                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-1999

Abraham v. Raso, et al
Precedential or Non-Precedential:

Docket 98-5405,98-5406




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Recommended Citation
"Abraham v. Raso, et al" (1999). 1999 Decisions. Paper 216.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/216


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Filed July 26, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-5405 and 98-5406

VANESSA ABRAHAM, IN HER OWN RIGHT AND AS
ADMINISTRATRIX OF THE ESTATE OF
ROBERT ABRAHAM, DECEASED, AND ON BEHALF
OF ROBERT CHRISTOPHER ABRAHAM, JR.,
LABREEA VON ABRAHAM AND TAQUAN CAREY,
THE MINOR CHILDREN OF DECEDENT;

CNA INSURANCE COMPANY (Intervenor-Plaintiff in D.C.)

v.

KIMBERLY RASO, BADGE NO. 243, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY AS A TOWNSHIP
OF CHERRY HILL POLICE OFFICER; THE TOWNSHIP
OF CHERRY HILL; CHERRY HILL CENTER, INC.;
THE ROUSE COMPANY OF NEW JERSEY, INC.;
THE ROUSE COMPANY; MACY'S EAST INC.

LIBERTY MUTUAL INSURANCE COMPANY
(Intervenor-Defendant in D.C.)

(D.C. Civil No. 96-4884)

KIMBERLY RASO;
JORIS HOOGENDOORN

v.

THE ESTATE OF ROBERT C. ABRAHAM, Deceased;
VANESSA ABRAHAM, Administratrix of the Estate
of Robert C. Abraham; VANESSA ABRAHAM, Individually;
MACY'S DEPARTMENT STORE; JOHN DOE(S), a fictitious
name or names, jointly severally or in the alternative

(D.C. Civil No. 96-5146)
Vanessa Abraham,
       Appellant in No. 98-5405

       Kimberly Raso;
       Joris Hoogendoorn,
       Appellants in No. 98-5406

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 96-cv-04884)
District Judge: Honorable Joseph E. Irenas

Argued March 23, 1999

Before: BECKER, Chief Judge, COWEN, Circuit Judge,
and STAGG,* District Judge

(Filed July 26, 1999)

       Alan L. Yatvin, Esq. (Argued)
       Popper & Yatvin
       1600 Market Street
       Suite 1416
       Philadelphia, PA 19103

        Counsel for Appellant/Appellee
        Vanessa Abraham

       Louis J. Kotlikoff, Esq. (Argued)
       Kotlikoff, Littlefield & Fishman
       412 White Horse Pike
       Audubon, NJ 08106

        Counsel for Appellants
        Kimberly Raso and Joris
        Hoogendoorn in No. 98-5406

*Honorable Tom Stagg, U.S. District Judge for the Western District of
Louisiana, sitting by designation.

                                  2
Mario A. Iavicoli, Esq. (Argued)
43 Kings Highway West
Haddonfield, NJ 08033

 Counsel for Appellee
 Kimberly Raso in No. 98-5405

John C. Simons, Esq.
Hoagland, Longo, Moran, Dunst
 & Doukas
40 Paterson Street
P.O. Box 480
New Brunswick, NJ 08903

 Counsel for Appellee
 CNA Insurance Company

Carl D. Poplar, Esq.
Jeffrey A. Ahren, Esq. (Argued)
Poplar & Eastlack
215 Fries Mill Road
P.O. Box 8320
Turnersville, NJ 08012

Philip R. Lezenby, Jr., Esq.
Lezenby, Zane & Cure
208 White Horse Pike
P.O. Box 699
Barrington, NJ 08007

 Counsel for Appellee
 Township of Cherry Hill

Frank D. Allen, Esq. (Argued)
Archer & Greiner
One Centennial Square
P.O. Box 3000
Haddonfield, NJ 08033

 Counsel for Appellees
 Cherry Hill Center, Inc.; The
 Rouse Company of New Jersey,
 Inc.; and The Rouse Company

                           3
       Steven B. Prystowsky, Esq. (Argued)
       Lester, Schwab, Katz & Dwyer
       120 Broadway
       New York, NY 10271

        Counsel for Appellee
        Macy's East Inc.

       Lewis K. Jackson, Esq. (Argued)
       401 Route 73 North
       10 Lake Center Executive Parks
       Marlton, NJ 08053

        Counsel for Appellee
        Liberty Mutual Insurance
        Company

OPINION OF THE COURT

COWEN, Circuit Judge:

Kimberly Raso, an off-duty police officer, shot and killed
Robert Abraham in a mall parking lot while Abraham was
trying to escape from a Macy's store where he had been
stealing clothes. Raso was working as a mall security guard
at the time and testified that she fired at Abraham because
he tried to hit her with his car after she blocked its path.
Abraham's estate alleges that Raso used excessive force.
According to the estate, Raso was not in front of the
vehicle, her life was never in danger, and she fired simply
to prevent Abraham from evading arrest. The estate points
to physical evidence showing the bullet shattered the
driver's side window, rather than the front windshield, and
struck Abraham in his left arm before passing into his
chest.

Vanessa Abraham filed this suit as administratrix of
Robert Abraham's estate, in her own right, and on behalf of
Robert Abraham's three children. (Collectively referred to as
"the estate.") The estate sought relief against Raso and the
Township of Cherry Hill under 42 U.S.C. S 1983 based on
violations of Robert Abraham's Fourth and Fourteenth
Amendment right to be free from unreasonable seizures.

                               4
The complaint also included pendent state claims against
Raso, the owners of the Cherry Hill mall that employed
Raso, and the Macy's store where Abraham had stolen the
clothes.

Raso and her husband in turn brought negligence claims
against Macy's, Abraham's estate, and Vanessa Abraham in
her individual capacity and as administratrix. Raso also
sued her own auto insurer, CNA Insurance Co., invoking an
uninsured motorist provision in her policy. CNA then sued
Liberty Mutual, the insurer for one of the mall defendants.

The District Court held on summary judgment that
regardless of whether Raso's use of deadly force was
justifiable in self-defense, Abraham posed an immediate
threat of physical harm to the public, making the shooting
objectively reasonable. Based on this "core" holding, the
District Court dismissed all the parties' claims, except for
the few remaining claims not subject to a summary
judgment motion, i.e., Raso's tort claims against Abraham's
estate and Vanessa Abraham.

We will reverse and remand for further proceedings. We
conclude that the District Court resolved genuine factual
disputes that, if a jury decides in favor of the estate, would
entitle the estate to relief. Since the District Court disposed
of all claims brought in Abraham's complaint based on the
Court's "core" holding that Raso's use of force was
objectively reasonable, we will vacate summary judgment
for all of those claims, except for the dismissal of the
estate's claim against Macy's, which we will affirm.

Turning to Raso's claims, we will similarly affirm
summary judgment in favor of Macy's for Raso's claim
against the store, but we will reverse the dismissal of Raso's
claim against her insurer, CNA Insurance Co. We conclude
that under New Jersey law, Raso may be entitled to
uninsured motorist coverage. We likewise will vacate
summary judgment on CNA's claim against Liberty Mutual
Insurance Co., the Cherry Hill mall's insurer.

I

Background

On Saturday evening, October 15, 1994, Mary Jane
Thomulka was watching Macy's security monitors when she

                               5
noticed Robert Abraham and his cousin, Dennis Redding,
stealing clothes in the men's clothing department.
Thomulka contacted Shawn Waters, another Macy's guard,
and asked him to investigate. Waters did but decided that
he needed help before confronting the two. Because Waters
was concerned about having Thomulka, a woman nearfifty,
involved if the suspects reacted violently, he specifically
asked to have someone from the mall's security force back
him up. Thomulka called Carmen Inverso, a security officer
for the mall, who then put out a call to Raso and David
Washick, the two off-duty police officers patrolling the mall.
Raso responded that she was near Macy's while Washick,
who was further away, headed toward Macy's. Mall guards
Eriberto Avilez and Gary Saraceni also responded.
According to Raso, she was told the suspects were possibly
intoxicated.

