BROSSEAU v. HAUGEN

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194 OCTOBER TERM, 2004
Per Curiam
BROSSEAU v. HAUGEN
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 03–1261. Decided December 13, 2004
Respondent Haugen filed suit pursuant to 42 U. S. C. § 1983, alleging that
petitioner Brosseau, a police officer, violated his Fourth Amendment
right to be free from excessive force when she shot him in the back as
he fled in his vehicle. The Federal District Court granted Brosseau
summary judgment, finding her entitled to qualified immunity. In re-
versing, the Ninth Circuit found that Brosseau had violated Haugen’s
Fourth Amendment right and that, because that right was clearly estab-
lished, Brosseau was not entitled to qualified immunity.
Held: The Ninth Circuit wrongly decided the qualified immunity issue.
Qualified immunity shields an officer from suit when she makes a deci-
sion that, even if constitutionally deficient, reasonably misapprehends
the law governing the circumstances she confronted. Saucier v. Katz,
533 U. S. 194, 206. The focus is on whether the officer had fair notice
that her conduct was unlawful. If the law at the time of the conduct
did not clearly establish that the conduct would violate the Constitution,
the officer should not be subject to liability. This inquiry is “under-
taken in light of the specific context of the case, not as a broad general
proposition.” Id., at 201. This case is far from the obvious one where
the general tests set out in Graham v. Connor, 490 U. S. 386, and Ten-
nessee v. Garner, 471 U. S. 1, can “clearly establish” the answer, even
without a body of relevant case law. The handful of cases relevant to
Brosseau’s situation show that this is an area in which the result de-
pends very much on the facts of each case; suggest that Brosseau’s ac-
tions fell in the “ ‘hazy border between excessive and acceptable force,’ ”
Saucier v. Katz, 533 U. S., at 206; and by no means “ ‘ “clearly estab-
lis[h]” ’ ” that her conduct violated the Fourth Amendment, id., at 202.
Certiorari granted; 339 F. 3d 857, reversed and remanded.
Per Curiam.
Officer Rochelle Brosseau, a member of the Puyallup,
Washington, Police Department, shot Kenneth Haugen in the
back as he attempted to flee from law enforcement authori-
ties in his vehicle. Haugen subsequently filed this action in
the United States District Court for the Western District of

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Washington pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983.
He alleged that the shot fired by Brosseau constituted exces-
sive force and violated his federal constitutional rights.1
The District Court granted summary judgment to Brosseau
after finding she was entitled to qualified immunity. The
Court of Appeals for the Ninth Circuit reversed. 339 F. 3d
857 (2003). Following the two-step process set out in Sau-
cier v. Katz, 533 U. S. 194 (2001), the Court of Appeals found,
first, that Brosseau had violated Haugen’s Fourth Amend-
ment right to be free from excessive force and, second, that
the right violated was clearly established and thus Brosseau
was not entitled to qualified immunity. Brosseau then peti-
tioned for writ of certiorari, requesting that we review both
of the Court of Appeals’ determinations. We grant the peti-
tion on the second, qualified immunity question and reverse.
The material facts, construed in a light most favorable to
Haugen, are as follows.2 On the day before the fracas, Glen
Tamburello went to the police station and reported to Bros-
seau that Haugen, a former crime partner of his, had stolen
tools from his shop. Brosseau later learned that there was
a felony no-bail warrant out for Haugen’s arrest on drug and
other offenses. The next morning, Haugen was spray paint-
ing his Jeep Cherokee in his mother’s driveway. Tambur-
ello learned of Haugen’s whereabouts, and he and cohort
Matt Atwood drove a pickup truck to Haugen’s mother’s
house to pay Haugen a visit. A fight ensued, which was
witnessed by a neighbor who called 911.
Brosseau heard a report that the men were fighting in
Haugen’s mother’s yard and responded. When she arrived,
Tamburello and Atwood were attempting to get Haugen into
1 Haugen also asserted pendent state-law claims and claims against the
city and police department. These claims are not presently before us.
2 Because this case arises in the posture of a motion for summary judg-
ment, we are required to view all facts and draw all reasonable inferences
in favor of the nonmoving party, Haugen. See Saucier v. Katz, 533 U. S.
194, 201 (2001).

