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Bivens decision revisited?

Discussion in 'The Constitutional & RKBA Forum' started by armedandsafe, Nov 17, 2003.

  1. armedandsafe

    armedandsafe Guest

    This is another example of law enforcement claiming they are of an elite class. This judge apparently remembered the SCOTUS Bivens decison. Apparently the agent thought the suspect should get out of the car without unfastening his seatbelt.
    _________________________________

    http://www.sunspot.net/news/local/bal-agent1114,0,6538460.story?coll=bal-local-headlines

    From Friday's Sun

    FBI agent can be sued, U.S. judge says
    Pasadena man was shot in the face; Case of mistaken identity; Victim, ex-girlfriend asking for $10 million

    By Allison Klein
    Sun Staff

    November 13, 2003, 9:27 PM EST

    A federal judge in Baltimore ruled Thursday that a $10 million excessive-force claim can go forward against an FBI agent who shot an unarmed Pasadena man in the face after mistaking him for a bank robber.

    It was a key hurdle in the closely watched case involving Special Agent Christopher R. Braga, who shot Joseph C. Schultz with an M-4 rifle during a botched arrest March 1 last year.

    In a 24-page opinion, U.S. District Judge J. Frederick Motz ruled that there was not enough evidence to dismiss Schultz' claim.

    Braga, in requesting dismissal of the suit, contended that he had immunity because he is a federal agent.

    "I am not prepared to say without development of a complete factual record that a law enforcement officer has qualified immunity to shoot an innocent person who is attempting to comply with the officer's direction even if his hands may have momentarily gone out of the officer's view," Motz wrote.

    Schultz, now 21, was shot after agents searching for a bank robber mistakenly stopped the car being driven by Kristen M. "Krissy" Harkum, then his girlfriend.

    Braga told Schultz to unlock his door and get out of the car. As Schultz tried to comply with the order, he was shot.

    Schultz' lawyer, Arnold M. Weiner, said the judge's opinion not to throw the case out because of immunity is telling. "Motz' ruling was critical to the case because in these types of cases, the defense is almost always based in claims of immunity," Weiner said.

    Braga said in his request to dismiss the case, which he filed in May, that he fired when Schultz appeared to reach for his waist, as if to pull out a weapon.

    Motz ruled that because Schultz and Harkum did not try to run from the agents -- and were complying with their orders -- he would allow the case to go forward.

    Harkum, now 17, was not wounded in the shooting but is also a plaintiff in the $10 million lawsuit. She seeks compensation for "severe emotional injury."

    In his opinion, Motz also dealt with other claims in Schultz' suit, dismissing some.

    He threw out a claim against Braga that the agent should not have stopped Schultz' car.

    Braga's lawyer, Andrew C. White, called Motz' ruling a partial victory for his client. "It is not a complete victory for Agent Braga, but it is a very substantial victory," White said.

    The lawsuits also name as de fendants two of Braga's supervisors, agents Henry F. Hanburger and Lawrence S. Brosnan.

    Motz tossed out all claims against Brosnan. His lawyer, John Bourgeois, said the judge ruled appropriately. "The plaintiff's theory was completely incoherent," Bourgeois said.

    Motz also threw out a claim against Hanburger that he was negligent in the way he supervised the search and seizure of Schultz' car.

    One claim against Hanburger, that he is liable for ordering the agents to stop the car, remains.

    The lawsuit filed by Schultz and Harkum alleges that the agents disregarded bureau arrest policies and then played down the potentially deadly results.

    On the day of the shooting, FBI agents were told by a tipster to look for Michael J. Blottenberger, who was sus pected of driving the getaway vehicle, a red Honda Civic, in the robbery of a Pasadena bank branch.

    The agents expected Blottenberger to be at a 7-Eleven convenience store, riding in a red car and wearing a white baseball cap.

    Schultz and Harkum said in their lawsuit that the agents wrongly zeroed in on their vehicle after Schultz, wearing a white cap, emerged from the store and got into Harkum's red Pontiac Grand Am.

    Schultz suffered several injuries to his head and underwent reconstructive surgery. According to his suit, he suffers from "severe emotional and psychological injuries."
    Copyright © 2003, The Baltimore Sun
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