Abraham and Redding initially walked together as they
left the mall but soon parted apparently because they
realized they were being followed. With Raso and Avilez
walking steadily after them, the two suspects headed
towards Abraham's car, parked facing west in aisle 68.
Shortly after exiting the mall, Raso and Avilez also
separated so that they could approach the suspects from
different directions.

Abraham reached his car first and entered on the driver's
side while Raso called out to him to stop. As Raso
approached from the rear of the car, Avilez arrived near the
front and tried in vain to pull Abraham from the car. With
Avilez trying to stop Abraham, Redding fumbled at the door
on the passenger's side of the car, but was unable to get in.
(Redding was so intoxicated at the time that he does not
recall the shooting.) Saraceni and Waters meanwhile were
driving up aisle 68 in an unmarked mall pickup truck.

Raso, who was in police uniform, testified that she
repeatedly commanded Abraham to stop, but by the time
she reached the rear driver's side of the car, he had begun
backing. Either before or shortly after Abraham's backing,
Avilez grabbed Redding and called out that he had him. The
mall truck was very close at this point, withinfive or six
feet of Abraham's car according to Saraceni, giving Saraceni
and Waters a view of events. All witnesses agree that

                               6
Abraham backed out of his parking spot in an east-
southeast direction and hit a white Ford Mustang parked in
the opposing row of cars.

Photographs of the rear of Abraham's car and the
Mustang show that Abraham's car left a black mark
roughly a foot long and an inch wide where his car hit the
rear bumper of the Mustang. Abraham's car was left with a
shorter, wider white mark on its rear bumper. Neither car's
bumper appears in the photographs to have been dented in
any way.

Raso testified that Abraham began backing "very fast,"
forcing her to "jump out of the way." Abraham App. at 173.
In an interview conducted by the Cherry Hill Police
Department on October 31, 1994, roughly two weeks after
the shooting, Raso said that Abraham backed up "in a
reckless fashion" and she heard a "loud crash" when he hit
the Mustang. Raso App. at 198.

Waters agreed that Abraham's car struck the Mustang
forcefully, but his testimony conflicted with the physical
evidence and differed in a number of details from Raso's
account. On June 26, 1997, several years after the
incident, he testified in his deposition that:

       To the best of my recollection, [Abraham's car] hit the
       front of the parked car. I believe he did damage to the
       front passenger side and he broke glass. I don't know
       if it was on the car that he struck or his own vehicle.
       And his back -- the back of his car was damaged. I
       don't know to what extent... [It] was a severe accident.
       He hit -- struck the car so hard he actually moved it
       out of its spot.

Abraham App. at 137-138. Waters's testimony also
conflicted with Raso's account when he stated in his
deposition that as Abraham began backing, Raso was"on
the passenger side of the car towards the front of the
vehicle." Raso App. at 468. In a statement taken the day
after the shooting, Avilez agreed with Raso and Waters
about how fast Abraham drove and said that Abraham"just
floored it" in reverse and "smashed into another car." Raso
App. at 508.

                                7
Because the parties dispute how much of a threat
Abraham posed to others when he began backing, it is
important to understand how close surrounding cars were
and to what extent they hemmed in the officers and
Redding. Video footage taken immediately before the
shooting by a mall surveillance camera shows a car that
the estate identifies as Abraham's with two open spaces on
the driver's side and one open space on the passenger's
side. A view of the same area just after the shooting shows
the car is missing, leaving four empty spaces. Raso stated
at one point in her deposition, however, that a car was
immediately next to Abraham's car on the passenger's side
where Redding stood. Raso App. at 438-39. At oral
argument, the parties did not dispute the estate's account
of where Abraham's car was parked, but following the
arguments, counsel for one of the mall defendants
submitted a letter questioning the location of the car.
Although the estate's identification of the car's position
appears compelling, for our purposes all that matters is
that the estate has established a genuine factual dispute
about how close other cars were.

The video tape from the surveillance camera bears special
mention. The camera shows Raso and Avilez exiting Macy's
and follows Avilez after he separated from Raso and began
working his way between cars up aisle 68. The tape then
abruptly switches back inside, and filming of events outside
resumes shortly after the shooting. According to testimony
by Thomulka and Waters, Macy's has well over twenty
cameras but only one or two video tapes to capture the
various cameras' signals. Since the estate has not drawn
any incriminating inferences from this unfortunate switch
in the taping, we also have not.

After Abraham hit the Mustang, Avilez reported that Raso
"got in front of the car" and stood "more towards the
center." Raso App. at 508. Avilez continued that Abraham
"inched his vehicle towards police officer Raso" while she
told him "to stop the car." Id. Avilez described the last
moments before the shooting as follows:

       She drawed her weapon and said, "please don't let.
       Don't, please don't force me to do this. Please don't let
       me do this. Stop the car." That's when he floored it,

                                8
       um, catching officer Raso in her left leg when um, at
       the time she was falling she fired and discharged her
       weapon towards the driver's side window.

Id. at 509.

Saraceni testified that when Raso walked in front of
Abraham's car, she stood "[t]o the driver's side in front of
the headlight." Abraham App. at 202. Saraceni estimated
that Raso told Abraham to get out of his car "between eight
and ten" times, and after the sixth or seventh time,
according to Saraceni, she drew her weapon and said,
"please, please don't make me do this. Just get out." Id. at
203. Saraceni continued: "After about the fourth plea from
officer Raso, I heard a distinct sound of Abraham's foot
hitting the floorboards in the car, like stomping down on
the accelerator. The car lunged forward. It didn't spin the
wheels or anything." Id. at 204. He added: "When officer
Raso fired the shot, everything was in motion. So she was
moving out of the way. She was being struck at the same
time. The car was moving forward. And the shot wasfired
at that point." Id. at 205.

Raso similarly testified in a deposition taken on July 30,
1997 that she stood in front of the car before the shooting,
by her account about two-and-a half feet towards the
center of the car on the driver's side. She stated that as she
walked closer towards the car, "he moved up maybe a foot
or so." Id. at 174. At that point, she says she backed up,
continuing to yell at him to stop, but Abraham moved
forward a second time, about "six inches, a foot. I don't
know." Id. at 176. Abraham then began"inching up, and at
this time is when I pulled my weapon." Id. at 180. "It was
like - he kept inching and inching up towards me. And it
was a standoff. And I was looking to go - and I couldn't get
out of his way" because "[t]here were vehicles there." Id. at
181-82. She said, "he looked right at me. And all I heard
and saw was he slammed the accelerator to the floor. And
I could see him go back as one would when the vehicle
excels, [sic] and you're sitting in the driver's seat." Id. at
183. Raso testified that she fired at Abraham because "[i]f
I didn't, I was going to be killed." Raso App. at 442.

                               9
In her statement on October 31, 1994, she testified that
she did not remember when she pulled her gun and
recounted:

       I remember just bringing the gun up and pointing it at
       the windshield and screaming for him to stop, and
       that's when I remember him hitting the accelerator and
       I tried to jump out of the way, and I couldn't, and I
       remember my left leg got caught, on the car, andfired
       a round, into the windshield, pointing it at the
       windshield, fired a round at the driver in order to stop
       him.

Raso App. at 199. Her testimony here is contradicted by the
physical evidence showing that the bullet did not go
through the front windshield, but entered from the side of
the vehicle.

The estate points out that Raso had initially testified that
she could not remember whether she was hit by the car or
carried by her own momentum, and later she claimed to
recall having her leg caught by the car as she moved out of
the way. But as the estate notes, when the mall
surveillance video returned to the parking lot view
immediately after the shooting, Raso is shown walking
around without difficulty.

