AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
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Firearms Related: Intentional Use
Monthly
Law Journal Article: Use of Force and the
Hollywood Factor, by Jeffry L. Johnson, 2007 (4) AELE Mo. L.J. 501.
Monthly Law Journal Article: Civil Liability for Use of
Deadly Force-- Part One, 2007 (11) AELE Mo. L.J. 101.
Monthly Law
Journal Article: Civil
Liability for Use of Deadly Force-- Part Two. Qualified Immunity and Inadequate
Training, 2007 (12) AELE Mo. L.J. 101.
Monthly Law Journal Article: Civil Liability for Use of
Deadly Force-- Part Three. Supervisory Liability and Negligent/Accidental Acts,
2008 (1) AELE Mo. L.J. 101.
Monthly Law Journal Article: Long v. Honolulu Police
Sharpshooter Decision, 2008 (5) AELE Mo. L.J. 501.
Monthly Law Journal
Article: Anatomy of a Fatal Police
Shooting -- Allegations and Holdings, 2009
(2) AELE Mo. L. J. 101.
Monthly Law Journal Article: Force
and the Fatigue Threshold: The Point of No Return, 2010 (6) AELE Mo. L. J. 501.
Monthly Law Journal Article: Shooting
at Moving Vehicles, 2010 (9) AELE Mo. L. J. 101
Monthly Law Journal Article: Excessive
Force Claims Concerning Pointing Firearms--Part 1, 2010 (10) AELE Mo. L.
J. 101
Monthly Law Journal Article: Excessive
Force Claims Concerning Pointing Firearms--Part 2, 2010 (11) AELE Mo. L.
J. 101
Monthly Law Journal Article: Interagency Memorandums of
Agreement for Officer-Involved Shooting Investigations, 2011 (1) AELE Mo.
L. J. 501.
Monthly Law Journal
Article: Weapon Confusion and Civil
Liability, 2012 (6) AELE Mo. L. J. 101.
Monthly Law Journal Article: Teaching 4th Amendment Based
Use-of-Force, 2012 (7) AELE Mo. L. J. 501.
Monthly Law Journal Article: Drawing and Pointing Weapons
During a Terry Investigative Stop, 2013 (7) AELE Mo. L. J. 101.
Monthly Law Journal Article: Mandatory Nationwide Use of
Force Reporting by Police and Correctional Agencies – and Why This is an
Important Issue, 2015 (6) AELE Mo. L. J. 501.
Monthly Law Journal Article: Sixth Circuit Adopts New Test for Judging Reasonableness of Force Used in Non-Criminal Medical Situations, 2017 (7) AELE Mo. L. J. 101.
Monthly Law Journal Article: U.S. Supreme Court Rejects the Ninth Circuit’s Provocation Doctrine on Officer Shootings, 2017 (8) AELE Mo. L. J. 101.Monthly Law Journal Article: Anatomy of a Deadly Force Lawsuit Surviving a Qualified Immunity Defense, 2020 (7) AELE Mo. L.J. 101. An 18-year-old high school student just about to graduate experimented with LSD. The after-effects went on for several days, causing him being removed from class because of behavioral issues. A friend who checked in on him after school told police that his friend needed help, was armed with a pocket knife, and was upset with and threatening towards his mother. Four police officers went to the family home, not knowing that the mother was not actually home with her son. They entered without waiting for a warrant. The son appeared at the foot of the basement stairs, shouting obscenities and holding a lawnmower blade. The officers tried to subdue him by shocking him with a Taser in the dart mode. As an officer started down the stairs, the son stood up and started swinging. The lawnmower blade hit an officer, who fell back, and then shot and killed the son. A federal appeals court upheld summary judgment in favor of the defendants in an excessive force lawsuit. While the court characterized the case as “heart-rending,” it stated that, given the circumstances and governing law, the entry into the home was justified under the exigent-circumstances exception to the warrant requirement and the force used did not violate the Fourth Amendment. The officer who shot and killed the 18-year-old had probable cause to believe that he posed a significant threat of death or serious physical injury. Baker v. City of Trenton, #18-2181, 2019 U.S. App. Lexis 26207, 2019 Fed. Appx. 0221P (6th Cir.). An officer who shot and killed a man he saw running into a parking lot was entitled to detailed examination by the trial court of his possible entitlement to qualified immunity. The officer was investigating a theft in the area and believed that the man he saw running was carrying a gun. The man allegedly turned and started moving towards another officer who was pursuing him, before the observing officer shot three times, killing him. The trial court failed to meet its “threshold duty” to make a thorough determination of the officer’s claim of qualified immunity, and therefore the case had to return to the trial court for a second look at that issue as well as reconsideration of the officer’s claim of official immunity on state law claims. N.S. v. Thompson, #18-1537, 2019 U.S. App. Lexis 23944, 2019 WL 3773472 (8th Cir.). The state of California has enacted a state law that sets a more stringent standard for the use of deadly force by police officers. Under Assembly Bill 392, which goes into effect in January of 2020, prosecutors and courts will be able to consider the actions of both officers and of the person shot leading up to an encounter, and makes the use of deadly force only justifiable when: “[T]he officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended.” Prosecutors and courts will be able to look to the actions of suspects and officers, as well as department policy and training, to determine whether the shooting is “necessary,” rather than “reasonable.” Additionally, the new law also prohibits police from shooting at fleeing suspects who don't pose an immediate danger to the officers or others. It remains to be seen what “necessary” means under the statute, as it is not clearly defined. When a county deputy responded to a hit-and-run-call, people on the scene asked him to follow a man who was walking away and had slit his wrists. He rode after the man on his motorcycle. The man ignored a request to stop, but turned toward the deputy, displaying a knife and his bloody wrists. He called for backup, and continued to follow. Three other deputies parked vehicles in front of the man, seeking to block the way forward. When they exited their vehicles and displayed guns, the man stopped. They told him they would shoot if he did not drop the knife. Instead he raised the knife to his throat and began “swaying.” Two deputies fired, and the man fell. One deputy then kicked the knife out of his hand. He died in the hospital. In his wife’s excessive force lawsuit, a federal appeals court upheld the denial of qualified immunity to the two officers. To justify deadly force, the court stated, an officer must have probable cause to believe that the suspect presents an immediate threat of serious physical harm either to the officer or others. Officers may not shoot an uncooperative person when he presents an immediate risk only to himself but not to others. Studdard v. Shelby County, #19-5084, 2019 U.S. App. Lexis 23894, 2019 Fed. App. 0191P, 2019 WL 3771888 (6th Cir.). An officer responded to a report of a man outside his own residence carrying a knife and slashing car tires in the area. The man fled when he saw the officer’s patrol car approaching. The officer called backup and pursued the man, who entered his parents’ house. The officer and his two backup officers banged on the door and the suspect’s parents let them in. The suspect, waving his knife, ignored commands from both the officers and his parents to drop the knife. Two officers had pistols drawn, and the third was holding a Taser. The suspect tried to hide in a closet. An officer opened the door with his right hand holding his pistol in his left. The suspect was standing behind the closet door with his knife. Stepping back, the officer fired three shots that struck the suspect from about 2 to 3 feet away, killing him. The parents argued that the officer used excessive force in firing, as their son was only suspected of “nonviolent” tire slashing and was outnumbered. They also claimed that he was holding the knife down at his side with the blade pointing toward his elbow and did not charge the officers. Even if that were all true, a federal appeals court held, the decedent “still had been noncompliant and could have caused serious injury or death in a matter of seconds by repositioning himself and the knife. The situation is fairly described as tense and rapidly evolving.” Under these circumstances, the officer was entitled to qualified immunity for using deadly force. Swearingen v. Judd, #18-1126, 930 F.3d 983 (8th Cir. 2019). An officer and his canine arrived on the scene where two other officers with weapons drawn were questioning a suspect in a possible armed robbery in response to a 911 call. From 3 to 6 feet away, he was alarmed by what he thought were the suspect’s sudden movements toward a gun in his waistband, He released the dog and began to fire. As the dog attacked him, the suspect was hit five times in his side and front, then after a brief pause where he had fallen face down, an additional two times, and he died. A jury determined that the defendant officer had used unconstitutionally excessive force against the plaintiff, but was entitled to qualified immunity from liability. A federal appeals court upheld that result, and stated that, while the parties in the case “might better” have relied in their briefs on U.S. Supreme Court precedents from the three decades following Young v. City of Killeen, #84-1757, 775 F.2d 1349 (5th Cir. 1985), that the trial court's reliance on that case was “not misplaced.” Under Young’s discussion of qualified immunity, it was for the jury to determine, whether the suspect’s actions at any point could have led a reasonable officer to believe that he was posing a serious threat to others. Qualified immunity was justified unless no reasonable officer could have acted as the officer did here, or every reasonable officer faced with the same facts would not have shot at him. It also determined that it was not erroneous to have submitted two jury interrogatories, one on unconstitutional excessive force and one on qualified immunity. The resulting verdict was not “fatally inconsistent.” As the trial had been properly conducted, the appeals court was required to sustain the jury’s verdict on the factual issues. Mason v. Faul, #18-30362, 929 F.3d 762 (5th Cir. 2019). A deputy sheriff intentionally shot at a dog and unintentionally hit a ten-year-old child. A federal appeals court ruled that the deputy was entitled to qualified immunity in an excessive force lawsuit as his action in accidentally shooting the child did not violate any clearly established Fourth Amendment constitutional rights. The officer, while attempting to effect an arrest, made children in a yard lie down on the ground, and then shot at the family dog, accidentally shooting a boy in the knee. The plaintiff mother failed to show any materially similar case from the U.S. Supreme Court, the federal appeals court, or the Supreme Court of Georgia. Prior precedents indicated that the accidental effects of the officer’s intentional conduct did not rise to the level of a misuse of power amounting to a Fourth Amendment violation. The appeals court also rejected arguments that the conduct so obviously violated the Fourth Amendment that it was unnecessary to show prior similar case law to impose liability on the officer. Corbitt v. Vickers, #17-15566, 2019 U.S. App. Lexis 20447, 2019 WL3000798 (11th Cir.). After a police officer shot and killed a man, a lawsuit claiming excessive force was filed against the officer, the police chief, and the city. A federal appeals court upheld summary judgment on Fourteenth Amendment claims, but reversed on the remaining claims. The court found that triable issues remain regarding the reasonableness of the officer's use of deadly force, specifically the officer’s credibility, whether the decedent had posed a significant (or any) danger to anyone, whether the severity of the suspect’s alleged crime justified the use of deadly force, whether the officer gave or the suspect resisted any commands. Other issues for trial included the significance of the officer’s alleged failure to identify himself as a police officer or warn the suspect of the impending use of force, and the possible availability of less intrusive means of subduing the suspect. The appeals court ruled that these factual issues barred a grant of summary judgment based on qualified immunity, because it was well established at the time that the use of deadly force under the alleged circumstances, viewed in the light most favorable to the plaintiff, was objectively unreasonable. The officer had stated that he had not seen any weapons in the plaintiff’s possession before he fired. The court further found that the plaintiffs presented sufficient evidence of police department customs, practices, and supervisory conduct to support a finding of entity and supervisory liability. Additionally, the trial court never gave the plaintiffs a chance to be heard before granting summary judgment on the state law negligence and wrongful death claims, requiring further proceedings on those claims. Nehad v. Browder, #18-55035, 2019 U.S. App. Lexis 20590, 2019 WL 3023147 (9th Cir.).
The mother of a man shot and killed by two police officers claimed that the shooting violated his constitutional rights. A federal appeals court, in upholding summary judgment for the defendant officers, found that there was “no potentially admissible evidence in the record” to support the plaintiff’s claims that her son was unarmed, or did not point his gun at the officers, or shoot at one of them. Based on that, the officers acted reasonably in using deadly force. State law claims of assault, battery, and wrongful death were also properly rejected. Smith v. Kilgore, #18-1040, 2019 U.S. App. Lexis 17391 (8th Cir.). In a case in which an off-duty law enforcement officer shot and killed a suspect during an attempted arrest outside his primary jurisdiction, the Texas Supreme Court overturned the denial of the officer’s motion to dismiss. The action was an “official capacity” wrongful death lawsuit that had to be dismissed under the Texas Tort Claims Act. The court below had ruled that as a matter of law, the officer could not have been doing his job as a peace officer because a peace officer operating extraterritorially would not be obligated to make arrest under the circumstances. The Texas Supreme Court disagreed, holding that a licensed peace officer acting under the warrantless-arrest provision in Tex. Code Crim. Proc. 14.03(g)(2) is within the general scope of his or her employment for purposes of Tex. Civ. Proc. & Rem. Code 101.01(f). The officer in this case was sued in his official capacity and was therefore entitled to be dismissed. Garza v. Harrison, #17-0724, 62 Tex. Sup. J. 1149, 574 S.W.3d 389, 2019 Tex. Lexis 497, 2019 WL 2237875. After a man was shot and killed by a police officer, a lawsuit was filed against both the officer and the city, claiming excessive force. The officer was responding to a 911 call requesting assistance to the fire department at the man’s home. At the time of the shooting, the man was holding a knife in his hand while moving forward towards the office. He disregarded the officer’s order to get back. A federal appeals court upheld summary judgment for the defendants, finding that the use of deadly force was reasonable under the circumstances of the case. Shepherd v. City of Shreveport, #18-30528, 2019 U.S. App. Lexis 9858 (5th Cir.). A man’s wife called the police to report that he was in the driveway of their home holding a baseball bat while drunk and probably on drugs, and “acting crazy.” She wanted officers to remove him so that she would be able to return to the house and put their 17-month-old child, who was with her outside, to bed. Several officers responded to the call, and within one minute, one of them shot the husband dead in the street in front of the house. A lawsuit claimed that this constituted excessive force by the officer and that the city had failed to adequately train the officer on how to handle situations involving persons who are emotionally distraught or who have a diminished ability to reason. A state law wrongful death claim was also asserted against the officer. A federal appeals court upheld the denial of summary judgment on the basis of qualified immunity to the officer on the federal excessive force claim, because clearly established case law in the circuit provided an objective officer in the officer’s position notice that his conduct in shooting and killing an emotionally distraught man within a minute of arriving at the scene violated the Fourth Amendment. The court also dismissed for lack of jurisdiction the city’s appeal of the denial of summary judgment on the failure to train claim as well as the officer’s appeal of the denial of summary judgment on the wrongful death claim, as the city and officer had no right to an interlocutory appeal on those claims, unlike the officer’s right to an interlocutory appeal on the denial of his qualified immunity defense. Estate of Ceballos v. Husk, #17-1216, 2019 U.S. App. Lexis, 8967, 2019 WL 1341818 (10th Cir.). A motorist sued two officers, alleging that they violated his Fourth Amendment rights by using deadly force while arresting him. The officers attempted to stop him for what they thought might be a stolen license plate, and he drove towards them for a time in response. A federal appeals court upheld the denial of the officers’ motions for summary judgment, holding that they started or continued to fire on plaintiff after they were no longer in the trajectory of his car and thus violated his Fourth Amendment right to freedom from excessive force. The court also held that it was clearly established that using deadly force against him after the officers were no longer in the car’s trajectory would violate the right to freedom from excessive force. They were therefore not entitled to qualified immunity. Williams v. Strickland, #18-6219, 2019 U.S. App. Lexis 6616 (4th Cir.). Police dispatchers received calls about a man on a rural street, shooting a pistol and yelling “everyone’s going to get theirs.” They relayed descriptions of a black male wearing a brown shirt. Officers arriving on the scene observed a suspect matching that description, who fired at them, and then disappeared into the trees. The suspect then re-appeared 100-500 yards away. The officers advanced but again lost sight of the suspect. They began ordering him to drop his weapon and come out. After a few minutes, the officers spotted a figure on a bicycle, wearing a blue jacket, not a brown shirt, over 100 yards away. All of the officers claim the rider was armed. The rider, who was also African-American, was not the suspect. His father claimed that the rider was “unarmed” and did not move his hands in any way that might have suggested that he was reaching for something. An officer yelled “put that down!” Officers then fired 17 shots within seconds of spotting the rider. Hit, he fled. While his father was attempting to help the injured rider in their yard, officers advanced. The father claimed that the only gun they had was a toy, which he tossed toward the officers. When the officers attempted to cuff the two men, both resisted. Officers used Tasers on them. EMS pronounced the rider dead at the scene. In the family’s civil rights suit, the court granted the officers summary judgment on statute of limitations and qualified immunity defenses. A federal appeals court affirmed that claims against two officers were time-barred but reversed in part. With respect to qualified immunity, the trial court erred in excluding the father’s affidavit. Genuine issues of material fact remained with respect to whether the use of deadly force was objectively reasonable under the circumstances. Winzer v. Kaufman County, #16-11482, 2019 U.S. App. Lexis 4743, 2019 WL 654594 (5th Cir.). Officers searched for a fugitive in a house in which a man rented a basement apartment. The house belonged to the fugitive’s brother. They did not find the fugitive. Following the search, the plaintiff renter returned home from work and entered his basement apartment through a backdoor without noticing the officers. He claims that his living area had been ransacked. He ran up the backstairs shouting. According to the officers, the renter pointed a gun and shot at them. They returned fire and arrested him. The plaintiff renter admitted that he had a holstered pistol but denied that he touched it at all. While turning to flee and reaching for his holster, he fell down the steps and was shot in the stomach, shoulder, and leg. Forensic evidence later confirmed that he did not fire his gun, while witness accounts conflicted on whether he pointed the gun at an officer. After a jury acquitted him of state criminal charges, he filed a Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, #301, 403 U.S. 388 (1971) federal civil rights action against the officers, alleging excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy. A federal appeals court affirmed in part the denial of qualified immunity to the defendants, finding the plaintiff’s “garden-variety Bivens” claims viable in light of the Supreme Court’s holdings in Ziglar v. Abbasi, #15-1358, 137 S. Ct. 1843 2017 U.S. Lexis 3874, 2017 WL 2621317 (2017), and Hernandez v. Mesa, #15-118, 137 S. Ct. 2003, 2017 U.S. Lexis 4059, 2017 WL 4495 (2017) as “run-of-the-mill challenges” to “standard law enforcement operations.” Jacobs v. Alam, #18-1124, 2019 U.S. App. Lexis 3918, 2019 Fed. App. 17P (6th Cir.). A police officer who responded to a report about two suspicious men in a neighborhood possibly looking for houses to burglarize found them standing together on a sidewalk. A Terry v. Ohio, #67, 392 U.S. 1, 21, 27 (1968) frisk led to a tussle on the ground, followed by the discharge of a concealed pistol one of the men had. The officer at one point attempted to use his Taser, but it didn’t work. The man whose gun discharged ran away and the officer shot him, resulting in his death. The dead man’s mother (who was also the administrator of his estate) sued the officer, the city, and the police officer for federal civil rights violations as well as state tort claims. The trial court denied the officer summary judgment on one claim concerning illegal search, which the officer appealed, while the plaintiff also appealed the grant of summary judgment on the other claims, including excessive force with regards to the shooting. A federal appeals court ruled that the officer was not entitled to summary judgment on the Terry stop-and-frisk search. The frisk and events leading up to it were captured on video. The appeals court found that, at the very least, a jury could watch the suspect’s behavior and disagree with the officer that an objective officer “would perceive furtiveness and reasonably suspect criminality or dangerousness. Walking away from a consensual conversation with an officer is not in itself enough to justify reasonable suspicion.” The appeals court also agreed that the plaintiff was not entitled to judgment in her favor on the other claims raised by the use of deadly force. “An officer may employ deadly force to prevent a suspect’s flight if, in the moments immediately preceding the officer’s decision, he ‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.’” If so, deadly force may be used while the suspect attempts to flee, particularly when, as here, the suspect still had the recently discharged gun, as nothing prevented him from turning and firing at the officer. Wilkerson v. City of Akron, #17-4157, (6th Cir.). A federal appeals court upheld a grant of qualified immunity to an officer who shot and killed a suspect, concluding that the use of deadly force and use of a police K9 dog did not violate clearly established law. The officer was pinned to the ground by the suspect, who was hitting him at the time, and fired his gun because he feared that he would lose consciousness. The K-9 dog was used previously when the suspect refused to come out of a crawl space under the house, Further, municipal liability claims against the city were properly rejected because the plaintiff failed to provide evidence of an official policy or custom of which a policy maker could be charged with actual or constructive knowledge that caused the constitutional violations. Shumpert v. City of Tupelo, #17-60774, 905 F.3d 310 (5th Cir.2018). A lawsuit was filed over the death of a man shot and killed during a law enforcement investigation. The case was dismissed because it was filed after the Virginia state statute of limitations had expired. Upholding the result, a federal appeals court found that undisputed facts placed the plaintiff on objective notice of the need to investigate the shooting. In this case, a witness had informed the plaintiff outlining inconsistencies she believed existed in the file and the plaintiff did not file suit until after the limitations period had expired. Spradling v. Hastings, #17-3573, 2019 U.S. App. Lexis 501 (8th Cir.). The U.S. government was properly granted judgment against the plaintiff on his lawsuit under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680, because the Homeland Security agent who shot him during the execution of a search warrant at his residence for evidence of drug and gang offenses did not violate his clearly established rights. The court ruled that the U.S. government could not be held liable for the agent’s conduct unless the unlawfulness of the officers’ conduct was clearly established at the time they acted and that at the time the officers acted, no precedent clearly established that the officers’ conduct was unlawful. When agents and officers entered the residence, there were no lights on in the apartment, other than the powerful flashlights held by the agents. The Homeland Security agent saw the suspect’s silhouette emerging from a bedroom. In Spanish, he yelled “police,” and ordered the suspect to show his hands and stay still. Ignoring these commands, the suspect lifted his shirt, reached for his waistband, and moved for cover behind a bedroom wall. His waistband contained no discernible "bulge." Before he drew his hand from his waistband area, two agents shot at his center mass. These actions, under the circumstances, did not violate clearly established law. Escalera Salgado v. U.S., #17-1838, 2018 U.S. App. Lexis 35564 (1st Cir.). A female police officer shot a man who was cutting himself with a knife in the waiting area of a psychiatric center. He argued that this violated his Fourth Amendment right to be free from unreasonable seizures. The officer moved for summary judgment based, in part, on her qualified immunity to federal damage claims. The trial court denied the motion, concluding that she could not constitutionally shoot the plaintiff unless he posed an immediate threat to herself or others and only after providing some kind of warning, if feasible. The federal appeals court dismissed the appeal to the extent it challenged the trial court’s assessment of the factual record and otherwise affirmed the denial of summary judgment. Begin v. Drouin, #17-1451, 2018 U.S. App. Lexis 32448 (1st Cir.). An officer who shot and killed a man was sued for excessive force. A federal appeals court, ruling in an appeal of denial to summary judgment to the officer on the basis of qualified immunity, ruled that it lacked jurisdiction to consider questions of evidentiary sufficiency on an interlocutory review, and thus dismissed the officer’s appeal with respect to the claims that the shooting violated the decedent’s Fourth Amendment right and the plaintiff family’s Fourteenth Amendment rights. The appeals panel reversed the trial court's denial of qualified immunity on the Fourth Amendment claims pertaining to the stop, holding that the officer’s actions during the investigative stop did not violate any clearly established law. In this case, the officer had reasonable suspicion to stop and investigate the decedent after the 911 call warning of an armed man matching his description, and unholstering a gun during the stop did not constitute a violation of the right to be free from excessive force. Foster v. Hellawell, #17-55167, 2018 U.S. App. Lexis 32797 (9th Cir.). A 19-year-old black man was attending a party at a motel when another young black male pulled a gun and robbed the guests, including him and held them all hostage. A woman called 911 to report the incident and then kept her phone hidden and open so the 911 dispatcher could hear events as they unfolded, including an apparent confrontation between the man with the gun and someone with a knife, who was the 19-year-old male. The man with the gun demanded that the man with the knife give it up. During the police response to the incident, the 19-year-old fled from the room while the robber fired shots. The 19-year-old was shot and killed by three officers who fired 17 rounds while he was lying on the ground. A federal appeals court reversed summary judgment for the defendant officers. The resolution of the conflicting testimony between one officer’s more or less contemporaneous statement to investigators (that he had shot the decedent despite his compliance with commands) and all of the officers’ subsequent unified conflicting deposition testimony should be left to a jury and the district court erred in finding the defendants entitled to qualified immunity. Henderson v. City of Woodbury, #17-1385, 2018 U.S. App. Lexis 33334 (8th Cir.). In an excessive force case arising from the fatal shooting of an armed civilian by a state trooper, a federal appeals court upheld a grant of summary judgment to the officer on the basis of qualified immunity. The decedent, after a nearly three-and-one-half-hour standoff in which he was repeatedly warned to drop his weapon, persisted in pointing a loaded semi-automatic firearm narrowly above the heads of three officers, who were within easy firing range. Qualified immunity protects public officials, including police officers such as the defendant, the court noted, from civil liability while acting under color of state law, with the exception of officials who act incompetently or in disregard of clearly established legal principles. Conlogue v. Hamilton, #17-2210, 906 F.3d 150 (1st Cir. 2018).In a prior decision, a federal appeals court ruled that allegations that two officers shot and severely injured a 17-year-old when he was holding a gun to his own head, and not pointing it at the officers as they claimed, if true, would constitute excessive force. Based on this dispute of material fact, a federal appeals court dismissed the appeal of the denial of qualified immunity on the excessive force claim for lack of jurisdiction. The appeals court also upheld the trial court's refusal to dismiss a Fourteenth Amendment due process claim that after the incident an officer intentionally fabricated evidence to cover up his colleagues' actions and get the teenager falsely charged with aggravated assault on the officers. Cole v. Hunter, #14-10228, 802 F.3d 752 (5th Cir. 2015). On remand from the U.S. Supreme Court, Hunter v. Cole, #16-351,137 S. Ct. 497 (2016), the Fifth Circuit U.S. Court of Appeals considered the case in light of the Supreme Court's decision in Mullenix v. Luna. #14-1143, 136 S.Ct. 305 (2015) [In which the U.S. Supreme Court reversed a denial of qualified immunity to the trooper on an excessive force claim ruling that the trooper was entitled to qualified immunity because prior precedents did not indicate that it was "beyond debate" that he acted unreasonably,]. The appeals court upheld the trial court’s denial of two officers’ motion for summary judgment based on qualified immunity, and otherwise reinstated the court's previous opinion in this case, and remanded for further proceedings. The court held that the trial court did not weigh the evidence and resolve the factual dispute over the shooting and that a jury should resolve what happened on that night. Cole v. Hunter, #14-10228, 905 F.3d 334 (5th Cir. 2018).The family of a man shot and killed by a police officer sued for excessive use of force because he was unarmed at the time. A federal appeals court reversed the trial court’s denial of qualified immunity to the officer. Given the officer’s knowledge that the suspect had a reputation for being aggressive and violent towards law enforcement personnel in the small town, it was reasonable to believe that he posed an immediate threat of serious physical harm to him, despite the fact that the officer could see that the suspect’s hands were empty and the later-discovered fact that he was unarmed. Under the circumstances, a reasonable officer on the scene would have viewed the suspect’s “indisputably aggressive approach” as a prelude to a physical altercation, and the officer was required to make a split-second decision in an unpredictable and dangerous circumstance. Wenzel v. Storm, #17-2028, 2018 U.S. App. Lexis 28464 (8th Cir.). On remand from the United States Supreme Court, in a case in which the Court rejected the “provocation” doctrine of the Ninth Circuit finding liability for an otherwise justified shooting found to have been provoked by an illegal entry, the Ninth Circuit held that the unlawful entry into a residence by two sheriff's deputies, without a warrant, consent, or exigent circumstances, was the proximate cause of the subsequent shooting and injuries to plaintiffs. Therefore, the appeals court panel permitted the federal claim under 42 U.S.C. 1983 despite the U.S. Supreme Court’s ruling. The appeals court panel ruled that if an officer has a duty not to enter in part because he or she might misperceive a victim's innocent acts as a threat and respond with deadly force, then the victim's innocent acts cannot be a superseding cause. In this case, the victim’s action of moving the gun so that it was pointed in the deputies’ direction was not a superseding cause of the plaintiffs' injuries. The panel also held that plaintiffs had an independent basis for recovery under California negligence law in light of Hayes v. County of San Diego, #S193997, 57 Cal. 4th 622, 305 P.3d 252 (2013). On remand, the panel noted that the judgment shall be amended to award all damages arising from the shooting in the plaintiff’s favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant. Judgment will also be entered for the plaintiffs on the California negligence claim for the same damages arising out of the shooting. Mendez v. County of Los Angeles, #13-56686, 897 F.3d 1067 (9th Cir.2018). Editor’s Note: For a discussion of the prior U.S. Supreme Court decision in the above case, County of Los Angeles v. Mendez, #16-369, 137 S. Ct. 1539, 198 L. Ed. 2d 52, 2017 U.S. Lexis 3396, see U.S. Supreme Court Rejects the Ninth Circuit’s Provocation Doctrine on Officer Shootings, 2017 (8) AELE Mo. L. J. 101. A man called police to assist him in subduing his brother, who was having a psychotic episode. When the brother charged at one of the officers with a knife, he was shot. While he survived, he did not fully recover. A federal appeals court ruled that, given the undisputed facts, a reasonable jury could not find the officers violated the brother’s Fourth Amendment right to be free from excessive force. Clark v. Colbert, #17-7046, 895 F.3d 1258 (10th Cir. 2018). A federal appeals court ruled that the defendant officer was entitled to qualified immunity for using deadly force against the plaintiff arrestee, because the force used was justified, upholding the trial court’s holding. The trial court relied on the plaintiff’s criminal conviction for assaulting defendant officer and on the defendant’s testimony. It rejected the plaintiff’s argument that the court should create an evidentiary presumption at the summary judgment stage against an officer who fails to use audio or video recording equipment that he has been issued. Even construing the record in the plaintiff’s favor, the officer’s use of force was objectively reasonable where the plaintiff posed an immediate threat to his safety and was actively resisting arrest. Church v. Anderson, #17-2077, 898 F.3d 830 (8th Cir. 2018). After a man took hostages at a Wisconsin motorcycle shop and threatened to start shooting, police unsuccessfully attempted to enter the premises. One hostage managed to escape out of the back door of the shop and was shot and killed in the alley by two officers who mistakenly believed that he was the hostage taker. The hostage’s wife sued the officers and city for unreasonable and excessive use of force. A federal appeals court upheld summary judgment for the officers on the basis of qualified immunity. It ruled that the officers’ conduct was not objectively unreasonable under the Fourth Amendment and that even if their conduct was unreasonable, they were shielded from liability by qualified immunity. At least one officer believed that the situation was an ambush and that when the hostage appeared in the officers; line‐of‐sight holding a gun, the officers, in a matter of seconds, concluded that the hostage was one of the people inside the shop who had shot at them only minutes ago. Mason-Funk v. City of Neenah, #17-3380, 895 F.3d 504 (7th Cir. 2018). A border patrol agent was not entitled to qualified immunity for his actions while standing on U.S. soil, in shooting and killing a teenage Mexican citizen who was innocently walking down a street in Mexico. These actions, the appeals court ruled, violated the Fourth Amendment, and qualified immunity was unavailable when it was “inconceivable” that any reasonable officer could have thought that he or she could kill the teenager for no reason. The court held that the teenager’s mother had a claim against the agent for money damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, #301, 403 U.S. 388, 389 (1971). The court stated its reluctance to extend Bivens to these circumstances, but did so because no other adequate remedy was available and there was no reason to believe that Congress deliberately chose to withhold a remedy. Rodriguez v. Swartz, #15-16410, 2018 U.S. App. Lexis 21930 (9th Cir.). A police officer was entitled to qualified immunity in an excessive force case on the basis of qualified immunity. The plaintiff was shot by the officer because he was suspected of breaking and entering and battery, and the officer was aware of these crimes before interacting with plaintiff. The plaintiff was standing about 20 feet from the officer holding a knife, inflicting harm on himself and stumbling, but not threatening others or making sudden movements. The plaintiff was then refusing to obey the officer’s repeated commands to drop the knife at the time he was shot. Wilson v. Prince George’s County, #17-1856.2018 U.S. App. Lexis 16292 (4th Cir.). After their son was shot and killed by police, two parents sued for excessive force. The incident occurred when officers responded to a call about the decedent acting erratically while brandishing a pair of scissors. He eventually charged in the officers' direction while holding the scissors above his head and the officers shot him. A federal appeals court held that the facts were such that a reasonable jury could conclude that the decedent was not an immediate threat to the officers, but nonetheless the officers were entitled to qualified immunity because existing precedent did not clearly establish, beyond debate, that the officers acted unreasonably under the circumstances. Because a reasonable jury could find that officers violated the decedent’s Fourth Amendment rights, it was appropriate to remand the plaintiffs' conspiracy claims and Monell municipal liability claims; and the defendants were not entitled to summary adjudication of the plaintiffs' disabilities claims under the American with Disabilities Act and the Rehabilitation Act. Vos v. City of Newport Beach, #16-56791, 892 F.3d 1024 (9th Cir. 2018). A federal appeals court held that, in viewing the record in the light most favorable to plaintiff, the officer’s use of deadly force against the plaintiff was objectively reasonable under the Fourth Amendment when the officer could have reasonably feared that the plaintiff had a gun and was turning to shoot him when the officer shot him following a traffic stop. The appeals court further concluded that the district court did not err by raising the issue of qualified immunity on its own (“sua sponte”) and by addressing it on summary judgment. Easley v. City of Riverside, #16-55941, 2018 U.S. App. Lexis 12925 (9th Cir.).The city of Los Angeles, California on May 10, 2018, reached a $1.9 million settlement with the plaintiff family in a federal lawsuit brought over the police shooting and killing of a homeless man. The shooting took place in 2015 and was viewed online by many in a YouTube video. A jury in the federal lawsuit, just before the settlement, found that two officers were liable for the death of the 43-year-old decedent, Charley “Africa” Keunang. The jury found that the shooting officer used excessive force and that his supervising sergeant was also liable for failing to intervene. A third officer present was found not liable. The decedent was shot as he “scuffled” with the officers as they responded to a report of an attempted robbery outside of a rescue mission. The county district attorney’s office declined to charge the three officers, and in a 2016 report stated that they were justified in using lethal force because the homeless man had nearly gotten hold of an officer’s holstered gun as they fought. The decedent reportedly had a history of violent, erratic behavior, and had served time in prison for bank robbery. Tehayou v. City of Los Angeles, #CV16-06073, (May 10, 2018, U.S. Dist Court, C.D. Calif.). A California deputy was entitled to qualified immunity for shooting and injuring a man who was holding a large knife when he answered the door to his residence when deputies responded to a 911 call. The plaintiff failed to identify any prior sufficiently analogous cases showing that under similar circumstances a clearly established Fourth Amendment right against the use of deadly force existed at the time of the shooting. Therefore, the appeals court panel affirmed the trial court’s ruling that the deputy was entitled to qualified immunity. Reese v. County of Sacramento, #16-16195, 2018 U.S. App. Lexis 10130 (9th Cir.). A federal appeals court upheld summary judgment for an officer who shot and killed a motorist. Given the “tense and evolving” factual circumstances, the court held that the officer reasonably believed that the motorist posed a threat of serious harm. In this case, he fled the scene of a serious crime, drove recklessly and endangered others, refused to obey roughly thirty commands, and approached the officer on a narrow highway shoulder directly adjacent to speeding traffic. The fact that he ultimately proved to be unarmed did not alter the result. Because the plaintiff failed to demonstrate that the decedent’s Fourth Amendment rights were violated, her claims against the city and police chief for alleged failure to train and inadequate screening/hiring failed as well. Romero v. Grapevine, Texas, #17-10083, 2018 U.S. App. Lexis 10004 (5th Cir.). A police officer shot a woman less than a minute after arriving with other officers at the scene where it had been reported that a woman was acting erratically and hacking a tree with a knife. When he fired, the woman was holding a large kitchen knife, had taken steps towards her female roommate, and had refused to drop the knife despite two orders to do so. Her injuries were not life threatening and she matched the description of the suspect given by the 911 caller. All of the officers later said that they subjectively believed the woman was a threat to her roommate. She had a history of mental illness. Her roommate said that she did not feel endangered. The U.S. Supreme Court ruled in favor of the officer, stating that even assuming a Fourth Amendment violation occurred, which “is not at all evident,” the officer was entitled to qualified immunity. Although the officers were in no apparent danger, the shooting officer believed that the plaintiff was a threat to her roommate. He had mere seconds to assess the potential danger and was separated from the women by a chain-link fence. This was “far from an obvious case” in which any competent officer would have known that shooting her would violate the Fourth Amendment. None of the decisions relied on by the court of appeals supported denying the officer qualified immunity. Kisela v. Hughes, #17-467, 2018 U.S. Lexis 2066. Following remand from the United States Supreme Court [Hernandez v. Mesa, #15-118, 137 S. Ct. 2003 (2017)], a federal appeals court held that this shooting case was not a garden variety excessive force case against a federal law enforcement officer. The plaintiffs alleged that a law enforcement agent used deadly force without justification against a fifteen-year-old boy, violating the Fourth and Fifth Amendments, when they fatally shot him across the United States-Mexico border. At issue was whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, #301, 403 U.S. 388 (1971). The court noted that no federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer under these circumstances. The court held that the transnational aspect of the facts presented a “new context” under Bivens, and numerous "special factors" weighed against the federal courts’ interference with the executive and legislative branches of the federal government. Therefore, the court affirmed the trial court's dismissal of the case. Hernandez v. Mesa, #12-50217, 2018 U.S. App. Lexis 7161 (5th Cir.).