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Tamburello’s pickup. Brosseau’s arrival created a distrac-
tion, which provided Haugen the opportunity to get away.
Haugen ran through his mother’s yard and hid in the neigh-
borhood. Brosseau requested assistance, and, shortly there-
after, two officers arrived with a K–9 to help track Haugen
down. During the search, which lasted about 30 to 45 min-
utes, officers instructed Tamburello and Atwood to remain
in Tamburello’s pickup. They instructed Deanna Nocera,
Haugen’s girlfriend who was also present with her 3-year-old
daughter, to remain in her small car with her daughter.
Tamburello’s pickup was parked in the street in front of the
driveway; Nocera’s small car was parked in the driveway in
front of and facing the Jeep; and the Jeep was in the drive-
way facing Nocera’s car and angled somewhat to the left.
The Jeep was parked about 4 feet away from Nocera’s car
and 20 to 30 feet away from Tamburello’s pickup.
An officer radioed from down the street that a neighbor
had seen a man in her backyard. Brosseau ran in that direc-
tion, and Haugen appeared. He ran past the front of his
mother’s house and then turned and ran into the driveway.
With Brosseau still in pursuit, he jumped into the driver’s
side of the Jeep and closed and locked the door. Brosseau
believed that he was running to the Jeep to retrieve a
weapon.
Brosseau arrived at the Jeep, pointed her gun at Haugen,
and ordered him to get out of the vehicle. Haugen ignored
her command and continued to look for the keys so he could
get the Jeep started. Brosseau repeated her commands and
hit the driver’s side window several times with her handgun,
which failed to deter Haugen. On the third or fourth try,
the window shattered. Brosseau unsuccessfully attempted
to grab the keys and struck Haugen on the head with the
barrel and butt of her gun. Haugen, still undeterred, suc-
ceeded in starting the Jeep. As the Jeep started or shortly
after it began to move, Brosseau jumped back and to the left.
She fired one shot through the rear driver’s side window

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at a forward angle, hitting Haugen in the back. She later
explained that she shot Haugen because she was “ ‘fearful
for the other officers on foot who [she] believed were in the
immediate area, [and] for the occupied vehicles in [Haugen’s]
path and for any other citizens who might be in the area.’ ”
339 F. 3d, at 865.
Despite being hit, Haugen, in his words, “ ‘st[ood] on the
gas’ ”; navigated the “ ‘small, tight space’ ” to avoid the other
vehicles; swerved across the neighbor’s lawn; and continued
down the street. Id., at 882. After about a half block,
Haugen realized that he had been shot and brought the Jeep
to a halt. He suffered a collapsed lung and was airlifted
to a hospital. He survived the shooting and subsequently
pleaded guilty to the felony of “eluding.” Wash. Rev. Code
§ 46.61.024 (1994). By so pleading, he admitted that he
drove his Jeep in a manner indicating “a wanton or wilful
disregard for the lives . . . of others.” Ibid. He subse-
quently brought this § 1983 action against Brosseau.
* * *
When confronted with a claim of qualified immunity, a
court must ask first the following question: “Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a constitu-
tional right?” Saucier v. Katz, 533 U. S., at 201. As the
Court of Appeals recognized, the constitutional question in
this case is governed by the principles enunciated in Tennes-
see v. Garner, 471 U. S. 1 (1985), and Graham v. Connor,
490 U. S. 386 (1989). These cases establish that claims of
excessive force are to be judged under the Fourth Amend-
ment’s “ ‘objective reasonableness’ ” standard. Id., at 388.
Specifically with regard to deadly force, we explained in Gar-
ner that it is unreasonable for an officer to “seize an un-
armed, nondangerous suspect by shooting him dead.” 471
U. S., at 11. But “[w]here the officer has probable cause to
believe that the suspect poses a threat of serious physical