According to the estate, Raso never stood in front of the
car with Abraham driving toward her. Rather, Abraham
backed out, and Raso shot him from the side as he drove
away. In the alternative, the estate argues that even if Raso
was at some point in front of the car, she was never in
danger and did not fire until she was safely out of the way
and standing along side the car.

The estate notes that all of the witnesses who say Raso
stood in front of the car and fired from that position are
security officers working for the mall or for Macy's. These
witnesses' testimony, the estate urges, could be rejected by
a jury as self-serving. Relying on various pieces of physical
evidence, the estate argues that the officers inflated the
damage to the Mustang and hence the speed Abraham was
driving, and the estate maintains that cars were not parked
immediately beside Abraham's car as Raso suggested. A
proper reading of the physical evidence, the estate argues,

                               10
deflates the charge that Abraham was driving recklessly
and threatening lives. More importantly, physical evidence
shows Raso's shot went through the driver's side window,
not the front windshield, as Raso claimed in her statement
on October 31, 1994. Autopsy photographs show the bullet
struck Abraham in the back of his arm, and the medical
examiner's report concluded, "The course of the gunshot
wound is from left to right. In the chest it is slightly from
front to back and slightly from above downward." Abraham
App. at 247.

The parties also refer to the testimony of two bystanders,
Lisa Brittingham and her boyfriend, Bill Duhart, a reporter
for a local newspaper. Brittingham and Duhart were leaving
the mall just as Abraham and Redding walked out and
soon found themselves in the midst of the officers' pursuit.
Recognizing that a confrontation was about to occur,
Duhart and Brittingham hurried inside their car and then
watched what they could. According to Duhart, the officers
and suspects were "approximately twenty-five to thirty-five
yards in front of us in a couple of lanes over..." Abraham
App. at 312. Because their view was obscured, neither
Duhart nor Brittingham observed the shooting. When the
police took Brittingham's statement, she was specifically
asked, "You say you heard what sounded ah, to you like a
gun shot. Did you see anyone fire a weapon?" She
responded, "No." Abraham App. at 307. Duhart likewise
was asked in a deposition, "After [Abraham's car] has
struck [the Mustang]... what position is the police officer,
the female officer, in at that point relative to[Abraham's]
car, as best you can tell?" Duhart replied, "I couldn't tell.
Primarily, she was on the driver's side rear of the car before
it took off." Raso App. at 330. In short, Brittingham and
Duhart have no relevant testimony about where Raso stood
or what Abraham did after he backed up.

Brittingham and Duhart do confirm what all witnesses
agree happened after the shooting. With the mall pickup in
pursuit, Abraham continued driving away from the scene
for several hundred yards before finally coming to a stop.
Officers quickly surrounded him and found he was mortally
wounded. Abraham was pronounced dead upon arrival at
Cooper Hospital.

                                11
To establish Cherry Hill's liability under Monell v. New
York City Department of Social Servs., 436 U.S. 658, 98
S.Ct. 2018 (1978), the estate relied on a variety of evidence.
Prior to the shooting, several citizen complaints had been
filed against Raso, and the Cherry Hill Police Department
had disciplined her for "mouthing off " at roll call, getting in
"verbal altercations" with other officers, wearing a gym suit
for roll call, and going to the gym when she was supposed
to be on patrol. In early 1991 the police department,
prompted by concerns about stress and fatigue Raso was
experiencing, reduced her authorized hours of secondary
employment. For a number of years, Raso had had
problems with anxiety and depression which led her to seek
treatment, and at the time of the shooting, she was taking
Xanax and Prozac, two prescription drugs used to treat
those conditions. In response to Raso's ongoing treatment,
the police department consulted on several occasions with
Raso's health care providers, who responded that neither
Raso's mental health nor the drugs she was taking would
prevent her from performing her duties. Following the
shooting, Raso's mental health has worsened, leaving her
unable to work.

The parties initiated this action in two separate suits: (1)
the estate's case against Raso, the Cherry Hill Township,
and the various mall defendants, and (2) Raso and her
husband's suit against the estate, Macy's, and Raso's
insurer. After consolidating the two cases, the District
Court dismissed on summary judgment all claims brought
by the estate, as well as Raso's claims against Macy's and
her insurers, leaving only Raso and her husband's claim
against Abraham's estate. The parties filed notices of
appeal, but we dismissed the appeals on July 22, 1998 for
lack of jurisdiction, as there was no final order disposing of
all claims. The parties returned to the District Court and
jointly requested a final judgment pursuant to Fed.R.Civ.P.
54(b). Since the estate apparently was uninsured and
without funds, the claims remaining in the District Court,
i.e., those brought by Raso and her husband against the
estate, evidently were of little value absent reinstatement of
the claims against CNA and Liberty Mutual. Consequently,
the District Court entered a Rule 54(b) order dated August
11, 1998. This appeal followed.

                               12
II

We have jurisdiction pursuant to 28 U.S.C. S 1291, and
we exercise plenary review of a district court's grant of
summary judgment. Barnes v. American Tobacco Co., 161
F.3d 127, 138 (3d Cir. 1998). On a motion for summary
judgment, the court must determine whether the evidence
shows that "there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). Any factual dispute
invoked by the nonmoving party to resist summary
judgment must be both material in the sense of bearing on
an essential element of the plaintiff's claim and genuine in
the sense that a reasonable jury could find in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-251, 106 S.Ct. 2505, 2510-12 (1986). In opposing
summary judgment, a party "must do more than simply
show that there is some metaphysical doubt as to material
facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56 (1986), but a
court should not prevent a case from reaching a jury simply
because the court favors one of several reasonable views of
the evidence. "[T]he judge's function is not himself to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Thus, while
the nonmoving party must present enough evidence to
demonstrate a dispute is genuine, all inferences in
interpreting the evidence presented by the parties should
be drawn in favor of the nonmoving party. See , e.g., Boyle
v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir.
1998). Cases that turn crucially on the credibility of
witnesses' testimony in particular should not be resolved on
summary judgment. Id.

III

To state a claim under 42 U.S.C. S 1983, "a plaintiff must
allege the violation of a right secured by the Constitution
and the laws of the United States, and must show that the
alleged deprivation was committed by a person acting
under color of state law." West v. Atkins, 487 U.S. 42, 48,
108 S.Ct. 2250, 2254-55 (1988). Before we examine

                               13
whether Raso violated Abraham's federal rights by shooting
him, the central issue in this case, we will first analyze the
requirement that Raso acted under color of state law.

The Supreme Court has explained, "The traditional
definition of acting under color of state law requires that
the defendant in a S 1983 action have exercised power
`possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.' " West, 487 U.S. at 49, 108 S.Ct. at 2255 (quoting,
United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031,
1042-43 (1941)). In Griffin v. Maryland, 378 U.S. 130, 135,
84 S.Ct. 1770, 1772-73 (1964), the Court held that a
deputy sheriff acting as a security guard for a private park
operator satisfied the state action requirement under the
Fourteenth Amendment because the deputy wore a sheriff's
badge, identified himself as a deputy sheriff while escorting
the plaintiff off park property, and arrested the plaintiff for
criminal trespass. As we have previously noted, conduct
qualifying as state action under the Fourteenth Amendment
also counts as acting under the color of state law for the
purposes of S 1983, although the reverse is not necessarily
true. Groman v. Township of Manalapan, 47 F.3d 628, 638
n.15 (3d Cir. 1995)(citing Lugar v. Edmondson Oil Co., 457
U.S. 922, 935 n.18, 102 S.Ct. 2744, 2752 n.18 (1982)).
Based on Griffin, it is clear that even though Raso was
working off duty as a security guard, she was acting under
color of state law: she was wearing a police uniform,
ordered Abraham repeatedly to stop, and sought to arrest
him.

