Appeals from the United States District Courtfor the District of IdahoB. Lynn Winmill, District Judge, PresidingArgued and SubmittedApril 7, 1997--Seattle, WashingtonFiled September 25, 1997Before: Stephen Reinhardt and Sidney R. Thomas,Circuit Judges, and John W. Sedwick, District Judge.*Opinion by Judge ReinhardtSUMMARY
______________________COUNSEL Michael L. Martinez, Holland & Knight, Washington, D.C.,for defendant-appellant G. Wayne "Duke" Smith.Charles S. Leeper, Spriggs & Hollingsworth, Washington,D.C., for defendants-appellants Arthur Roderick, Larry Coo-per, Jose Antonio "Tony" Perez, and Henry Hudson.Kathleen H. Quimby, Williams & Connolly, Washington,D.C., for defendants-appellants Richard Rogers, SteveMcGavin, Dale Carnege, William D. Gore, Eugene F. Glenn,and Les Hazen.Patricia Maher, Shwalb, Donnenfeld, Bray & Silbert, Wash-ington, D.C., for defendant-appellant Lon T. Horiuchi.David Z. Nevin and Ellison Matthews, Nevin, Kofoed &Herzfeld, Boise, Idaho, for the plaintiff-appellee.
_____________________________OPINION REINHARDT, Circuit Judge:Kevin Harris brought a Bivens1 action against thirteennamed federal law enforcement agents, as well as severalunnamed individuals and the United States for their actions atRuby Ridge, Idaho during two days in August 1992. The indi-vidual defendants moved to dismiss the complaint, in part onthe basis of qualified immunity. The district court granted themotion to dismiss in part, but denied the motion with respectto almost all of the Fourth Amendment claims. The defen-dants appeal the denial of qualified immunity with respect tothe remaining claims, which constitute the heart of Harris'saction, and seek dismissal of his complaint in its entirety. Wereject the defendants' arguments in toto and affirm the appli-cable rulings of the district court.BackgroundWe state the facts, as we must on this appeal, as they areset forth in Kevin Harris's Second Amended Complaint.On August 21, 1992, six Deputy United States Marshals("Marshals"): Arthur Roderick, Larry Cooper, WilliamDegan, Thomas Norris, Joseph Thomas, and David Hunt, 2came onto Randall Weaver's property in Boundary County,Idaho to serve an arrest warrant upon Weaver. Kevin Harriswas living on the Weaver property. Cooper, Degan, and Rod-erick confronted Harris, Weaver, Weaver's 14-year-old son,Sammy, and the Weaver family dog, Striker, at the "Y," theintersection of two roads near the Weaver property. As Strikerwas heading home in response to Weaver's call, Roderickshot and killed him. After his dog was killed, Sammy firedtwo shots in Roderick's direction, turned, and began to runhome calling out "I'm coming, Dad . . . ." Cooper and Degan,who were hiding in the woods, then fired their guns. One ofthe two, most likely Degan, shot at the gun Sammy was hold-ing, and severely injured his arm. Cooper then shot at Sammyafter he was disarmed and while he was continuing to runaway. The final shot hit Sammy in the back, killing him.A "melee" of firing erupted prior to the time Sammy waskilled. Harris states he fired one or more shots into the woodsin the direction of those he thought were trying to kill him aswell as the others. He asserts, however, that those shots werefired in self-defense because he believed that he had to returnthe fire in order to protect his own life and that of Sammy.Degan was killed during the firestorm when a single roundstruck his upper shoulder. Harris admits that he may havefired the fatal shot.Following this, the initial Ruby Ridge incident, Harrisalleges that Cooper and Roderick met and conspired to lieabout the events that occurred at the "Y." Harris maintainsthat, in order to conceal their wrongdoing, Cooper and Roder-ick decided to say that Harris was the aggressor -- that he hadinitiated the firing and had not acted in self-defense. Theirfalsehoods, according to Harris, were intended to absolvethem of responsibility for the deaths of both Degan andSammy Weaver and to shift the blame to him.After the initial shootings, the FBI dispatched a special unitdesigned to deal with crisis situations, called the "HostageRescue Team" (the "Team"). The Team, which was under thecommand of Richard Rogers, is composed of two types ofagents: snipers and assaulters. The Team normally operatesunder the FBI's Standard Rules of Engagement which"provide that an FBI agent may kill a person with whom heor she comes into contact only when the person presents animmediate risk of death or great bodily harm to the agent oranother person." However, a group of FBI and Marshal Ser-vice officials decided to rewrite the Rules of Engagement andcreate Special Rules of Engagement for Ruby Ridge. TheSpecial Rules first provided that "any armed adult observedin the vicinity of the Weaver cabin could and should bekilled," but were then narrowed to read "any armed adultmale" in order to eliminate the possibility that the Teamwould fire at Vickie Weaver, Randall Weaver's wife. Further-more, Harris alleges that the agents involved represented toother agents that the situation at the Weaver property was a"continuing firefight" although there had been no firing ofweapons for 32 hours.During the afternoon of August 22, 1992, after being toldby Rogers to follow the Special Rules, several members of theTeam took positions on a hill overlooking the Weaver cabin.This group included Lon T. Horiuchi, a Team sniper, who,according to Harris, was a highly trained marksman equippedwith a thick-barreled .308 caliber bolt action rifle. Harrisalleges that with that combination of skill and equipmentHoriuchi could hit a quarter-inch target at 200 meters.At about 6:00 p.m. that evening, Weaver, his daughterSarah, and Harris, who were in the cabin and unaware of thepresence of the Team agents stationed on the hill, decided togo to the shed where they had placed Sammy's body afterthey had washed it and prepared it for burial. After arrivingat the shed, Weaver reached up to open the latch and was shotin the back by Horiuchi. Weaver yelled to his wife, Vickie,that he had been shot and began to run back to the cabin, asdid Sarah and Harris. Vickie, with her infant daughterElisheba in one arm, held the outer cabin door open with theother. The complaint alleges that Horiuchi then fired a secondshot in an effort to kill both Harris and Vickie. The bulletpassed through the clear glass in the open door, strikingVickie in the head, and after passing through her, hit Harrisin the upper arm and chest. Vickie Weaver was killedinstantly.After the shooting ended, FBI personnel drove a militarytank onto the front yard of the Weaver property and, using aloudspeaker, announced their presence. Harris remained in thecabin, despite a shortage of food and water, for eight days,during which time the FBI employed