A jury awarded over $37 million against a Maryland county to the family and estate of a woman killed in a standoff with police shooting incident. Her 5-year-old son was also shot twice and injured during the encounter. Attorneys for the county and an officer argued that the officer “reasonably feared he or others could have been injured or killed” by the woman, who was armed with a gun and pointed it at them when they arrived to serve arrest warrants on the woman and a man in the residence. She fired buckshot from the shotgun after one officer fired first. The county stated that it “is disappointed with the verdict and is reviewing all of its options, including an appeal.” Damages awarded, all compensatory, included $32.85 million to the woman’s son and an additional $23,542 for his medical expenses, and $4.53 million to the woman's daughter. It also awarded $307,000 to the woman’s mother, $300,000 to her father, and $300,000 to her estate. Maryland law caps damage awards against local governmental entities at around $1 million. Family and Estate of Korryn Gaines v. Baltimore County, Feb. 16, 2018, Circuit Court, Baltimore County, Maryland, reported in Huffington Post. A 16-year-old boy and three companions tried to rob a pizza restaurant at gunpoint. An off-duty police officer who was there waiting for a pizza shot and killed the 16-year-old. Video recordings captured part of the incident, which involved a struggle for a gun. The 16-year-old’s participation in the struggle was disputed, and he was apparently crawling when he was shot. Wounds showing that three bullets entered his back, contradicting the officer’s claim that he shot as the boy advanced towards him. The trial court rejected, on summary judgment, claims by the decedent’s estate. A federal appeals court affirmed, concluding that the officer’s use of deadly force was reasonable and justified and did not violate the Fourth Amendment. The officer did not know that the boy was unarmed, and he was in close quarters with multiple, moving, potentially armed assailants, who forced him to make split‐second, life‐or‐death decisions. The incident lasted only about 45 seconds from the moment the first assailant entered the pizzeria to the moment the officer locked the door. It was objectively reasonable for the officer to stay inside the locked pizzeria awaiting help. It would be objectively unreasonable to demand that he venture into the night with an empty gun, risking further onslaught, to administer treatment to the injured boy, the court concluded. Horton v. Pobjecky, #17-1757, 2018 U.S. App. Lexis 4885 (7th Cir.). After a man was shot 21 times by police and became paralyzed from his injuries, his guardian sued for excessive force. A federal appeals court dismissed the defendants’ appeal from the denial of summary judgment based on qualified immunity. The appeals court held that, while it had jurisdiction to determine whether conduct constituted a violation of clearly established law, it lacked jurisdiction to determine whether evidence could support a finding that a particular conduct occurred at all. In this case, whether the officers reasonably believed the man posed a sufficient threat depended on what occurred, and the trial court was unable to make this determination based on the evidence presented. Therefore, the court lacked jurisdiction to determine the key factual question about whether he advanced on the officer just before being shot. Raines v. Burningham, #16-4141, 2018 U.S. App. Lexis 5609 (8th Cir.).
A 20-year-old man seen riding his bicycle on the wrong side of the road was shot four times during an encounter with a deputy sheriff and was permanently paralyzed. Ordered to dismount his bike, the man was shot when he turned away after doing so. In an excessive force lawsuit, a jury awarded him damages totaling $23,148,100. Overturning this award, a federal appeals court found that the deputy was denied the opportunity to have his qualified immunity defense determined by the court because a jury instruction effectively delegated resolution of the issue to the jury, presumably as to both facts and law. The instruction improperly combined the excessive force inquiry with the qualified immunity issue, requiring a new trial. The defendant sheriff was properly granted summary judgment on a municipal liability claim, as the single incident did not establish a custom of tolerating excessive force. Stephens v. Bradshaw, #15-10396, 879 F.3d 1157 (11th Cir. 2018). Two officers were properly granted qualified immunity on excessive forces claims in a lawsuit over having shot and killed a man while executing a search warrant on a residence while looking for methamphetamine. The evidence contradicted the plaintiff’s claim that the decedent attempted to surrender and retreat. Instead, evidence showed that he refused to obey the commands to show his hands, shifted an object between his hands, and quickly approached them, drawing the object up toward the face of the lead officer. Under these circumstances, it was not unreasonable for them to believe that he posed a threat of serious physical harm and to respond with deadly force. Their actions were objectively reasonable. A third officer was properly granted qualified immunity because his bullet did not strike the decedent, so his claim was analyzed under the Fourteenth Amendment’s due process clause rather than the Fourth Amendment. A reasonable officer in his position, the court found, would have probable cause to believe that the lives of his fellow officers were in danger. Hammett v. Paulding County, Georgia, #16-14764, 875 F.3d 1036 (11th Cir. 2017). Deputies who were investigating a domestic disturbance at a man’s home encountered him outside the residence, armed with a handgun, with his two daughters nearby on the porch. They shot and killed him. A federal appeals court upheld the denial of summary judgment to the deputies based on qualified immunity and state defenses. It held that a jury could conclude that the decedent never raised his gun, which was pointed at the ground, never threatened the deputies, and never received a warning command. Under these circumstances, the deputies were not in any immediate danger and were not entitled to shoot him. Accordingly, they were not entitled to qualified immunity. On the state law claims, the trial judge properly ruled that the plaintiffs' assault claim could proceed as a matter of law. The defendant deputies were not entitled to public official immunity under North Carolina law on the plaintiffs’ negligent infliction of emotional distress claim because they acted contrary to their duty to use deadly force only when reasonably necessary. Hensley v. Price, #16-4294, (4th Cir.). An officer pulled a woman over for speeding in her mini-van. After the officer explained that he was going to give the driver a citation, she drove away with her five children in her vehicle. After the officer pulled her over again, things got chaotic, and the driver got in a scuffle with the officer who tried to arrest her. When the officer tried to pull her out of the car, her 14-year old son tried to fight off the officer, who then pulled out his Taser. The officer then bashed out the windows on the van after her family ran back into the van and locked the doors. The van began to drive away again. As the incident unfolded, a second officer showed up and fired three shots at the van as it sped off. A high speed pursuit then ensued, but the motorist eventually surrendered. In a lawsuit claiming excessive use of force, a federal appeals court noted that it was undisputed that no bullet hit the minivan or the occupants inside. The shooting officer’s affidavit stated that he was aiming at the left rear tire. The appeals court held the trial court should have granted the defendant officer summary judgment because the shots did not halt the van’s departure and, because they were fleeing, they were not seized at the time he fired his weapon, even if they had a subjective intent to submit to authority. Farrell v. Montoya, #16-2216, 2017 U.S. App. Lexis 26620 (10th Cir.).During a traffic stop, an officer observed what he thought were bags of marijuana in the car’s glove compartment. The officer first pointed his gun at the ground and then pointed it point blank at the driver, who was trying to move the bags. A pursuit ensued, which three officers joined. The plaintiff can be seen in a video steering away from the first officer’s car in a vacant parking lot but the officer broadcast that the motorist “tried to ram my vehicle,” The motorist fled, entering a highway. The chase continued through two red lights in an uninhabited area. A second officer twice collided with the pursued car, causing the driver to lose control. A third officer rammed the motorist’s car, which stopped, then slowly moved forward. The motorist’s and first officer’s cars collided at low speed. Gunshots were heard on the recording. And the motorist, struck by three bullets fired by a fourth officer, died. The appeals court ruled that the deceased did not present an imminent or ongoing danger and therefore the shooting officer's use of deadly force was objectively unreasonable and in violation of the deceased’s constitutional rights because the officer fired after the deceased’s car had passed the point where it could harm him, the officer had time to realize he was no longer in immediate danger, and it was relevant that the officer repeatedly violated police procedures; Despite this, although the officer's conduct fell outside the bounds of the Fourth Amendment, controlling authority at the time of the events had not clearly established the rights now identified, so he was entitled to qualified immunity. The officer's violation of police department policies did not require a different outcome because the violation did not cause the officer to lose his qualified immunity. Latits v. Phillips, #15-2306, 2017 U.S. App. Lexis 26650, 2017 Fed. App. 0292P (6th Cir.). Officers were not entitled to qualified immunity for shooting a man to death when the basis of their appeal was factual arguments about materiality and sufficiency of the evidence, which should be made to a jury and did not run to a legal issue on appeal. The trial court did not make any legal determinations based upon facts viewed in the light most favorable to the estate, it merely held that the factual dispute at this stage prevented such an analysis. Franklin v. Peterson, #16-4429, 2017 U.S. App. Lexis 26540 (8th Cir.). When two men broke into a door to his apartment, a male occupant dialed 911. He struggled with the men in his bedroom. Officers saw two men exit the apartment, and one of them had a gun in his hand as he ran towards an officer. The officer shot him while the second suspect fled. The man shot was the occupant, who had disarmed a burglar. The officer never administered aid to the wounded man, later saying that he considered it unsafe to do so with an active crime scene and that the suspect appeared to be dead. The occupant died. The officer was entitled to qualified immunity on claims for excessive force and deliberate indifference to medical needs, as his actions were objectively reasonable based on what he knew at the time. Thomas v. City of Columbus, #16-3375, 854 F.3d 361 (6th Cir.). A sheriff was improperly granted qualified immunity in a lawsuit claiming that he used excessive force when he shot and killed an unarmed man. The sheriff's credibility or the accuracy of his disputed version of the facts (that he reasonably believed the man was armed and posed a threat) was a central question that had to be answered by a jury. The appeals court also reversed the grant of summary judgment on the plaintiffs’ wrongful death claim under Arizona state law, because there was a material dispute of facts as to the use of reasonable deadly force. Longoria v. Pinal County, #16-15606, 873 F.3d 699 (9th Cir. 2017). A police officer fired nine rounds at a man after witnessing him stab a fellow officer in the arms with a knife and run away. Police video footage showed that after the man fell to the ground, the officer ran towards the body and fired nine more rounds from a distance of about four feet. While he was still moving on the ground in a fetal position, the officer stomped on his head three times. A federal appeals court held that the officer did not violate the Fourteenth Amendment by emptying his weapon at the decedent. However, the head stomps were different because a jury could reasonably find that the officer knew or easily could have determined that he had already rendered the man harmless. If so, a reasonable jury could also conclude that he was acting out of anger or emotion rather than any legitimate law enforcement purpose. Zion v. County of Orange, #15-56705, 2017 U.S. App. Lexis 21802 (9th Cir.). Officers entered into a vacant apartment without a warrant and used deadly force on a man trespassing inside who aggressively attacked them, growling and waving a broken hockey stick. A federal appeals court ruled that the officers were entitled to qualified immunity on both warrantless entry and seizure of the apartment, as the man had no reasonable expectation of privacy there. They were also entitled to qualified immunity on excessive force claims, as their actions did not violate clearly established Fourth Amendment law. Woodward v. City of Tucson, #16-15784, 2017 U.S. App. Lexis 17896 (9th Cir.).A federal appeals court upheld a judgment for the plaintiff in an excessive force claim against an officer who shot him in the back during a response to a 911 call, rendering him a paraplegic. The court did not consider the officer’s qualified immunity argument because she failed to preserve the issue for appeal. Lam v. City of San Jose, #16-16052, 869 F.3d 1077 (9th Cir. 2017).A federal appeals court overturned the denial of qualified immunity to an officer who shot and killed a dog when it ran onto a highway, obstructing traffic. The plaintiff could not cite, and the appeals court did not find, any case holding that an officer violated the Fourth Amendment when he shot and killed an unrestrained, unsupervised dog creating a serious risk to public safety and avoiding numerous attempts to control him without force. The dog’s actions caused cars to swerve, change lanes, and seek safety on the shoulder of the road. The officer’s actions under the circumstances were objectively reasonable. Hansen v. Black, #16-4162, 2017 U.S. App. Lexis 17986 (8th Cir.). |
The trial court properly denied officers motions for qualified immunity when the facts, as alleged by the decedent’s mother, if true violated clearly established rights. She asserted that the decedent, at the time he was punched and shot and killed, was complying with the officers’ demands. A reasonable jury could find that the officers acted with prohibited bad faith or malice. As to claims against the Board of Police Commissioners, because the trial court's individual liability determinations survived the appeal, the appeals court rejected the Board's argument that it was entitled to judgment as a matter of law because its officers did nothing wrong. Lancaster v. Board of Police Commissioners, #15-3769, 2017 U.S. App. Lexis 13688 (8th Cir.).
A U.S. Border Patrol agent standing on the U.S. side of the border with Mexico shot and killed an unarmed 15-year-old Mexican boy standing in Mexico. The decedent had been playing a game that included running up the embankment on the U.S. side of the border. The decedent’s parents filed a Bivens federal civil rights lawsuit for damages against the agent. A federal appeals court upheld dismissal of the lawsuit. The U.S. Supreme Court has vacated that ruling, ordering further proceedings. It noted that a direct Bivens implied right of damages against federal officers who allegedly violated a citizen’s constitutional rights is not available “where there are special factors counseling hesitation in the absence of affirmative action by Congress.” On remand, the appeals court must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. In this case, the lower court concluded that the prohibition on excessive force did not apply to the decedent as a foreign national on foreign soil. But the U.S. Supreme Court noted that the boy’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. Hernandez v. Mesa, #15-118, 2017 U.S. Lexis 4059.
Two officers pulled over an 18-year-old male motorist for having a missing front license plate. They claimed that he fired a weapon towards their squad car and then ran away. They shot him three times in the back and he subsequently died. Two eyewitnesses testified that they thought that the motorist had no weapon. The defendants offered testimony that gunshot residue was found on the decedent’s hand and that casings were found at the site from which he shot. The gun found near the decedent was swabbed for DNA, but the samples were never tested by the state police. A jury returned a verdict for the defendant officers in an excessive force lawsuit. A federal appeals court upheld this result. It rejected an argument that the trial judge erroneously excluded evidence and argument concerning the failure to test the DNA swabs. The sole relevant issue was whether or not the officers were justified in shooting the decedent. A lack of DNA evidence, by itself, did not tend to prove or disprove justification. Further, nothing linked the officers who shot the decedent to the missing DNA evidence, and it would be unfair to assume that testing the DNA swabs would have helped or harmed the plaintiff’s case. Mitchell v. City of Chicago, #14-2957, 2017 U.S. App. Lexis 11958 (7th Cir.).
The U.S. Supreme Court has unanimously overturned a 9th Circuit federal appeals court decision that imposed liability on an officer’s use of deadly force even though the force was deemed justified at the time, rejecting a “provocation” doctrine that based that liability on a finding of illegal entry under the theory that the improper entry created the conditions that necessitated the use of force. A $4 million award of damages to the two individual plaintiffs was vacated. The Ninth Circuit's provocation rule, which held that an officer’s otherwise reasonable and lawful defensive use of force was unreasonable as a matter of law if the officer intentionally or recklessly provoked a violent response and the provocation was an independent constitutional violation, conflated excessive force claims with other Fourth Amendment claims and improperly permitted excessive force claims that could not succeed on their own terms. County of Los Angeles v. Mendez, #16-369, 2017 U.S. Lexis 3396, 2017 WL 2322832 (May 30, 2017).
Because it was not clearly established on the date of the fatal shooting of a disturbed individual inside his home that using deadly force on an emotionally disturbed individual who grabbed a knife from his pocket despite orders to place his hands on his head would constitute excessive force under the Fourth Amendment, the defendants were entitled to qualified immunity. That said, the appeals court did rule that a reasonable jury could find, under similar circumstances in the future, that the force used violated the Fourth Amendment. S. B. v. County of San Diego, #15-56848, 2017 U.S. App. Lexis 8452 (9th Cir.).
A deputy knew that a man was dressed in a military uniform, carrying a rifle, and making rude gestures to passing vehicles as he walked along a roadway, and when the officer screamed a command to him to drop the gun, the man spun around, raised his rifle, and pointed it at the deputy so that the deputy reasonably believed that he was at risk of serious harm when he shot and killed the man. Under these circumstances, the use of deadly force was objectively reasonable. Although new information came to light after the shooting that the rifle was actually a pellet gun, a reasonable officer in the deputy's position could believe that man was pointing a gun and that there was a serious risk of harm. Dooley v. Tharp, #15-3368, 856 F.3d 1177 (8th Cir. 2017).
When an animal cruelty officer went to a house to investigate a third complaint of animal cruelty allegedly taking place there, the male occupant did not come to the door. A female neighbor told the officer that the man had previously threatened her and that she was terrified of him. When more officers arrived, the man finally opened the door, gestured in a manner that suggested that he had a weapon, and then closed the door again. A second visit was also unsuccessful. The neighbor then told the animal control officer that the man had said that he would kill the officer if she returned. Members of TACT (the city’s version of SWAT) were summoned to assist with executing a search warrant. Officers announced “police” at both the front and back doors and threw flash-bangs inside. One of the officers saw the man entering his bedroom. To prevent a barricade situation, an officer threw a flash-bang into the bedroom. An officer then entered and saw the man holding a semi-automatic pistol, pointed at her. On the 911 tape, after the flash-bang, the officer can be heard yelling, “Hands, Don! Hands, hands, hands!” Seconds later, she fired at the man, killing him. His gun, still in his hand was fully loaded with a round in the chamber; he had another pistol in a holster. Officers found a rifle next to the front door and axes next to each door. His children sued, claiming excessive use of force. A federal appeals court found no merit in these claims, finding that the officers did not violate the decedent’s constitutional rights under these circumstances and that the use of deadly force was justified in self-defense. Moore v. City of Memphis, #16-5552, 853 F.3d 866 (6th Cir. 2017 ).
A man was shot by a police officer while he was trying to defuse a situation where his former schoolmate had pulled out a gun and pointed it at a crowd. The man was in possession of the gun because he had taken it away from his schoolmate. He was shot several times and is now paralyzed from the neck down. He sued the officer for excessive force. A federal appeals court found that the officer’s use of deadly force was objectively reasonable and the trial judge did not err in granting his motion for summary judgment based on qualified immunity. The officer ordered the plaintiff to stop, but the plaintiff did not hear him, continuing to run toward another officer with the gun in his hand. The plaintiff was two to three feet from the other officer before the defendant officer reasonably fired his gun. Malone v. Hinman, #15-3465, 847 F.3d 949 (8th Cir. 2017).
A male motorist was driving a vehicle containing three persons, including his infant son, at 3 a.m. He saw that he was being followed by a police car with its lights and siren activated, but continued to drive on. Other officers responded to the scene, the motorist pulled over, several officers exited their vehicles, and one stepped in front of the stopped car. When the car started to move forward, that officer fired two rounds from a shotgun at the driver, severely injuring him. The officer was entitled to qualified immunity in an excessive force claim because it was objectively reasonable for him to use deadly force in self-defense when the car moved forward. Several officers were entitled to qualified immunity in the driver’s other excessive force claim because the video evidence refuted any claim that excessive force was used in removing him from the car. The officers were also entitled to qualified immunity for the infant child passenger’s unreasonable seizure claim based on the shots fired at the car because the law as to Fourth Amendment protection for a passenger in this situation was not clearly established. Carabajal v. City of Cheyenne, #15-8139, 847 F.3d 1203 (10th Cir. 2017).
A Utah state trooper tried to stop a car
for speeding near an Indian reservation. The car entered the reservation and
stopped about 25 miles later. The 17-year-old male driver and a 21-year-old
male passenger emerged and started running away. The trooper caught the driver
and requested backup. A police officer responded and allegedly shot and killed
the passenger. The officer claimed that the passenger shot at him and then shot
himself. An illegally purchased gun was found near the passenger. No medical
assistance was allegedly provided to the passenger while awaiting an ambulance.
FBI agents took charge of the scene and allegedly, along with the police,
denied a tribal officer access. After the passenger was declared dead off the
reservation, an officer allegedly photographed the decedent nude and
manipulated his remains. A medical examiner found that the fatal bullet entered
the back of the decedent’s head above and behind his left ear. The decedent was
right-handed. No soot was found on the decedent’s hands. When the investigation
of the gun was concluded, the FBI destroyed it. In prior litigation under 42
U.S.C. Sec. 1983, a federal trial court found that the pursuit was reasonable,
and that the decedent had fired at the officer. The U.S. Court of Appeals for
the Tenth Circuit affirmed this result, finding no liability. Jones v.
Norton, #14-4040, 809 F.3d 564 (10th Cir.
2015).The decedent’s family and the Indian tribe then
sued the U.S. government in the Court of Claims under a1868 treaty with
the Indian tribe and alleging a violation of the United States’ trust
obligations, arising out of the same circumstances surrounding the shooting
death. The estate claimed that officers concocted a false story that decedent
shot himself, and failed to take custody of decedent's body and to secure it
against desecration and spoliation of evidence. The Claims Court
ruled that the treaty was limited to affirmative criminal acts committed
on reservation lands and dismissed allegations regarding failure to take custody
of and secure the decedent’s body against desecration, spoliation of evidence,
failure to ensure a proper autopsy, and failure to protect the tribe’s
reservation boundary and sovereign interest in the crime scene. The court found
allegations concerning acts on the reservation barred by issue preclusion.The
Federal Circuit vacated, holding that the Claims Court improperly limited the
scope of claims cognizable under the treaty and erred in applying issue
preclusion without considering the spoliation issue, an issue of the
culpability of federal agents which had never been decided. Some of the alleged wrongs were a continuation of the
conspiracy to cover-up the on-reservation killing; Jones v. United States, #15-5148, 2017 U.S. App. Lexis 1479 (Fed. Cir.).
A 911 call reported that a
male motorist was a drunk driver on the highway. The women who made the call
followed his car with their bright lights on. He pulled over at an off-ramp to
confront them, and then drove to a secluded home where he lived with his
brother. Two officers went to the residence after interviewing the women. The
two men inside became aware of them and asked “who are you?” and “What do you
want?” The officers said “Hey (expletive), we got you surrounded. Come out or
we’re coming in,” and one shouted “Open the door, State Police, open the door.”
The men inside allegedly only heard “we’re coming in” and not the
identification,” They armed themselves and yelled “We have guns.” One of them
fired two shotgun blasts from the back door at an officer. Then the second man
opened a window and pointed a handgun in an officer’s direction. An
officer fired at him but missed. A third officer, who had arrived late on the
scene, shot at this man and killed him. Both the trial court and a federal appeals
court denied this officer qualified immunity. The U.S. Supreme Court reversed,
finding that the officer did not violate any clearly established law. The Court declined to consider whether a
reasonable jury could infer that the third officer had witnessed the other
officers’ deficient performance and should have realized that corrective action
was necessary before using deadly force because neither lower court addressed
that argument. The lower court erred in concluding that a police officer was
not entitled to qualified immunity on an excessive force claim where no settled
Fourth Amendment principle required the officer, who arrived late to the scene
and witnessed shots being fired by one of several individuals in a house, to
second-guess the earlier steps already taken by his fellow officers or shout a
warning to an armed occupant before shooting, and thus, there was no clearly
established law that would have placed the constitutional question beyond
debate. The Court expressed no opinion on whether the first two officers were
entitled to qualified immunity. The Court found it necessary to clarify the
test for granting qualified immunity to an officer: “Today, it is again
necessary to reiterate the longstanding principle that ‘clearly established
law’ should not be defined ‘at a high level of generality.’ … As this Court
explained decades ago, the clearly established law must be ‘particularized’ to
the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the
rule of qualified immunity . . . into a rule of virtually unqualified liability
simply by alleging violation of extremely abstract rights.’ … The panel
majority misunderstood the ‘clearly established’ analysis: It failed to
identify a case where an officer acting under similar circumstances as [the
third officer] was held to have violated the Fourth Amendment. Instead, the
majority relied on Graham, Garner, and their Court of Appeals progeny, which—as
noted above—lay out excessive-force principles at only a general level. Of
course, ‘general statements of the law are not inherently incapable of giving
fair and clear warning’ to officers, but ‘in the light of pre-existing law the
unlawfulness must be apparent,’” White v. Pauly,
#16-67, 137 S. Ct. 548, 196 L. Ed. 2d 463, 2017 U.S. Lexis 5, 85 U.S.L.W. 4027,
26 Fla. L. Weekly Fed. S 409.
A man engaged in a fight
with a police officer that ended with the officer firing three shots and
killing him. Overturning the trial court’s denial of qualified immunity to the
officer on an excessive force claim, a federal appeals court found that the
officer’s conduct prior to the shooting was neither excessive nor unreasonable;
and because the plaintiffs had failed to demonstrate a constitutional
violation, they failed to satisfy their burden of showing that the officer was
not entitled to qualified immunity. The appeals court held that the trial court
erred in holding that—in the absence of video evidence—eyewitness testimony
should not be considered for summary judgment purposes until subject to cross
examination. In this case, the appeals court gave full weight to the undisputed
eyewitness testimony concerning the incident. This showed that the
officer used deadly force to protect himself because by the time the officer
drew and fired his weapon, the decedent—who was physically larger and stronger
than the officer—had already disobeyed verbal orders, put the officer in a
headlock, wrestled the officer to the ground, and repeatedly reached for the
officer's firearm. Orr v. Copeland, #16-50023, 2016
U.S. App. Lexis 23100 (5th Cir.).
An officer's use of deadly force to shoot and kill a
fleeing man was not reasonable as a matter of law because the record did not
show that the decedent committed the violent felony of aggravated assault or
that the decedent posed a significant immediate threat to the safety of the
officer or other bystanders. He was not holding a firearm at the time of the
shooting, and the prior physical struggle was minimal. The officer was not
entitled to qualified immunity. Wallace v. Cumming,
#15-3279, 843 F.3d 763 (8th Cir.).
Officers obtained a search warrant for a residence, and an Emergency Response Team
was involved due to the subject’s criminal history, gang affiliations,
possession of firearms, and possible possession of cocaine and heroin.