Turning to Abraham's claim of excessive force under the
Fourth and Fourteenth Amendments, we note that
excessive force in the course of an arrest is properly
analyzed under the Fourth Amendment, not under
substantive due process. Graham v. Connor, 490 U.S. 386,
393-94, 109 S.Ct. 1865, 1870-71 (1989). The Fourth
Amendment provides, "The right of the people to be secure
in their persons... against unreasonable searches and
seizures, shall not be violated." To state a claim for
excessive force as an unreasonable seizure under the
Fourth Amendment, a plaintiff must show that a "seizure"
occurred and that it was unreasonable. Brower v. County of

                                14
Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 1382-83 (1989).
Abraham obviously was "seized" when shot. As the
Supreme Court recognized in Tennessee v. Garner , 471 U.S.
1, 7, 105 S.Ct. 1694, 1699 (1985), "there can be no
question that apprehension by the use of deadly force is a
seizure subject to the reasonableness requirement of the
Fourth Amendment." The pivotal question is when the use
of deadly force is reasonable.

Deadly force will only be considered reasonable, the
Court held in Garner, when "it is necessary to prevent
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." 471 U.S. at 3, 105
S.Ct. at 1697. Applying this rule, Garner held
unconstitutional a state statute that authorized officers to
use deadly force, as the law in many states did at the time,
against any felon fleeing or resisting arrest. The specific use
of force challenged in Garner was a police officer's decision
to shoot an eighth grader who had broken into an
unoccupied house and stolen ten dollars and a purse, a
crime that indisputably constituted a felony under state
law.

While investigating a call from a neighbor, the officer had
walked behind the unoccupied house and spotted the
decedent scaling a chain link fence. The officer called out to
the decedent to stop and, when he did not, shot him in the
back of the head. Although it was dark outside, the officer
frankly admitted that he had no reason to believe the
decedent was armed or dangerous and explained that his
reason for firing was that the decedent would have escaped
and very likely never would have been apprehended.

The Supreme Court held it was unreasonable to rely on
the technical, legal classification of the offense to determine
when deadly force was justified. Instead, the Court required
that deadly force must be necessary to prevent escape and
the fleeing suspect must pose "a significant threat of death
or serious physical injury to the officer or others." Id. at 3,
105 S.Ct. at 1697. The Supreme Court expressly recognized
that suspects who do not pose a significant threat and
successfully flee may never be apprehended: "we proceed
on the assumption that subsequent arrest is not likely."

                                15
471 U.S. at 9 n.8, 105 S.Ct. at 1700 n.8. But applying a
balancing approach, the Court concluded that the
government's interest in effective law enforcement was
insufficient to justify killing fleeing felons who did not pose
a significant threat of death or serious injury to anyone.
Weighty interests militate against the unrestrained pursuit
of arrest. As the Supreme Court explained, "The suspect's
fundamental interest in his own life need not be elaborated
upon. The use of deadly force also frustrates the interest of
the individual, and of society, in judicial determination of
guilt and punishment." 471 U.S. at 9, 105 S.Ct. at 1700.
Echoing the concepts that defendants are entitled to the
procedural protections of a trial, must be shown to be
guilty beyond a reasonable doubt, and should be punished
according to the proportional scheme embodied in
sentencing law, the Supreme Court emphasized, "It is not
better that all felony suspects die than that they escape."
Id. at 11, 105 S.Ct. at 1701.

Subsequently, in Graham v. Connor, 490 U.S. at 394, 109
S.Ct. at 1871, the Court amplified on the reasonableness
standard applied under the Fourth Amendment while
considering a claim that did not involve deadly force. How
much force is permissible to effectuate an arrest, the Court
explained, is determined based on the "totality of the
circumstances."

       Our Fourth Amendment jurisprudence has long
       recognized that the right to make an arrest or
       investigatory stop necessarily carries with it the right
       to use some degree of physical coercion or threat
       thereof to effect it. See Terry v. Ohio, 392 U.S. 1, 22-27,
       88 S.Ct. 1868, 1880-83, 20 L.Ed.2d 889 (1968).
       Because "[t]he test of reasonableness under the Fourth
       Amendment is not capable of precise definition or
       mechanical application, Bell v. Wolfish, 441 U.S. 520,
       559, 99 S.Ct. 1861, 1884 (1979), however, its proper
       application requires careful attention to the facts and
       circumstances of each particular case, including 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. See Tennessee v.

                               16
       Garner, 471 U.S. at 8-9, 105 S.Ct. at 1699-1700 (the
       question is "whether the totality of the circumstances
       justifie[s] a particular sort of... seizure").

Graham, 490 U.S. at 396, 109 S.Ct. at 1871-72.

After explaining that reasonableness should be assessed
in light of the "totality of the circumstances," the Supreme
Court emphasized that the test is "whether the officers'
action are `objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivations." Id. at 396, 109 S.Ct. at
1872.

Objective reasonableness, the Court made clear, has two
important implications: First, if the shooting was not
objectively reasonable under the circumstances, it is
irrelevant that the officer was acting in good faith. Second,
if the shooting was objectively reasonable, by contrast, then
any bad faith motivating the officer would not matter for
the purposes of the Fourth Amendment. "An officer's evil
intentions will not make a Fourth Amendment violation out
of an objectively reasonable use of force." Id. at 396, 109
S.Ct. at 1872.

The Court cautioned that what force is objectively
reasonable "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, 109 S.Ct. at 1872. As
Justice Holmes memorably said in a different context,
"Detached reflection cannot be demanded in the presence of
an uplifted knife." Brown v. United States, 256 U.S. 335,
343, 41 S.Ct. 501, 502 (1921).

Combining the standards announced in Garner and
Graham, our inquiry for the use of deadly force is as
follows: Giving due regard to the pressures faced by the
police, was it objectively reasonable for the officer to believe,
in light of the totality of the circumstances, that deadly
force was necessary to prevent the suspect's escape, and
that the suspect posed a significant threat of death or
serious physical injury to the officer or others? In
determining the reasonableness of all degrees of force, the

                               17
Supreme Court has said that the factors to consider
include the "severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the
officer or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight." Graham v. Connor,
490 U.S. at 396, 109 S.Ct. at 1872.

Because we are applying this standard on a summary
judgment motion, we must address to what extent
questions of "reasonableness" can be resolved on summary
judgment. Reasonableness under the Fourth Amendment
resembles tort law in its attention to how a specific,
concrete circumstance should affect an officer's judgment.
This sensitivity to context suggests that regardless of
whether objective reasonableness invokes a different and
heightened standard from negligence, reasonableness under
the Fourth Amendment should frequently remain a
question for the jury. To put the matter more directly, since
we lack a clearly defined rule for declaring when conduct is
unreasonable in a specific context, we rely on the
consensus required by a jury decision to help ensure that
the ultimate legal judgment of "reasonableness" is itself
reasonable and widely shared.

While analyzing an excessive-force claim under the
Fourth Amendment, the Ninth Circuit has explained that

       even though reasonableness traditionally is a question
       of fact for the jury, see, e.g., White v. Pierce County,
       797 F.2d 812, 816 (9th Cir. 1986); Akhil R. Amar, The
       Bill of Rights as a Constitution, 100 Yale L.J. 1131,
       1179 (1991), defendants can still win on summary
       judgment if the district court concludes, after resolving
       all factual disputes in favor of the plaintiff, that the
       officer's use of force was objectively reasonable under
       the circumstances.

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). While we
agree with this statement and find it difficult to improve
upon, we are aware that it does not resolve the
fundamental issue: how willing should district courts be to
find a use of force objectively reasonable assuming a given
set of undisputed facts? To the extent that there is a
general answer to this question, it depends on a court

                               18
discerning differences in degree familiar in evaluating
factual questions on summary judgment. As the Supreme
Court said in Anderson, "the judge's function is not himself
to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial."
477 U.S. at 249, 106 S.Ct. at 2511.