a variety of tacticsdesigned to lure those remaining in the cabin outside. Thesetactics included the constant playing of loud music, the use ofbright lights at night to prevent the Weavers and Harris fromsleeping, referring to Vickie as if she were still alive, andtaunting the cabin's occupants with descriptions of the foodthat was available to the agents. The FBI also installed cam-eras and microphones around the cabin and placed a remote-controlled robot with a shotgun attached aimed at the door.Harris, badly injured and in pain, alleges that he repeatedlyasked his cabin-mates to shoot him in order to end his suffer-ing. Vickie's body rested on the kitchen floor wrapped inblankets all the while. There is no indication in the complaintwho, if anyone, in addition to Elisheba, Sarah, Weaver, andHarris, may have remained alive and in the cabin.After eight days, Harris surrendered. He was taken to thehospital where he was treated for his injuries and underwentsurgery. He was in intensive care for about twelve days.Harris was then indicted in the United States District Courtfor the District of Idaho on a number of charges relating to theevents of August 21 and 22. The charges included assaultwith a deadly weapon on Roderick, Cooper and Degan, aswell as first degree murder of Degan. After a jury trial, he wasacquitted on all charges.Proceedings BelowHarris then brought this Bivens action in the district court,alleging violations of his Fourth, Fifth, and Sixth Amendmentrights, for the actions that took place at Ruby Ridge. Harrissued the following thirteen individuals: Deputy MarshalsArthur Roderick and Larry Cooper; Deputy Director of theUnited States Marshal's Service G. Wayne "Duke " Smith;Directors of the United States Marshal's Service, Jose Anto-nio "Tony" Perez and Henry Hudson; FBI Special Agent andDirector of the Hostage Rescue Team, Richard Rogers; LarryPotts, Assistant Director of the FBI in charge of the CriminalDivision; FBI Special Agent and Member of the Team Lon T.Horiuchi; FBI Special Agent and Supervisor of the Team,Steve McGavin; FBI Special Agent and Team Sniper Coordi-nator Les Hazen; FBI Special Agent and Team LogisticsCoordinator, Dale Carnege; and FBI Special Agents WilliamD. Gore and Eugene F. Glenn.Harris claims that his Fourth Amendment rights were vio-lated when Cooper and Roderick, by their actions -- princi-pally their fabrication and dissemination of a false account ofthe initial shooting incident -- caused him to be shot and tosuffer nearly fatal physical injuries; subsequently, he con-tends, the deputies' actions led to his arrest without probablecause and his wrongful prosecution for the murder of MarshalDegan. Harris next alleges that all thirteen named defendantsconspired to and did deny him his Fourth Amendment rightsby their preparation, authorization, and dissemination of theSpecial Rules of Engagement. More specifically, he contendsthat the Special Rules led Team sharpshooter Horiuchi toshoot and seriously wound him, in violation of his FourthAmendment right to be free from the application of excessiveforce. He also seeks to hold Horiuchi directly liable for theshooting.Defendants moved to dismiss the various counts for failureto state a claim and on the ground of qualified immunity. Ina published opinion, Harris v. Roderick, 933 F. Supp. 977 (D.Idaho 1996), the district court denied the motions with respectto almost all of the Fourth Amendment claims.3 Defendantsappealed.I. THE CONSPIRACY TO SHIFT THE BLAME TO HARRIS FOR THE INCIDENT AT THE "Y"In Counts Two and Three of his complaint, Harris allegesthat Cooper and Roderick knowingly and intentionally con-spired to and did deprive him of his Fourth Amendment rightsby falsely telling other agents that he was the aggressor at the"Y" and that he did not act in self-defense, thereby causingthe other agents to inflict on him the subsequent FourthAmendment injuries he suffered. Cooper and Roderick lied,Harris claims, in order to conceal their own responsibility forthe deaths of Degan, Sammy Weaver, and the dog Striker, andto falsely shift the blame to him. Moreover, Cooper and Rod-erick repeated these allegations before a grand jury leading toHarris's federal indictment and prosecution on charges stem-ming from the events at the "Y" and at the Weaver residence.They also repeated the false story at Harris's federal jury trial.We review Cooper's and Roderick's claims relating to quali-fied immunity and reject them in their entirety.A. Heightened Pleading Standard[1] Cooper and Roderick first argue that Harris's complaintfails to meet the heightened pleading standard required forBivens conspiracy claims. Branch v. Tunnell, 937 F.2d 1382,1386 (9th Cir. 1991) (Branch I); see also Buckey v. County ofLos Angeles, 968 F.2d 791, 794 (9th Cir. 1992) (requiringconspiracy complaint to "allege specific facts to support theexistence of a conspiracy among the defendants"). Theheightened pleading standard must be met in cases in whichthe subjective intent of the defendant is an element of theclaim. Branch I, 937 F.2d at 1386. In order to survive amotion to dismiss, plaintiffs alleging a conspiracy to deprivethem of their constitutional rights must "include in their com-plaint nonconclusory allegations containing evidence ofunlawful intent or face dismissal prior to the taking ofdiscovery." Id. These allegations may be supported by eitherdirect or circumstantial evidence. Id. at 1387. This standard isnot intended to be difficult to meet as "[i]t serves the limitedpurpose of enabling the district court to dismiss`insubstantial'suits prior to discovery and allowing the defendant to preparean appropriate response, and where appropriate, a motion forsummary judgment based on qualified immunity." Id. at 1387(quoting Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir.1989)). It is for the latter reason that "heightened pleading" isrelevant for purposes of a qualified immunity appeal.In his complaint, Harris alleges that after the gunfight inwhich Degan, Sammy Weaver, and the dog Striker werekilled, "Larry Cooper and Arthur Roderick met separately andapart from the other Marshals, and constructed a false storyabout what had happened in the gunfight, which false storywas designed to conceal their own and William Degan's crim-inal, civil, and moral responsibility for the deaths of SammyWeaver and William Degan." Harris also alleges that Cooperand Roderick repeated this story in official documents,reports, and under oath before both a grand and petit jury. Asa result of these falsehoods, Harris claims that he was deniedhis right to be free from unreasonable seizure as guaranteedby the Fourth Amendment. More specifically, he alleges thatthe falsehoods led directly to Horiuchi's shooting and