Approaching the door, an officer could see dogs barking aggressively and
“jumping.” The dogs, owned by the plaintiff, were pit bulls, weighing about 97
pounds and 53 pounds. The officer testified that he “did not feel [the
officers] could safely clear the basement with those dogs down there.” The
officers shot and killed the dogs. A federal appeals court upheld
dismissal of the lawsuit as there was no genuine issue of facts on either a
Fourth Amendment excessive force claim or an inadequate training claim. The
court agreed that the officers acted reasonably and that there was no history
of “needless killing of animals in the course of searches in the municipality. The
dogs posed an imminent threat to the officers while they were executing a search
warrant looking for drugs in a house where a known gang member lived. Brown v. Battle Creek Police Department, #16-1575, 2016
U.S. App. Lexis 22447, 2016 Fed. App. 293P (6th Cir.).
Police responding to a
report of a woman hacking at a tree with a knife arrived on the scene and
observed a woman holding a kitchen knife walking down a driveway towards
another woman. They were unable to approach the women because of a chain link
fence. One of the officers shot her four times. A federal appeals court ruled
that the officer was not entitled to summary judgment on the basis of qualified
immunity. The record did not support the officer's perception of an immediate
threat. The plaintiff did not raise the knife she was holding and did not make
any aggressive or threatening actions toward the other woman. She was described
by a witness as composed and non-threatening. The facts presented the police
shooting a woman who was committing no crime and holding a kitchen knife. While
the woman with the knife may have been acting erratically, was approaching a
third party, and did not immediately comply with orders to drop the knife, a
rational jury—accepting the facts in the light most favorable to
plaintiff—could find that she had a constitutional right to walk down her
driveway holding a knife without being shot. Hughes v. Kisela, #14-15059, 2016
U.S. App. Lexis 21186 (9th Cir.).
A police officer fatally shot a man on the street
during an attempted arrest. The officer maintained in the trial court that he
shot the decedent after he grabbed his police baton. According to him, the
decedent was standing upright and was swinging the baton violently toward a
second officer at head height when he was shot. According to the shooting
officer, the man then fell to the ground. He claimed he shot the decedent again
as he was getting up and again swinging the baton. The trial court granted
summary judgment to the officer based on qualified immunity. Because evidence
in the record contradicts his testimony, a federal appeals court reversed and
remanded. The officer's credibility was genuinely in doubt. A reasonable jury
could conclude that the officers were wrong when they claimed that the decedent
grabbed the baton. In the alternative, a reasonable jury could conclude, given the
trajectory of the bullets through the decedent's body, that even if he had
grabbed the baton the officer could not have fired his first shot while the man
was standing up and swinging the baton. Newmaker v. City of Fortuna,
#14-15098,2016 U.S. App. Lexis 20932 (9th Cir.).
A police officer was
not entitled to qualified immunity on excessive force claims when he allegedly
shot and killed an unarmed man during an attempted investigative stop. The
decedent's suspected offense was a domestic dispute which had ended before the
police became involved and the plaintiff contending that the decedent had not
posed an immediate threat to the officer or others and was merely walking away
at the time of the shooting. A police dispatcher had expressly told the officer
that the suspect was not known to carry weapons. It was clearly established
that seizing an unarmed non-dangerous suspect by shooting him dead violated the
Fourth Amendment. A. K. H. v. City of Tustin, #14-55184, 2016 U.S. App. Lexis
16961 (9th Cir.).
An officer went to an intersection after being
told of a naked man standing in the street. The man ran toward the officer,
yelling, naked, and unarmed, after being told to "come here." The
officer fired a Taser in the dart mode into his chest, but he kept coming. The
man, high on PCP, attacked the officer, slamming him into several cars, and
attempted several times to remove the officer's handgun while striking him in
the head. During the struggle, the officer shot and killed the man. A federal
appeals court upheld summary judgment for the officer on excessive force
claims. Regardless of whether, as the plaintiff alleged, the officer
unnecessarily started a one-on-one confrontation the resulted in the later
fatal altercation, the man's violent attack on the officer was a
"superseding cause" that severed the causal link between the
officer's first actions and his later justified use of deadly force in
self-defense. The court rejected arguments that the officer should have
retreated and attempted to wait for backup. The plaintiff also suggested that
the officer acted unreasonably in firing the Taser at the man when he was
allegedly only walking towards him rather than running as the officer claimed.
The man then removed the Taser prongs and stared at the officer long enough for
him to place two phone calls. "No reasonable juror could conclude"
that the man's subsequent physical attack was an "involuntary or
foreseeable defensive response to the Taser strike." Johnson v. City of
Philadelphia, #15-2346, 2016 U.S. App. Lexis 17138 (3rd Cir.).
A man broke into his own home because he had
forgotten his keys when returning from vacation. A babysitter present in the
house had been told by the man's wife not to let him in because the couple had
argued, so she called police when she heard him breaking in. She left the home,
leaving two children inside, and told police that the man was not supposed to
be inside and that the children were there. Officers entered the home without a
warrant, based on the report and found the man holding a kitchen knife. When he
refused to obey orders to drop it, an officer fired a Taser in the dart mode at
him. He then fell down, dropped the knife, ran into a bathroom, and refused to
come out. When the door opened, he allegedly was once again holding the knife,
and a second officer fired a Taser in the dart mode at him again, but this
failed to incapacitate him. He allegedly charged out of the bathroom heading
towards a hallway that was the only exit from the area, with the kitchen knife
raised and slashing. One officer shot him in the chest with a gun and a second
officer shot him twice, with one bullet hitting him in the neck and the second
in the head, killing him.
A federal appeals court found the warrantless
entry lawful based on exigent circumstances, including the presence of
children. The uses of the Taser were also reasonable under the circumstances,
based on the man's initial refusal to drop the knife and his continued
non-cooperation and attempt to flee, even if he no longer held the knife when
the second use of the Taser occurred, as the plaintiff claimed. There also
could be no supervisory liability for the second use of the Taser, as it was
not a constitutional violation. The use of deadly force, however, was a constitutional
violation if the decedent actually was unarmed when he emerged from the
bathroom, as there was no probable cause to believe he posed a threat of
serious physical harm when he moved toward the only exit. He never made
physical contact with the officers or explicitly threatened him. He had only
committed misdemeanor offenses and was completely surrounded. His right to be
free from the use of deadly force under those circumstances was clearly
established, so the officers were not entitled to qualified immunity on the
deadly force claim, which could proceed to trial. Smith v. LePage, #15-11632,
2016 U.S. App. Lexis 15644, 26 Fla. L. Weekly Fed. C 717 (11th Cir.).
In a lawsuit over the death of a man shot by
police in which the jury returned a verdict for the defendants, the trial court
erred in failing to bifurcate the trial of liability from the trial of damages.
This resulted in the jury hearing graphic and prejudicial evidence about the
decedent which had little, and in large part no, relevance to the issue of
liability, such as his drug use and gang affiliation. The issue on liability
was whether the officer acted within the law when he shot and killed the
decedent. A retrial was ordered. On retrial, if the plaintiffs were willing to
stipulate that he was a gang member (which they claim they tried to do during
the first trial), no expert testimony about gangs - such as gang activities,
tattoos, or monikers - should be admitted. Estate of Diaz v. City of Anaheim,
#14-55644, 2016 U.S. App. Lexis 15572 (9th Cir.).
A woman walking her brown Labrador retriever, named
"Dog." encountered a gray and white pit bull off its leash which
lunged at Dog's neck. An officer, driving to another location, received a radio
report of a pit bull attacking another dog. The woman spoke to the officer and
described her dog. The officer was colorblind, but had not informed the
department of this. He shot at the animal that he thought was the aggressor,
hitting Dog. The pit bull ran away, and Dog died. A federal appeals court
upheld a verdict for the officer in an excessive force lawsuit, which was not
against the manifest weight of the evidence. The officer's written responses to
discovery questions did not constitute a "script" which he had to
recite verbatim in his trial testimony. Saathoff v. Davis, #15-3415,
2016 U.S. App. Lexis 11067 (7th Cir.).
A motorist driving his
car erratically on a two-lane highway nearly collided head-on with a police
officer's vehicle and then sped away. The officer gave chase at high speed, and
was also joined in the pursuit by a second officer. The motorist's car swerved,
spun 360 degrees, and ran off the road into a ditch. One of the officers ran
towards the crashed car and fired one round. The second officer then aimed at
the car and fired 13 rounds. The motorist died from gunshot wounds. The
officers were not entitled to qualified immunity on excessive force claims. If
a jury believed the plaintiff's version of the facts, it could conclude that a
reasonable officer would have been on notice that firing into the vehicle
violated the Fourth Amendment when the motorist "had been seen to do
nothing more than flee from police during the vehicular pursuit for potential
driving under the influence." Thompson v. City of Lebanon, #14-5711, 2016
U.S. App. Lexis 13589 (6th Cir.).
A couple claimed that a deputy violated their
Fourth and Fourteenth Amendment rights by making a warrantless entry onto their
property with the intention of killing their two pet dogs. They also alleged
that the deputy and a fellow officer both shot at the dogs even though they
were not acting aggressively, killing one and missing the other. The deputies
then allegedly moved the body of the dead dog to try to cover-up the fact that
she had been shot on the couple's property. If the facts were as alleged by the
plaintiffs, the defendant deputy was not entitled to qualified immunity.
Mayfield v. Bethards, #15-3074, 2016 U.S. App. Lexis 11096 (10th Cir.).
An officer who shot a driver in the back during a
traffic stop was entitled to qualified immunity. Given the plaintiff's
intoxication, his resistance to the officer, his disregard for the officer's
orders, the threat he and the other three men in his truck posed while
unrestrained, and his action in reaching for his waistband (which was obscured
from the officer's view), it was not unreasonable for the officer to perceive
the plaintiff as threatening his safety and to use deadly force to protect
himself. The officer was granted qualified immunity and municipal liability
claims failed as a matter of law since the plaintiff failed to show that his
rights were violated. Salazar-Limon v. City of Houston, #15-20237, 2016 U.S.
App. Lexis 10854 (5th Cir.).
A Border Patrol agent did not use excessive force
in shooting and killing a man who violently and aggressively resisted him,
striking him in the temple hard enough to concuss him, causing him to fear
losing consciousness. While the decedent had run 15 feet away at the time he
was shot, the defendant could still then reasonably believe that he posed a
threat of serious harm to himself or others if his arrest was delayed. Mendez,
Sr. v. Poitevent, #15-50790, 2016 U.S. App. Lexis 9169 (5th Cir.).
Officers responding to a call about a
suspected drug dealer armed with a shotgun loitering in an apartment complex
came upon a man there holding a long gun. When they ordered him to drop it, one
officer allegedly used deadly force without providing a warning or sufficient
time to comply, and without observing him point the gun at the officers or make
any move towards the trigger. If the facts were as alleged, it stated a viable
claim for an excessive use of force in shooting and killing the man. Because it
was not clearly established at the time that this would be excessive force,
however, the officer was entitled to qualified immunity under federal law but
state law claims could continue as it was not found that the force used was
objectively reasonable as a matter of law. C.
V. v. City of Anaheim, #14-55760, 2016 U.S. App. Lexis 9561 (9th Cir.).
A man left another
man's home with cocaine that he had agreed to deliver for him. Police received
information from a confidential informant about the drug packaging operation at
the home and a description of the deliveryman's car. Two plain clothes officers
in an unmarked car stopped the vehicle, exited their own car, and approached
with guns drawn. The driver said he sat motionless with his hands on the
steering wheel. He contended in his lawsuit that an officer shot him in that position,
and he then became unable to control the car, which started to roll towards the
officers. They shot 14 times and seven bullets hit him. He pled guilty to
aggravated battery of an officer as well as drug charges, but sued for
excessive use of force. Upholding summary judgment for the officers, the
federal appeals court noted that convicted criminals may not sue for damages if
their prevailing would call into question their conviction, unless it has been
overturned. In this case, the plaintiff's lawsuit was based on a version of the
events that would totally negate the basis for his conviction. Tolliver v. City
of Chicago, #15-1924, 2016 U.S. App. Lexis 6632 (7th Cir.).
Officers approached a vehicle whose
African-American driver had just finished pumping gas. They believed that the
vehicle was the car one of them had followed the day before, which had expired
tags not registered to that vehicle. The motorist started to drive away, and
one of the officers stepped in front of the car with his gun drawn. The
officers then fired a total of seven shots into the vehicle, killing the
driver. His estate filed a lawsuit against the city, claiming that the police
department had deficient policies and customs linked to the violation of the
decedent's rights. A federal appeals court upheld a trial court denial of a
motion to dismiss supervisory liability claim, as the complaint alleged facts
supporting that the department's director “at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of the
offending officers." He was denied qualified immunity. Peatross v. City of
Memphis, #15-5288, 2016 U.S. App. Lexis 5756, 2016 Fed. App. 0074P (6th Cir.).
While executing a search warrant on a residence,
two officers shot a woman's dog, resulting in its death. A federal appeals
court reversed a grant of summary judgment to the officer who first shot the
dog. If a jury believed the plaintiff's version of events, it could reasonably
conclude that the dog was lying down and only acted aggressively towards the
officers after first being shot. As for the second officer who shot the dog,
she only did so after the dog bit her hard enough to puncture her leather
boots, she did not act unreasonably in believing that the dog then posed an
imminent threat. The plaintiff failed to establish, however, that the District
of Columbia had notice of a pattern of likely unconstitutional conduct in the
shooting of dogs and responded with deliberate indifference. Robinson v.
Pezzat, #15-7040, 2016 U.S. App. Lexis 5965 (D.C. Cir.).
During the execution of a warrant to collect
certain business records of a gold purchasing business, an officer fatally shot
a male employee present on the premises at the time. The city's police chief
was entitled to qualified immunity because the plaintiffs produced no evidence
that he was involved in any way in the execution of the warrant or the man's
death. The officer was also entitled to qualified immunity as the employee he
shot was drawing his own gun at the time. The appeals court stated "that
by choosing to conduct the raid with surprise and with guns drawn," the
police "created a dangerous situation that led" to the employee's
death, particularly as he saw nothing indicating that the man entering his
office with a gun drawn was a police officer. On these facts, a reasonable jury
could have found that the manner in which the raid was conducted was
unreasonable, but the officer was still entitled to qualified immunity as he
violated no clearly established law, and reasonably believed himself to be in
immediate danger at the time he fired. Cass v. City of Abilene, #14-11134, 2016
U.S. App. Lexis 3235 (5th Cir.).
Two deputies, during a warrantless raid on a
house, shot a homeless couple living in a shack in the backyard, including a
man holding a BB gun. A federal appeals court upheld a determination that the
entry into the shack constituted a search under the Fourth Amendment. The shack
was in the curtilage adjacent to the home. The entry violated the Fourth Amendment
as the deputies could not show consent, exigent circumstances, or a lawful
protective sweep. The deputies entry into the shack also violated the knock and
announce rule, but the law on that subject in these circumstances was not
clearly established in 2010, so the deputies were entitled to qualified
immunity on that claim, with an award of nominal damages on that claim
overturned. Going forward, the court stated, officers must knock and announce
their presence when they know or should reasonably know that an area within the
curtilage of a home is a separate residence from the main house. While the
shooting was not found to be excessive force, an award of damages was upheld
under the provocation doctrine. When "an officer intentionally or recklessly
provokes a violent confrontation, if the provocation is an independent Fourth
Amendment violation, he may be held liable for his otherwise defensive use of
deadly force." The appeals court upheld an award of $4 million for the
shooting and $1 in nominal damages for the unlawful search. Mendez v. County of
Los Angeles, #13-56686, 2016 U.S. App. Lexis 3847 2016 WL 805719 (9th Cir.).
35 armed federal and state agents carried
out a search of a water bottling facility as part of an IRS and Small Business Administration
investigation of the business and its alleged fraud in connection with an
application for a disaster relief loan. A federal appeals court found that
neither the number of agents nor their possession of weapons made the search
unreasonable under the Fourth Amendment. The detention of employees during the
execution of the search warrant was reasonable. The detention prevented
employees from fleeing if incriminating evidence was found and ensured that
they were available to assist in the search, such as by opening locked file
cabinets without force. The mere presence of armed officers did not constitute
excessive force. Mountain Pure v. Roberts, #15-1656, 2016 U.S. App. Lexis 3290
(8th Cir.).
Three officers shot a man after he raised
a gun in their direction. He survived and was charged with assault, but charges
were dismissed on speedy trial grounds. He sued for excessive force, claiming
that the officers failed to give a warning before firing on him. A jury
returned a verdict for the officers. A federal appeals court upheld this
result. The plaintiff "was adequately warned to drop a weapon he was
wielding at the time of the shooting." Cordova v. City of Albuquerque,
#14-2083, 2016 U.S. App. Lexis 4309 (10th Cir.).
A man was shot to death through a window of his
home by one of three state police officers investigating an earlier highway
road rage incident involving his brother. A federal appeals court upheld the
denial of qualified immunity to the officers. Taking the facts in the light most
favorable to the plaintiff, the issue was whether a jury could find the force
used against the decedent excessive under circumstances. There was an officer
outside the man's home in the dark of night with no probable cause to arrest
anyone and behind the cover of a wall 50 feet away from a possible threat, and
with no warning he shot a man pointing his gun out of his well-lighted window
at an unknown person in his yard while the man's brother fired protective shots
in the air from behind the house. An objectively reasonable officer in this
position should know that a homeowner has the right to protect his home against
intruders and that the officer had no right to immediately use deadly force in
these circumstances, the court reasoned. Pauly v. White, #14-2035, 2016 U.S.
App. Lexis 2184 (10th Cir.).
An officer was not entitled to qualified immunity
when the decedent's estate offered evidence that it claimed proved that the
defendant fatally shot a man in the back while he was compliant, unarmed, lying
prone, and non-resisting. If the plaintiff's version of events was true, this
would constitute excessive force in violation of clearly established law. Perez
v. Suszczynski, #14-13619, 809 F.3d 1213 (11th Cir. 2016).
Police engaged in a high speed chase of a
vehicle onto an Indian reservation. One of the passengers, a member of the Ute
tribe, shot and killed himself with a gun after running away from the vehicle
while being chased by an officer. As there was no evidence that the decedent
had ever submitted to any show of authority or had been seized, there could be
no possible liability for excessive force under the Fourth Amendment. While an
officer did fire at the decedent, he did so only after the man fired first at
him. After that, the man put the gun to his head and killed himself. Jones v.
Norton, #14-4040, 809 F.3d 564 (10th Cir. 2015).
A 15-year-old boy brandished a realistic replica
of a semiautomatic pistol while playing cops and robbers with friends, and was
shot by a deputy in the chest. It was disputed whether the boy complied with
instructions or turned towards the deputy with the replica in his hands. He
later entered a plea bargain to a misdemeanor charge of brandishing an
immitation firearm so as to cause deputies and a third party fear of bodily
harm. He served a term of informal probation after which the charges were
dismissed. He then sued deputies and the county for excessive use of force and
a jury awarded $1.1 million in damages. Attorneys' fees were also awarded.
Reversing, an intermediate California appeals court ruled that the federal
civil rights excessive force claim was barred by the principles in the U.S.
Supreme Court decision Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), since
the award would imply that the plea bargain and probation sentence were
invalid, and they had not been invalidated or terminated in his favor. Fetters
v. County of Los Angeles, #B252287, 2016 Cal. App. Lexis ____.
An officer shot and killed a man when
responding to a reported armed robbery. There was a break between the officer
firing his first five shots and the allegedly fatal final two shots. He was not
entitled to qualified immunity on an excessive force claim because, based on
the evidence viewed in the light most favorable to the plaintiff, a reasonable
jury could conclude that the decedent would have appeared incapacitated to an
objectively reasonable officer when the final two shots were fired. Mason v.
City of Lafayette, #14-30021, 2015 U.S. App. Lexis 19598 (5th Cir.).
City police officers assigned to provide security
outside a Black Family Reunion, were told that young African American males
were throwing guns over a fence to persons already inside. When the officers
approached them, they ran away, heading towards downtown. An officer later saw
a 16-year-old black male walking with two persons he recognized from the group
outside the event. The 16-year-old was holding and trying to conceal his right
side and the officer suspected that he had a weapon. he held the youth to the
ground, and the youth then brandished a gun and threw it 10-15 feet away. As
the youth threw his weapon, the officer rose from a crouched position and fired
twice. A video of the incident showed that no more than 5 seconds elapsed
between the weapon being thrown and the officer firing his second shot. The
youth died, and a federal appeals court, while terming the death a
"tragedy," ruled that the officer was entitled to qualified immunity,
as his "split-second" decision to fire was not objectively unreasonable.
Mullins v. Cyranek, #14-3817, 2015 U.S. App. Lexis 19485, 2015 Fed. App. 0273P
(6th Cir.).
An officer, following a pursuit of a man's
vehicle, shot the driver through the windshield and side window, killing him.
The officer's appeal of the trial court's denial of his claim for qualified
immunity basically challenged the court's determination that there were genuine
disputes over issues of material fact, including whether or not the motorist
was attempting to run the officer down with his car, so the appeals court
determined that it lacked jurisdiction over his appeal, those disputes not
being resolved. Thompson v. Murray, #14-2250, 800 F.3d 979 (8th Cir. 2015).
Rather than submit to an officer armed with an arrest
warrant, a man drove off in his car, leading officers on a high-speed chase.
The pursued man twice called police dispatch, claiming that he had a gun and
threatening to shoot the officers. The dispatcher broadcast these threats and
the possibility that the motorist might be intoxicated. A tire spike strip was
placed beneath a highway overpass in an attempt to stop the pursued vehicle. A
state trooper drover to that location, radioing a plan to shoot and disable the
car. He later spotted the vehicle and fired six shots. The car engaged the
spikes, hit the median, and rolled. The motorist was killed by the trooper's
shots. No shots hit the car's engine block, radiator, or hood. The U.S. Supreme
Court reversed a denial of qualified immunity to the trooper on an excessive
force claim. The Court did no address whether firing at the vehicle in this
manner under these circumstances was a Fourth Amendment violation, but rather
ruled that the trooper was entitled to qualified immunity because prior
precedents did not indicate that it was "beyond debate" that he acted
unreasonably. He had confronted a fugitive that was reported to be intoxicated,
who was trying to evade arrest through a high-speed car flight, and who had
twice threatened to shoot officers. At the time of the shooting, the vehicle was
moments away from reaching the trooper's location. Mullenix v. Luna, #14-1143,
2015 U.S. Lexis 7160.
A sheriff's deputy providing back-up during a
drug bust of a vehicle in which the plaintiff was a passenger thought that the
vehicle was accelerating and trying to run him down, and he fell to the ground,
firing shots at the car as he did so. One of the shots hit the plaintiff
passenger, and he sued for excessive use of force. A federal appeals court,
reversing the trial court, held that the deputy was entitled to qualified
immunity. Firing at the car to try to stop it was not excessive force when he
would have reasonably perceived that he was in imminent danger of being run
over. Singletary v. Vargas, #14-14424, 2015 U.S. App. Lexis 18835 (11th Cir.).
Police responding to a report of suicidal man
armed with a knife came into a residence. The man did not drop the knife in
response to commands and stepped forward, but was holding the small kitchen
knife loosely near his side. One officer shot him and a second officer fired a
Taser in the dart mode at him. The lawsuit alleged that the use of deadly force
was excessive and in violation of clearly established law on two theories--the
first that the officer shot him without probable cause to believe that he posed
a threat of serious physical harm to the officers or any other person, and the
second that the officers recklessly created the situation that led to the use
of deadly force. The federal appeals court, upholding a denial of summary
judgment on the basis of qualified immunity to the officer, found that the
evidence would support a finding of a violation of clearly established rights
under the first theory, and therefore declined to discuss the second theory.
When the man was shot, according to his version of events, he was not charging
the officers, had made no aggressive moves, was not within walking distance of
the officers, and the plaintiff had not been given sufficient time to comply
with an order to drop the knife. The opinion does not discuss whether the use
of the Taser was reasonable under these circumstances. Tenorio v. Pitzer,
#14-2114, 2015 U.S. App. Lexis 17540 (10th Cir.).
Allegations that two officers shot and severely
injured a 17-year-old when he was holding a gun to his own head, and not
pointing it at the officers as they claimed, if true, would constitute
excessive force. Based on this dispute of material fact, a federal appeals
court dismissed the appeal of the denial of qualified immunity on the excessive
force claim for lack of jurisdiction. The appeals court also upheld the trial
court's refusal to dismiss a Fourteenth Amendment due process claim that after
the incident an officer intentionally fabricated evidence to cover up his
colleagues' actions and get the teenager falsely charged with aggravated
assault on the officers. Cole v. Hunter, #14-10228, 2015 U.S. App. Lexis 17011
(5th Cir.).
An
officer who shot a man as he sped away from breaking into his estranged wife's
apartment was entitled to qualified immunity and summary judgment. It was not
clearly established, at the date of the incident, that it was unconstitutional
to shoot a fleeing driver to protect persons whom his flight might endanger. In
this case, the officer consistently maintained that his actions were motivated
by fear for his own life as well as the life of another officer, as the
suspect's car lurched forward towards the officers, and the firing officer,
holding onto the car door, was briefly turned around by its motion. Mitchell
v.Miller, #14-2116, 790 F.3d 73 (1st Cir. 2015).
A married couple argued on their wedding
anniversary. The husband then went to the garage, drank half of a bottle of
vodka, and put a shotgun barrel in his mouth, although he was unable to pull
the trigger. The wife called 911 and the deputy who responded shot the man four
times. The suicidal man was injured but survived. The deputy was not entitled
to qualified immunity, as he kicked in the door within three minutes of
arriving, and made no attempt to communicate with the man before entering, so
he lacked a reasonable belief that the man posed a threat. Weinmann v. McClone,
#14-1794, 787 F.3d 444 (7th Cir. 2015).
Two female officers were working off-duty as
secondary employment, patrolling an apartment complex. They noticed that the
door to a 67-year-old man's apartment was open, and observed him sitting on his
couch, leaning on his cane. They attempted to start a conversation with him,
and he told them he did not want any attention or help. One of the officers
thought the man was being "mouthy," and wanted to keep him from
shutting his door. When both officers stepped inside the apartment, the man
approached and a fight ensued when one of them allegedly pushed him and he
pushed back. The officers allegedly repeatedly struck the man and knocked off
his glasses. He repeatedly told them to get out of his residence. One of the
officers, who had exited to call for backup, reached inside to pull the other
officer out. The man refused to obey an instruction to lie down, and he was
allegedly getting his cane. One of the officers then fired two shots into the
apartment, killing the man. It was not clear whether the man was holding his
cane when he was shot. A federal appeals court held that neither officer was
entitled to qualified immunity on unlawful entry claims, and that the officer
who fired the shots was not entitled to qualified immunity on on excessive use
of lethal force claim, but that both officers were entitled to qualified
immunity on claims concerning the use of non-lethal force which caused minimal
injury. Taking the facts in the light most favorable to the plaintiff, it could
not be said that the officers had any basis for an unconsented warrantless
entry into the apartment, despite the officers' argument that they thought the
man might have needed assistance, or that there was any legal basis to shoot
and kill the man, A reasonable jury could find that the officer used deadly
force against a person who did not pose an immediate threat of serious physical
injury or death. The appeals court had to assume, for purposes of its decision,
that the decedent was not swinging his cane at the officers when he was shot.
Ellison v. Lesher, #13-3371, 788 F.3d 758 (8th Cir. 2015).
An officer was not entitled to qualified immunity
when she shot and kicked an arrestee. The arrestee's initial crime had only
been yelling and cussing at passing cars, and at the time force was used, he
was retreating, apparently unarmed, and outside of striking distance when he
was shot. The officer allegedly gave no warning before firing and kicked his
had after he was already shot, handcuffed, and lying face down on the road.
Another deputy allegedly then used a Taser in the dart mode on him multiple
times after he had been shot. Several activations of the Taser were allegedly
after the plaintiff had been handcuffed. The probes struck the man's chest and
back. The deputy who used the Taser stated that he believed, during the later
activations of the Taser, that the man was reaching for something in his
pocket. The arrestee died at the scene, with the death attributed to blood loss
from the gunshot wound. A federal appeals court further ruled that the first
deputy was not entitled to qualified immunity on a claim that she improperly
failed to intervene on the second deputy's repeated use of the Taser against
the arrestee, even after he was handcuffed. The appeals court rejected,
however, claims against the sheriff as a single failure to investigate an
incident, which the sheriff was unaware of until after the fact, could not
constitute ratification. Salvato v. Miley, #14-12112, 2015 U.S. App. Lexis 10758
(11th Cir.).
A motorist's van started backfiring and he pulled
over. Someone else called 911 and reported the backfiring as supposed shots
fired. When two officers arrived and pulled up behind the motorist's van, the
van backfired again, and the motorist got out of his vehicle, failing to hear
an order to get back in. The driver told the officers that his van was
backfiring, and one of them disputed this. The motorist them obeyed orders to
walk towards the officers. Subsequently when there was additional backfire, the
officers thought they were being shot at and ambushed, or that the driver was
attempting "suicide by cop" and they fired at him, possibly grazing
him. Their firing at him was justified as they had probable cause to believe
that he posed a serious risk of harm to them, based on their belief that they
were being fired on. As there were disputed issues of fact, the officers were
not entitled to qualified immunity. Ransom v. Grisafe, #14-2204, 2015 U.S. App.
Lexis 10441 (8th Cir.).
A warrant was issued for the arrest of an alleged
parole violator. A member of a Fugitive Apprehension Unit got a tip abut where
the man was, and, in a well-lit parking lot in front of the building where he
went to find the suspect, he observed him exiting a vehicle. He informed the
man that he had a warrant for his arrest for parole violation. The officer
placed his hand on the man's left shoulder, and when the man started to run
away, the officer fired two shots, killing him. A jury rejected a federal civil
rights claim for excessive force, but awarded $1 million on state law wrongful
death clam. A federal appeals court upheld this result, finding that there was
sufficient evidence to defeat the officer's motion for judgment as a matter of
law, and that the damages award did not require a new trial. The evidence was
sufficient to find that he had acted with reckless indifference to the
parolee's rights and the damages awarded were not excessive. Estate of Snyder
v. Julian, #13-3012, 2015 U.S. App. Lexis 10242 (8th Cir.).
A man's father called police to report that his
son, who was bipolar, was acting up, was on drugs (prescription medicine), had
threatened to kill himself, and probably had a gun. Deputies were dispatched to
the home and entered the disturbed man's bedroom in order to transport him for
mental health evaluation. A lawsuit claimed that he was on the bed with a
shotgun loosely held on his lap, looking down at it, and did not raise it
against the officers, but that one deputy fired two shot from his gun at him,
knocking him off the bed, that another deputy deployed a Taser against him
while he was on the ground, and that he was also beaten while on the ground. A
federal appeals court reversed the dismissal of an excessive force claim
against the deputies, as well as cover-up claims against the deputies, who
allegedly created a false story about the man's actions with his gun during
their entry, stating that he pointed his gun and it discharged, but rejected
cover-up claims against the sheriff's office. The trial court had dismissed the
claims now upheld on the basis of defective pleading, but those claims were
informative enough to permit a court to determine if they were claims on which
relief could be granted, if true. Weiland v. Palm Beach Cty. Sheriff's Office,
#13-14396, 2015 U.S. App. Lexis 11750 (11th Cir.).