Since the District Court relied on the risk Abraham posed
to others in granting summary judgment, we will consider
first whether there are genuine disputes that Abraham
posed a "significant threat of death or serious physical
injury" to members of the public. Finding there are such
disputes, we turn to the alternative ground not reached by
the District Court; namely, are there any genuine disputes
about whether Raso's actions were justifiable in self-
defense? On this issue, we also find summary judgment
cannot be granted.

The District Court's conclusions were premised on the
following overview of events:

       [T]his Court finds that the following material facts have
       been established: (1) Raso was advised that Abraham
       was intoxicated or under the influence; (2) Abraham
       evaded apprehension by Mall security guard Roberto
       Avilez, got into his car and disobeyed Raso's commands
       that he not get into the car or that he exit the car; (3)
       Abraham recklessly drove his car in reverse and at a
       high rate of speed -- with Avilez, Redding and Raso all
       in close proximity to the car -- out of his parking space
       and rammed into another parked car; (4) Raso, in
       police uniform, positioned herself towards the front of
       Abraham's car and commanded him at least half a
       dozen times to stop the car and get out of the car, and
       effectively warned him that she would use her gun to
       stop him if he kept driving at her; (5) Raso was close
       to Abraham's car as Abraham inched his car towards
       her and, at some point, Abraham accelerated his car
       and drove it towards Raso; (6) Raso believed that
       Abraham was trying to hit her or was acting with
       reckless disregard for whether or not he hit her; and (7)
       Raso jumped to her right out of the car's path andfired
       her gun once at the driver-side window.

                                19
Abraham v. Raso, 15 F. Supp.2d 433, 444 (D.N.J. 1998).

We will focus first on Abraham's conduct before he
allegedly accelerated toward Raso because we find many
genuine factual disputes about how much of a threat
Abraham posed to others through that conduct. Before
describing those disputes, however, we want to express our
disagreement with those courts which have held that
analysis of "reasonableness" under the Fourth Amendment
requires excluding any evidence of events preceding the
actual "seizure." See, e.g., Cole v. Bone, 993 F.2d 1328,
1333 (8th Cir. 1993)("we scrutinize only the seizure itself,
not the events leading to the seizure"); Carter v. Buscher,
973 F.2d 1328, 1332 (7th Cir. 1992)("pre-seizure conduct is
not subject to Fourth Amendment scrutiny."); Bella v.
Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994) (quoting
Bone and Carter). The District Court alluded to similar
cases confining the reasonableness inquiry to the moment
the officer used force.

Based on these cases, we apparently should not consider
any of the circumstances before the moment Abraham was
actually struck by Raso's bullet because, following
California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547
(1991), a suspect is not seized until he submits to the
police's show of authority or the police subject him to some
degree of physical force. Bone, Carter , and Bella might be
understood as only excluding evidence that helps the
plaintiff show the force was excessive, so on this more
narrow reading, we could consider Abraham's pre-seizure
conduct if it undermines the estate's case. But even apart
from the problematic justification for such a distinction,
there are considerable practical problems with trying to
wrest from a complex series of events all and only the
evidence that hurts the plaintiff. (What do we say about
Abraham's inching forward before he began accelerating?
Assuming the inching occurred, does it help him by
showing he really did not want to hit Raso and was just
wondering whether she would shoot when he drove past
her, or does it show that he weighed his options and
decided he would hit her? If the evidence can only be
considered on the latter interpretation, should a limiting
instruction be available upon request?) In any event, since

                               20
the cases purport to exclude all pre-seizure conduct and do
not expressly draw any distinction between who the
evidence helps, our discussion will assume the rule applies
generally to all pre-seizure conduct.

We reject the reasoning of Bone, Carter, and Bella
because we do not see how these cases can reconcile the
Supreme Court's rule requiring examination of the"totality
of the circumstances" with a rigid rule that excludes all
context and causes prior to the moment the seizure is
finally accomplished. "Totality" is an encompassing word. It
implies that reasonableness should be sensitive to all of the
factors bearing on the officer's use of force.

A more fundamental point is that it is far from clear what
circumstances, if any, are left to be considered when events
leading up to the shooting are excluded. How is the
reasonableness of a bullet striking someone to be assessed
if not by examining preceding events? Do you include what
Raso saw when she squeezed the trigger? Under at least
some interpretations of Hodari, Abraham evidently was not
seized until after the bullet left the barrel and actually
struck him. See Hodari D., 499 U.S. at 630, 111 S.Ct. at
1552 (dissenting opinion)(suggesting that under the
majority's analysis, there may be no seizure when the police
shoot and miss). If we accept both this interpretation of
Hodari as well as the rule that pre-seizure conduct is
irrelevant, then virtually every shooting would appear
unjustified, for we would be unable to supply any rationale
for the officer's conduct.

Courts that disregard pre-seizure conduct no doubt think
they could avoid this problem. But even rejecting the
rigorous interpretation of Hodari, courts are left without
any principled way of explaining when "pre-seizure" events
start and, consequently, will not have any defensible
justification for why conduct prior to that chosen moment
should be excluded.

The Supreme Court has allowed events prior to a seizure
to be considered in analyzing the reasonableness of the
seizure. In Brower, the Court remanded for a determination
of whether the police acted reasonably in constructing a
roadblock used to seize a suspect in a car chase. The

                                21
suspect's estate alleged that the police designed the
roadblock in a way likely to kill by placing a tractor trailer
behind a curve and directing car headlights to blind the
suspect as he rounded the curve. Brower, 489 U.S. at 599,
109 S.Ct. at 1383. Under the analysis encouraged in Bone,
Carter, and Bella, preparations predating the moment of
seizure, i.e., the moment the car actually collided with the
tractor trailer, must be barred from consideration. But if
preceding conduct could not be considered, remand in
Brower would have been pointless, for the only basis for
saying the seizure was unreasonable was the police's pre-
seizure planning and conduct. Hodari itself cited Brower
but did not suggest the Supreme Court was now rejecting
Brower's implication that pre-seizure conduct is relevant to
the reasonableness of a seizure.

We agree with the First Circuit which concluded that
Bone, Carter, and other courts following their rule are
mistaken and misread Hodari when they suggest the case
supports their rule. As the First Circuit explained:

       [T]he question in [Hodari] was not whether the seizure
       was reasonable, which requires an examination of the
       totality of the circumstances, but whether there had
       been a seizure at all. We do not read this case as
       forbidding courts from examining circumstances
       leading up to a seizure, once it is established that there
       has been a seizure. We understand Hodari to hold that
       the Fourth Amendment does not come into play unless
       there has been a seizure...

St. Hilaire v. City of Laconia, 71 F.3d 20, 26 n.4 (1st Cir.
1995)(emphasis in original). In sum, we think all of the
events transpiring during the officers' pursuit of Abraham
can be considered in evaluating the reasonableness of
Raso's shooting. Cf. Rowland v. Perry, 41 F.3d 167, 173
(4th Cir. 1994) ("The better way to assess the objective
reasonableness of force is to view it in full context, with an
eye toward the proportionality of the force in light of all the
circumstances. Artificial divisions in the sequence of events
do not aid a court's evaluation of objective
reasonableness.").

We are not saying, of course, that all preceding events
are equally important, or even of any importance. Some

                               22
events may have too attenuated a connection to the officer's
use of force. But what makes these prior events of no
consequence are ordinary ideas of causation, not doctrine
about when the seizure occurred.

When the District Court found that Abraham posed a
significant threat of death or serious physical injury to
others, it emphasized the violence of Abraham's efforts to
flee. In doing so, the District Court did not read the
evidence in the light most favorable to the estate and failed
to rely on the estate's version of events where there were
genuine factual disputes. According to the District Court,
Abraham "recklessly" drove in reverse at "a high rate of
speed" with people in "close proximity" before he "rammed"
into a parked car. A jury may ultimately accept this version
of the facts, but they also may not.