seri-ously wounding him, his imprisonment in the Weaver cabinfor eight days and at the hospital for two more weeks afterthat, and ultimately to the bringing of false charges againsthim that resulted in the federal murder trial at which he wasacquitted on all counts. Finally, he contends, the falsehoodscaused him to serve time in jail awaiting trial on the federalcharges.In Mendocino Environmental Center v. Mendocino County,14 F.3d 457 (9th Cir. 1994),4 the plaintiffs, environmentalistswho had participated in the planning and execution of a non-violent anti-logging rally, alleged that federal and state lawenforcement officials formed a " `federation or consortium' "with one another . . . to `disrupt, suppress and neutralize' theprogram and its organizers." Id. at 459. More specifically,they claimed that after a bomb was detonated in one of theplaintiff's cars, law enforcement officials intentionallyreleased false information to the press that was made to"smear them and other [organization] members as terroristsand violent fanatics." Id. at 460. Two organizers were ulti-mately charged with transportation of explosives. Id. at 459.The complaint alleged that the plaintiffs were arrested withoutprobable cause and that the agents supplied false informationto the magistrate, leading to the issuance of a search warrant.Both the state and federal officials moved to dismiss the com-plaint pursuant to Fed. R. Civ. P. 12(b)(6) on the ground thatit did not meet the heightened pleading standard required byBranch I. We held that the allegations in the complaint metthe Branch I standard because they described the parts of thewarrant affidavit that were false and asserted that those por-tions of the warrant were necessary to a probable cause deter-mination. Although the complaint did not specifically allegewhich of the four named FBI officials actually supplied theinformation that led to the incorrect warrant affidavit, we heldthat the failure to do so cannot serve as a basis for grantinga motion to dismiss. We pointed out "only the FBI agents cananswer" that question and, therefore, the plaintiffs must beallowed to take discovery on the point. Mendocino, 14 F.3dat 463.[2] We hold that Harris met the heightened pleading stan-dard with respect to the conspiracy he alleges occurredbetween Cooper and Roderick, and that the complaint wasadequate to permit defendants to assert their qualified immu-nity defense. Harris's complaint alleged two major overt acts.First, after the shootings of Degan, Sammy Weaver, andStriker, Cooper and Roderick met separate and apart from theother Marshals and constructed a false story about how theinitial gunfight came about and what occurred during itscourse. Second, the complaint alleges, Cooper and Rodericktold the false story to other agents and reiterated it during offi-cial (federal) investigations, at two (federal) preliminary hear-ings, before a (federal) grand jury, and at a (federal) jury trial.The malicious falsehoods, he claims, led to the shooting ofHarris by Horiuchi as well as to Harris's arrest, detention andfederal prosecution on various charges. Harris's allegationsare detailed and specific and clearly meet the heightenedpleading requirements of Branch I and Mendocino. He pleadswith particularity as to which defendants conspired, how theyconspired and how the conspiracy led to a deprivation of hisconstitutional rights, even though he does not identify whichofficer said or did what at which particular time.B. The Causal RelationshipCooper and Roderick claim that they are entitled to quali-fied immunity as to Counts Two and Three because even ifthey did lie about the events at the "Y," the falsehoods werenot the "actual cause" of Harris's shooting, forcible arrest,and prosecution. They argue in effect that the various occur-rences relating to Ruby Ridge are too attenuated to permit afinding that they committed a constitutional violation. We dis-agree.[3] We have explained the nature of the causation requiredin cases of this kind in Johnson v. Duffy, 588 F.2d 740 (9thCir. 1978). There, we held that for purposes ofS 1983 liabilitythe requisite causal chain can occur through the "setting inmotion [of] a series of acts by others which the actor knowsor reasonably should know would cause others to inflict theconstitutional injury." Id. at 743-44. There is little questionhere that Cooper and Roderick should have known that falselyplacing the blame for the initial Ruby Ridge incident on Har-ris would lead to the type of constitutional injuries he suf-fered.Harris's complaint states that both Cooper and Rodericklied about the events at the "Y" by portraying him as theaggressor and the culpable party, and that their falsehoodswere the proximate cause of a series of constitutional injuries,including his shooting by Horiuchi, his being trapped in theWeaver home for eight days while suffering severe pain fromhis wounds, and his subsequent arrest, jailing and trial on var-ious federal charges, including Degan's murder, all in viola-tion of his Fourth Amendment rights. The allegations aresufficient to meet the rule set forth in Johnson .5[4] Cooper and Roderick contend that Harris's actions atthe "Y," even as they are described in his complaint, weresufficient to give rise to probable cause for his arrest anddetention for the crime of assaulting a federal officer in viola-tion of 18 U.S.C. S 111 (1994).6 They argue that becauseprobable cause existed to arrest Harris independent of any liesthat they may have told, the causal chain was broken. Here,Harris's complaint alleges that he acted in self-defense, andthat had Cooper and Roderick told the truth about whatoccurred, he would not have been arrested for the shooting ofDegan, let alone shot and almost killed by an FBI sniper.7Given the conflicting factual assertions, we cannot say as amatter of law that independent probable cause existed or thatit served to break the causal chain. Moreover, the complaintstates that because of the conspirators' falsehoods SpecialRules were promulgated that directed that Harris and othersbe shot on sight if in possession of a weapon when spotted.We cannot assume that the Special Rules would have beenadopted if Cooper and Roderick had been truthful in theirreports. In short, under all of the circumstances, we cannotsay, on the basis of the complaint, that in the absence of Coo-per and Roderick's falsehoods, Harris would have sufferedthe constitutional deprivations he incurred.