A woman living in a group home for the mentally
ill started to act erratically and threatened to kill her social worker. Two
officers were sent to the home to escort her to a facility for temporary
evaluation and treatment. When they entered her room, she grabbed a knife,
threatening to kill them. They retreated and closed the door, but later
reentered, concerned about what was going on within the room, and allegedly
without considering if they could accommodate her disability. She again
confronted them with the knife, and after pepper spray failed to subdue her,
they shot her multiple times. She sued the city for alleged disability
discrimination in arresting her without accommodating her disability, and the
two officers for allegedly violating her Fourth Amendment rights. A federal
appeals court ruled that the Americans with Disabilities Act applied and that
the issue of whether the plaintiff's disability should have been accommodated
should be decided by a jury. It also held that the officers were not entitled
to qualified immunity, since it was clearly established that, in the absence of
a need for immediate entry, officers cannot forcibly enter the home of an
armed, mentally ill person who has been acting irrationally and threatened
everyone who entered. The U.S. Supreme Court granted review, but
dismissed its review of the issue of whether the ADA "requires law
enforcement officers to provide accommodations to an armed, violent, and
mentally ill suspect in the course of bringing the suspect into custody"
as "improvidently granted." A review of this issue was based on the
assumption that the city would argue that the ADA does not apply when officers
face an armed and dangerous person. Instead, the city argued that the plaintiff
was not "qualified" for an accommodation because she posed a direct
threat to others, a threat which could not "be eliminated by a
modification of policies, practices or procedures, or by the provision of
auxiliary aids or services." Since the court below had not addressed the
issues in that context, review by the U.S. Supreme Court was not proper. The
Court also noted that the parties in the case had also failed to address the
related question of whether a public entity such as the defendant city could be
vicariously liable for damages under Title II of the ADA for an arrest made by
its officers. The Court did hold, however, that the two individual defendant
officers were entitled to qualified immunity on the Fourth Amendment claims.
They did not violate the plaintiff's Fourth Amendment rights when they opened
her door the first time, and could, without a doubt, also have opened her door
the second time if she had not been disabled. Their use of force in response to
her threats with the knife was reasonable. So the only remaining question was
whether they violated her Fourth Amendment rights when they opened her door the
second time rather than attempting to accommodate her disability. As there was
no clearly established law on that issue, they were entitled to qualified
immunity. City and County of San Francisco v. Sheehan, #13-1412, 135 S. Ct.
1765, 2015 U.S. Lexis 3200.
A deputy shot and killed a man while responding
to a report of an assault that was no longer in progress. The decedent's
parents sued, claiming that the defendant shot the decedent in the back when he
was unarmed. The deputy claimed that the decedent had charging towards him
while armed with a weapon at the time the fatal shot was fired. A federal
appeals court upheld a denial of summary judgment on the basis of qualified
immunity, since there was a factual dispute as to what occurred. Viewing the
facts in the light most favorable to the plaintiffs, if the facts were as they
alleged, deadly force was used against a suspect who did not pose a threat of
serious bodily injury or death, which would be clearly unconstitutional. Capps
v. Olson, #14-1782, 780 F.3d 879 (8th Cir. 2015).
A rape suspect led officer on a highway car chase
before crossing the median, accelerating the wrong way, and ramming his vehicle
head-on into a semitrailer. Officers fatally shot the suspect after he reached
down into the car disobeying commands to show his hands, and then clasped his
hands together in a shooting posture, pointing towards the officers, who then
fired 80 shots. No weapon was foundf in the suspect's car. A federal appeals
court held that the officers were entitled to qualified immunity on an
excessive force claim. They had probable cause to believe that the decedent had
a gun and posed a threat of serious physical harm.. From radio reports, they
knew thar he was suspected of a serious crime, wanted to avoid arrest, and
might be armed. They were told that he had a concealed-crry permt. The fact
that he had no such permit and was actually unarmed did not change the result,
as their belief to the contrary was reasonable and they "did not and could
not have known" anything to the contrary. Pollard v. City of Columbus,
#13-4142, 780 F.3d 395 (6th Cir. 2015).
A 16-year-old boy had pulled over
into an apartment building parking lot where police officers were waiting to
serve an eviction order. When officers attempted to speak to him, he tried to
drive off in his car and two officers opened fire on him, hitting him after he
clipped an officer with the car's side mirror. Rejecting an excessive force
claim, a federal appeals court found that the officers had not violated clearly
established Fourth Amendment law as a juvenile court's prior ruling that the
plaintiff had committed felony assault determined that moments before the
shooting, his driving had posed a "grave risk of causing significant
bodily injury to an officer." Fenwick v. Pudimott, #13-5130, 2015 U.S.
App. Lexis 2264 (D.C. Cir.).
The city of New York has reached a $3.9 million
settlement with the family of an 18-year-old man shot and killed by an officer
in his home in 2012. The officer chased the man into his home from the street
and contended that he had been involved in a drug deal. A small quantity of
marijuana was found in the home. The officer asserted that he believed that the
decedent had a gun at the time of the incident, but no such gun was found. The
decedent's estate will recieve $2.95 million, his brother will receive
$500,000, and his grandmother will receive $450,000. Both the brother and
grandmother were in the house at the time of the shooting. His mother, who was
not present, will receive an additional $40,000. Estate of Graham v. City of
New York, #1:13-cv-02015, U.S. Dist. Ct. (Jan. 30, 2015, S.D.N.Y).
A police officer responding to a 911 call reporting
that males with guns were walking on a street shot and killed a 14-year-old boy
he encountered there. The officer claimed that the boy drew a gun and aimed it
at officers before he was shot. A federal appeals court upheld the rejection of
the officer's motion for qualified immunity on the excessive force claim,
finding that there were disputed issues of material fact. The plaintiff claimed
that the boy had thrown the gun over a fence before he was shot, and was
unarmed and no threat at the time he was killed. Additionally, still shots from
a police video appeared to show the boy pinned to the fence, and there was
evidence that his weapon had no blood on it while the fence was splattered with
blood. The court also mentioned that the boy was shot only once while there was
an officer training protocol that called for officers to fire multiple shots
when faced with imminent danger. Harris v. Lasseigne, #14-1033, 2015 U.S. App.
Lexis 1931, 2015 Fed. App. 0020P (6th Cir.).
Riding home from a bar with his aunt and her
boyfriend, a man talked about killing himself. When the car got to his
apartment, he jumped out, ran inside, and locked the door. His aunt called 911
to report a possible suicide. Multiple officers arrived, heard the apartment
door crash open and observed the suicidal man holding a shotgun in one and with
his aunt holding his other arm. The ordered him to drop the gun, and the aunt
fell, freeing his other arm. The officers stated that the man chambered a round
and aimed the gun at them before they fired, hitting him in the eye, forearm,
hands, groin, hip, and shin. A live round was found in the shotgun's chamber
and the man was convicted of terrorizing. The aunt claimed that her nephew had
been putting the shotgun down when the officers opened fire on him. Reversing a
trial court denial of qualified immunity to the officers on an excessive force
claim, a federal appeals court reasoned that, while it was possible that the
officers were mistaken about the man aiming the gun at them, their mistake was
objectively reasonable under the circumstances. Partlow v. Stadler, #14-1281,
2014 U.S. App. Lexis 24131 (8th Cir.).
A 22-year-old an was in his apartment at night
with two friends when police knocked on the door, yelled "police, search
warrant," and started to force open the front door. The man ran upstairs
to his bedroom, grabbed an unloaded shotgun and pointed it at the officers as
they followed him up the stairs. An officer shot him dead. The man's estate, in
a lawsuit claiming that the search was conducted in an unreasonable manner,
argued that there was no need to conduct it after dark because the officers
were only searching for loot of "modest value." It was also argued
that the man, when looking out the front window after the knocking, had seen
one of the officers holding an automatic rifle, dressed in a dark hoodie,
having long hair, earrings, a goatee, and sideburns, and yelled something like
"we are getting robbed again" before fleeing upstairs to get the
shotgun. A federal appeals court upheld summary judgment for the shooting
officer, agreeing that even if he may have exceeded proper constitutional
bounds in leading the search, given his undercover appearance, he was still
entitled to qualified immunity. There was insufficient evidence to support
claims against the county when the plaintiff's lawyer failed to authenticate an
expert witness report that could not be admitted into evidence absent a signed
affidavit. Estate of Brown v. Thomas, #14-1867, 771 F.3d 1001 (7th Cir. 2014).
A federal court jury awarded a total of approximately
$97.5 million for the police shooting death of a man who was the former mayor
of Cottageville, South Carolina. Damages awarded included $7.5 million in
compensatory damages, as well as $90 million in punitive damages--$60 million
against the town and $30 million against the officer. The officer who shot the
decedent had been hired by the department after being previously fired by a
number of other police departments for insubordination, dangerous use of
firearms, and other alleged infractions. The officer claimed that the shooting
was in self-defense because the decedent threw "wild" punches at him.
His attorney argued that the decedent suffered from a bipolar disorder and was
enraged during the incident. The plaintiffs contended that the decedent had
complained about the officer, who wrote traffic tickets worth over $600,000
from 2008 to 2011, more than any other officer on the force, and that the
shooting was retaliatory for the decedent's complaints intended to get rid of
the officer because of his aggressive policing. Reeves v. Town of Cottageville,
#2:12-cv-02765, U.S. Dist Ct., (D.S.C. Oct. 15, 2014). In an earlier decision,
the trial judge commented that evidence of the officer's departure from six
other law enforcement agencies in seven years was "obviously admissible"
against him with respect to the claim that the town and police department
negligently hired, retained, and supervised the officer, and a claim for
municipal liability for violation of civil rights. This evidence, the court
ruled, had a bearing on whether the municipal defendants properly evaluated the
officer's credentials befire hiring him. Reeves v. Town of Cottageville,
#2:12-cv-02765, 2014 U.S. Dist. Lexis 120619 (D.S.C.).
A deputy sheriff shot and killed a man in his
home, entering without a warrant while responding to a 911 call that the man
was sitting in his truck threatening to commit suicide. He had been holding a
loaded gun to his head. It was not a Fourth Amendment violation to enter the
home, as the deputy had an objectively reasonable belief that the decedent
would imminently injure himself. The deputy was entitled to qualified immunity
on excessive force claims, since the decedent was arrmed and moving toward him.
The deputy fired believing it necessary to protect himself and others. Claims
against the sheriff were also rejected, as was a claim to collect accidental
death benefits under a life insirance policy, as there was ample evidence that
the death was not accidental. Rice v. Reliastar Life Ins. Co, #13-30639, 770
F.3d 1122 (5th Cir. 2014).
A detective did not use excessive force in
shooting and killing a passenger in a moving vehicle, despite the fact that the
decedent had not been the intended target. The officer was trying to stop the
car by shooting at the driver who had hit him with the vehicle, and after
hearing a fellow officer fire in what he thought was self-defense. The
defendant officer's use of deadly force was objectively reasonable, entitling
all defendants to summary judgment. The appeals court stated that the “calculus
of reasonableness” takes into account the fact that police officers must often
“make split-second judgments in circumstances that are tense, uncertain, and
rapidly evolving,” Accordingly, an officer does not violate the Fourth
Amendment where, although ultimately wrong in his or her assessment of the
circumstances, “a dangerous situation evolved quickly to a safe one before the
police officer had a chance to realize the change.” Cass v. City of Dayton,
#13-4409, 770 F.3d 368 (6th Cir. 2014).
Occupants of a home sued two officers and a city
for a warrantless entry into the home's yard to investigate a tip that two guns
were in an abandoned vehicle on the property, in the course of which one of the
officers shot and killed the family dog. A federal appeals court found that the
officers had no warrant, no probable cause plus exigent circumstances, and had
not offered any other basis that would make their entry lawful. The officers
therefore violated the plaintiffs' Fourth Amendment rights and were not
entitled to qualified immunity as their actions, under the undisputed facts,
would not have been objectively reasonable. Harris v. O’Hare, #12-4350, 770
F.3d 224 (2nd Cir. 2014).
Police were told by a confidential informant that
a man was a gang member who carried a gun and sold methamphetamine. An officer
learned that the man had prior convictions including one for a felony involving
a gun. The informant then told the officer where the man was, what his vehicle
looked like, that he was then armed and carrying the weapon on his waistband,
and that he had said that "he was not going back to prison."
Observing that the man's vehicle exhibited a broken tail light, officers
executed a traffic stop and surrounded his vehicle in a parking lot. The
suspect backed his vehicle into a patrol car, attempting to escape, but
stopped. Officers claimed that he ignored orders to get on the ground as he
started exiting his vehicle and was reaching for his waistband when they fired
20 shots, killing him. His dead body was tangled in and hanging from his
seatbelt, and he had no weapon on him, but a loaded nine-millimeter gun was
found on the passenger seat. Commenting on the case, a federal appeals court
said "Nobody likes a game of 'he said, she said,' but far worse is the game
of 'we said, he's dead.' Sadly, this is too often what we face in police
shooting cases like this one." The appeals court reversed the trial
court's summary judgment on four of the five officers, finding "curious
and material factual discrepancies" between their version of events and
contradicting evidence. A reasonable jury could find it more likely than not
that the suspect did not reach for his waistband because he did not have a gun
on him, and based on the testimony of the only non-police eyewitness, a jury
might also find that the suspect was trying to get out of the car but got
caught in his seat belt. The appeals court upheld summary judgment for the
fifth officer, who stated that he couldn't see whether the man reached for his
waistband, but fired his weapon because he perceived an immediate threat when
he heard shots fired. Cruz v. City of Anaheim, #12-55481, 765 F.3d 1076 (9th
Cir. 2014).
Police officers acted in an objectively
reasonable manner when they shot and killed a man, who repeatedly ignored
orders to drop a gun he was holding. No evidence contradicted the testimony
that many officers present perceived that the decedent posed an immediate
threat of serious physical harm to them. The appeals court rejected the
argument that the trial court erroneously "disregarded" news
helicopter video footage of the incident, finding that the video was viewed but
was deemed not to be that helpful in determining objective reasonableness from
the perspective of an officer on the ground. At most, the video might have
supported an inference that the decedent intended to surrender, but the fact
remain that he had refused repeated prior demands to drop his gun. Aipperspach
v. McInerney, #13-2942, 2014 U.S. App. Lexis 17201 (8th Cir.).
Because of genuine disputed issues of material
fact, a Texas state trooper who shot and killed a driver during a high-speed
chase was not entitled to qualified immunity as a matter of law. At the time
the driver was shot from a bridge in his approaching vehicle, the risk posed by
his flight was disputed. Based on the evidence, a reasonable jury could
conclude that he did not pose a substantial and immediate risk, since traffic
on the divided highway at the time was light, non-lethal methods of stopping
him that had already been prepared were not given a chance to work, and there
were no pedestrians, businesses, or residences along the highway there. The
fact that the driver had previously threatened to shoot the officers did not
establish that he posed an immediate risk at the time that he was shot. Luna v.
Texas Dept. of Public Safety, #13-10899, 2014 U.S. App. Lexis 16785 (5th Cir.).
The city of Albuquerque, New Mexico has been
ordered to pay over $6 million for the death of a schizophrenic man shot and
punched by officers in his backyard. The trial judge ruled that the officers
were not acting in self-defense when they shot the man in the back at close
range while serving an arrest warrant arising out of a carjacking case. Police
said that the man tried to punch one of the officers and grabbed his gun during
an altercation in the back yard. The trial judge stated that the officers
failed to present their arrest warrant during the confrontation and also failed
to contact a Crisis Intervention Team officer or the man's family before
confronting him. The court found that the two police detectives engaged in an
"unnecessary escalation of events," and that their own
"aggressive acts" at the home created the "unnecessarily
dangerous situation" in which the man was shot to death. Torres v.
Albuquerque Police Dept., #D-202-CV-2011-06551, Second Judicial District,
County of Bernalillo, New Mexico (June 10, 2014).
Editor's Note: The U.S. Department of Justice on
April 10, 2014 issued a report on its investigation into the alleged use of
excessive force, including deadly force by the Albuquerque New Mexico Police
Department, making recommendations for remedial measures. On July 24, 2014, the
city and the Justice Department issued a three page joint statement of
principles in which the city agreed that there was a need for systemic reform
in its police department in relation to the use of force.
Officers did not use excessive force in shooting
and killing a 16-year-old motorist at the conclusion of a car chase. The
officers initially were responding to an activated burglar alarm at a liquor
store before the car chase began, and when one of the officers exited his
vehicle, the teenager drove towards him. Under these circumstances, a
reasonable officer would have believed that the motorist posed a threat of
serious physical harm to the officer his car was advancing on, justifying the
use of deadly force. The officers were entitled to qualified immunity, as there
was no prior case "that clearly establishes the unconstitutionality of using
deadly force to end a car chase that threatened the physical safety of the
officers and others in the area." McGrath v. Tavares, #12-2277, 2014 U.S.
App. Lexis 14776 (1st Cir.).
Officers who used deadly force to kill a man while
responding to a domestic violence call were entitled to qualified immunity when
the decedent made threats and possessed a firearm at the time of the shooting.
The officers were also entitled to official immunity on state law claims since
the evidence showed that they acted reasonably to a significant threat of death
or physical harm. Smith v. City of Brooklyn Park, #13-1640, 2014 U.S. App.
Lexis 12594 (8th Cir.).
A Border Patrol agent shot and killed a
15-year-old Mexican boy who was standing in Mexico across the border from the
U.S. Claims against the U.S. government were properly rejected as the federal
government had not waived sovereign immunity on claims under the Federal Tort
Claims Act and the Alien Tort Statute did not waive sovereign immunity. The
plaintiff failed to show that any of the supervisory personnel sued were
personally responsible for the agent's actions. A Fifth Amendment due process
claim, however, could continue against the agent, and the plaintiffs had
alleged sufficient facts to overcome qualified immunity. The boy and his
friends, at the time of the shooting, were playing a game in which they ran up
the incline of the culvert on their side of the border, touched the barbed-wire
fence, and then ran back down the incline. Hernandez. v. United States,
#12-50301, 2014 U.S. App. Lexis 12307 (5th Cir.).
Police mistook a Hispanic teenage boy and his
friends, who were in his own home, for two white male intruders being sought.
They pointed guns at them, entered the home without a warrant, and shot and killed
the family's pet dog. An excessive force claim could go forward, as the
evidence, viewed in the light most favorable to the plaintiffs, indicated that
they fully complied with the officers' orders at all times. An unlawful entry
claim could also go forward as the officers did not have probable cause in the
absence of any information to suggest that the boys were illegally on the
premises, and the lack of an objective basis for applying an emergency aid
exception, as well as disputed issues of fact as to whether any violence was
imminent. The officers were not entitled to qualified immunity. The shooting of
the dog did not amount to a deprivation of a familial relationship. Sandoval v. Las Vegas
Metro Police Dep't., #12-15654, 2014 U.S. App. Lexis 12395 (9th Cir.).
An autistic Muslim man was shot and killed by a
police officer after allegedly lunging at him with a knife. In a lawsuit by his
family, his estate, and thee organizations, it was also claimed that the
coroner took custody of his body but did not notify his family until twenty-one
days later and the delay prevented his family from burying him in accordance
with the religions customs of Islam. A jury awarded $1 million in excessive
force damages to the estate, which was struck by the trial judge. $700,000 in
state law wrongful death damages was also awarded. A federal appeals court
reversed in part, finding that a California state statute disallowing awards
for pre-death pain and suffering did not apply to a federal civil rights
excessive force claim. The trial court erroneously erred in dismissing certain
state law claims as duplicative, as under state law, an award of a multiplier
of the attorneys' fees could be awarded, something not available on the federal
claims. Substantive due process and intentional infliction of emotional
distress claims brought by the decedent's siblings were properly rejected. A
negligence claim against the coroner for failure to provide timely notice of
the death was reinstated, as there was a mandatory duty under state law to make
a reasonable effort to locate the decedent's family. The coroner did not,
however, violate equal protection, as he did not act with intent to
discriminate on the basis of religion, and he did not deprive the parents of a
property right. Chaudhry v. City of Los Angeles, #11-55820, 2014 U.S. App.
Lexis 9208 (9th Cir.), and 2014 U.S. App. Lexis 9226 (Unpub. 9th Cir.).
The U.S. Supreme Court has ruled that officers
did not use excessive force when they shot the driver of a vehicle fleeing from
a traffic stop to end a dangerous high-speed car chase. Both the driver and his
passenger died. While the Court ruled that this conduct did not violate the
Fourth Amendment, even if it had, the officers were entitled to qualified
immunity when no cases were cited that clearly established the
unconstitutionality of using deadly force to end a high-speed car chase. Firing
a total of 15 shots during the 10-second span was reasonable when the driver
never abandoned his attempt to flee. While ordinarily, a trial court order
denying summary judgment is not a final decision and therefore not immediately
appealable, a denial based on a qualified immunity claim can be immediately
appealed, and therefore the federal appeals court had jurisdiction to hear the appeal,
but erroneously did not grant the officers qualified immunity. Plumhoff v.
Rickard, #12-1117, 2014 U.S. Lexis 3816
A unanimous U.S. Supreme Court ordered further
proceedings in an excessive force lawsuit brought by a unarmed man who a police
officer fired three shots at, with one of the bullets puncturing his right
lung. At the time, the plaintiff was approximately 15 to 20 feet away from the
officer on the front porch of his parents' home. The Court found that the
appeals court, in upholding summary judgment on the basis of qualified immunity
for the officer, had erred by failing to view the evidence on summary judgment
in the light most favorable to the plaintiff on the facts. Instead, the appeals
court improperly resolved disputed issues concerning the lighting present, the
demeanor of the plaintiff's mother, the plaintiff's positioning during the
shooting, and whether he had shouted a direct threat, in favor of the officer,
the moving party on the summary judgment motion. Tolan v. Cotton, #13-551, 2014
U.S. Lexis 3112.
Police went to a man's home after his wife called
911, concerned that he might have taken an overdose of sleeping pills. He had
committed no crime and the officers were not there to arrest him. After
breaching the barricaded door to his bedroom, an officer shot three times and
killed the man when he raised a knife above his head and advanced towards the
police. The entire incident was recorded by cameras in two Tasers carried by
the officers. Prior to firing guns, a Taser was fired in the dart mode at the
man while he was still in his bed but disobeying orders to put the knife down,
but one of the two darts missed him, and no electric shock was administered.
When the man stood up, a second Taser was fired in the dart mode, but also
failed to work, as the man was not incapacitated, and verbally indicated that
he would not drop the knife, then raised above his head in a stabbing position.
The use of deadly force was justified by the man's actions causing the officers
to reasonably fear for their safety. The officer's version of the incident was
confirmed by the Taser video evidence. The entry into the bedroom was justified
by the wife's consent. The appeals court stated that it was expressing no
opinion about the appropriateness of the officer's conduct prior to the
shooting. The officers were entitled to qualified immunity for the use of
deadly force and municipal liability claims against the city were also properly
dismissed. Harris v. Serpas, #13-30337, 2014 U.S. App. Lexis 4643, 2014 WL
960843 (5th Cir.).
A motorist led police on a high speed chase for
approximately 45 minutes before his vehicle could be disabled. When he then
exited his truck, in a period of four minutes he attempted to seriously hurt
himself, tried to provoke the officers to shoot him, threw rocks at the
officers, and ignored orders to stop, moving forward to the officers while
threatening them with a rock that was football size held over his head. Under
these circumstances, the officers were entitled to qualified immunity for
shooting and killing him, as it was objectively reasonable for them to fear
immediate serious physical harm. The fact that he might have intended to commit
"suicide by cop" did not alter the fact that the officers acted reasonably.
Lal v. California, #2-15266, 2014 U.S. App. Lexis 5890 (9th Cir.).
A woman suffering from a mental illness and
resisting officers' attempts to take her to a mental health facility claimed
that the officers violated her rights by entering her residence without a
warrant and shooting her five or six times when she threatened them with a
knife. The officers were justified in the initial entry into the home under the
emergency aid exception to the warrant requirement because they had an
objectively reasonable belief that she was in need of assistance. There were,
however, triable issues of fact as to whether the officers violated the Fourth
Amendment in forcing a second entry and thereby allegedly provoking a near
fatal confrontation, leading to an unnecessary use of deadly force that could
have been avoided. The appeals court also held that federal disability
discrimination statutes apply to arrests, and that there was a triable issue as
to whether the officers failed to reasonably accommodate her disability when
they forced their way into her room, arguably failing to take her mental
illness into account or to utilize generally accepted law enforcement practices
for peacefully resolving such a confrontation with a mentally ill person.
Sheehan v. City and County of San Francisco, #11-16401, 2014 U.S. App.
Lexis 3321 (9th Cir.).
A man sought under a warrant engaged in a
six-hour stalemate at his house with officers seeking to arrest him. He was
armed with a semi-automatic handgun. When he walked into his yard carrying
water and a cup, an emergency response team activated a flash bang device to
distract him and to try to prevent him from again retreating inside the house.
The officers said that he turned and tried to draw his gun and they then shot
him multiple times. He claimed that he did not reach for his gun until after
the device went off and shots were already fired. He later pled guilty to
resisting the officers with a deadly weapon. A federal appeals court held that
his excessive force claim was barred because his version of events would
necessarily imply the invalidity of the conviction. Under the facts needed to
support the conviction, the officers acted reasonably, and the conviction had
not been set aside. Helman v. Duhaime, #12-3428, 2014 U.S. App. Lexis 2302 (7th
Cir.).
A woman called 911 to report that her sometime
boyfriend, highly intoxicated and suicidal had just left her home despite a
protective order that barred him from coming near her. Police observed his
vehicles and gave chase. When he stopped, officers approached with guns drawn
and ordered him to turn off the car and show his hands. Instead, he put his car
in reverse, rammed a police vehicle, moving it 30 feet. Officers opened fire,
severely wounding him, and removed him from the car. After pleading guilty to
DUI, fleeing or evading police, and wanton endangerment, he sued for excessive
force. A federal appeals court ruled that the officers were entitled to
qualified immunity under these circumstances. Hocker v. Pikeville City Police
Dep't., 13-5341, 2013 U.S. App. Lexis 24930, 2013 Fed App. 0349P (6th Cir.).
The daughter of a man shot and killed by police
while responding to a domestic disturbance call did not have standing to bring
federal civil rights claims when she failed to allege that she was the personal
representative of his estate or his successor in interest. The court also
upheld the rejection of a substantive due process claim, as there was
absolutely no evidence that the officers fired for any reason except self defense
when the man was armed with a knife. Further proceedings, though, were ordered
on California wrongful death claims because reasonable jurors could find that
the use of deadly force was not objectively reasonable and whether he posed a
threat to the officers was a disputed issue. Hayes v. County of San Diego, #09-55644, 736 F.3d 1223,
2013 U.S. App. Lexis 23939 (9th Cr.).
A man went outside his mobile home at night in a
rural area carrying a shotgun after hearing sounds of unknown persons outside.
As he opened his front door, he was shot by police. The officers were not
entitled to qualified immunity on excessive force claims, as a reasonable
officer would not have probable cause to feel threatened under the
circumstances, and the right to not have deadly force inflicted when a person
poses no threat was clearly established. Cooper v. Sheehan, #13-1071, 2013 U.S.
App. Lexis 22616 (4th Cir.).
Officers who shot and killed a man were
sued for excessive force and deliberate indifference to a known serious medical
need, the need for treatment of his wounds. The jury found in favor of the
officers after being instructed that the plaintiffs had to prove that
deliberate indifference caused the man's death. A federal appeals court upheld
the trial judge's grant of a new trial on the medical indifference claim. In
such a delay of treatment case, it is not necessary to show that the delay in
providing medical care caused the death when a layperson would find it obvious
that a delay in treatment created a risk of serious harm. The defendants failed
to show that a substantial ground for a difference of opinion existed on the
correctness of the trial decision. Miedzianowski v. City of Clare, #13-101,
2013 U.S. App. Lexis 17375, 2013 Fed App. 243P (6th Cir.).
Sheriff's deputies were not entitled to qualified
immunity for fatally shooting a 64-year-old homeowner on the patio of his
residence while responding to a domestic disturbance call. While he was armed
with a gun at the time, the plaintiff, claimed that the decedent had not
objectively provoked the officers, was walking with the use of his walker at
the time, and had his gun trained on the ground. If a jury believed the
plaintiff's version of the incident, it could find that the use of deadly force
was unreasonable and that the decedent had not posed an immediate threat to the
officer's safety. George v. Morris, #11-55956, 2013 U.S. App. Lexis 15579 (9th
Cir.).
Officers arrived at a man's home after his mother
called 911 to report that he was having a psychotic episode and had attacked a
family member. The officers were told that he might have a knife or a
screwdriver. He was uncooperative with orders to lie down. A struggle ensued,
during which officers claimed that he reached under a pillow and pulled out a
knife that he swung at an officer. An officer fired six shots from his gun,
hitting him several times. In a lawsuit, the man denied attacking officers with
a knife. A federal appeals court found that the officers were entitled to
qualified immunity on disability discrimination claims as there was no clearly
established law that the officers had a duty to accommodate the arrestee's
disability of schizophrenia while trying to secure him and take him into
custody. The officer who fired the shots, however, was not entitled to
qualified immunity, as there was a disputed issue of fact as to whether the
arrestee at that time posed an objectively reasonable threat of violence
towards the officers. The court rejected a failure to train claim against the
city. Roberts v. City of Omaha, #12-3426, 2013 U.S. App. Lexis 15624 (8th
Cir.).
Officers stopped a man who fit the description of
a suspect in a domestic tire-slashing incident. Before he could be patted down,
he removed his hands from the hood of a car, ignoring police orders, and
started running away. Multiple times, officers fired Tasers in the dart mode,
and one also shot him with a gun when the Taser did not seem to stop him. The
officer who shot the plaintiff claimed that he was brandishing a knife, but the
plaintiff claimed he was only holding a cell phone and attempting to record the
incident. There was a genuine issue of material fact as to whether the use of
deadly force was justified. The initial use of the Tasers during the pursuit,
however, was objectively reasonable, regardless of whether or not the plaintiff
was brandishing a knife, as the officers were aware that he had a knife, he was
argumentative, he fled, and he disobeyed orders to stop. The court did find
that if some of the deployments of the Taser occurred after the plaintiff had
been subdued (after being shot twice), summary judgment was not appropriate on
those excessive force claims. Arnold v. Buck, #3:11-cv-1343, 2013 U.S. Dist.
Lexis 108629 (D. Ct.).
When officers believed that a motorist detained
for a traffic stop was committing and attempting to conceal a drug offense, and
the situation quickly escalated, with the driver disobeying orders, including
as to where in his vehicle he reached, the use of force, including deadly force
to shoot and kill the motorist was not excessive, but rather objectively
reasonable. At the time of the shooting, the motorist was driving on with an
officer who entered the vehicle to grapple with him still in the passenger
seat. Due process claims were rejected as there was nothing in the officers'
conduct indicating that they had an ulterior motive for their use of force.
Gonzalez v. City of Anaheim, #11-56360, 2013 U.S. App. Lexis 9607 (9th Cir.).
Federal agents and deputy sheriffs carried out an
inspection at a border checkpoint. A father and a number of others were
detained when his son fled the checkpoint in a vehicle. Three months after this
incident, the father and a passenger in that vehicle were stopped while driving
in a national park on the basis of a be-on-the-lookout (BOLO) report that had
issued on the father's vehicle after the prior incident. Unlawful search and
seizure claims were rejected because the rangers who stopped the vehicle had a
reasonable suspicion that the vehicle might contain a fleeing felon or weapons.
The appeals court denied, however, federal agents' motion to thrown out a false
imprisonment claim under an exception to the Federal Tort Claims Act for claims
arising from the detention of goods. No goods were then being detained after
the son fled the checkpoint in the vehicle. The court also rejected excessive
force claims against the rangers based on them drawing their weapons and
handcuffing the father and his passenger during their traffic stop since they
had reason to believe that those in the car might be dangerous. Davila v.
