Can force be excessive when it was not intentional?

MUNICIPAL MATTERS

When a police officer injures a citizen during an arrest, you file an excessive force claim under 42 U.S.C. Section 1983, right? But what happens when that citizen was not the intended object of the officer's use of force? Section 1983 protects citizens from constitutional violations committed under "color of law." Most often this plays out in the context of a claim of an unreasonable seizure by a police officer. Case law makes clear, however, that not every seizure falls within the confines of Section 1983.

The Fourth Amendment only protects against "governmental termination of freedom of movement through means intentionally implied." Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (emphasis added). Accidental or unintended seizures are not violations of the Fourth Amendment. Id. In United States v. Lockett, 919 F.2d 585, 590 n.4 (1990), the 9th U.S. Circuit Court of Appeals explained that an innocent bystander struck by a stray bullet from an officer's weapon is not "seized" for purposes of the Fourth Amendment. The individual seized has to be the deliberate object of the exertion of force intended to terminate the freedom of movement. Rodriguez v. City of Fresno, 819 F.Supp.2d 937, 946 (E.D. Cal. 2011). There must be "purposeful conduct," as the "detention or taking must be willful." Xiong v. City of Merced, 1:13-CV-00083-SKO; 1:13-CV-00111-SKO (E.D. Cal., July 29, 2015). The injury of a bystander is not a seizure if an officer has "no reason, expressed or conjectural, to seek to restrain the bystander." Rodriguez, 819 F.Supp.2d at 946.

In Xiong, two police officers responded to a call about an Asian adult male displaying a gun at a party in a residence. Upon arriving, the officers claimed they heard the sound of an individual chambering a bullet in a gun. The officers saw Kong Xiong walking from the backyard to the front of the house and fired at him. At the time the officers shot at Kong, one officer stated he had "reason to believe there were others on the property" but had "no knowledge as to whether these people were inside or outside." Luh Xiong, who was standing in the backyard of the house, was hit in the leg by a bullet that the officers had fired at Kong. Kong and Luh each brought Section 1983 claims for unreasonable search and seizure and excessive force.

In his case, Luh argued that 9th Circuit case Nelson v. City of Davis, 685 F.3d 867, 876-77 (2012), holding that a seizure is simply a termination of freedom of movement occurring through intentional means should apply. The court was not persuaded that the "purposeful conduct" required of a seizure is fulfilled simply by the intentionality of an action, such as an intentional "pull of a trigger." The court concluded that even if the officers were aware of "others behind the fence," there was no evidence presented that the officers were intentionally shooting at anyone other than Kong. Therefore, the court held that Luh was not seized within the meaning of the Fourth Amendment and he could not proceed on his claim under Section 1983.

And in Lopez v. City of Santa Maria, CV13-7287 AJW (Jan. 26, 2016), a police officer shot a fellow police officer in the leg during the arrest of an armed and dangerous felon. The officer who was shot brought a Section 1983 claim against his colleague for use of excessive force. The court ruled, however, the plaintiff had presented no evidence that his colleague had intended to shoot him. Instead, the undisputed evidence demonstrated that the colleague had intended to shoot the felon, who appeared to be reaching for his handgun. Thus, the court ruled that no seizure occurred within the meaning of the Fourth Amendment.

California courts have made clear that without evidence that an officer intended to seize a particular plaintiff there can be no Section 1983 action. When a citizen is injured because they are standing too close to the intended object of the officer's force, or when a citizen is struck by a stray bullet, Section 1983 offers no recourse. The law is established that police officers can only be held accountable for an intentional misuse of force, not an accidental one. So if your client is the unintended recipient of secondary force, they might just be out of luck.