[5] Finally, Cooper and Roderick argue that, because theindividuals who actually executed the warrant and detainedHarris are entitled to qualified immunity, they, too, are enti-tled to such immunity, at least with respect to the arrest anddetention. While Cooper and Roderick are correct that offi-cers who reasonably believe that there is probable cause toarrest a suspect are entitled to qualified immunity, it does notfollow that Cooper and Roderick are entitled to immunity inthis case. The complaint alleges that the arresting officersacted on the basis of falsehoods wilfully created and dissemi-nated by Cooper and Roderick. Cooper and Roderick are notentitled to qualified immunity for such conduct if it served asthe basis for the arresting officers' beliefs. Officers who ingood faith relied on Cooper and Roderick's reports may wellbe able to assert a successful qualified immunity defensebased upon Hunter. The fabricators of a false story that mis-led them cannot.[6] Cooper and Roderick could not reasonably have beenunder any illusion that they could lawfully conspire to con-coct and disseminate false reports and escape responsibilityfor the consequences of their misdeeds. It was reasonablyforeseeable that the alleged falsehoods would lead to theunconstitutional shooting, as well as to the unlawful detentionand wrongful prosecution of Harris. The allegations in Har-ris's complaint are sufficient to plead the requisite causalrelationship.8 See Johnson, 588 F.2d at 740.C. The False Testimony[7] Cooper and Roderick contend that they have absoluteimmunity from claims that they gave false testimony: a) inofficial reports; b) before the grand jury that indicted Harrison the federal charges; and c) at his trial on those charges.They argue that even if they were not initially entitled toimmunity for their pretrial statements, any problems in thatrespect were cured when the grand jury indicted Harris, thusdetermining that there was probable cause. This argumentreflects the same specious reasoning that the two deputiesemployed in contending that they were immune for causing afalse arrest because the arresting officers acted in good faith.The argument here is, in essence, that if a conspiracy to lie isso successful that on the basis of the lies a grand jury findsprobable cause, the conspirators become immunized for theconstitutional injury they have caused. We disagree. In Handv. Gary, 838 F.2d 1420, 1426 (5th Cir. 1988), the Fifth Circuitexamined the question whether state actors could assertimmunity from liability for malicious prosecution simplybecause an indictment was obtained, regardless of the circum-stances surrounding its return. The Hand court concluded thata finding of probable cause that is "tainted by the maliciousactions of the government officials [involved]" does not pre-clude a claim against the officials involved. Id. We adopt theHand reasoning.[8] The more difficult question, however, is whether Coo-per and Roderick are entitled to immunity because lawenforcement officers enjoy absolute immunity for false testi-mony in a variety of official fora, including the fora at issuehere. While Cooper and Roderick are correct that police offi-cers are generally entitled to absolute immunity for perjurycommitted in the course of official proceedings, Briscoe v.LaHue,
460 U.S. 325
(1983), complaining witnesses whowrongfully bring about a prosecution generally are not.Malley v. Briggs,
475 U.S. 335, 341
(1986). 9 Harris is allegingthat Cooper and Roderick's actions were functionally those ofa complaining witness. When Cooper and Roderick conspiredto construct a false story about the events that took place atthe "Y," they deliberately set in motion a series of events thatthey anticipated (or should have anticipated) would lead toHarris's indictment, arrest, and federal trial for the murder ofOfficer Degan, a charge of which he was ultimately acquitted.Not only did Cooper and Roderick set the events in motionbut, according to the complaint, they voluntarily provided cru-cial information, false though it was, at every step of the pro-ceedings.[9] While we have extended the absolute immunity thatexists for the testimony of law enforcement officials at thetrial stage to other fora, including grand juries, 10 we have notconsidered the question whether there is an exception to theabsolute immunity rule with respect to law enforcement wit-nesses who serve functionally as complaining witnesses. Inother words, we have not determined whether Malleyprovides an exception to Briscoe. The Second, Fifth, Seventh,and Tenth Circuits have expressly concluded, however, thatlaw enforcement officials are not entitled to absolute immu-nity for false testimony when they function as complainingwitnesses. In announcing its holding, the Second Circuit inWhite v. Frank, 855 F.2d 956, 959 (2d Cir. 1988), reasonedthat because complaining witnesses were not entitled to abso-lute immunity at common law, officers who function in thatcapacity are not entitled to such immunity underS 1983. Thecourt said: initiating a baseless prosecution [is cognizable under S 1983], [because] his role as `complaining witness' renders him liable to the victim under section 1983, just as it did at common law, and the fact that his tes- timony at a judicial proceeding may have been the means by which he initiated the prosecution does not permit him to transpose the immunity available for defamation as a defense to malicious prosecution.White, 855 F.3d at 961; see also Anthony v. Baker, 955 F.2d1395, 1400 (10th Cir. 1992) (holding that the question ofimmunity for testimony given by law enforcement officials"hinges on whether [they] acted as a complaining witness ora lay witness."); Enlow v. Tishomingo County, 962 F.2d 501,512 (5th Cir. 1992) (holding that disputed issues of fact as towhether officer served as a complaining witness precludedimmunity finding). In Curtis v. Bembenek, 48 F.3d 281, 285(7th Cir. 1995), the Seventh Circuit also recognized that aclaim for malicious prosecution may be brought against apolice officer, under appropriate circumstances. We agreewith the reasoning of the other circuits and hold that if Cooperand Roderick functionally served as complaining witnesseswho may be said to have initiated Harris's prosecution theyare not entitled to absolute immunity for their false statements.11[10] The facts here present an even stronger case for pro-viding an exception to the general rule than did those in theother circuits' cases. Here, Cooper and Roderick were notsimply complaining witnesses. The thrust of Counts Two andThree is that Cooper and Roderick conspired to cover-up theirown misdeeds and to shift the blame to Harris by fabricatingand disseminating a false version of the events that occurredat Ruby Ridge. The subsequent official testimony was simplya part of the implementation of that conspiracy, a step in theoverall plan. We do not believe that the general policy thatimmunizes false official testimony requires that we precludeHarris from showing the full range of occasions