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harm, either to the officer or to others, it is not constitution-
ally unreasonable to prevent escape by using deadly force.”
Ibid.
We express no view as to the correctness of the Court of
Appeals’ decision on the constitutional question itself. We
believe that, however that question is decided, the Court of
Appeals was wrong on the issue of qualified immunity.3
Qualified immunity shields an officer from suit when she
makes a decision that, even if constitutionally deficient, rea-
sonably misapprehends the law governing the circumstances
she confronted. Saucier v. Katz, 533 U. S., at 206 (qualified
immunity operates “to protect officers from the sometimes
‘hazy border between excessive and acceptable force’ ”).
Because the focus is on whether the officer had fair notice
that her conduct was unlawful, reasonableness is judged
against the backdrop of the law at the time of the conduct.
If the law at that time did not clearly establish that the offi-
cer’s conduct would violate the Constitution, the officer
should not be subject to liability or, indeed, even the burdens
of litigation.
It is important to emphasize that this inquiry “must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Id., at 201. As we previ-
ously said in this very context:
“[T]here is no doubt that Graham v. Connor, supra,
clearly establishes the general proposition that use of
force is contrary to the Fourth Amendment if it is exces-
sive under objective standards of reasonableness. Yet
that is not enough. Rather, we emphasized in Ander-
son [v. Creighton] ‘that the right the official is alleged
to have violated must have been “clearly established” in
3 We have no occasion in this case to reconsider our instruction in Sau-
cier v. Katz, supra, that lower courts decide the constitutional question
prior to deciding the qualified immunity question. We exercise our sum-
mary reversal procedure here simply to correct a clear misapprehension
of the qualified immunity standard.

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a more particularized, and hence more relevant, sense:
The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is
doing violates that right.’ 483 U. S. [635,] 640 [(1987)].
The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id., at
201–202.
The Court of Appeals acknowledged this statement of law,
but then proceeded to find fair warning in the general tests
set out in Graham and Garner. 339 F. 3d, at 873–874. In
so doing, it was mistaken. Graham and Garner, following
the lead of the Fourth Amendment’s text, are cast at a high
level of generality. See Graham v. Connor, supra, at 396
(“ ‘[T]he test of reasonableness under the Fourth Amend-
ment is not capable of precise definition or mechanical appli-
cation’ ”). Of course, in an obvious case, these standards can
“clearly establish” the answer, even without a body of rele-
vant case law. See Hope v. Pelzer, 536 U. S. 730, 738 (2002)
(noting in a case where the Eighth Amendment violation was
“obvious” that there need not be a materially similar case
for the right to be clearly established). See also Pace v.
Capobianco, 283 F. 3d 1275, 1283 (CA11 2002) (explaining in
a Fourth Amendment case involving an officer shooting a
fleeing suspect in a vehicle that, “when we look at decisions
such as Garner and Graham, we see some tests to guide us
in determining the law in many different kinds of circum-
stances; but we do not see the kind of clear law (clear an-
swers) that would apply” to the situation at hand). The
present case is far from the obvious one where Graham and
Garner alone offer a basis for decision.
We therefore turn to ask whether, at the time of Bros-
seau’s actions, it was “ ‘ “clearly established” ’ ” in this more
“ ‘particularized’ ” sense that she was violating Haugen’s
Fourth Amendment right. Saucier v. Katz, 533 U. S., at

