- The Washington Times - Tuesday, August 1, 2006

ANNAPOLIS (AP) — A man who was shot in the face four years ago by an FBI agent who mistook him for a bank robber can pursue his lawsuit against the agent, a federal appeals court has ruled.

The 4th U.S. Circuit Court of Appeals ruling issued Monday in Richmond rejected a claim by Special Agent Christopher Braga that as a law-enforcement officer he had immunity from the civil lawsuit.

The decision clears the way for a trial in the lawsuit filed by Joseph Schultz, who was shot in March 2002, after agents searching for a bank robber in northern Anne Arundel County stopped a car driven by Mr. Schultz’s girlfriend, Kristen Harkum.

Mr. Schultz, then 20, said he was reaching to his right to unlock the door in response to shouted commands from another agent to open the door when Mr. Braga fired his gun.

Mr. Braga said Mr. Schultz turned to the left, reached down toward the console and that he fired because he thought Mr. Schultz was going for a gun.

Mr. Schultz sustained multiple fractures and other injuries to his head, face and mouth and underwent reconstructive surgery.

U.S. District Judge J. Frederick Motz ruled last year that the lawsuit could proceed, and Mr. Braga tried unsuccessfully to have that ruling voided by the appeals court.

“In sum, there remain genuine issues of material fact as to the circumstances leading up to Agent Braga’s decision to fire his weapon at Schultz,” the appeals court decision said.

The court said there was a dispute over whether Mr. Braga had heard the command from another agent to Mr. Schultz to unlock the car door and whether “a reasonable officer in Agent Braga’s position could have believed that Schultz was making a noncompliant, dangerous movement warranting the use of deadly force to protect himself and others from an immediate and deadly threat.”

Arnold Weiner, Mr. Schultz’s attorney, said he was “gratified that the 4th Circuit did the right thing, and now Mr. Schultz can finally bring this case to trial.”

Mr. Braga’s attorney, Andrew C. White, said, “While the Court of Appeals decision means that Agent Braga’s case will go to trial, it by no means ruled that he did anything improper. Simply put, the 4th Circuit only ruled that there was a question of fact that needed to be decided by a jury and not a judge.”

Miss Harkum, who was not wounded, filed a $10 million lawsuit, but Judge Motz ruled that she could not prevail on her claim of excessive force because she was not seized by Mr. Braga and her constitutional rights had not been violated.

The 4th Circuit agreed with Judge Motz and rejected her attempt to reinstate her lawsuit.

Her attorney, Steven A. Allen, said Miss Harkum still has a tort claim against the government, arguing that Mr. Braga was negligent and should pay about $1 million.

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