on whichCooper and Roderick's falsehoods were uttered, simplybecause some of them occurred before a grand or petit jury.12II. THE SPECIAL RULES AND THEIRCONSEQUENCESIn Count Four, Harris alleges that all thirteen named defen-dants conspired to deny him his Fourth Amendment right tobe free from excessive force when they altered the FBI's offi-cial policy on deadly force embodied in the Rules of Engage-ment. Harris claims that the conspirators knew (or shouldhave known) when they authorized the Special Rules ofEngagement that the new rules would lead to an excessive andunconstitutional use of force by federal agents against individ-uals then present at Ruby Ridge, including Harris. He allegesthat in furtherance of the conspiracy, Rogers, Smith,McGavin, Horiuchi, and Carnege traveled to Idaho from theWashington, D.C. area. Then, he alleges, all thirteen nameddefendants conferred with each other either in person, by tele-phone, or in writing, and decided to formulate the SpecialRules of Engagement, which permitted officers to "kill anyarmed adult observed near the Weaver residence, irrespectiveof whether the armed adult presented an immediate threat ofharm to the agent or to another person."13 As noted supra,"adult" was shortly changed to "adult male."The defendants raise two principal arguments with respectto Harris's claim regarding the Special Rules of Engagement.First, they argue that Harris's conspiracy claim does not meetthe "heightened pleading" requirement for Bivens conspiracyclaims. Second, they urge that they are entitled to qualifiedimmunity. We address both arguments.A. Heightened Pleading[11] With respect to the "heightened pleading" require-ment, we agree with the district court that Harris's conspiracyclaim meets that standard. As we have already noted, the stan-dard requires that the complaint include "nonconclusory alle-gations containing evidence of unlawful intent or facedismissal prior to the taking of any discovery." Branch v.Tunnell, 937 F.2d 1382, 1386 (9th Cir. 1991) (Branch I). Likethe district court, we conclude that Harris has sufficientlypleaded nonconclusory allegations to survive a motion to dis-miss with respect to each of the moving defendants. Healleges that several defendants traveled from Washington,D.C., and that they all met or spoke together regarding theformulation of the Special Rules of Engagement, which con-templated, and in fact led to, Harris's being shot and seriouslywounded in violation of the Fourth Amendment. The allega-tions are sufficient to overcome the defendants' motion todismiss.14B. Qualified Immunity[12] The defendants' argument that they are entitled toqualified immunity for their actions requires a more detailedanalysis. The purpose of qualified immunity is to effect a bal-ance between the rights of persons residing in this country tobe free from blatant constitutional violations and the need toensure that the larger needs of society are met and that lawenforcement personnel are not unnecessarily diverted fromtheir duties. Harlow v. Fitzgerald,
457 U.S. 800
, 813-14(1982). Under the doctrine, law enforcement officers who arewrongdoers may sometimes escape the economic conse-quences of their actions. Officials who perform discretionaryfunctions are afforded "qualified immunity, shielding themfrom civil damages liability as long as their actions could rea-sonably have been thought consistent with the rights they arealleged to have violated." Anderson v. Creighton, 483 U.S.635, 638 (1987). As we have held repeatedly, "[a] lawenforcement officer is entitled to qualified immunity in a[Bivens] action . . . [if], in light of clearly established princi-ples governing the conduct in question at the time of the chal-lenged conduct, the officer could reasonably have believedthat the conduct was lawful." Mendoza v. Block, 27 F.3d1357, 1360 (9th Cir. 1994); see also Alexander v. County ofLos Angeles, 64 F.3d 1315, 1319 (9th Cir. 1995); Romero v.Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).[13] In order to determine whether the defendants are enti-tled to qualified immunity, we engage in a two-prongedinquiry: "1) Was the law governing the official's conductclearly established? 2) Under that law, could a reasonableofficer have believed the conduct was lawful?" Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993); seealso Mendoza, 27 F.3d at 1360. Harris alleges that the SpecialRules of Engagement permitted the unconstitutional use ofdeadly force. Defendants respond that Harris has failed toallege the violation of a clearly established right. The specificquestions we must decide are as follows: was it clearly estab-lished that the deadly force prescribed by the Special Rulesviolated constitutional requirements and should reasonableofficers drafting the Special Rules have known that such wasthe case?In Graham v. Connor,
490 U.S. 386
(1989), the SupremeCourt held that "[t]he `reasonableness' of a particular use offorce must be judged from the perspective of a reasonableofficer on the scene, rather than with the 20/20 vision ofhindsight." Id. at 396. Ordinarily, our "inquiry is . . . whetherthe totality of the circumstances, (taking into considerationthe facts and circumstances of the particular case includingthe severity of the crime at issue; whether the suspect posesan immediate threat to the safety of the officers or others; andwhether he is actively resisting arrest or attempting to evadeby flight) justified the particular type of seizure. " Curnow v.Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). InTennessee v. Garner,
471 U.S. 1, 11
(1985), the Court heldthat the use of deadly force "to prevent the escape of all fel-ony suspects, whatever the circumstances, is constitutionallyunreasonable." Furthermore, the Court observed that "[i]t isnot better that all felony suspects die than that they escape.Where the suspect poses no immediate threat to the officerand no threat to others, the harm resulting from failing toapprehend him does not justify the use of deadly force to doso." Id. [14] Certain principles are clearly established under thecases described above and others that implement the funda-mental rules regarding the use of deadly force. Law enforce-ment officers may not shoot to kill unless, at a minimum, thesuspect presents an immediate threat to the officer or others,or is fleeing and his escape will result in a serious threat ofinjury to persons. See Curnow, 952 F.2d at 325 (holding that"police officers could not reasonably have believed that theuse of deadly force was lawful because Curnow did not pointthe gun at the officers and apparently was not facing themwhen they shot him the first time"); Ting v. United States, 927F.2d 1504, 1511 (9th Cir. 1991) ("It was generally establishedat the time of the shooting that an officer could use deadlyforce to effectuate an arrest if, under the circumstances, hereasonably believed that such force was necessary to protecthimself or others from serious bodily harm."). Moreover,whenever practicable, a warning must be given before deadlyforce is employed. Garner,