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202. The parties point us to only a handful of cases relevant
to the “situation [Brosseau] confronted”: whether to shoot a
disturbed felon, set on avoiding capture through vehicular
flight, when persons in the immediate area are at risk from
that flight.4 Ibid. Specifically, Brosseau points us to Cole
v. Bone, 993 F. 2d 1328 (CA8 1993), and Smith v. Freland,
954 F. 2d 343 (CA6 1992).
In these cases, the courts found no Fourth Amendment
violation when an officer shot a fleeing suspect who pre-
sented a risk to others. Cole v. Bone, supra, at 1333 (hold-
ing the officer “had probable cause to believe that the truck
posed an imminent threat of serious physical harm to inno-
cent motorists as well as to the officers themselves”); Smith
v. Freland, 954 F. 2d, at 347 (noting “a car can be a deadly
weapon” and holding the officer’s decision to stop the car
from possibly injuring others was reasonable). Smith is
closer to this case. There, the officer and suspect engaged
in a car chase, which appeared to be at an end when the
officer cornered the suspect at the back of a dead-end resi-
dential street. The suspect, however, freed his car and
began speeding down the street. At this point, the officer
fired a shot, which killed the suspect. The court held the
officer’s decision was reasonable and thus did not violate the
Fourth Amendment. It noted that the suspect, like Haugen
here, “had proven he would do almost anything to avoid cap-
ture” and that he posed a major threat to, among others, the
officers at the end of the street. Ibid.
4 The parties point us to a number of other cases in this vein that post-
date the conduct in question, i. e., Brosseau’s February 21, 1999, shooting
of Haugen. See Cowan ex rel. Estate of Cooper v. Breen, 352 F. 3d 756,
763 (CA2 2003); Pace v. Capobianco, 283 F. 3d 1275, 1281–1282 (CA11
2002); Scott v. Clay County, 205 F. 3d 867, 877 (CA6 2000); McCaslin v.
Wilkins, 183 F. 3d 775, 778–779 (CA8 1999); Abraham v. Raso, 183 F. 3d
279, 288–296 (CA3 1999). These decisions, of course, could not have given
fair notice to Brosseau and are of no use in the clearly established inquiry.

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Breyer, J., concurring
Haugen points us to Estate of Starks v. Enyart, 5 F. 3d
230 (CA7 1993), where the court found summary judgment
inappropriate on a Fourth Amendment claim involving a
fleeing suspect. There, the court concluded that the threat
created by the fleeing suspect’s failure to brake when an of-
ficer suddenly stepped in front of his just-started car was not
a sufficiently grave threat to justify the use of deadly force.
Id., at 234.
These three cases taken together undoubtedly show that
this area is one in which the result depends very much on
the facts of each case. None of them squarely governs the
case here; they do suggest that Brosseau’s actions fell in the
“ ‘hazy border between excessive and acceptable force.’ ”
Saucier v. Katz, supra, at 206. The cases by no means
“clearly establish” that Brosseau’s conduct violated the
Fourth Amendment.
The judgment of the United States Court of Appeals for
the Ninth Circuit is therefore reversed, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Breyer, with whom Justice Scalia and Jus-
tice Ginsburg join, concurring.
I join the Court’s opinion but write separately to express
my concern about the matter to which the Court refers in
footnote 3, namely, the way in which lower courts are re-
quired to evaluate claims of qualified immunity under the
Court’s decision in Saucier v. Katz, 533 U. S. 194, 201 (2001).
As the Court notes, ante, at 198, n. 3, Saucier requires lower
courts to decide (1) the constitutional question prior to decid-
ing (2) the qualified immunity question. I am concerned
that the current rule rigidly requires courts unnecessarily to
decide difficult constitutional questions when there is avail-
able an easier basis for the decision (e. g., qualified immunity)
that will satisfactorily resolve the case before the court. In-
deed when courts’ dockets are crowded, a rigid “order of