United States, #12-50044, 2013 U.S. App. Lexis 6749 (5th Cir.).
A police officer shot and killed a female
motorist at the conclusion of a high-speed chase of a stolen vehicle, firing twelve
rounds into the car which had stopped after ramming a police car several times.
The woman had yelled "Fuck you!" in response to orders to turn off
her car. The woman's children sued the officer for violation of their due
process rights. The officer's motion for qualified immunity was denied, with
the trial judge concluding that the jury could, based on the alleged facts,
conclude that the officer had used deadly force with a purpose to harm the
woman unrelated to any legitimate law enforcement objective. The jury awarded
$30,000 in damages to both of the decedent's minor children. A federal appeals
court upheld the pretrial denial of qualified immunity and the jury's verdict,
finding it reasonable. Further proceedings were ordered, however, on an award
of attorneys' fees and costs, with the appeals court finding that the trial
judge should consider the amounts discussed in settlement negotiations when
determining the reasonable amount of fees to award, based on an intervening
change in the law reflected in In re Kekauoha-Alisa, #09-60019, 674 F.3d 1083
(9th Cir. 2012); and Ingram v. Oroudjian, #09-57022, 647 F.3d 925, 927 (9th
Cir. 2011), cases decided after the fee award, but before the appeals court's
decision. A.D. v. State of California Highway Patrol, #09-16460, 2013 U.S. App.
Lexis 6689 (9th Cir.).
A police officer shot and killed a motorist
behind the driver's wheel of his car. The officer claimed that when he fired,
the motorist was accelerating the car directly towards him, which the plaintiff,
a passenger in the vehicle, suing him for excessive force, disputed. The
officer was not entitled to qualified immunity as he had not shown that the
plaintiff's version of events was so blatantly contradicted by the record that
no reasonable jury could believe it. An accident reconstruction report and
ballistic expert's findings did not disprove the plaintiff's version and could
be interpreted as confirming either version, since they did not establish when,
during the car's motion sequence, the officer fired. Campos v. Van Ness,
#12-1109, 2013 U.S. App. Lexis 6528 (1st Cir.).
A federal court jury awarded a total of $6.5
million to the family of a man shot twelve times and killed by officers who
mistakenly believed that a water hose nozzle he was holding and possibly
pointing at them was a handgun. The jury found both that the officers violated
the decedent's civil rights and that they were negligent under California state
law. The plaintiffs argued that the officers never gave any verbal warnings and
that one officer fired by mistake, causing a second officer to also shoot,
believing that he was under fire. Officers came to the area in response to
reports of a man with a gun. R.S. v. City of Long Beach, #SACV11-00536,
U.S.Dist. Ct. (C.D. Cal., April 4, 2013).
An officer went to a hotel room in response to a
call that someone was trying to break in. When the officer arrived, a woman
walked out of the room, and he entered. Inside, he encountered a man in the
bathroom, talking to a woman who was the mother of his child. Neither of them
were armed or involved in any crime. The officer pushed the bathroom door open,
knocked the man to the floor, used his Taser on him, knocking him to the ground
a second time and then shot him several times, killing him. He then planted a
handgun taken from his patrol car on the deceased. There was no evidence of gun
powder on the dead man's hands and no fingerprint evidence showing that he had
handled the gun. The dead man's mother did not sue the officer, but sued the sheriff
in his official capacity, claiming that the officer's actions were based on an
unofficial policy of falsely accusing unarmed people of posing a threat to
justify using deadly force against them, planting guns at the scene of a
shooting, and giving false statements to justify the use of deadly force. A
federal appeals court upheld summary judgment for the defendant. The evidence
showed no indication of any policy or custom that was the moving force behind
the officer's actions. The court's opinion did not discuss whether the use of
the Taser had been justified, or in what mode, dart or stun, the Taser had been
deployed. Gandy v. Reid, # 11-14828, 2013 U.S. App. Lexis 2209 (Unpub. 11th
Cir.).
An officer who shot a man seven times while he
was sitting in his car in a park paralyzing him was not entitled to qualified
immunity. If the facts were as the plaintiff described them, no reasonable
officer would have used deadly force against the motorist. The officer claimed
that the motorist was accelerating his car, threatening the life of another
nearby officer. According to the motorist, he never accelerated his car, but
was nevertheless shot after he put his car in park. Morton v. Kirkwood,
#12-11436, 2013 U.S. App. Lexis 2754 (11th Cir.).
A 13-year-old boy and his friends were playing
cops and robbers in a park at night, using toy guns. Two officers on patrol
came through the park, and saw the boy standing behind a parked car. One of
them ordered the boy not to move and then shot him when he stepped out from
behind the van. The bullet resulted in the boy being hit in the chest and
paralyzed. A jury awarded a total of $24 million on claims for negligence and
excessive force. The award was reduced to $19.2 million. The jury found the
officer 80 percent negligent, the boy's mother 15 percent negligent, possibly
for buying the realistic looking toy gun, and the boy 5 percent negligent. The
officer claimed to have seen the boy holding the toy gun, which he assumed was
real, and said that he had feared for his life. Eriza v. Abarca, #BC-453870,
Superior Court of Los Angeles County, Los Angeles, CA (Dec. 14, 2012).
A federal appeals court upheld a jury verdict in favor
of a city and its officers in a lawsuit over the shooting and killing of a
suicidal cocaine intoxicated man armed with a powerful gun with a long range.
Negotiations by an emergency response team sent to his apartment failed to
persuade him to drop his weapon or come out, and the use of tear gas had been
justified to try and subdue him because it was believed that he posed an
imminent threat to others in the area. Given that the room was dark and filled
with tear gas, and that the officers' accounts differed as to how far his arm
was extended when an officer shot and killed him, the fact that he had not
previously verbally threatened others during the standoff did not establish
that he had not pointed his gun at officers as they entered. Estate of Escobedo
v. Martin, #11-2426, 2012 U.S. App. Lexis 25443 (7th Cir.).
A police officer was entitled to qualified
immunity for shooting a drunk, out-of-control man who he had been informed was
armed with a gun. He had taken cover upon arriving on the scene, and observed
the man climbing out of his truck and engaging in a "nose-to-nose"
argument with his brother-in-law. Under these circumstances, the officer could
reasonably believe that he needed to pull his gun, and did so, ordering the man
to get on the ground. When, instead of complying, the man advanced on the
officer, it was reasonable to fire eight times at him. The officer did not know
that the advancing man had thrown away his gun in the snow or that the object
on his hip was a cell phone rather than a holster. Loch v. City of Litchfield,
#11-3618, 2012 U.S. App. Lexis 18099 (8th Cir.).
A police officer was not liable for shooting and
killing an intoxicated man while responding to a domestic disturbance call. The
decedent had been armed with a knife, attempted to conceal it, and, before the
shooting, raised his leg as if getting ready to move towards the officer. Under
these circumstances, the officer could reasonably believe that the man posed a
threat of substantial and imminent bodily harm, and he failed to comply with
orders to drop the knife. The officer was entitled to qualified immunity.
Estate of Morgan v. Cook, #11–3376, 2012 U.S. App. Lexis 14021 (8th Cir.).
An African-American motorist fleeing from police
stopped his car, and then started moving backwards in a circular path. An
officer, believing that he might be run over, fired four or five shots, killing
the driver. The decedent's mother sued the municipality, claiming that it
exhibited deliberate indifference to the rights of black people. A federal
appeals court rejected this claim, finding no evidence that a "policymaking
official was aware of constitutional injury, or the risk of constitutional
injury, but failed to take appropriate action." It noted that
"isolated acts of excessive force by non-policymaking municipal employees
are generally not sufficient to demonstrate a municipal custom, policy, or
usage that would justify municipal liability." Jones v. Town of East
Haven, #10–4731, 2012 U.S. App. Lexis 15928 (2nd Cir.).
Police responded to 911 calls indicating that a
man had threatened to kill his ex-girlfriend's parents. They believed that he
might be armed with a gun. In a heavily wooded area, he ignored orders to show
his hands, allegedly yelled that he had a gun, and had been drinking and acting
in a mentally disturbed manner. An officer's attempt to use a Taser on him
failed because of a heavy coat he had on. He brandished a silver object which
turned out to be a phone. An officer who believed it might have been a gun shot
and killed him. Under these circumstances, the use of deadly force was
justified, despite the fact that, with hindsight, it turned out that he was
unarmed. Simmonds v. Genesee County, #10-1470, 2012 U.S. App. Lexis 12347
(6th Cir.).
A man and a woman running away from police
officers leave a stolen car and go into a pickup truck. The man drove the
pickup into a police vehicle, with officers standing behind it. He then put the
truck in reverse and backed up at a high rate of speed, moving towards an
officer who shot and killed him. In an excessive force lawsuit by the
decedent's parents, a federal appeals court ruled that the claim was barred
under the principles in Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), as a
judgment against the officers on the claim would tend to undermine the validity
of the conviction of the decedent's female accomplice for assault of an officer
with a deadly weapon during the incident. The jury that convicted the
accomplice had already determined that the officer's use of force was not
excessive. Beets v. County of Los Angeles, #10-55036, 669 F.3d 1038 (9th Cir.
2012).
An off-duty police officer driving home was upset
by a van's driver tailgating his vehicle. Exiting his car, he pulled out his
weapon and shot the van's driver a total of nineteen times, hitting him with
eight shots and killing him. The officer claimed that the motorist had
threatened him with a weapon, but none was found. The officer later committed
suicide. A jury found that the officer had used unreasonable force under color
of law and awarded $1.85 million in damages. It also found, however, that the
officer was not acting within the scope of his employment when he fired his
weapon, with the result that the judgment could only be collected from the
officer's small estate rather than from the city. A statute required the city
to pay judgments against officers for actions taken within the scope of their
employment and off-duty officers were required to take action against
lawbreakers. A federal appeals court held that a "police officer can
grossly exceed his authority to use force and still be found to have acted
within the scope of his employment." It ordered further proceedings on the
issue of whether the officer was acting within the scope of his employment in
this case, finding that the jury had not been properly instructed on the issue.
The jury may also have been confused by the admission into evidence of the
homicide and perjury charges lodged against the officer prior to his suicide
death. Javier v. City of Milwaukee, #10-3816, 670 F.3d 823 (7th Cir.
2012).
Officers stopped a vehicle driving down a street
late at night without its headlights on. Inside the car, two friends were high
on crack cocaine. They exited the vehicle and were ordered to kneel down. One
complied, but the other hopped back in the car and drove off. An officer managed
to place himself in the open doorway of the car, as the driver attempted to
make a U-turn in his direction. The officer continued to run alongside the
vehicle as it moved forward, repeatedly warning the suspect to stop the car.
The vehicle's door and frame struck the officer's body. After multiple
warnings, the officer fired two shots, killing the driver. A federal appeals
court found that the use of deadly force by the officer was reasonable under
these circumstances. The driver was using his vehicle in a manner endangering
the safety of the officer. Terrell v. Smith, #10–14908, 2012 U.S. App. Lexis
1689 (5th Cir.).
Police responded to a 911 call concerning a
schizophrenic, bipolar, and suicidal man who had stopped taking his medication
and was threatening to harm his mother. The officers weren't liable for
shooting and killing him when he came towards them armed with knives as they
entered his locked and barricaded bedroom. They acted in reasonable
self-defense, and they were entitled to qualified immunity on their warrantless
entry into the bedroom based on their belief that there were exigent
circumstances justifying their entry because the man constituted a threat to
himself. Rockwell v. Brown, #10–11053, 2011 U.S. App. Lexis 24980 (5th Cir.).
Police responded to a 911 call concerning an
intoxicated man threatening to kill himself with a pocket knife. He ignored
their orders to drop the knife, instead holding it to his throat. The officers
used a beanbag shot gun to subdue and disarm him. When he stepped away, and
moved towards his parents' house, they shot and killed him. A federal appeals
court ruled that the use of the beanbag shotgun may have been excessive, noting
that the officers had the option of using the less extreme force of a Taser,
but did not do so. The court stated that it was not aware of any published
cases holding it reasonable to use a significant amount of force to try to stop
someone from attempting suicide." The subsequent gunfire may also have
been excessive. Summary judgment for the defendants was reversed, and further
proceedings were ordered on the excessive force claims. Glenn v. Washington
County, #10-35636, 661 F.3d 460 (9th Cir. 2011).
A woman called 911 to report that her 72-year-old
grandfather was acting peculiarly and might be having a stroke. When officers
arrived to check on him, he allegedly threatened to get a gun and shoot them,
after which he emerged from his residence with a shotgun in his possession. A
federal appeals court ruled that no purely legal issue was present in an
officer's appeal of a decision refusing to grant him qualified immunity for
shooting and killing the grandfather. Disputed issue of fact first had to be
resolved as to whether or not the decedent had actually pointed his weapon at
the officers or others. Sabo v. City of Mentor, #10-4358, 2011 U.S. App. Lexis
18822 (6th Cir.).
A police officer who claimed that she intended to
use her Taser on a handcuffed detainee, but instead shot him in the chest with
a semiautomatic pistol, was not entitled to qualified immunity in a lawsuit
over his death. At the time of the shooting, the detainee was kicking a police
vehicle's rear door from the inside. The appeals court noted that the officer
had had prior difficulty in drawing the correct weapon. A "jury might
question," the court stated, "the reasonableness of choosing to send
1,200 volts of electricity through a person when the alleged concern is for
that person's safety." A jury could also possibly find the officer's
mistake reasonable, but the trial court should not have reached that conclusion
on summary judgment. Torres v. City of Madera, #09-16573, 2011 U.S. App. Lexis
17459 (9th Cir.)
An officer who fatally shot a man running away
who was only suspected of a misdemeanor failure to pay child support was not
entitled to summary judgment. Even though the officer claimed he intended to
use his Taser rather than his gun, a jury could view the shooting as
objectively unreasonable. The decedent posed no threat of death or serious bodily
injury to anyone. As for the officer's alleged confusion between his gun and
his Taser, the appeals court noted that the Taser was holstered approximately a
foot lower than his gun was, had no thumb safety, unlike his gun, and only
weighed half as much as his gun. Because of these facts, the officer should
have realized he was holding and shooting his gun. Henry v. Purnell, #08-7433,
2011 U.S. App. Lexis 14391 (4th Cir. en banc).
A police detective was not liable for fatally
shooting an arrestee struggling with him who was wrapping his arms around his
neck and threatening him, at a time when the officer was having trouble
breathing. English v. District of Columbia, #09–7150, 2011 U.S. App. Lexis
13383 (D.C. Cir.).
SWAT officers were not liable for the death of a
19-month-old girl whom they accidentally shot while trying to rescue her from
her cocaine using father, who was holding her hostage. They had justification
for the use of deadly force against the father, who had threatened to kill the child,
himself, and anyone who entered his auto shop, and was armed. The officers
acted in an objectively reasonable manner after the father shot at them while
holding the child. Lopez v. City of Los Angeles, #B219499, 2011 Cal. App. Lexis
729 (Cal. App.).
A jury properly found that SWAT officers
executing a search warrant for narcotics did not violate the Fourth Amendment
when they performed a no-knock entry into a house, shot a woman twice as she
spun towards an officer while holding a revolver, and shot her fatally a third
time when she moved her hand back toward the gun. Noel v. Artson, #09-1562,
2011 U.S. App. Lexis 11110 (4th Cir.).
A highway patrol officer was entitled to
qualified immunity for shooting and killing a female motorist who had, shortly
before, led officers on a high-speed chase, and who appeared to him to be
trying to use her car as a weapon against other officers. No prior case law
would have put him on notice that using deadly force under these circumstances
would shock the conscience, Casey v. Markgraf (In re A.D.), #09-16460, 636 F.3d
555 (9th Cir. 2011).
In a lawsuit over a deputy's shooting and killing
of an unarmed motorist following a high-speed pursuit, the trial court acted
erroneously in denying a number of defendants summary judgment on the
plaintiffs' inadequate training claims. Other than "bare assertions"
by the plaintiffs, there was "not a scintilla" of proof that the
defendants acted with deliberate indifference and thereby created a training
program so deficient that it caused the motorist's death. Harvey v. Campbell
County, #09-5041, 2011 U.S. App. Lexis 9656 (Unpub. 6th Cir.).
A motorist stopped for speeding by officers
presented identification and claimed to be a CIA agent. Officers learned that
he had a concealed handgun license. Asked to step out of his vehicle, the
motorist instead fled, leading officers on a 15-minute car chase. When the
motorist stopped, he appeared to be coming out of his vehicle swinging his
hands, one of which was grasping an object, around towards an officer. An
officer fired through the car, hitting the motorist in the back, causing
injuries that killed him. While the motorist did not have a weapon on him, he
had three guns in the car, one of which was within reach of the driver's seat.
Officers had a reasonable basis to believe that he was about to bring a firearm
to bear on them, so the use of deadly force was reasonable. Carnaby v. City of
Houston, #09-20825, 2011 U.S. App. Lexis 5846 (5th Cir.).
A deputy who fired 12 shots at a truck he claimed
was coming towards him and his partner, killing the driver, was not entitled to
qualified immunity in an excessive force and unreasonable seizure lawsuit
brought by a passenger in the vehicle who was not shot. The plaintiff claimed
that the driver was not moving his truck towards the officers, but towards the
only exit available to him, eight feet from any officer. She claimed that the
deputy continued firing shots after the truck went by him. The appeals court
noted that by shooting the driver, the deputy intended to stop the car,
effectively seizing everyone in the vehicle, including the passenger, who was
injured when the car crashed. Further proceedings were ordered on her claims.
Rodriguez v. Passinault, #09-1949, 2011 U.S. App. Lexis 6206 (6th Cir.).
A man convicted of kidnapping an officer, but
acquitted of possessing a gun during that same incident, sued the officer for
excessive use of deadly force. Holding that the officer was not entitled to
qualified immunity, a federal appeals court held that if the officer, as
alleged, shot the plaintiff twice, and then shot him six more times while he
was on the ground and unarmed, there was no necessity for the use of deadly
force after the initial shooting. Brockington v. Boykins, #09-2308, 2011 U.S.
App. Lexis 5728 (4th Cir.).
In a case where officers shot and killed a man
armed with a knife while responding to a domestic disturbance call concerning
his prior suicide attempt, factual disputes over whether or not a warning before
firing had been feasible required a jury determination of whether or not the
officers acted reasonably. Hayes v. County of San Diego, #09-55644, 2011 U.S.
App. Lexis 5723 (9th Cir.).
A California Highway Patrol officer was entitled
to qualified immunity for shooting and killing a female motorist at the
conclusion of a high-speed pursuit of an allegedly stolen vehicle. The motorist
refused to surrender, yelled obscenities at the officer, and put the car into
reverse to ram the police car several times. The officer feared that the
motorist would run over other officers present at the scene. While the jury, in
awarding damages to the woman's minor children, decided that the officer had
acted with a purpose to cause the motorist harm unrelated to a legitimate law
enforcement purpose, the federal appeals court found that "the question is
not whether an objectively reasonable officer would believe it was
constitutional to harm without a legitimate law enforcement objective, but
whether such an officer would believe, in the circumstances" faced, that
"a legitimate law enforcement objective existed." No prior case law
"would have alerted him that his split-second decision in dealing with
someone who had just led police on a dangerous high-speed chase and who was
using her car as a weapon shocked the conscience." A. D. v. State of
California Highway Patrol, #09-17635, 2011 U.S. App. Lexis 6906 (9th Cir.).
Officers shot and killed a suspected car thief
during a standoff. Immediately before the shooting, he had been standing with
his right hand concealed in his waistband, and he appeared to be concealing an
object. When asked to surrender, he allegedly suddenly pulled his hand out of
his waistband as though he were drawing a gun. The officers responded by firing
39 shots over 10 seconds, killing him. The object he was holding was a crack
pipe. A federal appeals court upheld in part, but also reversed in part summary
judgment for the defendant officers. It held that the decedent's abrupt
threatening movement justified the initial use of deadly force, but that a jury
should have been allowed to decide whether the use of such force became
unreasonable before the time that the officers ceased firing when his hand
became visible and they could arguably see that the object he was holding was
not a gun. Lamont v. New Jersey, #09-1845, 2011 U.S. App. Lexis 4104 (3rd
Cir.).
A woman sued the California Highway Patrol and a
number of its officers for shooting and killing her husband, claiming excessive
use of force. The lawsuit was dismissed with prejudice for failure to prosecute
because her attorney failed to meet court deadlines or attend hearings. A
federal appeals court rule that the lawyer's "gross negligence" was
an "extraordinary circumstance" not attributable to the plaintiff, so
that she should be granted relief from the dismissal and have her claim
reinstated. When she learned of her attorney's conduct, she hired a new
attorney and filed a motion to set aside the dismissal. The court found that
the attorney had virtually abandoned his client and also attempted to mislead
her about the status of the case. Lal v. State of Calif., #08-15645, 610 F.3d
518 (9th Cir. 2010).
During a shootout between an officer and a
suspect, the officer accidentally shot a female innocent bystander who died. A
federal appeals court upheld summary judgment for the officer and the city in a
federal civil rights lawsuit brought by the woman's estate. The officer was
returning fire at a suspect who was armed with a shotgun and who had previously
threatened another man with that gun. The officer had no intention of harming
the decedent, and did not even know that she was in the line of fire.
Bystanders are not "seized," for purposes of a Fourth Amendment claim
"when struck by an errant bullet in a shootout." Simpson v. City of
Fort Smith, Arkansas; #09-2617, 2010 U.S. App. Lexis 16666 (Unpub. 8th Cir.).
Officers shot and killed a suicidal man who
lunged at them with a knife, after having stabbed himself, and who had not been
subdued by the prior use of a Taser. The Ohio Supreme Court held that, in a
federal civil rights and state excessive force case, the trial judge's denial
of qualified immunity to officers on the federal claims, and denial of summary
judgment to the city on failure to train claims were final appealable orders
under state law. An intermediate state appeals court therefore erred in
dismissing the defendants' appeal of those denials. Summerville v. City of
Forest Park, #2009-2106, 2010 Ohio Lexis 3294.
A police officer was justified in using deadly
force and repeatedly shooting an armed suspect who was lying in wait following
a car chase and foot pursuit after fleeing from the scene of an armed burglary.
The officer reasonably perceived the situation as an ambush, a situation
justifying the use of deadly force for his own safety. Jean-Baptiste v.
Gutierrez, #10-11129, 2010 U.S. App. Lexis 24870 (11th Cir.).
A woman posed a significant threat to officers
and others who might be hit by the police car which she put in rear gear while
handcuffed with her hands behind her back after being arrested on a drug charge
and placed in the front passenger seat of the vehicle, which had the engine
running. An officer was entitled to qualified immunity for shooting her. She
admittedly was in a moving vehicle that she could not control, and even if the
officer would have been able to side-step the car by the time he fired, as the
plaintiff's experts argued, his action, as an attempt to stop the car, was
still justified by the threat to others present. Olseth v. Larson, #10-4015,
2010 U.S. App. Lexis 20305 (Unpub. 10th Cr.).
A woman's disturbed son, who had murdered his
wife years ago, stopped taking his medication, obtained a gun, and threatened
to kidnap certain family members. Officers seeking to have him committed went
to his apartment, and his mother tried to get him to come out, but instead he
started shooting. The plan of extraction developed by a police investigator had
involved the mother knocking on the front door while officers remained in front
of the house, but out of sight of the son. Both the mother and her son were
shot and killed during the ensuing gun battle. The decedents' estates and
family members sued, claiming that the officers were responsible for the deaths
under a "state-created danger" theory of liability. The officers were
entitled to qualified immunity because the state-created danger theory was not
clearly established in the 5th Circuit at the time of the incident. Judgment
was also entered for the city, as the plaintiffs did not successfully create an
issue of fact as to whether the city's review of the officers' conduct violated
department rules in a manner that rose to the level of "ratification"
so that the city would be liable for the officers' conduct. Saenz v. City of
McAllen, #09-41072, 2010 U.S. App. Lexis 20464 (Unpub. 5th Cir.).
An arrestee fled on foot when a deputy attempted
to arrest him with a warrant. The deputy gave chase, and mistakenly drew his
gun when he actually intended to draw his Taser to apprehend the fleeing
suspect. He shot the arrestee in the elbow. The arrestee filed an excessive
force lawsuit, but the trial court held that the deputy's mistake in drawing
his firearm rather than his Taser under these circumstances was a reasonable
one, so that he was entitled to summary judgment. The appeals court held that
the trial court erred in its analysis by focusing solely on the adequacy of the
deputy's weapons training instead of looking at the totality of the circumstances
the deputy faced. The appeals court ruled that the deputy could not have been
on notice that confusing his firearm for his Taser was clearly established as
an excessive use of force because there was no prior caselaw to provide him
fair warning on the issue. Summary judgment was overturned, however, on state
law claims. Henry v. Purnell, #08-7433, 2010 U.S. App. Lexis 19823 (4th Cir.).
A man who encountered deputies while armed and
investigating a possible trespass on his land claimed that they used excessive
force in disarming him. A federal appeals court upheld the denial of qualified
immunity to the deputies. There were genuine issues of fact as to whether they
identified themselves to him, what position his gun was in at the time, and
whether one deputy should have intervened to prevent the other deputy's use of
force. While the deputies claimed that they identified themselves and
repeatedly warned him, a radio transmission from the scene of the incident did
not record them speaking before they fired their guns. Additionally, the
deputies provided inconsistent statements about the position of the man's gun
during the incident, as well as admitting that the plaintiff, a white male, did
not match the description of the suspects they were searching for, who were
Hispanic, and that they thought it likely that the plaintiff was the owner of
the property they were on. Given all this, a reasonable jury could find that
the deputies violated the plaintiff's clearly established rights through their
use of force. Swofford v. Eslinger, #09-16162, 2010 U.S. App. Lexis 18281
(Unpub. 11th Cir.).
An arrestee claimed that officers illegally
entered his home and then used excessive force in attempting to arrest him,
including a restrained police dog and the brief display of a shotgun when he
emerged suddenly from a bathroom. A federal appeals court found that a female
resident of the home consented to their entry. The decision to enter the
premises with a restrained police dog and to briefly display the shotgun was
not excessive given the arrestee's prior flight from officers, and his
involvement in a crime of aggression, child molestation, which he was
subsequently convicted of. Harris v. Smith, #09-1130, 2010 U.S. App. Lexis
15599 (Unpub. 7th Cir.).
An officer started following a group of young men on
bicycles. Two of the bicyclists then jumped a curb and rode away and the
officer activated his lights and followed them onto the grassy area of a
school's grounds. He allegedly saw one bicyclist pass a gun to the other. The
officer continued chasing the youth with the gun, and the chase ended when the
officer shot and killed him, believing that his own life was in danger. A jury
returned a verdict for the officer in an excessive force lawsuit. The appeals
court found that expert witness testimony that the youth did not have a gun in
his hand in seven images from the school's surveillance cameras was properly
excluded at trial. This opinion would have not aided the jury, but instead told
it what result to reach. Evidence that youth was a gang member should have been
excluded, but its admission was harmless. Lee v. Andersen, #09-2771, 2010 U.S.
App. Lexis 16702 (8th Cir.).
Officers in SWAT gear, with the word
"POLICE" displayed on the officers' chests, entered a home to serve a
search warrant. An occupant ran towards his bedroom. When the officers knocked
down the door, and entered the bedroom, yelling "Police," the man
raised and pointed a gun at them, and they shot and killed him. An unreasonable
search and seizure claim against the city failed, as the plaintiff could not
establish that the city had a custom or policy of entering homes to execute
search warrants without first knocking and announcing police presence. Ample
testimony established that standard police procedure was to knock and announce,
and the plaintiff's ability to point to a small handful of cases in which
officers did not do so was insufficient to show an unconstitutional policy or
custom. Whittier v. City of Sunrise, #10-10032, 2010 U.S. App. Lexis 19140
(Unpub. 11th Cir.).
Officers did not use excessive force in shooting
a suspect after he fled the scene of a violent crime, a burglary involving a
gun. Either the suspect or his accomplice shot at the deputies at close range
when they responded to a call reporting the burglary. Both burglars fled the
scene of the crime. A federal appeals court upheld the trial court's
determination that no Fourth Amendment seizure of the plaintiff occurred, as
the officers did not gain "intentional acquisition of physical
control," as he continued to flee, so that their actions did not cause the
officers to terminate his movement. The mere show of authority alone, or use of
physical force, without termination of movement, or a suspect's submission, is
not a seizure, even if the plaintiff was struck by a bullet. The suspect was
only apprehended three days later. Brooks v. Gaenzle, #09-1489, 2010 U.S. App.
Lexis 16488 (10th Cir.).
Officers responded to a 911 call for assistance,
going to the home of a couple whose depressed son had locked himself inside,
refusing to allow them to enter. Officers spoke to the son, trying to get him
to come out, but he refused to either do so or let them in. Officers decided to
forcibly enter the home, although the son was not a suspect in any criminal
investigation and he had not threatened either the officers or himself. The son
allegedly had a hammer and charged at officers when they entered, and he was
shot and killed. His parents sued the city, claiming that the officers used
excessive force in entering the home and shooting their son, and that the city
had failed to properly train the officers. A federal appeals court ruled that,
while the decision to enter the home may have been the "moving force"
behind the shooting, the decision was not made by a final policymaker for the
city, so there could be no municipal liability. The plaintiffs also failed to
show that inadequate training caused their son's death. Valle v. Houston,
#09-20624, 2010 U.S. App. Lexis 15776 (5th Cir.).
A 15-year-old boy in Florida had modified his
plastic air pistol to look like a real gun. He brought it to school,
brandishing it to briefly hold a classmate hostage, and then went into a
bathroom. When deputies arrived, the boy walked back and forth in the bathroom,
pointing the plastic air pistol alternately at the deputies and at his own
chin. A sergeant started negotiating with the boy, but while he did so, a
lieutenant shot the boy in the head and killed him. The officers were entitled
to qualified immunity in the federal civil rights and wrongful death lawsuit
brought by the boy's parents. The officers reasonably believed that the boy
posed a real threat to the lives of themselves and others in the school and
that he was armed with a real weapon. The boy also repeatedly refused to drop
the pistol and there was evidence that he was pointing it at the lieutenant at
the time he was shot. Penley v. Eslinger, #09-13092, 2010 U.S. App. Lexis 9106
(11th Cir.).
A suspect in a double homicide was allegedly
unarmed when he was shot and killed by police. A witness indicated that she saw
an officer fire multiple times at the suspect at a time when his hands were at
his sides and he had stopped running away. A sergeant admitted to having shot
the suspect in the back of the head after he had already been shot twice and
was being subdued by other officers while lying on the ground. The defendant
officers, however, claimed that the suspect, while on the ground, was pressing
his arm up against the inside of his shirt and that they feared that he was
doing this to aim a gun. A federal appeals court ruled that the defendants were
not entitled to qualified immunity, since a jury could find that the decedent
posed no immediate threat to the officers and that they used excessive force
against him. Sanchez v. Fraley, #09-50821, 2010 U.S. App. Lexis 9046 (Unpub.
5th Cir.).
Firearms Related: Intentional Use
Two officers went to a home after a 911 hang-up
call was received from there. They entered the home, seeing that the front door
was wide open, concerned that someone might be hurt or in need of assistance.
They first announced their presence and entered after receiving no response. At
one point, they encountered a man, who did not answer their question about why he
had not responded to their calls. Instead, he jumped on one officer, and a
fight began. The man grabbed one officer's gun hand, and that officer yelled to
the second officer that the man was going for his gun. The second officer
shouted repeatedly at the man to get down, and then fired at him. The man then
charged this officer and hit him with enough force to briefly knock him out.
