U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

No Fourth Amendment Claim for Officer's Accidental Shooting

If there was a prize for most tragic case dismissed on appeal, the case filed by John Gorman's wife would certainly be a contender.

The facts of Gorman v. Sharp really are tragic. After a recent promotion, Gorman attended an officer firearm safety training session, which he was required to attend for his job as the director of investigations with the Mississippi Gaming Commission. Unfortunately, the Special Agent in charge of training, Robert Sharp, forgot to replace his regular real firearm that he carried with a dummy firearm for a roleplaying exercise. As a result of the instructor's own negligence, he shot and killed John Gorman during that exercise.

No Intent to Violate, No Right to Sue

While the federal district court agreed that Robert Sharp had qualified immunity as an individual, it was not convinced the same was true as to his official capacity. However, a first circuit panel saw fit to set the lower court straight on that issue.

In a four-page opinion, the appellate court explains that absent the intent to shoot, which was undisputed that Sharp did not have, as he believed he was pulling the trigger on a fake gun, there could be no Fourth Amendment violation. At the outset, the court stated: "Under established Supreme Court precedent, the Fourth Amendment concerns only intentional, not accidental, searches and seizures." The fact that Sharp thought he was firing a fake gun, as the panel saw it, served to defeat Fourth Amendment liability entirely.

Fortunately, as the appellate court noted, there is still a state law tort claim being litigated, which may be able to provide the widow with some legal remedy for what even the appellate court considered a senseless, tragic death.

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