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Stevens, J., dissenting
battle” makes little administrative sense and can sometimes
lead to a constitutional decision that is effectively insulated
from review, see Bunting v. Mellen, 541 U. S. 1019, 1025
(2004) (Scalia, J., dissenting from denial of certiorari). For
these reasons, I think we should reconsider this issue.
Justice Stevens, dissenting.
In my judgment, the answer to the constitutional question
presented by this case is clear: Under the Fourth Amend-
ment, it was objectively unreasonable for Officer Brosseau to
use deadly force against Kenneth Haugen in an attempt to
prevent his escape. What is not clear is whether Brosseau
is nonetheless entitled to qualified immunity because it might
not have been apparent to a reasonably well-trained officer
in Brosseau’s shoes that killing Haugen to prevent his escape
was unconstitutional. In my opinion that question should
be answered by a jury.
I
Law enforcement officers should never be subject to dam-
ages liability for failing to anticipate novel developments in
constitutional law. Accordingly, whenever a suit against an
officer is based on the alleged violation of a constitutional
right that has not been clearly established, the qualified im-
munity defense is available. Harlow v. Fitzgerald, 457 U. S.
800, 818 (1982). Prompt dismissal of such actions protects
officers from unnecessary litigation and accords with this
Court’s wise “policy of avoiding the unnecessary adjudication
of constitutional questions.” County of Sacramento v.
Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in
judgment). When, however, the applicable constitutional
rule is well settled, “we should address the constitutional
question at the outset.” Ibid.; see also Siegert v. Gilley, 500
U. S. 226 (1991). The constitutional limits on the use of
deadly force have been clearly established for almost two
decades.

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Stevens, J., dissenting
In 1985, we held that the killing of an unarmed burglar to
prevent his escape was an unconstitutional seizure. Tennes-
see v. Garner, 471 U. S. 1. We considered, and rejected, the
State’s contention that the Fourth Amendment’s prohibition
against unreasonable seizures should be construed in light of
the common-law rule, which allowed the use of whatever
force was necessary to effectuate the arrest of a fleeing felon.
Id., at 12–13. We recognized that the common-law rule had
been fashioned “when virtually all felonies were punishable
by death” and long before guns were available to the police,
and noted that modern police departments in a majority of
large cities allowed the firing of a weapon only when a felon
presented a threat of death or serious bodily harm. Id., at
13–19. We concluded that “changes in the legal and techno-
logical context” had made the old rule obsolete. Id., at 15.
Unlike most “excessive force” cases in which the degree of
permissible force varies widely from case to case, the only
issue in a “deadly force” case is whether the facts apparent
to the officer justify a decision to kill a suspect in order to
prevent his escape.
In Garner we stated the governing rule:
“The use of deadly force to prevent the escape of all
felony suspects, whatever the circumstances, is constitu-
tionally unreasonable. It is not better that all felony
suspects die than that they escape. Where the suspect
poses no immediate threat to the officer and no threat
to others, the harm resulting from failing to apprehend
him does not justify the use of deadly force to do so. . . .
A police officer may not seize an unarmed, nondangerous
suspect by shooting him dead. . . .
“Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either
to the officer or to others, it is not constitutionally unrea-
sonable to prevent escape by using deadly force. Thus,
if the suspect threatens the officer with a weapon or