The man then died from being shot. He was bipolar, and off his medication, and
his wife called 911 and hung up, and then called a second time, telling the
dispatcher of the medical situation, but this information never reached the
officers. In a lawsuit by the wife against the city, the court ruled that the
defendant was entitled to summary judgment. The officers' warrantless entry
into the home was justified by exigent circumstances. Johnson v. City of
Memphis, 09-5046, 2010 U.S. App. Lexis 17658 (6th Cir.).
An officer shot and killed a man driving a stolen
minivan in a residential yard where officers were on foot. In a lawsuit by his
estate asserting claims for excessive use of force, a federal appeals court
held that the officer was entitled to summary judgment on the basis of
qualified immunity because his use of force was reasonable as a matter of law.
Another officer had to walk or jump out of the way of the vehicle so that he
wouldn't get run over, and the shooting officer, seeing the other officer fall,
actually believed that he had been run over, and that the minivan was
accelerating towards him. Under these circumstances, he could use deadly force
to defend both himself and others. Wilkinson v. Torres, $09-35098, 2010 U.S.
App. Lexis 13720 (9th Cir.).
The mother of a man shot in the head and killed
by an officer sued the city for wrongful death. A jury awarded damages. An
intermediate appeals court found that the trial judge had properly set aside $3
million in damages awarded for conscious pain and suffering, as the man's death
was almost instantaneous and there was no evidence of his consciousness for any
period of time following the shooting. The appeals court upheld, however, jury
awards of $55,020 for loss of past economic support, $261,091 for past and
future loss of services, and punitive damages of $2.7 million, finding them
amply supported by the evidence. The appeals court stated that the trial judge
had improperly concluded that the jury awarded punitive damages in part on a
finding that the officer had negligently handled his weapon. The appeals court
found that the jury award of punitive damages was based on a finding of
excessive force, and conduct that was wanton, reckless or malicious. Ferguson
v. City of New York, #2630, 18951/01, 2010 N.Y. App. Div. Lexis 4428 (1st
Dept.).
An officer shot a man who allegedly sat up and
began to lower a weapon towards him and another officer present. The testimony
of a forensic pathologist as to the pattern of the plaintiff's bullet wounds
was "entirely consistent" with the officer's version of the incident.
Based on this, the officer had probable cause to believe that he could use
deadly force because he and his partner faced a significant threat of death or
serious bodily harm. Brothers v. Akshar, #07-3204, 2010 U.S. App. Lexis 13368
(Unpub. 2nd Cir.).
In a lawsuit filed by a man shot by a Bureau of
Alcohol Tobacco and Firearms (ATF) agent, a federal appeals court noted that a
court considering the issue of summary judgment on the basis of qualified
immunity must ordinarily consider disputed facts from the perspective most
favorable to the plaintiff. That was not true, however, when there is clear
contrary video evidence of the incident at issue. The man shot by the ATF agent
had been an occupant of a vehicle transporting crack cocaine for a planned
sale, and the confrontation, which involved ATF agents dressed in plainclothes,
as well as a uniformed state trooper, occurred in a parking lot, and the
occupants attempted to drive off, at one point placing one of the agents in
possible danger. The driver was shot in the head and the plaintiff suffered a
gunshot wound to his leg. The appeals court noted that the use of deadly force
is justified when an officer is threatened by a weapon, which may include a
vehicle attempting to run over an officer, as arguably occurred here. The agent
argued that the car was accelerating towards him and that he had no way to
escape, justifying the use of deadly force. While there was a dispute about the
speed of the car, this could be observed on the marked patrol car's videotape.
While the plaintiff claimed that the car slowed or perhaps even stopped, the
court found that this was contradicted by the video evidence. Indeed, the
vehicle did strike the agent. Under these circumstances, the officer's use of
deadly force was reasonable. The court rejected the plaintiff's argument that the
vehicle occupants were "harmless" individuals who had merely been
stopped for a routine traffic violation, since the driver engaged in an assault
on the agents, narrowly missing one with his car and actually striking the
other. Thomas v. Durastanti, #07-3343, 2010 U.S. App. Lexis 11458 (10th Cir.).
A police officer did not use excessive force in
shooting and killing a fifteen-year-old boy who modified a plastic air pistol
to look like a real weapon and brought it to school. The decedent pointed the weapon
directly at the officer, and refused to comply with the officer's orders to
drop the weapon, so it was reasonable for the officer to believe he was in
danger. Penley v. Eslinger, #09-13092, 2010 U.S. App. Lexis 9106 (11th Cir.).
After two men robbed a restaurant, assaulting
several employees, and used an employee as a hostage, they were shot by police
when they exited the premises. One of them sued police officers for alleged
excessive use of force and failure to intervene. Three officers shot at him,
and he sustained two gunshot wounds. He claimed that he had been running away
with his arms raised and slowed down to face the officers. Even if this were
true, a federal appeals court held, it did not mean that the officers acted
unreasonably in shooting him, since they could still reasonably believe that he
posed an immediate threat to them and to the public at the time. Gilbert v.
French, #08-20296, 2010 U.S. App. Lexis 2202 (Unpub. 5th Cir.).
A federal appeals court could not decide
officers' appeal of the denial of qualified immunity to them in a lawsuit
claiming they improperly shot and killed a suspect when there were disputed
factual issues as to whether the domestic violence suspect was then grappling
to gain control of an officer's gun, so that he was shot in an act of necessary
self-defense, or was instead then lying on the ground on his back or his
stomach, and not threatening the officers. Felder v. King, #09-1814, 2010 U.S.
App. Lexis 6179 (8th Cir.).
Officers were not entitled to qualified immunity
in a lawsuit over their shooting and killing of a man. They deployed tear gas
into his apartment in an attempt to extricate him from the unit where he had
isolated himself threatening to commit suicide. After he still refused to come
out, the officers used additional tear gas and flash bang grenades to enter the
apartment, setting fire to the exterior room before throwing the flash bang
grenades into the darkened bedroom inches from his head and rendering him blind
and deaf before shooting him to death. The appeals court ruled that it could be
found that the excessive use of tear gas and flash-bang grenades in this manner
against a "non-threatening, non-violent, non-resisting individual"
violated clearly established rights. Estate of Escobedo v. Bender, #08-2365,
2010 U.S. App. Lexis 7016 (7th Cir.).
Officers sent to a woman's home encountered her
son, who came from the kitchen with a knife in one hand and a cigarette in the
other. An officer shot and killed him. Summary judgment for the officer in an
excessive force lawsuit was improper, since it was disputed whether or not the
decedent had posed an immediate threat to the officer at the time of the
shooting. The court also rejected a claim for liability against the officer's
supervisor, as no connection was shown between any failure to supervise and the
shooting. Reyes v. Bridgwater, #09-10076, 2010 U.S. App. Lexis 1502 (Unpub. 5th
Cir.). In a related decision, the appeals court upheld summary judgment for the
defendant city, as the plaintiffs failed to identify any municipal policy or
custom linked to the shooting. The plaintiffs also failed to produce evidence
that the chief of police was an official policymaker for the city. Reyes v.
City of Plainview, #09-10412, .2010 U.S. App. Lexis 1681 (Unpub. 5th Cir.).
A police officer was not entitled to qualified
immunity in an excessive force lawsuit filed by a suspect who was permanently
injured during a chase. Even if it were assumed that the initial use of deadly
force was justified, the officer's alleged firing of an additional 10 to 12
shots while the plaintiff was unarmed on the ground and incapacitated, if true,
was unjustified. The right not to be subject to further use of deadly force
under such circumstances was clearly established. Jean-Baptist v. Gutierrez,
#07-21728, 2010 U.S. Dist. Lexis 2498 (S.D. Fla.).
A man shot and injured by two officers while
fleeing from an armed robbery of a store claimed that one of the officers began
shooting immediately after directing him to freeze, and that he was not then
holding his gun in his hand. The officer, on the other hand, stated that the
suspect had his gun in his hand, and ignored instructions to stop, turning
towards the officers in a manner that made him believe that he was going to
shoot. Based on these disputed facts, this officer was not entitled to summary
judgment. Dismissal of claims against the second officer, however, was
justified, based on insufficient service of process. Mack v. Dillon, #09-1295,
2010 U.S. App. Lexis 2746 (8th Cir.).
A police officer responding to reports of gunfire
in the area on New Year's Eve shot and injured a woman as she stood in the
doorway of her home. He stated that he believed that she was firing at him, but
she turned out to be unarmed. Accepting the plaintiff's version of the facts as
true for purposes of appeal, the court upheld the denial of qualified immunity
to the officer. A jury should resolve the factual dispute, and, depending on
that determination, it still might be possible that the officer could be
entitled to qualified immunity, if he reasonably, although mistakenly, believed
that she was firing at him. Jefferson v. Lewis, #08-2116, 2010 U.S. App. Lexis
2348 (6th Cir.).
A California Highway Patrol officer shot and killed
a man during a struggle while on duty. The decedent had a long history of
schizophrenia, accompanied by drug and alcohol abuse. He was unemployed and
survived on Social Security benefits and support from his mother. A lawsuit by
the man's estate and by his mother resulted in jury awards of $1 each on a
federal civil rights excessive force claim and a state law wrongful death
claim, based in part on evidence that appeared to refute the officer's
assertion that, at the time of the shooting, the decedent had been swinging a
flashlight at him. Subsequently, the trial court awarded the plaintiffs
$136,687.35 in attorneys' fees. A federal appeals court upheld the attorneys'
fee award, based on findings that the legality of the use of deadly force under
these circumstances was an important legal issue, even if substantial damages
were not awarded, and that the award of attorneys' fees would be likely to
deter the officer from similar future unconstitutional conduct. Mahach-Watkins
v. Depee, #08-15694, 593 F.3d 1054 (9th Cir. 2010).
Officers were justified in using deadly
force against a suspect they knew had been convicted of multiple felonies and
had a history of fighting with police, after he dragged a hostage into a
bathroom and began to kick through a wall. At the time, the suspect allegedly
yelled that he was going to cut the hostage's throat in order to kill her. An
officer fired one shot, hitting the suspect in the face, and fired a second
shot, which killed him, several seconds to a minute later. The fact that it was
disputed whether the suspect was incapacitated or standing and yelling at the
time the officer fired the second, fatal, shot did not alter the result. The
officer faced a dangerous and chaotic situation, and had to make split-second
decisions, the court reasoned. Pethel v. West Virginia State Police, #08-2098,
2009 U.S. App. Lexis 28727 (Unpub. 4th Cir.).
Three officers who were not shown to have fired
any shots at the plaintiff were entitled to summary judgment since there was no
showing that they participated in any conduct that resulted in the deprivation
of any right. There was also no showing of any municipal policy or practice on
which to base departmental liability, and summary judgment was also properly
granted on state law claims of negligent training and supervision. Bryan v. Las
Vegas Metropolitan Police Department, #08-15992, 2009 U.S. App. Lexis 22102
(Unpub. 9th Cir.).
A man claimed that an officer shot and injured him when
he was unarmed and speaking to a 911operator on his cell phone. He also claimed
that the officer failed to order him to halt or drop his "weapon,"
and that, at the time, the person sought for an assault had already been
caught. The officer contended that the plaintiff appeared to be holding a small
revolver instead of a cell phone, and failed to respond to repeated orders to
drop it. Because of disputed factual issues, the officer was not entitled to
summary judgment, and if the facts were as the plaintiff alleged, the officer
could be found to have used excessive force. Giardina v. Lawrence, #09-30437,
2009 U.S. App. Lexis 26649 (Unpub.5th Cir.).
After the defendants had admitted liability for
the wrongful death of a woman's son, shooting and killing him while arresting
another person, a jury awarded $12.5 million in damages following a trial that
was supposed to be limited to the issue of damages. The manner of death and the
question of whether or not the officer, in firing, had acted willfully and
wantonly were immaterial to assessment of damages, so that an instruction on
willful and wanton conduct was confusing and improperly given, and repeated
comments by the plaintiff's lawyer asking the jury to "examine willful and
wanton admitted conduct" were not based on the evidence, but were instead
appeals to prejudice and emotion. A new trial on damages was therefore
required. Pleasance v. City of Chicago, #1-08-1510, 2009 Ill. App. Lexis 1230
(1st Dist.).
When the arrestee had engaged in what both he and
the officer described as a life and death struggle, the officer did not use
excessive force in shooting him. The arrestee had placed his own gun to the
officer's head and said he would kill him. While the arrestee claimed he had
become unarmed before the shooting, there was no indication that the officer
knew that he had lost control of his weapon. The arrestee had exited his
vehicle late at night in a secluded area displaying a gun, and the officer
reasonably feared that he was armed and dangerous. A reasonable jury could not
find that the officer's use of force was excessive. Jones v. Mullins Police
Dept., #08-6256, 2009 U.S. App. Lexis 26906 (Unpub. 4th Cir.).
Deputies pursuing two felony car burglary
suspects encountered a property owner, armed, on his own property, and shot at
him. In a lawsuit by the property owner, the sheriff failed to offer any
evidence concerning how officers were trained on the proper use of deadly
force, and admitted that the decision to use firearms was completely up to the
deputies. The need to train officers in the proper use of deadly force is so
obvious that the failure to do so can be characterized as deliberate
indifference to constitutional rights. Deliberate indifference could also be
found in the sheriff's failure to provide proper supervision and training for
K-9 teams. The sheriff was denied summary judgment. Swofford v. Eslinger,
#6:08-cv-00066, 2009 U.S. Dist. Lexis 111121 (M.D. Fla.).
There was ballistic evidence and forensic evidence that
suggested that a motorist was shot from 3 to 6 inches away, and that the
officer may have reached into the car and shot him from a closer distance than
he asserted, creating genuine disputed material facts concerning the
reasonableness of the shooting. If, as the motorist's surviving adoptive
parents argued, he was an unarmed suspect whose left arm was restrained by a
wrist lock and whose right arm was in the air at the time, he would not have
posed a risk of harm to the officer, and the force used would have been
excessive. The appeals court did not overturn the denial of qualified immunity.
Ougel v. Amite City Police Dept., #09-30080, 2009 U.S. App. Lexis 24750 (Unpub.
5th Cir.).
Officers watching a convenience store which they
had been told was going to be robbed observed two men walking towards an
apartment complex near the store, and one of them had a toy gun in his
waistband. The officers told them to drop to the ground and drop the gun. One
man complied, but the man with the toy gun remained standing, and an officer
shot and killed him. The officers were not entitled to qualified immunity, when
it was disputed whether they had identified themselves as officers, whether
they had seen the decedent holding the "gun" in his hand, and whether
they reasonably feared for their safety, as well as whether a warning was given
before deadly force was used. Nance v. Sammis, #09-1353, 2009 U.S. App. Lexis
24612 (8th Cir.).
A man claimed that officers used excessive force
against him while taking him into custody on an arrest warrant and that they
"wanted to kill him because he refused to help certain corrupt police
officers participate in drug trafficking." Summary judgment was properly
granted to the officers. The evidence showed that the plaintiff, who claimed to
have been unarmed, was armed and shot first. Additionally, he was only shot
five times, not 14 or 16 times, as he claimed. A jury in the plaintiff's
criminal trial found him guilty of three charges of attempted murder, rejecting
his defense of justification, and supporting the conclusion that he was armed and
had fired at officers. Brookins v. County of Allegheny, #09-2453, 2009 U.S.
App. Lexis 23543 (Unpub. 3rd Cir.).
An officer responding to a call concerning a man
"out of control" who was "trashing" a house, observed that
a car had been driven through a garage door. As the husband came towards him,
he charged holding two golf clubs over his head, and the officer fired three
times, killing him. The officer claimed that he felt trapped by the crashed car
and unable to safely retreat, as well as threatened by the husband. Neighbors,
however, stated that they saw nothing in the decedent's hands. A federal
appeals court held that it had no jurisdiction over a denial of qualified
immunity to the officer, since the resolution depended on disputed material facts.
Hanson v. City of Fairview Park, Ohio, #08-4238, 2009 U.S. App. Lexis 22866
(Unpub. 6th Cir.).
A deputy responding, with other officers, to a
call reporting that a man with a gun was threatening his wife, released a
police dog to locate the husband in the neighborhood, and then shot and killed
the husband when he refused to obey orders to put down his weapon, instead
aiming the gun at the officers. The use of the dog, under these circumstances,
was neither a use of deadly force nor excessive. Shooting the husband was
justified, as it was reasonable to think that he posed an immediate threat to
the officers and others. The deputy was entitled to qualified immunity, and the
county was not liable on a theory of alleged inadequate training. Thomson v. Salt
Lake County, Utah, #06-4304, 2009 U.S. App. Lexis 23677 (10th Cir.).
Officers conducting a protective sweep of a home
prior to carrying out a search authorized by a warrant encountered a
fifteen-year-old lurking in a dark closet in his own bedroom. He emerged coming
towards the officers with a knife held up. Because he ignored their orders to
halt and drop the knife, they shot and killed him. Under the circumstances, the
officers' split-second decision to use deadly force was not objectively unreasonable,
entitling them to summary judgment on the basis of qualified immunity in an
excessive force lawsuit. Chappell v. City of Cleveland, #08-4456, 2009 U.S.
App. Lexis 24149 (6th Cir.).
A police officer fatally shot a male motorist
when responding to a report that a vehicle was idling on some railroad tracks.
His surviving children sued the officer. A federal appeals court found that it
was undisputed that the motorist reached under his seat and moved as if he had
obtained the object he sought just prior to the shooting. Under these
circumstances, the officer was entitled to qualified immunity for using deadly
force. Manis v. Lawson, #08-30987, 2009 U.S. App. Lexis 22755 (5th Cir.).
A suspect was wanted in connection with a number
of bank robberies, including one in which he allegedly threatened to kill a
bank teller, which occurred on the day of his arrest. He subsequently claimed
that a deputy improperly used deadly force against him after he had
surrendered, shooting him in the chest and spine. The officers encountered the
suspect when he was in a motel room with a woman who they believed was a
hostage. The arrestee claimed that, before exiting the room, he yelled out that
he was surrendering, and then waved a white towel and made gestures with his
hands that amounted to a "surrender position." The officer who shot
him, however, disputed this, and stated that he appeared to be holding up a
"dark object" as he exited the room. Four other officers said they
saw the arrestee holding a towel and saw no weapon in his hands. Because of a
dispute in material facts as to whether a reasonable officer could have
believed that deadly force was justified because the suspect was armed, the
defendant officer was not entitled to qualified immunity. Caruthers v.
McCawley, #08-16538, 2009 U.S. App. Lexis 17476 (Unpub. 11th Cir.).
In a lawsuit claiming that excessive force was
used against a suspect shot and killed by police, judgment for the defendants
was upheld on appeal, based in part on expert witness testimony indicating that
the suspect's conduct was consistent with trying to commit "suicide by
cop." The suspect's alleged resistance to the officers was made more
probable by a number of facts, including his prior lawsuits against the police
department, knowledge that his family might collect significant damages from a
lawsuit if he was killed by police, and his writing of "rap" music
lyrics in favor of the murder of police officers. The decedent had a criminal
history, including two attempted kidnappings that resulted in a high-speed
chase, and that indicated that he might receive a long sentence if prosecuted
rather than killed. The expert witness testimony concerning "suicide by
cop" satisfied legal standards for the admission of such evidence. The
expert testified on his knowledge of approximately ten peer-reviewed articles
and four other articles on the subject. The court found that the "suicide
by cop" theory seems to be "generally accepted" in the relevant
professional community. The literature indicates that persons attempting
"suicide by cop" frequently have deep resentment and hatred towards
police officers. Boyd v. C. & C. of San Francisco, #07-16993, 2009 U.S.
App. Lexis 17615 (9th Cir.).
In a lawsuit filed after a motorist was shot and
killed by a deputy sheriff during a traffic stop and arrest, a federal appeals
court rejected a claim for county liability. Even if the plaintiff could show
that the county had a policy of inadequately investigating officer-involved
shootings, there was a lack of evidence that the deputy had any knowledge of
this purported policy, and it therefore could not have been the "moving
force" behind any alleged violation of the motorist's rights by the
deputy. James v. Harris County, #07-20725, 2009 U.S. App. Lexis 17318 (5th
Cir.).
In response to a 911 call reporting a potentially
suicidal armed teenager, a city dispatched both an ambulance and law
enforcement officers. The teenager's mother subsequently filed a federal civil
rights lawsuit claiming that a failure to properly respond to the call caused
her daughter to be shot and injured by an officer. The plaintiff did not
establish that the city had a special duty to her or her daughter, and the
court ruled that there also was no showing of negligence on the part of the
city, or of a policy or custom of failing to respond appropriately to calls for
emergency assistance. Perkins v. City of Rochester, #06-CV-6585, 2009 U.S.
Dist. Lexis 55490 (W.D.N.Y.).
A federal appeals court has upheld a $5 million
jury award against a deputy who shot and killed a bicycle rider, including $2
million in compensatory and $3 million in punitive damages. The rider allegedly
refused to stop when approached by the deputy for riding without a light on the
wrong side of a road. The rider allegedly assaulted the deputy. The deputy
released his dog, and the rider then allegedly tried to drown the dog in a
puddle, as well as reaching into his pocket and extracting a "shiny"
object, whereupon the deputy shot and killed him. Despite the fact that the
officer was the sole surviving witness to the incident, the appeals court found
that there was evidence that supported the jury's apparent disbelief of his
version of the incident. This included evidence that the officer's uniform was
not muddied, despite his claim that the decedent pushed him and that they then
struggled in the mud, and medical evidence indicating that the decedent's right
arm was "virtually useless" due to a prior gunshot wound from three
months before. This contradicted the officer's statement that he saw the
decedent reach for a shiny object (a pair of pliers later recovered from the
scene) in his right back pocket. There was also testimony that it would have
been impossible for the deputy "to have seen anything from the claimed
view-point." The lesions and bite-marks on the decedent's body, the court
remarked, were as consistent with "protective wounds as with an attempt to
drown" the dog. A reasonable jury, the court stated, could find that it
was unreasonable for the defendant to use deadly force on a "disabled
suspect who was attempting to protect himself from the officer's canine."
The court upheld the rejection of various claims against the county for
inadequate training and supervision, or policies resulting in the excessive use
of force. Goodman v. Harris County, #07-20816, 2009 U.S. App. Lexis 12663 (5th
Cir.).
An officer acted reasonably in shooting and
killing a suicidal man armed with a gun that he refused to drop, and which he
pointed first at his own head and then at the officers just before they shot
him. Garczynski v. Bradshaw, No. 08-16100, 2009 U.S. App. Lexis 15179 (11th
Cir.).
The family of a suspect shot and killed following
a police chase lost a lawsuit in federal court claiming excessive use of force.
Because state law wrongful death claims had been dismissed in the case, they
then sued in California state court. An intermediate California appeals court
has held that the result in the federal lawsuit barred (collaterally estopped)
the plaintiffs from recovering damages on their claim that officers were
negligent in using deadly force in shooting and killing the suspect, who was
unarmed, but who they thought had a gun and was firing. (The shots heard were
actually one of the officers firing at the suspect). The appeals court found
that the issue of whether the officers used reasonable care in using deadly
force was submitted and actually decided in the federal case and could not be
relitigated. Hernandez v. City of Pomona, #S149499, 2009 Cal. Lexis 4630.
Relatives of a motorist shot and killed by a
police officer at the conclusion of a vehicular pursuit sued the officer and
city for excessive use of force. During the pursuit, the motorist had run a red
light, tried to ram a police vehicle, and drove on the wrong side of a highway.
The officer was attempting to deploy drop sticks, and the motorist then swerved
his vehicle towards him. This was followed by the officer firing four or five
times, striking the motorist in the back of the head and killing him. Affirming
summary judgment for both the officer and the city, a federal appeals court
first stated that the facts hypothetically could constitute an excessive use of
force if, as the defendants accepted for purposes of appeal, the officer did
not face immediate danger and no innocent bystanders were nearby. Qualified
immunity, however, was still proper for the officer, since he did not act
unreasonably in believing that the potential danger to others justified the use
of deadly force under the circumstances. There was no showing of a policy or
custom of the city causing the death as required for municipal liability.
Cordova v. Aragon, #08-1222, 2009 U.S. App. Lexis 13043 (10th Cir.).
A police officer went to a suspect's home to
investigate reports that he had pulled a gun on a pizza deliveryman. The
officer saw the suspect approaching the door with a handgun, and the suspect
refused to respond to a command to drop it. The officer then shot the suspect
through a windowpane in the door, killing him. The court found that the use of
force was reasonable, because the suspect posed a danger to the safety of the
officer. The court found no legal authority for the argument that firing a gun
into the home constituted an "unlawful search." Denning v. Metropolitan
Government of Nashville and Davidson County, #08-5884, 2009 U.S. App. Lexis
10573 (Unpub. 6th Cir.).
A federal appeals court ruled that an officer was
not liable for shooting and killing a suspect who he observed reaching into a
boot, possibly to get a weapon. The shooting officer was engaged, along with
his fellow SWAT team members, in executing an arrest warrant for two persons,
one being the man he shot. This man had allegedly pistol whipped a second man
and threatened to kill him, then going into his mobile home, purportedly to
"test" his rifle. Entering the home, the officer observed his feet
moving below a closed bedroom door and then saw him reaching into the boot when
the door yielded slightly. "This court has upheld the use of deadly force
where a suspect moved out of the officer's line of sight and could have
reasonably been interpreted as reaching for a weapon." Ontiveros v. City
of Rosenberg, Texas, #08-20081, 2009 U.S. App. Lexis 6909 (5th Cir.).
An officer was not entitled to qualified immunity
in a lawsuit filed by a man he shot twice when he answered the officer's knock
on his trailer door by coming out holding a rifle. The officers were present on
the property searching for an arrestee who had escaped from probation officers.
The man claimed that he grabbed his rifle because he believed a
"predator" was raiding his chicken coops, that the rifle was pointed
at the ground, and that the officer fired without any warning. The court stated
that the mere presence of the rifle under these circumstances was insufficient
to justify the use of deadly force. The court also found that the search of the
curtilage of the trailer violated the trailer resident's Fourth Amendment
rights. The appeals court rejected claims of racial discrimination, however.
Pena v. Porter, #07-1891, 2009 U.S. App. Lexis 5324 (Unpub. 4th Cir.).
A federal appeals court rejected claims of
excessive force against officers who shot at a fleeing grocery store
shoplifter. The shoplifter had resisted an officer trying to detain him after
he admitted stealing merchandise when confronted outside the store, prevented
the officer from using a Taser on him, and fled in his car at high
speed. He drove recklessly, and avoided a rolling police roadblock.
Officers on foot shot him as his vehicle came towards them, and when they
feared for their safety and the safety of others. The officers who shot
mistakenly believed, based on radio transmissions, that the suspect was armed.
"We conclude that, under the totality of the circumstances, it was
reasonable for the officers to think that [the plaintiff] seriously endangered
officers and innocent bystanders, and it was reasonable for the officers to
discharge their firearms in [his] direction to stop him. Thus, there was no
Fourth Amendment violation." Marion v. City of Corydon, #08-2592, 559 F.3d
693 (7th Cir. 2009).
Detectives acted reasonably in using deadly force
to prevent the escape of a man suspected of having committed a carjacking and
murder. They perceived, at the time, that he was potentially armed or otherwise
posed a threat of harm to others. Their shooting and killing of the suspect as
he tried to evade capture, therefore, did not violate either his Fourth
Amendment or substantive due process rights. The plaintiffs in a lawsuit
arising out of the incident also failed to show that the suspect's death was
caused by a police department policy or custom. Lopez v. Las Vegas Metropolitan
Police Dept., #2:06-cv-00951, 2009 U.S. Dist. Lexis 17596 (D. Nev.).
A man who claimed he was shot four times by
police while holding an axe in a "non-threatening" manner and slowly
and quietly walking down his driveway with a "non-violent protesting"
state of mind stated a possible claim for excessive use of force when he was 25
feet from the officers at the time, and there was no indication that he was
escaping or had been warned before being shot, even though the officers
believed that he had committed a robbery and he did not comply with their
orders to drop the axe. Jennis v. Rood, 07-0545, 2009 U.S. App. Lexis 3230
(Unpub. 2nd Cir.).
Deputies were entitled to qualified immunity for
shooting and killing a motorist who refused to pull his truck over, led them on
a high speed chase, refused to show his hands after finally pulling over, and
then drove his vehicle in the direction of a deputy standing nearby. The
decedent used his truck in an aggressive manner justifying the belief that he
posed a risk of death or serious physical harm to officers or the public.
Deputies could also reasonably believe that he was trying to escape, and
provided him with an adequate warning before firing. McCullough v. Antolini,
No. 08-10176, 2009 U.S. App. Lexis 3874 (11th Cir.).
An officer was entitled to summary judgment on
California state law battery and negligence claims by a bystander struck and
injured by fragments from a stray bullet fired at a murder suspect. At the time
of the shooting, the suspect was driving up on the curb of a strip mall and
heading in the direction of two officers, one of whom had fallen to the ground
just before the shooting. The shooting was a reasonable attempt to prevent the
suspect from escaping, or from injuring an officer or members of the public.
Brown v. Ransweiler, D051983, 2009 Cal. App. Lexis 200 (4th Dist.).
Federal judge declines to overturn a jury verdict
in favor of a police officer in a lawsuit brought by the estate of a man found
dead from a bullet wound a day after a high speed police pursuit of a suspect
was conducted near his home. There were disputes as to whether shots were fired
at the time of the chase, whether a shot was fired by the officer, whether any
shots fired were fired before the officer arrived on the scene, or whether no
shots at all were fired on the evening of the pursuit. It was not certain how
the bullet had come to be in the decedent, and it was for the jury to determine
which version of events to believe. Estate of Tejada v. Flores, Civil No.
02-1209, 2009 U.S. Dist. Lexis 9237 (D.P.R.).
A detective acted reasonably in shooting an armed
man fleeing him and running towards another person in a dark alley. Arrington
v. D.C., Civil Action No. 07-0170, 2009 U.S. Dist. Lexis 11680 (D.D.C.).
In an excessive force civil rights case arising
from police officers' firing of seventeen shots into the body of a suspect who
was already lying on the ground, killing him, a jury awarded no actual or
nominal damages, despite the plaintiff's demand for $500,000 in
actual/compensatory damages, but awarded a total of $40,000 in punitive damages.
The trial court then declined to award any attorneys' fees under 42 U.S.C. Sec.
1988, A federal appeals court found that the trial court was mistaken in
failing to award attorneys' fees, that the plaintiff qualified as a
"prevailing" plaintiff, who should ordinarily be awarded attorneys'
fees, unless such an award would result in injustice, and ordered further
proceedings to determine the proper amount of attorneys' fees to award. Nazario
v. Rodriguez, No. 07-2265, 2009 U.S. App. Lexis 2906 (1st Cir.).
Two officers who fired shots at a vehicle that
was coming towards themselves and other officers acted in an objectively
reasonable manner. A third officer who fired at the driver and another
occupant, believing that the shots fired by the first two officers came from
within the car, was also acting in an objectively reasonable manner, since he
also believed that he was acting in self-defense. No gun was found inside the
vehicle, although drugs were found, and the vehicle occupants had ignored
orders to raise their hands and leave the car, instead knocking an officer over
and threatening police with the vehicle. Additionally, one of the occupants was
observed moving his hands near his waistband and discarding something as he ran
to the car. Swann v. City of Richmond, No. 07-1981, 2009 U.S. App. Lexis 1479
(Unpub. 4th Cir.).