We begin by noting that the pursuit of Abraham in the
parking lot appears to have been measured, not frantic.
When the mall's surveillance video showed the actors out in
the parking lot, they were all walking. As Avilez headed up
aisle 68 just a short distance from where Abraham's car
was located, he took his time, talking into a radio and
maneuvering in between two rows of cars parked head to
rear against each other. How frenzied this initial pursuit
was does not necessarily show anything about Abraham's
conduct once in his car, but it does at least suggest that
Abraham's actions were less desperate, giving the officers
more time for considered action and less reason to fear his
acts.

Much more significantly, when Abraham began backing,
it is far from clear just how close Redding, Avilez, and Raso
were and consequently whether they were put in jeopardy
by the backing. The estate maintains, with considerable
plausibility, that the video shows there was one open
parking space next to Abraham's car on its passenger side
and two open spaces to the driver's side. Testimony also
suggests Avilez and Redding were standing near the front
end of the car, leaving them much less exposed as
Abraham backed away from them. Raso testified that she
was approaching the car from the rear, leaving doubt about
how close she was and whether Abraham really was at risk
of hitting her as he backed. She did say in her deposition

                               23
taken on July 30, 1997, she had to "jump" out of the way
when the car backed up. But in her statement taken just
two weeks after the shooting, her description was less
dramatic: "as the driver accelerated in reverse... I had to
move back away from the vehicle so he didn't hit me then."
Raso App. at 198. Raso also suggested that a car was next
to Abraham's, making the space tight. The video tape
evidence suggests otherwise. A reasonable jury could decide
she embellished.

How fast Abraham drove in reverse is also not beyond
rational dispute. The District Court stated that Abraham
"rammed" into a parked car, and it is true that witnesses
testified that Abraham accelerated quickly out of his spot
and collided forcefully with a Mustang parked behind him.
But the photographs we have in the record of both
Abraham's car and the Mustang do not show any damage
to either car beyond smudges of paint on their bumpers.
Based on that physical evidence, a reasonable jury could
reject the witnesses' recollections as inaccurate. A more
fundamental point is that given the doubts about whether
Abraham was close to hitting someone when he backed, the
fact that he collided forcefully with a parked car (if it is a
fact) does not by itself show that Abraham posed a
significant threat of death or serious physical injury to
other people.

In sum, the undisputed facts are that Abraham had
stolen some clothing, resisted arrest, hit or bumped into a
car, and was reasonably believed to be intoxicated. Given
these facts, a jury could quite reasonably conclude that
Abraham did not pose a risk of death or serious bodily
injury to others and that Raso could not reasonably believe
that he did. The remaining crucial fact obviously is that
Raso and the security officers allege that Abraham tried to
hit her with his car, or at least gave her the reasonable
belief that he was going to hit her.

Although the District Court expressly avoided finding on
summary judgment that Raso's decision to shoot was
justifiable in self-defense, instead relying on the risk
Abraham posed to others, the District Court did say that
"Raso believed that Abraham was trying to hit her or was
acting with reckless disregard for whether or not he hit

                               24
her." Abraham, 15 F. Supp.2d at 444. Since at this point
the evidence that Abraham was a threat to the public turns
largely, if not entirely, on the threat to Raso, we turn now
to whether a court can decide on summary judgment that
Raso's shooting was objectively reasonable in self-defense.

We disagree with the District Court that there is no
genuine dispute that Raso was in front of the car. Although
it is true that the security officers all testified that Raso was
in front of the car, the fatal shot indisputably came through
the driver's side window. The District Court emphasized
that the autopsy report described the path of the bullet in
Abraham's chest as "slightly from front to back and slightly
from above downward." Abraham App. at 247. While that
trajectory may rule out that Raso was behind the vehicle, it
hardly precludes a jury from finding that Rasofired from
somewhere along the front side of the vehicle and that she
was never in front of the vehicle. The bullet indisputably
shattered the driver's side window, struck Abrahamfirst in
his arm, and then passed into his chest. It is true that the
autopsy report stated that the path of the bullet was
"slightly from front to back," but the report also was quite
clear that "[t]he course of the gunshot wound is from left to
right." Based on this physical evidence, a jury could
reasonably decide to reject the security officers' testimony.
Considering the physical evidence together with the
inconsistencies in the officer's testimony, a jury will have to
make credibility judgments, and credibility determinations
should not be made on summary judgment. Boyle , 139
F.3d at 393.

As the Ninth Circuit has recognized, since the victim of
deadly force is unable to testify, courts should be cautious
on summary judgment to "ensure that the officer is not
taking advantage of the fact that the witness most likely to
contradict his story -- the person shot dead -- is unable to
testify." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
"[T]he court may not simply accept what may be a self-
serving account by the officer. It must also look at the
circumstantial evidence that, if believed, would tend to
discredit the police officer's story, and consider whether
this evidence could convince a rational fact finder that the
officer acted unreasonably." Id. See also Hopkins v.
Andaya, 958 F.2d 881, 885 (9th Cir. 1992).

                               25
Even assuming there is no genuine dispute that Raso
was in front of the car at some point, the video tape of the
parking lot shows a wide lane between the rows of parked
cars and open parking spaces near where Abraham backed
out. Raso is shown walking around immediately after the
shooting, suggesting that even if hit or brushed by the car,
she was not significantly injured. Together with the
questions about how fast Abraham accelerated, these facts
raise genuine disputes about whether Raso had room to get
out of the way. Again, the fact that Raso's shot wasfired
through the driver's side window and hit Abraham in the
left arm suggests she may have had time to get out of the
way, take aim, and fire. A jury might not believe the
officers' testimony that Raso was simultaneously in front of
the car, being struck by it, jumping out of the way, and
firing through the driver's side window.

We want to be clear that the ultimate question is not
whether Raso really was in danger as a matter of fact, but
is instead whether it was objectively reasonable for her to
believe that she was. A jury will have to determine, after
deciding what the real risk to Raso was, what was
objectively reasonable for an officer in Raso's position to
believe about her safety, giving due regard to the pressures
of the moment. After weighing the evidence, the jury may
very well conclude that Raso had an objectively reasonable
belief that she faced a significant threat of death or serious
physical injury, but this is a question for the jury. In light
of the record so far, we cannot say as a matter of law that
it was objectively reasonable for Raso to believe that she
was in danger.

Even assuming Raso was in front of the car and was in
danger at some point, a jury could find, notwithstanding
her testimony, that she did not fire until it was no longer
objectively reasonable for her to believe she was in peril. A
passing risk to a police officer is not an ongoing license to
kill an otherwise unthreatening suspect. See, e.g., Ellis v.
Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) ("When an
officer faces a situation in which he could justifiably shoot,
he does not retain the right to shoot at any time thereafter
with impunity."). We can, of course, readily imagine
circumstances where a fleeing suspect would have posed

                               26
such a dire threat to an officer, thereby demonstrating that
the suspect posed a serious threat to others, that the officer
could justifiably use deadly force to stop the suspect's flight
even after the officer escaped harm's way. But in our case,
if the jury decides that Raso did not fire until safely out of
harm's way, the jury could also reasonably decide that
Abraham's conduct was not so dangerous as to warrant
Raso's use of deadly force.