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Stevens, J., dissenting
there is probable cause to believe that he has committed
a crime involving the infliction or threatened infliction
of serious physical harm, deadly force may be used if
necessary to prevent escape, and if, where feasible, some
warning has been given.” Id., at 11–12.
The most common justifications for the use of deadly force
are plainly inapplicable to this case. Respondent Haugen
had not threatened anyone with a weapon, and petitioner
Brosseau did not shoot in order to defend herself.1 Haugen
was not a person who had committed a violent crime; nor
was there any reason to believe he would do so if permitted
to escape. Indeed, there is nothing in the record to suggest
he intended to harm anyone.2 The “threat of serious physi-
cal harm, either to the officer or to others,” id., at 11, that
provides the sole justification for Brosseau’s use of deadly
force was the risk that while fleeing in his vehicle Haugen
would accidentally collide with a pedestrian or another vehi-
cle. Whether Brosseau’s shot enhanced or minimized that
risk is debatable, but the risk of such an accident surely did
1 Although Brosseau attested that she believed Haugen may have been
attempting to retrieve a weapon from the floorboard of his vehicle some-
time during the struggle, a fact which Haugen hotly contests, there is no
evidence in the record to suggest that, at the time the shot was fired,
Brosseau believed, or any reasonable officer would have thought, that
Haugen had access to a weapon at that moment.
2 At the time of the shooting, Brosseau had the following facts at her
disposal. Haugen had a felony no-bail warrant for a nonviolent drug of-
fense, was suspected in a nonviolent burglary, and had been fleeing from
law enforcement on foot for approximately 30 to 45 minutes without inci-
dent. At the behest of Brosseau, the private individuals on the scene
were inside their respective vehicles. Haugen’s girlfriend and her daugh-
ter were in a small car approximately four feet in front and slightly to the
right of Haugen’s Jeep; Glen Tamburello and Matt Atwood were inside a
pickup truck on the street blocking the driveway, approximately 20 to 30
feet from Haugen’s Jeep. The only two police officers on foot at the scene
were last seen in a neighbor’s backyard, two houses down and to the right
of the driveway.

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Stevens, J., dissenting
not justify an attempt to kill the fugitive.3 Thus, I have no
difficulty in endorsing the Court’s assumption that Bros-
seau’s conduct violated the Constitution.
II
An officer is entitled to qualified immunity, despite having
engaged in constitutionally deficient conduct, if, in doing so,
she did not violate “clearly established statutory or consti-
tutional rights of which a reasonable person would have
known.” Harlow, 457 U. S., at 818. The requirement that
the law be clearly established is designed to ensure that offi-
cers have fair notice of what conduct is proscribed. See
Hope v. Pelzer, 536 U. S. 730, 739 (2002). Accordingly, we
have recognized that “general statements of the law are
not inherently incapable of giving fair and clear warning,”
United States v. Lanier, 520 U. S. 259, 271 (1997), and have
firmly rejected the notion that “an official action is protected
by qualified immunity unless the very action in question has
previously been held unlawful,” Anderson v. Creighton, 483
U. S. 635, 640 (1987).
Thus, the Court’s search for relevant case law applying the
Garner standard to materially similar facts is both unneces-
sary and ill advised. See Hope, 536 U. S., at 741 (“Although
earlier cases involving ‘fundamentally similar’ facts can pro-
vide especially strong support for a conclusion that the law
is clearly established, they are not necessary to such a find-
ing”); see also Lanier, 520 U. S., at 269. Indeed, the cases
the majority relies on are inapposite and, in fact, only serve
3 The evidence supporting Haugen’s allegation that Brosseau did “will-
fully fire her weapon with the intent to murder me,” 1 Record, Doc. No. 1,
includes a statement by a defense expert that Brosseau had “clearly artic-
ulated her intention to use deadly force,” id., Doc. No. 24. Moreover, the
report of the Puyallup, Washington, Police Department Firearms Review
Board stated that Brosseau “chose to use deadly force to stop Haugen.”
2 id., Doc. No. 27, Exh. H.