471 U.S. at 11
-12.15[15] It is clear that the Special Rules that required the FBIagents to kill "any armed adult male" in the vicinity of theWeaver cabin mandated an unconstitutional use of force, andthat no reasonable officer could have believed otherwise. TheRules instructed the officers that they "could and should" killany adult male armed with a weapon in the vicinity of theWeaver cabin, regardless of whether he was threatening theofficers or any other persons. No mention of a warning ismade anywhere in the Special Rules. Instead, the SpecialRules constituted a shoot-on-sight edict. Although an officerhad been killed in a shootout and armed persons believed tobe responsible for his death remained in the area, so extremean order is patently unjustified.The regular Rules of Engagement, which were changed bythe defendants for the Ruby Ridge assault, provide that "anFBI agent may kill a person with whom he or she comes intocontact only when the person presents an immediate risk ofdeath or great bodily harm to the agent or another person."These Rules were clearly designed to comply with therequirements of the Constitution as explicated by the federalcourts. The alteration of those Rules, to require that "anyarmed adult observed in the vicinity of the Weaver cabincould and should be killed," constitutes a gross deviation fromconstitutional principles and a wholly unwarranted return toa lawless and arbitrary wild-west school of law enforcement.The Special Rules violated clearly established law and anyreasonable law enforcement officer should have been awareof that fact.[16] Defendants also appear to contend that they enjoyqualified immunity because the individual who actually shotHarris enjoys qualified immunity for his conduct. The argu-ment is similar to the one advanced by Cooper and Roderickwith respect to the arresting officers. It is a causation or proxi-mate cause argument, essentially, and this time there are twoclearly dispositive answers to it. First, whether Horiuchi'sshooting of Harris lies at the end of the causal chain thatstarted with the promulgation of the Special Rules, or whetherthat causal chain was broken because Horiuchi had cause toshoot Harris under the regular Rules of Engagement, is a factquestion that cannot be resolved on a motion to dismiss. Atthis stage of the proceedings, the only facts before us revealthat Horiuchi was instructed to follow the Special Rules andthat he then shot Harris. Second, it is extremely doubtful, forreasons we explain in the next section, that Horiuchi will everbe able to establish that he is entitled to qualified immunityfor his conduct in shooting Harris. Certainly, as the recordnow stands, he cannot do so.III. THE SHOOTING OF HARRIS BY HORIUCHIIn Count Five Harris alleges that the force used on him byHoriuchi was unreasonable because he "had committed nocrime, posed no threat to the safety of officers or others, wasnot seeking to flee, and had not been warned of the presenceof law enforcement officers or of their demand that hesurrender." Harris alleges that Horiuchi initially shot Weaver.He did so as Weaver was opening the door to the shed wherehis dead son Sammy's body lay. After Weaver was shot, Har-ris, Weaver, and Weaver's daughter Sarah, began to runtoward the cabin, as they feared for their lives. As Harrisentered the cabin, Horiuchi fired, hitting Vickie Weaver. Thebullet passed through her body and landed in Harris's upperarm and chest. Harris seeks to hold not only Horiuchi liablefor his injury but a number of Horiuchi's superiors.A. HoriuchiHoriuchi advances two main arguments in support of hisclaim for qualified immunity. First, he argues that the use offorce was objectively reasonable under the circumstances.Second, he argues that any law to the contrary was not clearlyestablished.Horiuchi asserts that, independent of the mandate in theSpecial Rules that deadly force be used whenever an armedmale is spotted near the Weaver cabin, the law at the time per-mitted law enforcement officials to use whatever force wasobjectively reasonable under the circumstances to effectuatean arrest, and, under the circumstances, the force he actuallyused was reasonably necessary to arrest Harris. In support ofhis argument, he relies upon Graham and the objective rea-sonableness test it announced. However, Horiuchi's actionssimply do not pass the Graham test, which, as we have noted,requires a careful examination of all the facts and circum-stances, viewed from the perspective of a reasonable officeron the scene.[17] Horiuchi asserts that the shot he fired while Harris wastrying to return to the cabin was objectively reasonablebecause Harris presented a greater danger when he was in thecabin than when he was outside, and it was therefore neces-sary to prevent him from reentering. One of the many prob-lems with Horiuchi's argument is that the force he used wasdesigned to kill Harris, not simply to stop him from reenteringthe cabin. That under all of the circumstances Harris's effortto return to the cabin he had left only minutes before did notjustify so extreme a measure should have been apparent toany reasonable law enforcement officer.[18] Harris went to the shed with Randy Weaver and hisdaughter Sarah to help minister to the body of Weaver's deadson. Even though Harris was armed, he made no aggressivemove of any kind when Horiuchi started shooting; instead,with the others, he ran back toward the cabin from which theyhad recently emerged. Examining Horiuchi's actions from theperspective of a reasonable law enforcement officer facedwith the need to make on-the-spot decisions, it is plain to usthat his actions were not objectively reasonable. Graham'stotality of the circumstances test does not permit the use ofdeadly force to kill a suspect who is running back to a cabinwhere he is temporarily staying and who makes no threaten-ing movement of any kind, even though the suspect hadengaged in a shoot-out with law enforcement officers on theprevious day and may have been the person responsible forthe death of one of the officers.[19] Horiuchi's shooting of Harris, is also plainly inconsis-tent with Tennessee v. Garner, which is the leading SupremeCourt precedent regarding the use of deadly force. Garnerholds: 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 constitution- ally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or 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.