We find instructive the Ninth Circuit's decision in
Hopkins, a case testing the limits of an officer's self-
defensive use of deadly force. In Hopkins, a police officer
responded to a call about a suspect, Stancill, who was
creating a disturbance. Although the officer noticed Stancill
was acting strangely, the officer made no arrest and left
after deciding he was not "a danger to himself or others." A
short time later, the officer observed Stancill"howling or
braying" under a traffic light. When the officer got out of his
patrol car, approached Stancill, and tried to frisk him,
Stancill allegedly grabbed the officer's baton and began
hitting him, knocking him down in the process. The officer
claimed that as he rose from the ground, deflecting the
blows, he fired six shots at Stancill from a range of three to
four feet, visibly wounding him and apparently knocking
him to the ground. Despite the officer's commands to stay
down, Stancill continued to advance, the officer said,
causing the two to wrestle for a minute. Breaking free, the
officer had enough time to get away, radio for help, reload
his weapon and cross a street. Once across the street, the
officer said that, after warning Stancill again to stop, he
fired four more shots at him at close range. This time the
shots were fatal.

The Ninth Circuit held that even apart from a number of
disputes about the accuracy of the officer's story which
precluded summary judgment, the court could not accept
as a matter of law that the officer acted reasonably when he
fired the final shots. Even though Stancill was attacking the
officer, "[a]t the time of the second shooting, it was far from
clear that [the officer] reasonably feared for his life."
Hopkins, 958 F.2d at 887. The officer knew help was on the
way, had a number of weapons besides his gun, could see
that Stancill was unarmed and bleeding from multiple

                               27
gunshot wounds, and had a number of opportunities to
evade him. Two of the total shots, all of which had been
fired from a distance of four feet or less, struck Stancill in
the head. "To endorse [the officer's] chosen course of action
-- firing four more shots -- would be to say that a police
officer may reasonably fire repeatedly upon an unarmed,
wounded civilian even when alternative courses of action
are open to him." Id. (emphasis in original) In short, the fact
that a suspect attacked an officer, giving the officer reason
to use deadly force, did not justify continuing to use lethal
force.

In seeking reversal, the estate has argued that Raso's use
of force would still be unreasonable even if a jury found
that she fired while she was in front of Abraham's car and
in danger. According to the estate, if Raso jumped in front
of the car to block Abraham's escape, she would have
violated police department policy and, through that breach
of policy, would have unreasonably created the need for
deadly force. Because we find other grounds for reversal, we
do not reach this issue. We note that a number of courts
have refused to find officers liable based on their lapses in
following police department procedures, even though those
lapses may have contributed to the use of force. See, e.g.,
Drewitt v. Pratt, 999 F.2d 774, 779-80 (4th Cir. 1993);
Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir.
1992). By contrast, where an officer's conduct amounted to
more than a minor departure from internal department
policy, and in particular where the officer engaged in
intentional misconduct, courts have found that the officer's
acts creating the need for force are important in evaluating
the reasonableness of the officer's eventual use of force.
See, e.g., Gilmere v. City of Atlanta, 774 F.2d 1495, 1501-
02 (11th Cir. 1985)(en banc). Similarly, in Estate of Starks
v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993), the court
concluded that if an officer jumped in front of the
decedent's car after the car began accelerating, the officer
"would have unreasonably created the encounter that
ostensibly permitted the use of deadly force." We will leave
for another day how these cases should be reconciled.

IV

Raso and the estate each sued Macy's for negligence. For
the sound reasons given by the District Court, wefind no

                               28
merit to these claims and, therefore, will affirm summary
judgment for all claims against Macy's, including any
claims by the estate for gross negligence, negligence per se,
assault, battery, negligent hiring, and negligent supervision.

The estate brought a number of other claims, including
a S 1983 claim against the Township of Cherry Hill,
negligence against Raso and the mall defendants (not
including Macy's), negligent hiring and negligent
supervision against the mall defendants, punitive damages
against Raso and the mall defendants, and assault and
battery against Raso and the mall defendants. Because the
District Court's analysis of all these other claims was
premised on the "core" holding that Raso's use of force was
objectively reasonable as a matter of law, a holding we have
now reversed, we will vacate summary judgment on these
other claims and afford the District Court an opportunity to
reassess those claims in light of our decision.

In analyzing the state assault and battery claim, the
District Court provided an extended discussion of the state
law granting officers a privilege to commit battery. We note
that the parties have not raised or discussed in any way
whether state law could, for the purposes of state tort
liability, allow officers greater immunity for using force than
the Fourth Amendment permits. Consequently, the parties
have not discussed whether reversing summary judgment
on the estate's S 1983 claim necessarily implies that the
state battery claim must also be vacated. Because the
parties have not briefed this issue, we will not reach it. We
will simply vacate the grant of summary judgment on the
estate's assault and battery claims against Raso and the
mall defendants and remand for the issue to be resolved in
the District Court.

V

Both Raso and her insurer, CNA Insurance Co., filed
cross-motions for summary judgment on whether Raso was
entitled to uninsured motorist coverage under CNA's policy.
Liberty Mutual, which provided a business automobile
insurance policy to one of the Cherry Hill mall defendants,
also filed a motion for summary judgment. Liberty Mutual

                               29
became involved in the case because once Raso sued CNA,
CNA sued Liberty Mutual as a third-party defendant,
arguing that Liberty Mutual must share in any liability CNA
might be found to have. In Liberty Mutual's motion for
summary judgment, it argued, as did CNA, that uninsured
motorist coverage did not apply when Abraham's car
allegedly struck Raso.

We enter this thicket of claims to address a single,
narrow issue: under New Jersey law governing uninsured
motorist claims, should courts look at the tort victim's
perspective or the tortfeasor's in deciding whether there
was an "accident?" If a court looks to the tortfeasor's
perspective, then assuming Abraham intended to hit Raso,
he committed an intentional tort, making the incident no
"accident." (Raso takes the incongruous position that even
if the tortfeasor's perspective is used, Abraham did not
really intend to hit her.) If the victim's perspective is used,
on the other hand, then Raso maintains that she never
intended for Abraham to strike her with his car, making
any injuries she sustained an accident.

While we recognize that New Jersey law leaves room for
doubt on the issue, we predict that the New Jersey
Supreme Court would hold that what counts as an accident
for the purposes of uninsured motorist insurance should be
judged from the victim's perspective. Thus, we will reverse
summary judgment for CNA and Liberty Mutual and
remand for further proceedings. We express no further view
on the merits of Raso's claim against CNA or on the claim
against Liberty Mutual.

CNA's uninsured motorist provision states:

       We pay damages which you or any covered person are
       legally entitled to recover from the owner or operator of
       an uninsured motor vehicle or boat because of bodily
       injury: 1. Sustained by you or any covered person; and
       2. Caused by a motor vehicle or boat accident... The
       owner's or operator's liability for these damages must
       arise out of the ownership, maintenance or use of the
       uninsured or under insured motor vehicle or boat.

       "Accident" or "Occurrence" means an event or series of
       related events resulting from continuous or repeated

                               30
       exposure to the same general conditions that
       unexpectedly, unintentionally, and suddenly causes
       bodily injury or property damage during the policy
       period.

Raso App. at 121 and 133.

Under the terms of the policy, "accidents" must be
"unexpected" and "unintentional." The difficulty, of course,
is that the policy does not say from whose perspective
the injury-causing events must be unexpected and
unintentional. Contract language aside, the policy could not
provide less uninsured motorist coverage than state law
requires. See, e.g., Allstate Insurance Co. v. Malec, 514 A.2d
832, 834 (N.J. 1986). Unfortunately, the state statute
governing uninsured motorist insurance also does not
define whose perspective should be used in determining
what is an "accident." See N.J.S.A.S 17:28-1.1(a). And New
Jersey courts have made conflicting statements about
whose perspective should be used.

In Continental Insurance Co. v. Miller, 654 A.2d 514 (N.J.
Super. Ct. Law Div. 1994), a case that granted uninsured
motorist benefits to two police officers who were
intentionally hit by an uninsured car thief, the court
reviewed what had been up to that point a clear line of
cases in New Jersey supporting use of the victim's
perspective for uninsured motorist claims. See , e.g.,
Sciascia v. American Ins. Co., 443 A.2d 1118, 1120 (N.J.
Super. Ct. Law Div. 1982)(Fatal injuries an insured suffered
from a drive-by shooting were "unforeseen, unusual, and
unexpected" and hence an "accident" within the meaning of
uninsured motorist coverage.).

