second shot.                      After all, it is hard to

criticize a police officer for shooting at a driver who tries to

run   him    over    and   then    fires       a    second     shot   when    the    driver

accelerates toward a fellow officer.                       Moreover, the majority’s

analytical      tack    allows     it    to     avoid      explaining       exactly    what

allowances it is making for Trooper Price, who was confronted

with rapidly developing circumstances in which both he and his

partner      were     in   peril.             Finally,       the     majority’s      chosen

analytical path allows it to avoid addressing how Trooper Price

knowingly     “violate[d]       the     law”       or    was   “plainly      incompetent”

under the circumstances.               Hunter, 502 U.S. at 229 (citation and

internal quotation marks omitted).

      A careful        review     of    the    record      under     the   correct    legal

standard demonstrates that Trooper Price was reasonable in his

belief that there was a threat of serious physical injury at the

time he fired the second shot.                 Krein was a violent fugitive who

yet   again    was     trying    to    evade       capture.         Upon   arriving,       the

troopers exited the police cruiser, which was parked at an angle

directly in front of Krein’s truck, and repeatedly ordered Krein

to “stop” and “get out” of his truck.                       (J.A. 43).        Rather than

                                              21
complying with the troopers’ commands, Krein attempted to flee.

He backed up his truck, striking some fuel pumps, and then drove

forward and struck the police cruiser.               He backed up his truck

again, cutting the wheel so that he could escape through the

small area between the police cruiser and the maroon car.                           At

this point, Trooper Price positioned himself directly in front

of   Krein’s     truck.     Both     Trooper      Price    and    Trooper       Snyder

continued   to    order   Krein     to   stop.      Undeterred,         Krein   drove

directly at Trooper Price, who fired the first shot that either

hit the truck’s grill or went under the truck.                    After the first

shot, Krein turned the truck’s wheel to his left and accelerated

toward   Trooper     Snyder.        Trooper      Price    moved    to    his    left,

“try[ing his] best to get out of the way.”                 (J.A. 45).        From all

accounts, Trooper Price was in a wedge between Krein’s truck,

the police cruiser, and some fuel pumps.                   As he was trying to

get out of the way, Trooper Price fired the second shot, which

entered the front passenger window.

     Based on the undisputed evidence recited above, it is self-

evident that Trooper Price was reasonable in his belief that

Krein presented a serious threat of physical injury to both he

and to Trooper Snyder.         After the first shot was fired, Krein

accelerated      toward   Trooper    Snyder.        This    created      a     serious

threat of physical injury to Trooper Snyder, which Trooper Price

understandably tried to thwart.               Moreover, as Trooper Price was

                                         22
trying to get out of the way when he fired the second shot, he

was    reasonable        in     believing          that       he    was      still      in      peril,

especially considering the tight quarters he was confined to.

       The reasonableness of Trooper Price’s actions is confirmed

by our decision in Waterman.                           In that case, police officers

first fired their weapons at a car that “lurched” toward them,

although the police officers were not directly in the path of

the car and indeed would only have been hit if the car had

swerved.      393 F.3d at 477.               The car had been involved in a high

speed chase.         Id.        In finding the first shooting justified, we

focused on a number of factors, including the previous hazardous

activity      of   the      car.           Id.         But     central       to       our    analysis

concerning     the      first        shots       was    the    limited        time      the    police

officers had to respond and “the closeness of the officers to

the    projected     path       of    [the]       vehicle.”            Id.      at    479.         These

factors     led    us      to    conclude         that        the   police           officers       were

justified in using deadly force for the first shots.                                          Id. at

481.

       We   found,      however,           that    the        police      officers          were     not

justified in firing their weapons at the car after it had passed

them    and    stopped.              Id.         This     finding         was     based       on     our

observation that, after the car had passed the police officers,

the police officers had access to new information regarding the

perceived      threat         and     should           therefore       have       changed          their

                                                  23
response accordingly.               Id.    Notably, then, the later shots fired

by the police officers were found unjustified because the police

officers         could   have    actually         perceived     the    passing     of    the

threat.       Id.