Parents claimed that an officer used excessive
force when she shot and killed their son, who had attacked two officers and was
on top of one of them when she shot. The trial judge had ruled that the officer
was not entitled to qualified immunity because a reasonable trier of fact could
have believed that she shot the man "because he was trying to obtain her
gun, or because she thought he had her Taser, or disbelieve both accounts,"
thereby creating a disputed issue of material fact. The appeals court dismissed
the appeal of this ruling. It noted that, in many cases, a defendant's violent
attack on the officers results in a grant of qualified immunity. It found,
however, that this case was different, because the officer who shot the
decedent was disciplined and later fired by the police department on the basis
of the incident, that the officer who was being attacked at the time expressed
doubt over the use of lethal force, and that "despite the need for
split-second decision-making, it is possible a 'reasonable' officer would have
known that a Taser shot would not be lethal" to the officer being attacked
and could have noticed that the man had no weapon in his hands. Rocha v. Schroeder,
#07-50916, 283 Fed. Appx. 305, 2008 U.S. App. Lexis 13598 (Unpub. 5th Cir.).
Police officer did not act recklessly in shooting at
person pointing a shotgun at him and his partner, who appeared to be getting
ready to shoot at them. He therefore was not liable for injuries suffered by a
storeowner struck by a stray bullet. The man shot at was outside the store, the
officer acted to defend himself and others, and there was no evidence that the
officer fired with the knowledge that it was essentially certain that if he did
so that a bystander would suffer injuries. Scott v. Longworth, No. C-080313,
2008 Ohio App. Lexis 5410 (1st Dist.).
Police officer's shooting and killing of a
pet dog in a woman's backyard was a Fourth Amendment seizure, but disputed
issues of fact barred consideration on appeal of whether police were entitled
to qualified immunity for their actions. The officers entered the backyard
after receiving reports that a wanted criminal, accompanied by a pit bull,
had entered the home, and they encountered the pet dog, who was in the backyard
with the woman, her boyfriend, his parents, and her elderly mother. Villo v.
Eyre, No. 08-1627, 2008 U.S. App. Lexis 22302 (7th Cir.).
Plaintiff in lawsuit over death of suspect killed
by police after he initiated gunfire failed to demonstrate that officers
unlawfully deprived him of his life, and plaintiff decedent's estate failed to
pursue an asserted equal protection claim. Estate of Bennett v. Wainwright, No.
072169, 2008 U.S. App. Lexis 24217 (1st Cir.).
Shooting and killing of a suspect was justified
when he failed, during a foot chase, to obey commands, and he tried to take a
deputy's gun after wrestling him to the ground, as well as grabbing the
deputy's flashlight, and using it to strike him in a manner that almost made
him unconscious. Even if there was, as the plaintiff claimed, 21 feet between
the deputy and the decedent at the time of the shooting, this distance was
merely a factor to be considered and did not, standing alone, make the shooting
unreasonable. Any error in deciding to pursue the suspect on foot was, at most
negligence, which could not be a basis for a federal civil rights claim.
Beckett-Crabtree v. Hair, No. 07-5181, 2008 U.S. App. Lexis 22393 (Unpub. 10th
Cir.).
In a case involving the roadside killing
of a man by an Alaska State trooper while investigating a suspicious car parked
along a highway, a federal appeals court ruled that acting with deliberate
indifference is not an adequate standard to constitute conduct "shocking
to the conscience" for purposes of stripping the trooper of the defense of
qualified immunity on due process claims by the decedent's family. Instead, it
must be shown that the trooper acted for the purpose of causing harm which is
unrelated to law enforcement objectives. The officers found the decedent asleep
inside what they thought was an abandoned vehicle, and woke him with demands
that he exit the vehicle, pepper spraying him, in response to which he reacted
in pain, driving his vehicle slowly towards the patrol vehicle, whereupon a
trooper fired five shots and killed him. Because the trial court, in denying a
motion for qualified immunity, used the deliberate indifference standard rather
than the more demanding measure of culpability of whether the trooper
"acted with a purpose to harm" the man "without regard to
legitimate law enforcement objectives," further proceedings were
required. Porter v. Osborn, No. 07-35974, 2008 U.S. App. Lexis 21878 (9th
Cir.).
Police officers' decision to shoot and kill a man
threatening grocery store clerks with a knife was reasonable under the
circumstances, particularly based on their reasonable belief that the suspect,
who also possessed a screwdriver, was also engaging in aggressive actions
threatening the officers. The officers did attempt first to use non-lethal
force to subdue the suspect, but he continued to resist them. Gregory v.
Zumult, No. 07-1282, 2008 U.S. App. Lexis 20551 (Unpub. 4th Cir.).
Police officers acted reasonably in shooting and
injuring an arrestee during his arrest. The suspect had previously told a
detective investigating him for alleged sexual contact with a 13-year-old girl
that he would "not go back" to jail, that he had a handgun, and that
he would "take care of the problem." Officers arriving at his
residence reasonably believed that he was both armed and suicidal, and he fled
the officers in his vehicle. When he exited the vehicle, officers saw that he
had something in his hand, which was a handgun, and he refused to comply with
their orders. Under these circumstances, they acted reasonably in firing at
him. Ramirez v. Knoulton, No. 07-50785, 2008 U.S. App. Lexis 18334 (5th Cir.).
A bank robber who pled guilty to discharging his
gun from his car during a pursuit following a failed robbery, by doing so,
essentially admitted that the officers acted reasonably in firing at him. He
could not, therefore, pursue claims for excessive use of force under either
federal or Louisiana state law. He was not unlawfully seized, since he also
pled guilty to a charge of attempted burglary. Allowing a federal civil rights
claim for either excessive use of force or unlawful seizure to go forward,
under these circumstances, would improperly imply the invalidity of the
plaintiff's convictions should he be awarded damages, and his underlying
convictions had not been set aside. Connors v. Graves, No. 08-30163, 2008 U.S.
App. Lexis 16480 (5th Cir.).
A family's assertion that a man was unarmed and
posing no threat to anyone when police officers shot and killed him during a
drug raid on a housing project stated a viable claim for excessive use of
force. The plaintiffs further stated a viable possible claim for supervisory
liability based on their allegations that a drug unit supervisor directly
participated in the raid and that a police department superintendent and the
supervisor both failed to adequately train, discipline, and monitor the police
officers involved in the incident. Rivera v. Sanchez-Ramos, Civil No. 05-2146,
2008 U.S. Dist. Lexis 60303 (D. P.R.).
Officers who reasonably believed that a suspect
who was inside a house after escaping federal custody was armed and dangerous,
acted reasonably in shooting and killing him when he ignored their commands and
threatened to kill a hostage who was screaming for help. The threat to the
officers and the hostage did not end after one officer fired a non-lethal shot
which injured the suspect, so that a second officer acted reasonably in firing
a lethal shot that killed the suspect shortly thereafter. Pethtel v. Lemmon,
Civil Action No. 5:06CV87, 2008 U.S. Dist. Lexis 58156 (N.D.W.Va.).
There was a genuine issue of material fact
concerning whether an officer's shooting and killing of a suspect was
justified, based on a statement by a witness that she saw "every bit"
of the incident, and that the suspect raised his hands in the air after being
tackled by the officer, and prior to the shooting. The officer was not,
therefore, entitled to summary judgment. Reed v. Rose, No. 07-3274, 2008
U.S. App. Lexis 15090 (Unpub. 6th Cir.).
Officer who shot a suspect acted reasonably
because he kept his left hand concealed during a standoff, and he told officers
that he "had something" to make the officers do what he "could
not," as well as having previously told a 911 operator that he could
easily provoke an officer to shoot him. The officer who shot the plaintiff
believed that he had made a threatening movement with his concealed hand.
Dague v. Dumesic, No. 07-15317, 2008 U.S. App. Lexis 15511 (Unpub. 9th
Cir.).
A federal appeals court upheld the conviction of two
Border Patrol agents who shot and injured an unarmed, fleeing drug smuggler who
escaped across the border into Mexico, running on foot from his stopped van,
which contained 743 pounds of marijuana. The agents were also accused of
engaging in a "cover-up," including a clean-up of the area of spent
shells, and a failure by the agents to report the weapon-firing incident, as
required by Border Patrol policies. The charges made against the agents
included unlawfully discharging their weapons and concealing their offense. The
appeals court rejected the agents' argument that they should have been allowed
to introduce evidence of other drug trafficking conduct which the man they shot
allegedly engaged in after the incident. "The district court entered a
pretrial order ruling that introducing such evidence would be confusing,
misleading to the jury, and highly prejudicial to the conduct of the trial and
would therefore not be allowed. ..." The suspect's guilt of this alleged
later crime could have become an irrelevant "mini-trial" within the
trial, according to the court, diverting the attention of the jury from the
details of the incident at issue. The trial court, therefore, did not engage in
an abuse of discretion in barring that evidence under Fed. R. Evidence 403. The
appeals court did reverse and vacate, however, convictions of the two agents
for "obstruction of justice," because a Border Patrol investigation
they allegedly obstructed did not constitute an "official proceeding"
within the meaning of the federal statute they were charged under. The court
therefore ordered resentencing of the agents on the basis of the other
convictions, with the "obstruction of justice" charges excluded.
The agents were previously sentenced to 12 and 11 years and 1 month in
prison respectively. U.S.A. v. Ramos, No. 06-51489, 2008 U.S. App. Lexis 15961
(5th Cir.).
Editor's Note: The prosecution of these
two Border Patrol agents has resulted in much controversy in the press and on
the Internet, as well as from some public officials. See letters from U.S.
Senator Dianne Feinstein (D-Cal.) to the U.S. Attorney General and to the
Secretary of the U.S. Department of Homeland Security, questioning the sentences
given to the two Border Patrol Agents. The office of the U.S. Attorney,
(Western District of Texas) which prosecuted the case, issued a "fact
sheet" reacting to the controversy, and responding to what it
characterized as "myths" that have been circulated in behalf of the
officers. The National Border Patrol Council of the American Federation of
Government Employees (AFGE) (AFL-CIO), which represents Border Patrol
employees, also issued a "rebuttal" to the statement of the U.S.
Attorney's Office "fact sheet."
Based on disputes about the facts of the incident
in which officers shot and killed a man as he tried to flee a traffic stop, the
officers were properly denied qualified immunity. While the officers claimed
that they feared for their safety even under the facts alleged by the
plaintiffs, those allegations were that the motorist's truck was moving
non-aggressively and slowly, and could not have hit the officers, and also that
it was stationary at the time of the shooting. Under those circumstances, if
true, no reasonable officer could have believed that the motorist posed a
threat to them. Further, under these circumstances, the officers would have had
time to assess the situation before firing several times at the motorist.
Officers may not, the court noted, fire at a fleeing felon who is not posing a
threat to anyone. Estate of Kirby v. Duva, No. 06-1976, 2008 U.S. App. Lexis
13573 (6th Cir.).
The fact that the officer who shot and killed the
plaintiffs' son may have made conflicting subjective statements about her
motivation for her actions did not raise a genuine issue of material fact as to
whether she acted in an objectively reasonable manner in shooting the decedent,
for purposes of determining whether she was entitled to qualified immunity.
Given factual disputes about that, the appeals court could not rule on the
issue of qualified immunity. Rocha v. Schroeder, No. 07-50916, 2008 U.S. App.
Lexis 13598 (Unpub. 5th Cir.).
A police officer's shooting and killing of a man
charging at her from 10 to 15 feet away was not excessive, entitling her to
qualified immunity. The officer was responding to a 911 call from the man's
sister stating that he was drunk and physically abusive, and the suspect
vandalized nearby apartments and threatened a resident before the officer
arrived. The officer was not required to use the "least intrusive amount
of force" possible when the suspect was larger than her and posed an
immediate threat to her and to others. Lehman v. Leichliter, No. 07-30405, 2008
U.S. App. Lexis 11268 (Unpub. 5th Cir.).
When a trial judge's instructions about the legal
standard for excessive use of force were correct, the judge's error concerning
instructions about the proper use of a police investigator's report concerning
the shooting of a suspect were harmless. The report, containing statements the
shooting officer made to a supervisor after the shooting, while "hearsay
within hearsay" could have properly been considered as admissions by a
party-opponent in the lawsuit. The trial court had, however, allowed the report
to be entered into evidence, and the statements in the report were mostly
useful for purposes of impeachment. As the plaintiff's attorney used the
statements for that purpose, any error in instructions concerning the use of
the report were harmless. Alicea v. Ralston, No. 06-4521, 2008 U.S. App. Lexis
10736 (Unpub. 3rd Cir.).
A police officer acted reasonably in shooting and
killing a suspect armed with a box cutter who brandished it while advancing
upon her despite her commands for him to drop the weapon. Even though the blade
of the box cutter was not then extended, the officer could reasonably believe
that the suspect constituted a serious threat of death or serious physical
injury. The suspect was only two feet away from the officer at the time, and
the officer was back up against her police cruiser. Njang v. Montgomery County,
Maryland, No. 07-1815, 2008 U.S. App. Lexis 10394 (Unpub. 4th Cir.).
Since it is well established that a police
officer may not use deadly force against a non-dangerous and unarmed person,
and the other officer present at the scene of the plaintiff's shooting stated
that the plaintiff did not act in any way that would have justified the
shooting, the officer who shot the plaintiff was not entitled to qualified
immunity. The shooting officer did not give any warning before shooting, and
the plaintiff alleged that, at the time of the shooting, he had stopped
advancing towards the officer and did not making threatening movements. Kiles v.
City of North Las Vegas, No. 06-16420, 2008 U.S. App. Lexis 9958 (Unpub. 9th
Cir.).
New York high court upholds decision
providing that a man paralyzed after being shot by a police officer, initially
awarded $76.4 million by a jury, shall receive nothing, based on his failure to
appear at a second trial in the case, at which a second jury still awarded him
$51 million despite his absence. Details follow:
The highest
court in New York, in a brief one-line order in Barnes v. City of New York, has
upheld an intermediate appeals court decision which results in a man shot and
paralyzed by a police officer twenty years ago, and who was initially awarded
$76.4 million by a jury receiving nothing, and being assessed $100 for court
costs. The plaintiff had fired a gun at a police officer who chased him while
he was running with a Tec-9 semiautomatic pistol. The officer returned fire,
resulting in spinal injuries, which paralyzed the plaintiff. The plaintiff
claimed that the officer shot him in the back after he dropped a gun he picked
up during a fight with two other men. He also claimed that he did not see the
officer, who was in plain clothes. A jury awarded him $76.4 million, which was
later reduced to $8.9 million by a trial court before a new trial was ordered
by an intermediate New York appeals court, based on the improper exclusion of
evidence at the trial that the plaintiff was a member of a group that believed
in resisting arrests with violence. A jury at a second trial awarded the
plaintiff $51 million, which was subsequently reduced to $10.75 million by the
trial judge. In Barnes v. City of New York, #9969, 2007 NY Slip Op 06260,
44 A.D. 3d 39, 840 N.Y. Supp. 2d 582, 2007 N.Y. App. Div. Lexis 8781 (1st
Dept.), an intermediate New York appeals court overturned that second award of
damages, based on the plaintiff's failure to appear at the second trial. The
appeals court stated that:
"By avoiding his obligation to testify at a
trial in which he was seeking millions of dollars, plaintiff was able to frustrate
the City's fundamental common-law right to cross-examine a witness. Plaintiff,
of course, had good reason to avoid coming to court to testify. His strategy
denied the City the opportunity to confront and test his credibility on such
matters as his assertion that he had no familiarity with guns and that he did
not fire at the officer, and to impeach him by way of his plea of guilty to
attempted assault in the first degree (i.e., by means of a deadly weapon). That
deadly weapon was found at plaintiff's feet with two empty shell casings, thus
corroborating the officer's account that plaintiff had fired the gun at
him."
In a case where a police officer accidentally
shot and killed a suspect, drawing her gun while thinking it was her Taser, a
federal appeals court upheld summary judgment for the Taser manufacturer on a
products liability design defect claim. The court noted that the Taser and
holster were not "used" when the injury occurred, and such use was
necessary for the design defect claim. The court also found that the
manufacturer exercised reasonable care in choosing a gun-shaped design for the
Taser, when the only evidence presented on the decision-making process
indicated that a handgun-shape was better for accuracy and feedback from training
officers indicated that they preferred a handgun-shaped design. The court also
rejected failure to warn, negligent warning, and training claims. Torrest v.
City of Madera, No. 05-16468, 2008 U.S. App. Lexis 10169 (Unpub. 9th Cir.).
When an officer shot at an allegedly stolen
vehicle, intending to stop it, his intent was to seize both the driver and a
passenger, even though the passenger, who was shot, was not the intended object
of the gunfire. The passenger was therefore "seized" for purposes of
a Fourth Amendment claim. Since a jury could also determine, under these
circumstances, that the officer was not in danger, the officer was not entitled
to qualified immunity based on his argument that his actions were objectively
reasonable. Tubar v. Clift, No. 06-35836, 2008 U.S. App. Lexis 8346 (9th Cir.).
A motorist moved his vehicle, boxed between
other cars, forward and backwards, so that an officer acted objectively
reasonably in shooting the motorist based on a belief that another officer
under the motorist's car was hurt and would suffer additional serious bodily
harm. No liability for shooting and killing the motorist under these
circumstances. Costello v. Town of Warwick, No. 06-5138, 2008 U.S. App. Lexis
8378 (2nd Cir.).
Officer who intended to use a Taser holstered
near her gun against a suspect, but instead drew and fired her gun, killing the
suspect was not entitled to summary judgment. At the time, the suspect was
seized for purposes of the Fourth Amendment and was handcuffed and in the back
of a patrol car. Torres v. City of Madera, No. 05-16762, 2008 U.S. App.
Lexis 9648 (9th Cir.).
A federal jury in Pennsylvania awarded $4 million
in compensatory and $24 million in punitive damages to the father of a
12-year-old boy on a claim for excessive use of force. The unarmed youth was
stopped while driving a stolen car, and was fatally shot in the back while
running from the two defendant state troopers. The award consisted of $4
million for pain and suffering, $4,058 for burial expenses and $12 million in
punitive damages against each of the two state troopers. Hickenbottom v.
Nassan, #2:03-cv-00223 (W.D. Pa., March 12, 2008).
Officers were entitled to qualified immunity for
shooting and killing a man at the conclusion of a high speed pursuit when he
pointed a silver cell phone at them, in a manner as though he were aiming a
gun. At the time of the shooting, he was also running towards the officers. The
officers could reasonably believe that the suspect was armed and resisting
arrest. The fact that he was actually not armed with a gun was not relevant,
particularly since the entire incident at the conclusion of the pursuit only
took seven seconds. The incident was captured on videotape. Hudspeth v. City of
Shreveport, No. 07-30260, 2008 U.S. App. Lexis 5829 (5th Cir.).
Regardless of whether a suspect was running away
from a deputy or not at the time he was shot and killed, the deputy could
reasonably believe that the use of deadly force was justified against him,
since he was in possession of a semiautomatic handgun. Under the circumstances,
there was an objectively reasonable fear of death or serious bodily harm being
suffered by the deputy. Garcia v. Santa Clara County, No. 06-15745, 2008 U.S.
App. Lexis 4905 (9th Cir.).
Police officers had probable cause to believe
that a man posed a threat of serious physical harm to them when he twice
pointed a shotgun at them after they chased him following his shooting of two
people. They were therefore entitled to qualified immunity for shooting and
killing him. The court also rejected the plaintiff's claim that additional
discovery should be permitted to determine if any of the police vehicles
present at the scene of the incident had video cameras, since prior discovery
had already indicated that this was not the case. Ingle v. Yelton, No. 07-1315,
2008 U.S. App. Lexis 3184 (4th Cir.).
Police officers who allegedly fired on an unarmed
man in the backyard of his own home, resulting in him being wounded in the
chest, were not entitled to Neither mother nor
father of decedent who was shot and killed by police had standing to pursue
federal civil rights or state law wrongful death claims arising out of the
death when no one had been appointed as the representative of the decedent's estate.
The lawsuit was therefore dismissed. Farrow v. Sammis, No. 3:07CV00097, 2007
U.S. Dist. Lexis 90429 (E.D. Ark.).summary judgment. The shooting was allegedly
carried out without cause and without warning. The court rejects one officer's
claim that the fact that he missed the plaintiff when he fired entitled him to
qualified immunity, and an argument by a second officer that he acted on the
reasonable, but mistaken belief that the man had shot the other defendant
officer. Floyd v. City of Detroit, No. 06-2441, 2008 U.S. App. Lexis 4804 (6th
Cir.).
Police officer acted reasonably in shooting a man
driving a stolen car who refused to obey orders to pull over, but instead drove
away at high speed, and who subsequently drove recklessly, collided with another
motorist's car, causing an accident that resulted in the hospitalization of the
other driver. The fact that the fleeing motorist was not "armed" did
not mean it was not objectively reasonable for the officer to use deadly force,
as his driving posed a risk of death or serious bodily harm to others. Hill v.
Nigro, No. 07-3871, 2008 U.S. App. Lexis 4407 (3rd Cir.).
Mere threat to shoot suspect, even if it was
"unprofessional," did not constitute a violation of the suspect's
constitutional rights. Williams v. Milwaukee Police Department, No. 06-C-1124,
2007 U.S. Dist. Lex 55122 (E.D. Wis.). In a subsequent decision on other issues
in the same case, the court held that a partner of an officer accused of
misconduct in the case was properly dismissed from lawsuit, since no allegation
was made that he was personally involved in the misconduct. . Federal civil
rights law does not support the imposition of vicarious or collective liability
for alleged misconduct. Williams v. Miscichoski, No. 06-C-1124, 2007 U.S. Dist.
Lexis 94831 (E.D. Wis.).
An arrest and the shooting of the arrestee
occurred in 1998, so that any lawsuit filed over the incident was time-barred
by Michigan's three-year statute of limitations, and was properly dismissed
when it was not filled until 2002. No "tolling" (extension) of the
time period was justified, since the arrestee stated that he was conscious
"before, during, and after" the time he was shot, and that he took
the position, at the time of the incident, that he had been deliberately shot
by the officer without provocation, allegedly in order to "cover up"
the shooting officer's accidental shooting of a fellow officer during the
arrest. Drake v. City of Detroit, No. 06-1817, 2008 U.S. App. Lexis 4224 (6th
Cir.).
Neither mother nor father of decedent who was
shot and killed by police had standing to pursue federal civil rights or state
law wrongful death claims arising out of the death when no one had been
appointed as the representative of the decedent's estate. The lawsuit was
therefore dismissed. Farrow v. Sammis, No. 3:07CV00097, 2007 U.S. Dist. Lexis
90429 (E.D. Ark.).
A man shot by a police officer claimed that the
incident occurred after he and others had been shot at by someone in a passing
car and another man shot back at that car. The officer was traveling towards
the scene of the incident and heard the gunshots. The officer then shot the
plaintiff as he and another individual, who was armed, ran away. Overturning
summary judgment on the basis of qualified immunity for the officer, a federal
appeals court ruled that there were disputed factual issues of whether the
officer acted to seize the plaintiff, the armed person, or both of them, and
whether the bullet that struck the plaintiff had been fired by the officer. If
the officer used deadly force to seize the plaintiff, who was unarmed and
running away, a jury could have found this to be unreasonable. Moore v.
Indehar, No. 06-4047, 2008 U.S. App. Lexis 2243 (8th Cir.).
Officer who shot and killed a man outside his
home was entitled to qualified immunity when the decedent had threatened to
commit violent acts against himself and other persons, he was armed with a
knife, he refused to comply with repeated orders to drop the knife, and he
allegedly raised the knife blade above his shoulder and pointed it towards
officers, turning and stepping towards an officer. Larsen v. Murr, No. 06-1094,
2008 U.S. App. Lexis 25 (10th Cir.).
A homeowner who claimed that state police, acted
improperly, surrounded his house while his wife and dogs were inside, and
repeatedly shot into the home could not pursue federal civil rights claims
against the State of Maine or the state police because of their Eleventh
Amendment immunity. Palm v. State of Maine, Civil No. 07-102, 2008 U.S. Dist.
Lexis 4975 (D. Maine).
In a case where police officers shot and killed a
motorist during what was characterized as a "routine" traffic stop, a
federal appeals court found that the city's written policy concerning the use
of deadly force complied with Fourth Amendment requirements and required
officers to reasonably believe that there was an imminent threat of death or
serious bodily injury before shooting. There were, however, genuine issues of
material fact as to whether there was an alleged "longstanding"
practice or custom of use of deadly force in circumstances where it was not
warranted, sufficient to support a claim for municipal liability. The court
rejected, however, any claim based on inadequate training. Price v. Sery, No.
06-35159, 2008 U.S. App. Lexis 1196 (9th Cir.).
A federal appeals court held that a police
SWAT team sniper acted in an objectively reasonable manner in shooting and
killing an armed suspect, and that neither the officer nor the city was liable
for the death. The officer, according to the court, heard the suspect threaten
to shoot police, saw him carrying a rifle, and had knowledge that he had
previously shot at a car full of people, wounding two of them. Additionally,
fellow officers had radioed that the suspect was shooting at them and yelling
threats. Under these circumstances, the officer reasonably believed that the
suspect posed an immediate danger, justifying the use of deadly force. The
court further ruled that a decision that was made to wait for a light armored
vehicle for safety reasons before entering the property where the suspect was
did not constitute deliberate indifference, even accepting the argument that
the delay may have contributed to the decedent's death. Long v. City and County
of Honolulu, No. 05-16567, 2007 U.S. App. Lexis 29530 (9th Cir. 2007).
Officer did not use excessive force in shooting a
motorist who fled on foot after a vehicle pursuit, and was running in a
residential area holding a screwdriver in the direction of some of the officers
a few feet away. Under these circumstances, the use of deadly force was
objectively reasonable. Nicarry v. Cannaday, No. 07-11679, 2007 U.S. App.
Lexis 29707 (11th Cir.).
Deputy did not act unreasonably in shooting and
killing a man who had refused to submit to a pat down and then disarmed the
deputy of his baton. At the time he was shot, the suspect was holding the baton
while the deputy lay prone. A federal appeals court upheld a jury's verdict in
favor of the deputy. Lewis v. County of Riverside, No. 06-55764, 2007 U.S. App.
Lexis 29148 (9th Cir.).
A disputed issue of fact as to whether a suspect
was unarmed and surrendering to officers with his hands up or appeared to be
concealing a weapon when he was shot and killed by a detective barred summary
judgment in an excessive force lawsuit. White v. Gerardot, No. 07-1418, 2007
U.S. App. Lexis 28009 (7th Cir.).
Police officer was entitled to qualified immunity
in lawsuit over his shooting and killing of a motorist he had stopped because
the car matched the description of a stolen vehicle. The motorist refused to
comply with orders to keep his hands up, and drove off, which dragged the
officer along since his hands were inside the car. Under these circumstances,
the force used was objectively reasonable. Owens v. City of Austin, No.
06-50763, 2007 U.S. App. Lexis 28646 (5th Cir.).
Alabama deputy sheriff acted reasonably in
shooting and killing a mentally unstable man who took possession of a marked
sheriff's cruiser when he was informed that he was going to be arrested, and
began backing away. The deputy who shot him warned that he would be shot if he
did not stop his escape. The decedent could have used to car to injure or kill
someone, especially since it cloaked him with the "apparent authority' of
a police officer. Long v. Slaton, No. 06-14439, 2007 U.S. App. Lexis 26573
(11th Cir.).
Three police officers who allegedly fired at a
suspect while he was on the ground, already shot, were entitled to qualified
immunity from liability. The facts showed that the first officer who shot the
suspect before he fell to the ground was faced with a much larger man charging
her with a dangerous weapon in his hand, and that the suspect refused to stop
moving or show his hands, as he was ordered to do by the other officers after
he fell. Under the circumstances, the officers did not act unreasonably. Berube
v. Conley, No. 06-2644, 2007 U.S. App. Lexis 25418 (1st Cir.).
In a prior lawsuit concerning the fatal shooting
of a suspect by police, the shooting was found to be legally justified. The
decedent's mother and estate then sued another officer, seeking to hold him
liable for the death on the basis that he was the highest ranking officer
present. The result in the prior lawsuit barred this claim. Easley v. Reuss,
No. 06-1646, 2007 U.S. App. Lexis 22352 (7th Cir.).
Deputies did not act unreasonably in shooting and
killing a mentally disturbed man who posed a threat of serious physical harm.
The man had placed a large sign in his front yard that said, "no police
you be shot." The suspect came out of his mobile home holding something
the officers believed to be a handgun and took a kneeling stance that was
believed to be a shooting position, pointing it in the direction of an officer.
The suspect responded to commands to drop the object by yelling, "Shoot
me, Shoot me." The suspect was subsequently shot and killed as he was
charging towards the officers. Summerland v. County of Livingston, No. 06-1975,
2007 U.S. App. Lexis 21045 (6th Cir.).
A police officer acted reasonably within an
extremely brief period of time in shooting and killing a teenage motorist whose
car struck him as it drove away following a traffic stop. The officer stated
that he had seen the car accelerate towards him and a "determined
look" on the face of the motorist, and decided to fire upon realizing that
he could not get out of the way. The officer himself testified during his
deposition, that he did not know if he fired before, during, or after he was
hit by the vehicle. The court found that it was reasonable to conclude that the
shooting and the vehicle striking the officer happened at close to the same
time. The trial court excluded offered expert witness testimony by the father
of the motorist, who is a police officer, arguing that the defendant officer
must have been behind the car at the time of the shooting. Hathaway v. Bazany,
No. 06-50602, 2007 U.S. App. Lexis 25561 (5th Cir.).
Police officers who shot and killed an allegedly
suicidal suspect who approached them with a Samurai sword were not entitled to
qualified immunity on the claim that they acted unreasonably in using force
against him. It was argued that the officers escalated, rather than
de-escalated the situation, having gone to check on his well-being, by entering
his home, confronting him at the doorway to his bedroom, and using pepper spray
against him, creating a situation in which deadly force was required. It was
further argued that there was evidence from which it could be concluded that the
decedent was trying to defend himself from the officers, who he viewed as
aggressors against him. The court found that prior caselaw provided the
officers with notice that it was unreasonable to aggressively confront an armed
suicidal person in a threatening manner. Hastings v. Barnes, No. 04-5144, 2007
U.S. App. Lexis 24446 (10th Cir.).
Police officer was entitled to qualified immunity
in shooting a suspect during a drug raid when he feared that the suspect would
take his gun as he tried to force the suspect to the ground. A federal appeals
court found that an objectively reasonable officer, under the circumstances,
could have believed that the suspect posed a threat, and that if he paused even
for an instant he might lose his last chance to defend himself. Alford v.
Cumberland County, No. 06-1569, 2007 U.S. App. Lexis 24138 (4th Cir.).
When police officers reasonably believed that
they were facing a potentially violent hostage situation in which an individual
was in danger, they had no obligation under the Americans with Disabilities Act
to provide a reasonable accommodation for an allegedly disabled mentally ill
suspect. In a previous decision, officers were held not liable for
shooting and killing the suspect, who had threatened the life of an officer,
and who they perceived was holding a knife and a large metal pipe with a hook
at the end, and kept advancing towards them despite orders to stop and drop his
weapons. Because the officers, under these exigent circumstances, had no duty
to reasonably accommodate the suspect's mental illness, it was irrelevant
whether or not the police department had effectively trained its officer in
providing such accommodations to mentally ill hostage takers. Waller v. City of
Danville, Virginia, Case No. 4:03CV00039, 2007 U.S. Dist. Lexis 73582 (W.D.
Va.).