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to illuminate the patent unreasonableness of Brosseau’s
actions.4
Rather than uncertainty about the law, it is uncertainty
about the likely consequences of Haugen’s flight—or, more
precisely, uncertainty about how a reasonable officer making
the split-second decision to use deadly force would have as-
sessed the foreseeability of a serious accident—that prevents
me from answering the question of qualified immunity that
this case presents. This is a quintessentially “fact-specific”
question, not a question that judges should try to answer “as
a matter of law.” Cf. Anderson, 483 U. S., at 641. Al-
though it is preferable to resolve the qualified immunity
question at the earliest possible stage of litigation, this pref-
erence does not give judges license to take inherently factual
questions away from the jury. See Hunter v. Bryant, 502
U. S. 224, 229 (1991) (per curiam) (Scalia, J., concurring in
judgment); id., at 233 (Stevens, J., dissenting) (“ ‘Whether
4 In Cole v. Bone, 993 F. 2d 1328 (CA8 1993), an 18-wheel tractor-trailer
sped through a tollbooth and engaged the police in a high-speed pursuit in
excess of 90 miles per hour on a high-traffic interstate during the holiday
season. During the course of the pursuit, the driver passed traffic on both
shoulders of the interstate, repeatedly attempted to ram several police
cars, drove more than 100 passenger vehicles off the road, ran through
several roadblocks, and continued driving after the officer shot out the
wheels of the fugitive’s truck. Id., at 1330–1331. Only then did the offi-
cer finally resort to deadly force to disable the driver. Similarly, in Smith
v. Freland, 954 F. 2d 343 (CA6 1992), the suspect led a police officer on a
high-speed chase, reaching speeds in excess of 90 miles per hour. When
the officer initially cornered the suspect in a field, the driver repeatedly
swerved directly toward the police car, forcing the officer to move out of
the way and allowing the suspect to continue the chase. Id., at 344.
Only after additional officers cornered the suspect for a second time, and
after the suspect smashed directly into an unoccupied police car and began
to flee again, did the officer finally shoot the driver. Ibid.
In stark contrast, at the time Brosseau shot Haugen, the Jeep was im-
mobile, or at best, had just started moving. Haugen had not driven at
excess speeds; nor had he rammed, or attempted to ram, nearby police
cars or passenger vehicles. In sum, there was no ongoing or prior high-
speed car chase to inform the probable-cause analysis.

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Stevens, J., dissenting
a reasonable officer could have believed he had probable
cause is a question for the trier of fact, and summary judg-
ment or a directed verdict in a § 1983 action based on [the]
lack of probable cause is proper only if there is only one rea-
sonable conclusion a jury could reach’ ” (quoting Bryant v.
U. S. Treasury Dept., Secret Service, 903 F. 2d 717, 721 (CA9
1990))). The bizarre scenario described in the record of this
case convinces me that reasonable jurors could well disagree
about the answer to the qualified immunity issue. My con-
clusion is strongly reinforced by the differing opinions ex-
pressed by the Circuit Judges who have reviewed the record.
III
The Court’s attempt to justify its decision to reverse the
Court of Appeals without giving the parties an opportunity
to provide full briefing and oral argument is woefully un-
persuasive. If Brosseau had deliberately shot Haugen in
the head and killed him, the legal issues would have been
the same as those resulting from the nonfatal wound. I
seriously doubt that my colleagues would be so confident
about the result as to decide the case without the benefit of
briefs or argument on such facts.5 At a minimum, the Ninth
Circuit’s decision was not clearly erroneous, and the extraor-
dinary remedy of summary reversal is not warranted on
these facts. See R. Stern, E. Gressman, & S. Shapiro, Su-
preme Court Practice 281 (6th ed. 1986).
In sum, the constitutional limits on an officer’s use of
deadly force have been well settled in this Court’s juris-
prudence for nearly two decades, and, in this case, Officer
Brosseau acted outside of those clearly delineated bounds.
5 The Court’s recitation of the facts that led up to the shooting obscures
the undisputed point that no one contends Haugen was the kind of danger-
ous person—perhaps a terrorist or an escaped convict on a crime spree—
who would have been a danger to the community if he had been allowed
to escape. The factual issues relate only to the danger that he posed
while in the act of escaping.

543US1 Unit: $U12 [03-06-07 17:47:42] PAGES PGT: OPIN
208 BROSSEAU v. HAUGEN
Stevens, J., dissenting
Nonetheless, in my judgment, there is a genuine factual
question as to whether a reasonably well-trained officer
standing in Brosseau’s shoes could have concluded otherwise,
and that question plainly falls with the purview of the jury.
For these reasons, I respectfully dissent.