471 U.S. at 11
. Horiuchi's shooting of Harris was not objec-tively reasonable. Harris was returning to the cabin, notescaping. Horiuchi gave him no warning and no opportunityto surrender or to otherwise cease his resistance to the exer-cise of lawful authority. The fact that Harris had committeda violent crime in the immediate past is an important factorbut it is not, without more, a justification for killing him onsight. Horiuchi and his fellow officers were safely ensconcedon the hill overlooking the Weaver cabin. No threateningmovement was made by Harris with respect to Horiuchi oranyone else, even after Horiuchi shot Randy Weaver. The lawthat deadly force may not be used under the circumstancespresent when Horiuchi killed Vickie Weaver and seriouslywounded Harris was clearly established under Graham,Garner, Ting, and Curnow, and no reasonable officer couldhave thought otherwise.16[20] Horiuchi contends that Harris has not alleged a viola-tion of clearly established law because he has not presentedany case involving similar circumstances. Horiuchi miscon-ceives the requirements of qualified immunity law. Harrisneed not present a factually similar case in order to show thathis constitutional rights were clearly established. Although thecontours of the established right must be "sufficiently clear[,]. . . [t]his is not to say that an official action is protected byqualified immunity unless the very action in question has pre-viously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent." Anderson v.Creighton,
483 U.S. at 639
(citation omitted). The Courtrecently repeated this maxim in United States v. Lanier, 117S. Ct. 1219, 1227 (1997), when it observed that "a generalconstitutional rule already identified in the decisional law mayapply with obvious clarity to the specific conduct inquestion." It also cited a particularly cogent observation fromthe Seventh Circuit: "[t]he easiest cases don't even arise.There has never been . . . a section 1983 case accusing wel-fare officials of selling foster children into slavery; it does notfollow that if such a case arose, the official would be immunefrom damages liability." Lanier, 117 S. Ct. at 1227-28 (quot-ing United States v. Lanier, 73 F.3d 1380, 1410 (6th Cir.1996) (Daughtrey, J., dissenting) (quoting K.H. Through Mur-phy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990)). As weheld in Mendoza, "when `the defendants' conduct is sopatently violative of the constitutional right that reasonableofficials would know without guidance from the courts' thatthe action was unconstitutional, closely analogous preexistingcase law is not required to show that the law is clearlyestablished." Mendoza, 27 F.3d at 1357 (quoting Casteel v.Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)). 17[21] Here, the generally applicable law was clearly estab-lished in Graham and Garner and the other cases discussedsupra. Law enforcement officials may not kill suspects whodo not pose an immediate threat to their safety or to the safetyof others simply because they are armed. Whenever practica-ble, a warning must be given so that the suspect may end hisresistance or terminate his flight. A desire to prevent an armedsuspect from entering the place he is residing because it maybe difficult to persuade him to reemerge is insufficient causeto kill him. Other means exist for bringing the offender to jus-tice, even if additional time and effort are required. WhenHoriuchi shot Harris, without any warning, as he was retreat-ing toward an area of safety, he acted in a patently unreason-able manner that violated clearly established law. That theconduct at issue violated Harris's constitutional rights shouldhave been plain to any reasonable officer.B. The Other Defendants[22] Finally, Harris claims that Horiuchi was aided andabetted by the other twelve named defendants when he deniedHarris his clearly established Fourth Amendment rights.Although appellants are correct that federal officials are onlyliable for their own actions, and cannot be held liable undera respondeat superior theory, Harris does not contend that theother defendants are liable simply because they were Hori-uchi's supervisors. Rather, Harris alleges that the other defen-dants actively encouraged Horiuchi's actions through theformulation of the Special Rules of Engagement, and that theissuance of the Special Rules was a precipitating cause of theshooting. We held in Taylor v. List, 880 F.2d 1040, 1045 (9thCir. 1989), that "[a] supervisor is only liable for constitutionalviolations of his subordinates if the supervisor participated inor directed the violations, or knew of the violations and failedto act to prevent them." See also Hamilton v. Yendell, 981F.2d 1062, 1066 (9th Cir. 1992) (reversing grant of summaryjudgment because prison officials who knew of inmates ill-ness and allowed his condition to worsen could face liability).Harris alleges that the twelve named defendants developed theplan that resulted in his shooting and encouraged Horiuchi tofire at him. Those allegations are sufficient to state a claimunder Taylor and Hamilton.SummaryThe complaint alleges that Cooper and Roderick conspiredto cover-up their own wrongdoing and to shift the blame forthe initial shootout at the "Y" from themselves to Harris. Infurtherance of this conspiracy, the complaint continues, thetwo officers concocted a false story, filed false officialreports, and testified falsely before the grand jury and at Har-ris's federal trial. The complaint further alleges that the falsereports led directly to Harris's near-fatal shooting, as well asto his subsequent arrest, detention and federal trial. The offi-cers do not enjoy qualified immunity for such conduct.The complaint also asserts that the thirteen defendants,working together, promulgated the Special Rules whichrequired FBI agents to "shoot on sight" in order to "kill." TheRules directly infringed on the clearly established constitu-tional rights of those at whom they were aimed, includingHarris. There is no qualified immunity for such conduct,either. Finally, the complaint alleges that in shooting Harriswithout warning, when he was retreating to the cabin, Hori-uchi violated his clearly established constitutional rights.Because the law was firmly established that such a shootingcontravenes the Fourth Amendment, and because a reasonableofficer could not have believed that it was reasonable to shootHarris under such circumstances, we affirm the district court'srefusal to dismiss this portion of the complaint as well.ConclusionWe hold that the officers named in Harris's complaint arenot, on the basis of the record before us, entitled to qualifiedimmunity for the actions that took place at Ruby Ridge inAugust 1992. The case is remanded to the district court forfurther proceedings consistent with this opinion.AFFIRMED AND REMANDED.
___________________________FOOTNOTES *The Honorable John W. Sedwick, United States District Judge for theDistrict of Alaska, sitting by designation.1 Bivens v. Six Unknown Named Agents of the Federal Bureau of Nar-cotics,
403 U.S. 388