In Malec, the New Jersey Supreme Court held that an
insured was not covered by automobile liability insurance
for her own intentional, wrongful acts, but the court
specifically distinguished personal injury protection (or PIP)
insurance and uninsured motorist coverage. Malec , 514
A.2d at 836. In particular, the court described one lower
court opinion as "eminently sound" which held that for PIP
insurance the term "accident" encompasses harm caused
intentionally by someone other than the insured. Id. The
court likewise noted the opinion in Sciascia and cited it for

                               31
the proposition that what counts as an accident for
uninsured motorist coverage should be viewed from the
injured insured's perspective. Id.

Courts adopting the victim's perspective for uninsured
motorist coverage have done so in part because they
recognized that a major rationale for using the tortfeasor's
perspective vanishes once you move from liability coverage
to uninsured motorist coverage. Liability coverage protects
the insured from the costs of his or her own acts, so for
obvious reasons, the coverage typically does not extend to
the insured's intentional wrongdoing. See, e.g., Malec, 514
A.2d at 837-38. Thus, the rule evolved in the context of
liability coverage that since the insured and the tortfeasor
are one and the same person, the insured tortfeasor's
perspective should be used for deciding when there is an
accident triggering coverage. Uninsured motorist coverage,
however, is different. Unlike liability coverage, it protects an
insured from harm caused by other people's acts, and an
insured is equally blameless and surprised regardless of
whether the tortfeasor acted negligently or intentionally.
Covering the insured under these circumstances does not
encourage the insured to commit intentional, wrongful acts
and protects the insured from unexpected losses.

One natural response is that uninsured motorist
coverage is intended to replace the coverage a tort victim
would have if the tortfeasor actually had liability insurance.
Since the tortfeasor's liability insurance would not pay for
the tortfeasor's intentional acts, the argument continues,
people are no worse off when they are denied uninsured
motorist coverage for the intentional acts of others. The
difficulty with this argument is that it begs the question.
When the tortfeasor's auto insurance denies coverage
because the insured's acts were intentional, then the tort
victim is faced with an uninsured motorist. See N.J.S.A.
S 17:28-1.1(e)(2)(b). At that point, the insured victim's
argument is that the insured motorist policy was bought to
cover unforeseen accidents caused by others who have no
insurance coverage, and we return to our original question:
whose perspective should be used in determining whether
there was an accident?

                               32
The District Court rested its decision on dicta in
Lindstrom v. Hanover Insurance Co., 649 A.2d 1272 (1994),
a case which held that the victim of a drive-by shooting was
entitled to personal-injury insurance benefits. While
Lindstrom held that the victim's perspective should be used
to determine what was an accident for PIP insurance, the
court inexplicably grouped automobile liability insurance
and uninsured motorist coverage together and declared that
"neither... applies to injuries caused by an act that is an
accident from the victim's perspective but that is intended
by the actor." Lindstrom, 649 A.2d at 1276. The court
added that Sciascia is "no longer respectable authority." Id.

We believe the dicta in Lindstrom was ill-considered,
poorly supported, and does not accurately reflect the
position of the New Jersey Supreme Court. Consequently,
we will not follow it. See, e.g., Travelers Indemnity Co. v.
DiBartolo, 131 F.3d 343 (3d Cir. 1997)(adopting the position
taken by state superior courts over ill-considered dicta by
the state supreme court). The court in Lindstrom made no
mention of Malec, its earlier decision endorsing, albeit in
dicta, the decision in Sciascia, and the court did not
recognize that the reasons offered in Lindstrom for using
the victim's perspective for PIP insurance apply with equal
force to uninsured motorist coverage. Indeed, Lindstrom's
eventual holding on PIP insurance is actually supported by
cases such as Miller and Sciascia that adopt the victim's
perspective where the insured is not the tortfeasor.

The court apparently felt compelled to reject Sciascia
because that case held not only that the accidents are
determined from the victim's perspective for uninsured
motorist coverage, but also that a drive-by shooting did not
have a sufficient nexus with the use of an automobile to
qualify for uninsured motorist coverage. Lindstrom, by
contrast, held that a drive-by shooting was covered under
PIP insurance, notwithstanding a similar requirement of a
nexus between an automobile and the shooting. But the
requirement of a nexus between the accident and the use
of an automobile is a separate issue from the question of
whose perspective should be used to determine what is an
accident. Once this is acknowledged, it is clear that the
court's statement in Lindstrom rejecting the victim's

                               33
perspective for uninsured motorist coverage not only was
unnecessary to the outcome in Lindstrom, but was actually
contrary to Lindstrom's own reasoning.

We think it is telling that an uninsured motorist case
decided after Lindstrom discussed the decision but did not
follow it. See Gregory v. Allstate Insurance Co. , 716 A.2d
573, 575-76 (N.J. Super. Ct. Law Div. 1997). Gregory held
that:

       Considering the fact that the law clearly mandates a
       liberal interpretation of the no fault statute with the
       view to providing coverage to the victim of an accident,
       and taking into account the clear and plain language of
       the statute which provides coverage to persons "legally
       entitled to recover damages of Uninsured Motor
       Vehicles," this court is compelled to conclude that the
       Uninsured Motorist Coverage must be afforded to
       victims of intentional automobile collisions.

Gregory, 716 A.2d at 576. As the court in Malec noted,
"Legislation involving automobile insurance must be
construed with `liberality in effecting the broadest
protection of auto accident victims consistent with the
language of the pertinent statute.' " Malec, 514 A.2d at 834
(citation omitted).

We predict that the New Jersey Supreme Court would
adopt the tort victim's perspective for uninsured motorist
coverage: all the uninsured-motorist cases raising the issue
have used the victim's perspective, and legislation involving
automobile insurance is to be interpreted broadly according
to the New Jersey courts. Lindstrom, the one New Jersey
Supreme Court decision rejecting the victim's perspective
for uninsured motorist insurance, did so in dicta, without
explanation, without addressing the substantial arguments
made by its own lower courts for the competing position,
and without recognizing that its dicta was deeply in tension
with Lindstrom's own holding. A recent state decision did
not follow Lindstrom's dicta, and finally, earlier dicta by the
New Jersey Supreme Court in Malec, also not mentioned in
Lindstrom, suggests the tort victim's perspective should be
used for uninsured motorist coverage.

                               34
Raso raises one last argument we must address. She
contends that the scope of coverage of her insurance
coverage should have been submitted to an arbitrator, as
she asserts her insurance contract requires. The issue was
not raised before the District Court and is waived.

VI

In conclusion, we will affirm summary judgment granted
in favor of Macy's for all claims brought by Raso and
Abraham. We will reverse summary judgment granted in
favor of Raso for the estate's S 1983 claim for excessive
force, and we will reverse summary judgment in favor of
CNA for Raso's claim for uninsured motorist coverage. We
will vacate summary judgment on the following claims: (1)
the estate's S 1983 claim against the Township of Cherry
Hill; (2) the estate's assault and battery claims against Raso
and the mall defendants, excluding Macy's; (3) the estate's
claims for negligence, gross negligence, and negligence per
se against Raso and the mall defendants, excluding Macy's;
(4) the estate's claims for negligent supervision and
negligent hiring against the mall defendants, again
excluding Macy's; (5) the estate's claims for punitive
damages against Raso and the mall defendants, not
including Macy's; and (6) Raso's coverage under Liberty
Mutual's policy. For the foregoing reasons, the judgment of
the District Court is reversed or vacated in part, affirmed in
part, and remanded for further proceedings.

Each party to bear its own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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