       In    this     case,     Trooper     Price      had   just     seconds    to   weigh

everything         before     him.        Krein    was   acting     irrationally.         He

struck a police cruiser with his truck.                        He struck diesel fuel

pumps       in    a   lot   with     private       citizens,      including     children,

present.          He ignored numerous commands from two state troopers

pointing their guns at him by driving his truck at them, just

like    he       previously      had      dangerously        done     to   other      police

officers.          “[T]he critical reality here” is that Trooper Price

did    not       “have   even   a    moment       to   pause   and    ponder”      all   the

circumstances before him.                 Id. at 478.        Indeed, unlike Waterman,

the facts of this case simply do not support the conclusion that

Trooper Price actually could have perceived the passing of the

threat posed by Krein, especially since Krein was accelerating

toward Trooper Snyder and, at the same time, Trooper Price was

trying to move out of the way of the truck when he fired the

second shot.

       The majority’s use of Waterman highlights once again its

flawed analysis.            It says Waterman is analogous to this case

because Trooper Price “was no longer in danger of being hit”

when he fired the second shot and because Trooper Snyder “was

                                              24
similarly      not    threatened     when      Price   fired     the      second   time.”

Ante at 16.           But, as noted above, the outcome determinative

question    is    not    whether     the    troopers     were,      in    fact,    out    of

danger at the time Trooper Price fired the second shot, but

whether    Trooper       Price     was   reasonable      in    his       belief    that   a

serious threat of physical injury was present at the time he so

fired.

       Moreover, the majority’s suggestion that the circumstances

present in this case are less dangerous than the circumstances

present in Waterman borders on the absurd.                          The majority says

the circumstances present in Waterman are more dangerous because

that    case     involved     “a    high-speed”        chase    whereas      Krein       was

“effectively trapped” by the police cruiser.                        Ante at 17.       This

position       does     not   withstand        scrutiny.         First      off,     Krein

ultimately was successful in his attempt to maneuver the truck

past the police cruiser and the maroon car, so Krein’s truck was

not    effectively       trapped.        Second,    while      Waterman      involved      a

high-speed chase, this distinction is inconsequential given the

dangerousness created by Krein’s escape-at-all-cost mentality.

More compelling, though, is that, unlike Waterman, where none of

the police officers were in the path of the car, Krein drove his

truck directly at the troopers, placing them in immediate and

concrete    peril.        Moreover,      the     plaintiff     in    Waterman      had    no

prior criminal record, whereas Krein was a fugitive from justice

                                            25
wanted    for       crimes   involving       domestic     violence    and    assaulting

police officers.             Clearly, then, the circumstances present in

this case are far more dangerous than those present in Waterman.

       In the final analysis, the majority applies a standard that

requires perfection on the part of Trooper Price.                            He had to

know    and    be    100%    correct    in       his   knowledge    that    he,   Trooper

Snyder, and/or the others at the scene were in danger of being

seriously injured when he fired the second shot to avoid being

liable    under       § 1983.        Such    a    standard    is   incompatible     with

Supreme       Court,    as    well     as    this      court’s,    precedent.       “The

Constitution simply does not require police [officers] to gamble

with their lives in the face of a serious threat of harm.”

Elliott, 99 F.3d at 641.               The upshot of all of this is that the

majority is penalizing a police officer who attempted to do the

right    thing       under   the   tense,        uncertain,   and    rapidly-evolving

dangerous circumstances with which he was confronted.                         Qualified

immunity is designed to protect all but the plainly incompetent.

Trooper Price is a far cry from this, and it is my hope that the

ensuing trial will be resolved in his favor.                        It follows that I

would vacate and remand with instructions to grant Trooper Price

qualified immunity.




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