(1971).2 Marshals Norris, Thomas, and Hunt are not parties to this action.3 In Count One Harris alleged that Roderick and Cooper denied him hisFourth Amendment right to be free from unreasonable seizures and hissubstantive due process right under the Fifth Amendment when they shotat him at the "Y." The court dismissed that count on the ground that Harriswas not seized during the incident. Harris, 933 F. Supp. at 984. In CountSix, Harris asked for declaratory relief in the form of a holding that theSpecial Rules were unconstitutional. Harris subsequently agreed that thiscount should be dismissed, and the district court did so. Harris, 933 F.Supp. at 988. In addition, Harris alleged a number of other Fourth andSixth Amendment claims that were dismissed by the district court. Noneof the claims that were dismissed is before us on this appeal.4 Although Mendocino was a case alleging conspiracy under S 1983, weobserved in Branch v. Tunnell, 14 F.3d 449, 450 (9th Cir. 1994) (BranchII) that the analysis for both S 1983 and Bivens actions was the samewhere the defendant's subjective intent is an element of the claim.5 The defendants' reliance on White v. Roper, 901 F.2d 1501 (9th Cir.1990) is misplaced. In that case White, a prisoner, brought suit allegingthat a guard physically forced him to enter a cell of another hostile inmate.White then ran away, and as a result of his confrontation with other prisonguards, suffered cuts and bruises. He brought aS 1983 claim alleging"deliberate indifference" or an "intent to punish" in violation of the pris-oner's due process rights. Id. at 1503. In that case, we held that for claimsalleging deliberate indifference or intent to punish, White had to prove thatthe officer's actions were the "but for" cause of White's injuries. Id. at1505. Harris, however, is not claiming deliberate indifference and thus thestandard that is applicable to his pleading is that described in Johnson.6 S 111. Assaulting, resisting, or impeding certain officers or employ-ees (a) In general -- Whoever -- (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [a federal law enforcement officer] while engaged in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year . . . .7 While an offender does not have to know that the person he is shootingat is a federal officer, see United States v. Feola,
420 U.S. 671
(1975), theSupreme Court has not foreclosed the possibility that the state of mind ofthe one accused of assault can be relevant for purposes of determiningwhether he had the requisite criminal intent to commit assault. The Courtnoted in Feola, "[f]or example, where an officer fails to identify himselfor his purpose, his conduct in certain circumstances might reasonably beinterpreted as the unlawful use of force directed either at the defendant orhis property. In a situation of that kind, one might be justified in exertingan element of resistance, and an honest mistake of fact would not be con-sistent with criminal intent." Id. at 684.Furthermore, as with traditional types of assault, defense of self is adefense to the charge. This court has recognized "a defense to assaultinga federal agent based on the defendant's honest mistake of fact or lack ofknowledge that the victim is a law enforcement officer. This defense con-sists of (1) a mistake or lack of knowledge as to authority, (2) a reasonablebelief that force was necessary to defend against an immediate use ofunlawful force, and (3) the use of no more force than appeared reasonablynecessary." United States v. Morton, 999 F.2d 435, 437-38 (9th Cir. 1993)(citations and footnote omitted). Furthermore the component requiringmistake or lack of knowledge does not relate necessarily to whether theaccused knew the officer was a federal agent, "but with whether the defen-dant recognized that the agent was authorized to act in the manner whichallegedly provoked the purported self-defense." Id. at 438 n.1; see alsoUnited States v. Span, 75 F.3d 1383, 1388 (9th Cir. 1996) (Span II) ("aperson has a right to resist an officer who is using excessive force"). Putanother way, "[t]he right of self-defense`is not triggered by the absenceof probable cause, but rather by the officer's bad faith or provocativeconduct.' " Span II, 75 F.3d at 1389 (quoting United States v. Span, 970F.2d 573, 580) (9th Cir. 1992) (Span I)). We also held in Span I that "anindividual has a limited right to offer reasonable resistance to an arrest thatis the product of an officer's personal frolic." 970 F.2d at 580. Becausethis case is before us as an appeal from a motion to dismiss, the plea ofself-defense is relevant to the question of probable cause, given the allega-tions alleging a conspiracy to shift the blame for the initial incident fromthe officers involved to Harris.8 We should reiterate that for purposes of this appeal we are required toassume that the allegations of the complaint are true. The defendants havechosen to appeal at a stage of the proceedings at which they have not yeteven filed an answer to Harris's charges. That is a tactical decision theyare free to make, Behrens v. Pelletier, 516 U.S._______, 116 S. Ct. 834 (1996),and any adverse consequences that may ensue are simply a result of theirvoluntary choice. This is so even though we recognize that Harris's com-plaint appears to be inconsistent in part or to omit material events that mayhave a significant impact on the ultimate outcome on Counts Two andThree. (Compare, e.g., paragraphs 31 and 34 of the complaint in respectto the location of Cooper and Degan during the initial shooting incident.)9 Malley denied absolute immunity to officers whose testimony servedas the basis for obtaining an arrest warrant. Warrant cases appear to con-stitute a separate line from those involving other more direct types of testi-mony. See Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995). However, as weexplain further in the text infra, this circuit has not yet decided whetherthe reasoning of Malley should be extended to other types of cases andapplied whenever an officer functions as a "complaining witness."10 See Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir. 1988).11 There is also a minority view. The Third Circuit in Kulwicki v. Daw-son, 969 F.2d 1454 (3d Cir. 1992), expressly rejected the reasoning ofBaker and White and refused to read the complaining witness exceptionin Malley as overriding the broad protection for law enforcement wit-nesses set forth in Briscoe v. LaHue,
460 U.S. 325
(1983).12 We are aware that following submission of this appeal Harris wascharged by a county prosecutor with the murder of Degan in violation ofthe law of the state of Idaho. Ronald J. Ostrow, FBI Sniper is Charged inRuby Ridge Killing, L.A. Times, Aug. 22, 1997, at A1 (describing howHarris was charged with murder of Degan and Horiuchi was charged withinvoluntary manslaughter in Vickie Weaver's death). Neither side has sug-gested that this development affects our decision. In any event, nothing inour decision precludes any party from calling the state prosecution to theattention of the district court following remand for whatever purpose maybe appropriate.13 While Horiuchi states in his brief that members of the Team weregiven the Special Rules of Engagement, that is not how the actions arecharacterized in Harris's complaint which asserts that all thirteen nameddefendants helped to draft, or acquiesced in the drafting of, the SpecialRules of Engagement, after conferring together.14 The defendants argue that Harris has not sufficiently stated what eachofficer did in the drafting of the Special Rules of Engagement. However,Harris is not required to do more than he has done. See Mendocino Envtl.Ctr. v. Mendocino County, 14 F.3d at 463 and discussion supra at 12617-12619; see also Rutherford v. City of Berkeley, 780 F.2d 1444, 1448 (9thCir. 1986) (holding that jury could reasonably conclude that certain offi-cers were liable despite the fact that the plaintiff, because he had beenpushed to the ground, could not identify all the officers involved).15 We recognize the need for officers on the scene to make immediateon-the-spot judgments. See Garner,
471 U.S. at 32
(O'Connor, J., dissent-ing). That factor plays little, if any, part, however, in an assessment of thereasonableness of the conduct of persons preparing Rules or Regulationsgoverning the conduct of law enforcement officers in the field.16 Horiuchi's reliance on Hegarty v. Somerset County, 53 F.3d 1367 (1stCir.), cert. denied, 116 S. Ct. 675 (1995), is misplaced. In Hegarty, thepolice shot a woman who was known to be unstable and was pointing agun at them through the paper-thin walls of her cabin. The officers liveswere clearly in danger. Id. at 1377.17 Horiuchi relies on In re City of Philadelphia Litigation, 49 F.3d 945,971 (3d Cir.), cert. denied, 116 S. Ct. 176 (1995). In that case, several cityofficials, after armed combat with members of the MOVE organizationwho refused to leave their headquarters, decided to use an explosivedevice to remove a bunker in order that agents could enter the housethrough the roof. Id. at 949-51. Although lives were lost, that was not theintended result. The Third Circuit, in holding that several city officialswere entitled to qualified immunity, recognized that the purpose of themission was to bring the MOVE members out of their headquarters, notto kill them. Id.