In a prior decision, Curley v. Klem, #01-1093,
298 F.3d 271 (3rd Cir. 2002), a federal appeals court held that a state trooper
was not entitled to qualified immunity for his shooting of a Port Authority police
officer in full uniform who he stated he believed to be an armed murder suspect
he had been pursuing. The injured officer claimed that trooper unreasonably
failed to look into vehicle where the sought suspect had just committed suicide
and unreasonably shot him only because, like the suspect, he was a "black
man with a gun." Subsequently, on remand, a jury found that the shooting
officer's failure to look into the window of the vehicle was unreasonable but
that the officer's action in shooting the injured officer was not unreasonable.
On appeal, the court found that the jury's verdict, in finding that the officer
acted reasonably under the totality of the circumstances meant that no
constitutional violation occurred. Curley v. Klem, No. 05-4701, 2007 U.S. App.
Lexis 20213 (3rd Cir.).
An officer's mistaken use of his handgun, rather
than the taser, which he allegedly intended to shoot an arrestee with, did not
change the fact that the shooting constituted a seizure for purposes of the
Fourth Amendment. Further proceedings were ordered on the issue of whether the
seizure was unreasonable v. Henry v. Purnell, No. 06-1523, 2007 U.S. App. Lexis
22436 (4th Cir.).
If a vehicle had come to a stop with the engine
running, and suspects in the car had their hands in the air or on the steering
wheel when officers approached, then an officer who shot and killed a
16-year-old in the vehicle would not have acted reasonably. If, on the other
hand, as the officer claimed, the car was backing up, and threatened the safety
of the officers or others, the result could be different. Genuine issues of
disputed material fact, therefore, barred qualified immunity for the officers.
Green v. Taylor, No. 06-3583, 2007 U.S. App. Lexis 21593 (6th Cir.).
If the facts were as alleged by the plaintiff, a
jury could find that no reasonable officer would have shot and killed her son,
who allegedly posed no immediate risk of death or serious injury to anyone.
Further proceedings were therefore ordered on the claims against the shooting
officer. Claims against a second officer, however, were properly rejected when
he lacked sufficient time to prevent the shooting officer's alleged use of
excessive force. Murray-Ruhl v. Passinault, No. 05-2607, 2007 U.S. App. Lexis
21573 (6th Cir.).
Arrestee who claimed that deputies shot him
numerous times in an attempt to murder him failed to allege a pattern of
racketeering activity as required for a claim under the Racketeer Influenced
and Corrupt Organizations (RICO) Act, 18 U.S.C. Sec. 1961, et seq., when all of
the acts he claimed had occurred arose from the single incident. Curry v. Baca,
No. CV 04-9992, 2007 U.S. Dist. Lexis 56817 (C.D. Cal.).
In a lawsuit claiming that a suspect was shot and
killed during a police raid without provocation and despite the fact that he
was unarmed, the trial court improperly dismissed the lawsuit on its own motion
without providing notice to the family members who were plaintiffs in the case.
Despite the fact that they could not identify which officer shot the decedent,
that information could reasonably be provided by discovery, and their Fourth
and Fourteenth Amendment claims were not "patently meritless." Rivera
v. Sanchez-Ramos, No. 06-2398, 2007 U.S. App. Lexis 18692 (1st Cir.).
When an arrestee failed to comply with the
officers' orders, and made furtive motions in the back of his car, the fact
that bullets were exiting the car from the rear windshield made it objectively
reasonable for one of the officers to perceive that the suspect was shooting at
him. There was no evidence from which it could be reasonably concluded that an
officer's bullet struck the suspect. Even if one of the officers did shoot the
suspect, his actions were objectively reasonable under the circumstances. Swann
v. City of Richmond, No.3:06CV069, 2007 U.S. Dist. Lexis 56907 (E.D. Va.).
Police sergeant acted objectively reasonably in
firing at a stolen car, striking the driver in the back of the neck and leaving
him paralyzed. The car had been reported stolen, was being driven by a minor,
and had evaded attempts to block the vehicle, going into reverse to collide
with an officer's cruiser. When the sergeant pointed his gun at the driver's
head, he was knocked down by the vehicle, prior to shooting several rounds. No
jury, the court concluded, could reasonably find the use of deadly force
unreasonable, based on the driver's decision to flee and the immediate threat
of harm the driver posed to the sergeant, pedestrians, and other drivers.
Williams v. City of Grosse Pointe Park, No. 05-2409, 2007 U.S. App. Lexis 18599
(6th Cir.).
Police officers acted properly in shooting and
killing an allegedly emotionally disturbed 19-year-old, 300-pound man,
6'7" tall, who was attacking an officer with a sword, after they came to his
residence in response to his mother's concern that he might harm himself
because of depression over failing to get a job as an airport security guard.
The decedent allegedly continued to stab the officer despite initial shots that
struck him, responding by saying "ow," but otherwise continuing his
assault. Both federal civil rights and state law liability claims were
rejected. Hayek v. City of St. Paul, No. 06-3802, 2007 U.S. App. Lexis 15482
(8th Cir.).
If the facts were as stated by an undercover
officer, shot by a fellow officer after reporting that he had already been shot
in the area by a perpetrator, the actions of the shooting officer were not
objectively reasonable. A reasonable officer, arriving on the scene after there
was a report of an officer shot, would have recognized that the undercover
officer did not pose an immediate threat to anyone. While he had a pistol, he
dropped it on the ground, and was not pointing it at the officers or reaching
for it. He was also not actively resisting arrest or attempting to evade the
officers by flight, but was kneeling in the street under a streetlight by
himself, and waving his arms above his head trying to attract attention.
Further, the shooting officer failed to attempt to give the undercover officer
any commands or warnings before firing at him, and the undercover officer did
not match the description of the suspect sought, who had shot him. Ngo v.
Storlie, No. 06-2771, 2007 U.S. App. Lexis 17798 (8th Cir.).
A woman shot by police officers who came to her
apartment after she allegedly threatened to kill herself with a shotgun failed
to show that the search of her apartment violated her civil rights under Cal.
Civ. Code Sec. 52.1. That statute requires, for liability, that constitutional
rights be violated as a result of a threat, intimidation, or coercion, which
was not shown, even if the plaintiff could show that the search violated the
Fourth Amendment. Additionally, the search did not take place until two hours
after the plaintiff had been taken to the hospital for treatment of her wounds,
so that the use of force was not related to the search. A federal appeals court
upheld the jury's verdict for the city and police officers on claims of both
excessive use of force and under the California statute. Jackson v. City of
Fresno, No. 05-16857, 2007 U.S. App. Lexis 11838 (9th Cir.).
If the plaintiff's version of events were
believed, officers who allegedly pursued him without identifying themselves as
police, shot him, beat him, and then shot him again were not entitled to
qualified immunity, because the beating and shooting of a person who was
already shot and was incapacitated, under these circumstances, would violate
clearly established law. The officers, on the other hand, claimed that they had
identified themselves as police and only shot him after he had shot at them a
number of times, as well as denying that they beat him. Further proceedings
were ordered, but claims against the State of Missouri were rejected on the
basis of Eleventh Amendment immunity. Johnson v. Board of Police Commissioners,
No. 4:06CV605, 2007 U.S. Dist. Lexis 40292 (E.D. Mo.).
Officers who shot and killed a man who they
believed was holding hostages inside his residence were entitled to summary
judgment. A statement by a plaintiff's expert that it was "highly
unlikely" that the decedent had been pointing a rifle at the officers at
the time of the shooting was insufficient to create a genuine issue of material
fact to require taking the case to a jury, when all officers at the scene
testified that he had done so, and the medical examiner also expressed an
opinion that the evidence supported the officers' version of the incident. The
appeals court also found that it was not reasonable to infer from the locations
of the bullets in the residence that the officers did not actually believe that
there were any hostages and were firing indiscriminately. Lewis v. Adams
County, No. 06-3893, 2007 U.S. App. Lexis 9872 (6th Cir.).
An arrestee who was awarded $275,000 in damages
($25,000 compensatory and $250,000 in punitive) on claims that he was
"framed" and maliciously prosecuted on a firearms charge, and that
excessive force was used against him by an officer who shot him in the
buttocks, was also entitled to an award of attorneys' fees and costs of
$507,000. The defendant city failed to convince a federal appeals court that
the trial judge had abused his discretion in refusing to lower the amount of
attorneys' fees awarded. The court rejected the city's argument that the plaintiff's
success should be viewed as "minimal," requiring a reduction in the
attorneys' fees award because the jury award was less than the amount of
damages the plaintiff sought. Additionally, the court stated that the
plaintiff's success should not simply be viewed in monetary terms. ''He
effectively persuaded a jury that a significant number of City of Harvey
officials conspired to plant a gun at the crime scene -- a victory that serves
the public interest by exposing to light disturbing police malfeasance and
grave municipal institutional failures, and one that will presumably help to
deter future constitutional violations by the city's officers,'' the court
stated. ''These achievements are anything but minimal.'' Robinson v. City of
Harvey, No. 04-3993 2007 U.S. App. Lexis 13705 (7th Cir.).
Police officers acted reasonably in shooting and
killing a man who approached them in a threatening manner while brandishing a
machete and tire iron. He had been shot with a TASER® multiple times without
effect.. The evidence also showed that other persons were in the area, and that
the suspect had moved towards them more than once. Under the circumstances, a
reasonable fact finder could not find that the officers acted in a willful or
malicious manner. The officers were entitled to dismissal of both federal civil
rights claims and a state law wrongful death claim arising from the incident.
Hassan v. City of Minneapolis, No. 06-3504, 2007 U.S. App. Lexis 12506 (8th
Cir.).
In a case where the shooting police officer was
the only surviving witness to the details of what happened when he shot and
killed a man he initially stopped for riding a bicycle on the wrong side of the
road and without lights, the court found that there was a genuine issue of
material fact as to whether the officer used excessive force. The decedent's
estate argued that he did not, due to his physical limitations, pose a
significant threat of death or serious physical injury to the officer at the
time of the shooting. The officer claimed that the suspect appeared to be
drawing or pulling a weapon or object from his right rear pants pocket at the
time of the shooting, and that he believed that to be a weapon, but
subsequently turned out to be a pair of pliers. The Plaintiff, the decedent's mother,
claimed that he had received a gun shot wound to his dominant right arm less
than four months before, and therefore had almost no use of his right arm.
Goodman v. Harris County, No. 05-20807, 2007 U.S. App. Lexis 11318 (5th Cir.).
Officers were not entitled to qualified immunity
for shooting and killing a man sitting in his car with the tires shot out when
they allegedly knew he had no gun, was only in possession of a pocket knife,
was not suspected of any crime, and when the purpose of trying to get him out
of his vehicle was to talk him out of possibly killing himself. Under these
alleged circumstances, no use of deadly force would be justified, particularly
when he was surrounded by a number of police vehicles and at least ten armed
police officers. Lehman v. Robinson, No. 05-15636, 2007 U.S. App. Lexis 8978
(9th Cir.).
Officer did not use excessive force in shooting
and killing a motorist who fled a traffic stop, entered another vehicle, and
hit the officer with the car. Inadequate training claim against city also
rejected. Jenkins v. Bartlett, No. 06-2495, 2007 U.S. App. Lexis 9228 (7th
Cir.).
Deputies reasonably believed, at the time they
shot at a car attempting to escape them by going in reverse, that a deputy
behind the car was in serious danger of harm, so that they were entitled to
qualified immunity. Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142
(11th Cir.).
In a lawsuit over the death of a mentally
impaired man holding a screwdriver, who three officers shot and killed, the
trial court properly denied summary judgment to the officers, based on the
existence of factual disputes about whether the decedent had posed an immediate
threat to the officers when he was shot. The appeals court found, further, that
the trial court had committed an error in considering the actions of all three
of the officers together, and that it should, on remand, consider each of the
officers' actions by themselves to determine whether any of them had used
unreasonable force. Meadours v. Ermel, No. 05-20764, 2007 U.S. App. Lexis 7592
(5th Cir.).
Estate of paranoid schizophrenic shot and killed
by police who came to his house in response to a 911 call from his family
requesting assistance failed to show that more adequate training as to how to
respond to incidents involving mentally disturbed persons would have resulted
in a different result. The court found that the officers did not create the
dangerous situation. Thao v. City of St. Paul, No. 06-2339, 2007 U.S. App.
Lexis 7553 (8th Cir.).
Two persons shot by a deputy when their pickup
truck started to drive away from a traffic stop as the deputy approached
adequately alleged that the county sheriff, in training programs, did not
clearly define the circumstances under which deadly force could be used, and
that, if any such guidelines existed, the sheriff had violated them. A
relationship between the sheriff's actions and the incident was also alleged.
Official capacity claims against the sheriff, however, were dismissed, as the county,
which was the proper defendant, was named in the complaint. Rodriguez v.
Quintero, Civil Action No. SA-06-CA-64-FB, 2007 U.S. Dist. Lexis 25296 (W.D.
Tex.).
Police officers acted reasonably in shooting and
killing an arrestee who had refused to submit to their attempts to handcuff
him, when they believed that he had his hands on or near one officer's gun,
which had come loose during the struggle between them. Officers are not
required to wait to take action to protect their safety until a resisting
arrestee has completely freed himself and has obtained a "firm grip"
on a weapon. Henning v. O'Leary, No. 06-2378, 2007 U.S. App. Lexis 3380 (7th
Cir.).
California highway patrol officer was not
entitled to qualified immunity in lawsuit claiming that he shot and killed
teenage driver at conclusion of pursuit without warning and without reason to
belief that he needed to do so to defend himself or others at that time. Adams
v. Speers, No. 05-15159, 2007 U.S. App. Lexis 442 (9th Cir.).[N/R]
District of Columbia could not be held liable for
an officer's alleged excessive use of deadly force when there was no evidence
of any official policy or custom which caused the incident, and there was no
evidence of failure to properly train and supervise the officer on the part of
either the District or the police chief. Claim for excessive use of force
remains pending against the officer, who allegedly shot and killed a woman who
failed to respond to his orders that she drop a gun when she came up a staircase
with it in her hand. Reed v. D.C., No. 03-1085, 2007 U.S. Dist. Lexis 12252
(D.D.C.).[N/R]
City not liable for misconduct, where a police
trainee who was allowed the use of a marked unit to driver to the police
academy stopped and shot a man for the purpose of robbing him. Trainees had no
police powers, and his motivations were criminal. Georgia interlocal Risk
Management Agency v. Godfrey, 273 Ga. App. 77, 614 S.E.2d 201, 2005 Ga. App.
Lexis 381 (2nd Dist. 2005); cert den. 2005 Ga. Lexis 691. [N/R]
Officer acted reasonably in shooting and killing
a suspect who was armed and whom he believed was pointing his gun at another
officer. Livermore v. Lubelan, No. 06-1465, 2007 U.S. App. Lexis 2594 (6th
Cir.). [N/R]
Officer acted properly in shooting a man who
ignored orders to show his hands, and instead backed his car into a security
guard's vehicle, followed by accelerating down an alley towards other police
officers in his path. The officer's actions were aimed at trying to prevent him
from injuring the other officers, and were reasonable under the circumstances,
even if the suspect was then experiencing a bipolar episode. Because of this,
there was also no violation of the Americans with Disabilities Act (ADA).
Sanders v. City of Minneapolis, Minn., No. 06-1356, 2007 U.S. App. Lexis 1396
(8th Cir.). [N/R]
New York court declines to dismiss claims against
a production company and two broadcasting companies alleging that in the course
of filming a "reality-based" television program showing police on
patrol they encouraged police to use excessive force, adopting a common plan to
use excessive which resulted in injuries suffered when a police detective fired
his gun, injuring a woman during the execution of a search warrant. Rodriguez
v. City of New York, No. 2004-11173 (Index No. 20154/04), 2006 N.Y. App. Div.
Lexis 15242 (2nd Dept.). [N/R]
Officer acted objectively reasonably in shooting
a man at the scene of a domestic disturbance who failed to drop the knife he
was holding until the officer's third order to do so, and then ran towards him,
attempting to escape through a poorly lit area outside the residence. Under the
circumstances, in which the man had threatened to kill his wife, and the
elapsed time between him dropping the knife and running towards the officer was
approximately two seconds, the officer could believe that the man was a threat
to the safety of the officer and the wife. Butler v. City of Tulsa, No.
06-5078, 2006 U.S. App. Lexis 27332 (10th Cir.). [N/R]
Officer who repeatedly attempted to negotiate
with a suspect and get him to drop his weapon before finally shooting and
killing him was entitled to summary judgment because the facts showed no
violation of the decedent's constitutional rights. DeMerrell v. City of Cheboygan,
No. 05-2325, 2006 U.S. App. Lexis 27174 (6th Cir.). [N/R]
Despite a prior jury verdict in a federal civil
rights lawsuit in favor of officers who fatally shot a man twenty-two times as
he was attempting to evade arrest, the officers could still possibly face
liability for negligence under California state law for the same incident on a
theory that they unnecessarily put themselves in the way of harm, and therefore
had to "shoot their way out." The jury verdict in the federal civil
rights case only dealt with the constitutionality of the use of deadly force
under the circumstances that existed at the time of the shooting, and did not
decide the question of whether the officers' prior actions constituted
negligence. Hernandez v. City of Pomona, No B182437, 2006 Cal. App. Lexis 1925
(2nd Dist.). [N/R]
Simply because there was no violation of the
Fourth Amendment in shooting and killing a suspect that an officer reasonably
could have believed was armed and was holding a person against her will did not
mean that the appeals court could say that there were no set of facts from
which the plaintiff could establish a claim for either violation of the
Americans with Disabilities Act, 42 U.S.C. Sec. 12131-12134, based on the
suspect's mental illness or for race discrimination. The appeals court,
therefore, ordered further proceedings on both claims. Waller v. City of
Danville, Virginia, No. 06-1107, 2006 U.S. App. Lexis 30799 (4th
Cir.). [N/R]
Because it was factually disputed whether a
suspect actively posed a threat to anyone at the time when an officer shot and
killed him, or whether he was, instead, shot and killed while he stood
motionless with his knife at his side from a distance of ten to forty feet away
when no officer had warned him to drop the knife, further proceedings were
required on an excessive use of force A second officer, merely present during
the incident, who was not alleged to have used any force at all, however, was
entitled to qualified immunity, as his mere "inaction" during the
events could not be a basis for liability for use of excessive force. Bacque v.
Leger, No. 06-30019, 2006 U.S. App. Lexis 27855 (5th Cir.). [N/R]
Brother of mentally ill man shot to death by
officers inside his home failed to show that the officers used excessive force
or violated his rights under Title II of the Americans with Disabilities
Act (ADA), 42 U.S.C. Sec. 12131-12165 by failing to reasonably accommodate his
mental illness. The officers only entered the home to check on the mentally ill
man's welfare and safety, and he was only shot after he had repeatedly stabbed
one of the two officers present. Under these circumstances, the officers were
reasonable in believing that their actions were legal, and the lawsuit failed
to show that the decedent had been denied governmental services "by reason
of" a disability. Buchanan v. State of Maine, No. 06-1466, 2006 U.S. App.
Lexis 28352 (1st Cir.). [N/R]
Plaintiff in excessive force lawsuit was barred
from asserting facts which were inconsistent with those he had agreed to while
accepting a plea in his criminal case. Thore v. Howe, No. 06-1627, 2006 U.S.
App. Lexis 26817 (1st Cir.). [2006 LR Dec]
Arrestee's lawsuit against deputy for alleged
excessive use of deadly force could be interpreted in a way that success in the
lawsuit did not necessarily imply the invalidity of his arrest and conviction,
and therefore summary judgment should not have been granted to the deputy.
McCann v. Nielsen, No. 05-3699, 2006 U.S. App. Lexis 26631 (7th Cir.). [2006 LR
Dec]
Deputy who shot unarmed arrestee fleeing into
unpopulated wooded area was not entitled to summary judgment on excessive force
claim. Deputy had previously frisked the arrestee, and found no weapons on him
before he fled on foot from the scene of his drug arrest. Ham v. Brice, No.
05-50657, 2006 U.S. App. Lexis 26617 (5th Cir.). [2006 LR Dec]
Officer who shot three times after a motorist
drove away in a stolen vehicle, hitting and injuring a passenger on the third
shot, was not entitled to qualified immunity in her federal civil rights
lawsuit for alleged excessive use of force. Tubar v. Clift, No. C05-1154, 2006
U.S. Dist. Lexis 68390 (W.D. Wash.). [N/R]
Failure to give jury explicit instructions on the
legal rules for use of deadly force required a new trial in lawsuit against
officers who shot and maced a bank robber while trying to arrest him. Robber
claimed that he was "peacefully surrendering" when he was shot, and
an instruction concerning the general test for excessive use of force failed to
alert jury as to whether the use of deadly force was allowed under such
circumstances. Rahn v. Hawkins, No. 05-3329, 2006 U.S. App. Lexis 24037 (8th
Cir.). [2006 LR Nov]
Officer did not act unreasonably during
plaintiff's arrest by shooting and killing his pit bull. Evidence showed that
witnesses saw the dog growling, being aggressive, and advancing towards the
officer, justifying the officer's actions. Chambers v. Doe, No. Civ. 04-415,
2006 U.S.Dist. Lexis 69965 (D. Del. 2006). [N/R]
In a lawsuit over the fatal shooting of a suspect
by an undercover police officer, the officer was not entitled to qualified
immunity because of issues of fact as to whether, at the time of the shooting,
he reasonably believed that the suspect was armed and would try to shoot him.
The issue was not whether or not the suspect was actually armed, but what the
officer reasonably believed. Bouggess v. Mattingly, No. Civ.A. 3:04CV-180, 426
F. Supp. 2d 601 (W.D.Ky. 2006). [N/R]
Keeping an eleven-year-old unarmed boy in
handcuffs for 15 minutes, and pointing a gun at his head, while search and
arrest warrants were served on his parents' home, if true, could be found to be
an excessive use of force. Federal agents were not entitled to qualified immunity.
Tekle v. U.S., No. 04-55026, 2006 U.S. App. Lexis 20583 (9th Cir.). [2006 LR
Oct]
Three million dollar settlement reached in
lawsuit by family of unarmed man shot and killed by police officer during a
raid on a warehouse where he worked repairing art and musical instruments. The
raid was conducted because police suspected that DVD and CD counterfeiting was
going on in the facility. The former police officer who shot the decedent was
convicted of criminally negligent homicide. Sanfo v. City of New York, No.
1:04-CV-01760, U.S. Dist. Ct. (S.D.N.Y. 2006).. [N/R]
It was no abuse of discretion to exclude an
expert witness's testimony in an excessive force case involving a police
shooting when the court found that the expert's opinion that a reasonable
officer would have been able to tell that the plaintiff was not holding a gun,
bur rather a cell phone, had "no basis." Hickey v. City of New York,
No. 05-1933-CV, 173 Fed. Appx. 893 (2nd Cir. 2006). [N/R]
Police officers, including S.W.A.T team members,
were entitled to qualified immunity for surrounding the home of a man who had
fired shots into the air and ground nearby, entering the home forcibly without
a warrant, and using pepper gas and a flashbang in an attempt to flush him out.
Assuming that the use of a second flashbang, which burned down the house, was
excessive, it still did not violate any "clearly established right."
Factual disputes about whether the suspect was still armed and was threatening
officers at the time they shot and killed him, however, barred qualified
immunity for the officers on a claim that the use of deadly force was
excessive. Estate of Bing v. City of Whitehall, No. 05-3889, 2006 U.S. App.
Lexis 19287 (6th Cir.). [2006 LR Sep]
Police chief was not entitled to qualified
immunity on a Fourth Amendment claim that he acted unreasonably in shooting and
killing a family's pet dog while it was in their enclosed backyard, mistakenly
believing that it was a loose dog that he had earlier pursued through the
neighborhood. Andrews v. City of W. Branch, No. 05-1188, 2006 U.S. App. Lexis
18748 (8th Cir.). [2006 LR Sep]
Experts in the use of deadly force could not
provide testimony based on medical evidence or opinions because this was found
by the court to be outside the area of their expertise, and there was no
showing that such medical reports were the kind of materials that excessive
force experts relied on. Richman v. Sheahan, No. 98C7350, 415 F. Supp. 2d 929
(N.D. Ill. 2006). [N/R]
Police officer's use of deadly force was
reasonable when a suspect refused to comply with his requests and continued to
move towards the officer, reaching for the officer's gun. Blossom v. Yarbrough,
No. 03-5146, 429 F.3d 963 (10th Cir. 2005). [N/R]
Officers were not liable for the shooting death
of an 18-year-old involved in a family dispute who allegedly ignored their
demands that he drop a knife and instead continued to move up some stairs
toward the officers. Trial court rejects inadequate training and supervision
claims. While the city had knowledge that the officer who shot the youth had
been involved in at least eight other shootings, resulting in five other
deaths, none of the shootings were ever ruled improper, and a number of years
had passed since the officer last discharged his firearm in the course of his
duties. Estate of Smith v. Silvas, No. 04CV00200, 414 F. Supp. 2d 1015 (D.
Colo. 2006). [N/R]
Officer acted reasonably in shooting and killing
a husband at the scene of a domestic disturbance when the husband refused to
raise his hand, kept advancing towards the officer, and was known to possess
guns, as well as telling the officer that "I've got something for you. You
are going to have to kill me." Transporting wife and her daughter to the
police station to take their statements after the incident was not an
"unreasonable seizure," as nothing indicated that they were not free
to leave. DeLuna v. City of Rockford, No. 05-1337, 2006 U.S. App. Lexis 12176
(7th Cir.). [2006 LR Jul]
Officers and city were entitled to summary
judgment on civil rights, state law assault and battery, and negligence claims
arising out of shooting of an arrestee in the hip while he was being
handcuffed. Under New Mexico state law, the arrestee's death, six months later,
from unrelated causes in a swimming accident, extinguished all claims for
intentional misconduct, and there was no waiver of governmental immunity for
the negligence claim under state law. Oliveros v. Mitchell, No. 05-2163, 2006
U.S. App. Lexis 12146 (10th Cir.). [2006 LR Jul]
Man shot and injured by police, supposedly as an
innocent bystander to an undercover drug operation, failed to show that the
District of Columbia had tolerated a pattern of excessive use of force by
police officers, or that it had been deficient in its investigations of use of
force incidents. The District, therefore, could not be held liable for the
plaintiff's injuries. McKnight v. D.C., No. Civ.A.00-CV-2607, 412 F. Supp. 2d
127 (D.D.C. 2006). [N/R]
Use of deadly force to shoot and kill a suspect
fleeing from the scene of an undercover drug bust was only justified if, at the
time of the shooting, the suspect's vehicle posed an imminent danger to
officers. Factual disputes as to whether or not that was the case made summary
judgment in favor of the shooting police detective improper. Sigley v. City of
Parma Heights, No. 05-3035, 437 F.3d 527 (6th Cir. 2006). [2006 LR Jun]
Police officers who shot arrestee did not use
excessive force, since he was armed and had shot at them while they were
pursuing him and his flight from arrest ended in a car-jacking during which he
put a gun to the head of a motorist and did not obey the officers' orders to
halt. Gravely v. Speranza, No. 02-5594, 408 F. Supp. 2d 185 (D.N.J. 2006).
[N/R]
Deputy did not use excessive force in shooting
suspect, even if he was not then armed, when the suspect confronted him again
moments after attempting a potentially deadly assault on him, including
throwing a U-bolt through the deputy's windshield, a hammer in the deputy's
vicinity with enough force to shatter a car window, his advance on the deputy
was not stopped by pepper spray, and he had punched the deputy with a pry bar.
Hammond v. Smith, No. 04-73410, 408 F. Supp. 2d 425 (E.D. Mich. 2005). [N/R]
Trial court abused its discretion in granting
summary judgment to police officers in lawsuit over their shooting and killing
of a suspect without allowing the plaintiff an opportunity to discover whether
video cameras in police vehicles at the scene of the incident recorded it, and
what such videotapes might show. Ingle v. Yelton, No. 05-1556, 2006 U.S. App.
Lexis 5779 (4th Cir.). [2006 LR Apr]
City of Chicago reaches $1.75 million settlement
with man who lost an eye when officers fired on the vehicle in which he was
traveling as a passenger when he was a 15-year-old. The vehicle was allegedly
then traveling on the sidewalk and towards a group of police officers on the
corner. The officers claimed that they fired in self-defense, believing that
the vehicle was trying to run them down, and the vehicle did hit one of the
officers. The plaintiff in the lawsuit claimed, however, that the shot that
struck him was fired by an officer after the car had passed him by, and when
none of the officers were in any further danger from the vehicle. A total of 25
shots were fired at the car. Bell v. City of Chicago, No. 01L3148, Circuit
Court of Cook County, Illinois, County Department, Law Division, February 6,
2006, reported in Chicago Daily Law Bulletin, p. 1, February 7, 2006. [N/R]
Parents of armed robbery suspect shot and killed
by police officers had no standing under California law to pursue a federal
civil rights lawsuit or state law claims arising out of the incident on their
own behalf when they were not financially dependent on the decedent. Foster v.
City of Fresno, No. CVF035306, 392 F. Supp. 2d 1140 (E.D. Cal. 2005). [N/R]
Police officers' shooting and killing of homeless
mentally ill man sitting in a car was not excessive force when they acted after
he raised a gun and did not know, until later, that the weapon was a BB gun.
Under the circumstances, it was reasonable for them to believe that their lives
were at risk. Court also rules that the officers did not engage in disability
discrimination when they called on a SWAT team to extract the man from his car
after the shooting, causing a delay in medical treatment. The officers could
reasonably do this to ensure the safety of themselves and others at the scene.
Ali v. City of Louisville, No. Civ. A. 3:03CV-427, 395 F. Supp. 2d 527 (W.D.
Ky. 2005). [N/R]
In a lawsuit under Texas state law for
negligence, filed by an arrestee who was shot by a sheriff's deputy after a car
chase, a county was entitled to sovereign immunity. A state statute waiving
immunity for certain negligent acts of governmental employees did not apply, as
the shooting was an intentional action. An intermediate state appeals court
reasoned that the exception to the statute's waiver of immunity for intentional
acts could not be "circumvented" merely by claiming that the county
was "negligent" in supervising the employee who commits an
intentional act, such as a shooting. Harris County, Texas v. Cabazos, No.
01-03-00772-CV, 177 S.W.3d 105 (Tex. App. 1st Dist. 2005). [N/R]
The estate of a detainee who died after being
shot by police who stopped him stated a viable claim against members of the
city's Board of Police Commissioners for liability based on an alleged official
policy or custom of failing to instruct and supervise the officers on the
proper use of deadly force. McNeal v. Zobrist, No. CIV.A. 04-2149, 365 F. Supp.
2d 1166 (D. Kan. 2005). [N/R]
No reasonable juror, federal appeals court rules,
could find that a police officer violated a schizophrenic suspect's rights by
shooting and killing him seconds after he stabbed another officer with a
butcher knife. Untalan v. City of Lorain, No. 04-4489, 430 F.3d 312 (6th Cir.
2005). [2006 LR Feb]
Officer's shooting and killing of drug crime
suspect in his home during execution of search warrant was justified when the
officer was confronted by a weapon upon his entry. No evidence supported a
claim that the officer shot the suspect after he was incapacitated or when he
was helpless. Sterling v. Weaver, No. 04-35346, 146 Fed. Appx. 136 (9th Cir.
2005). [N/R]
City of New York and its police officers were
entitled to immunity from liability under state law for the death of a man from
gunfire that occurred while he was attempting to make an illegal sale of guns
to undercover officers, as there was no evidence that anything the officers did
was inconsistent with acceptable police practices. The officers were exercising
their discretionary professional judgment at the time of the shooting. Arias v.
City of New York, 802 N.Y.S.2d 209 (A.D. 2nd Dept. 2005). [N/R]
If deputy sheriff fired final fatal shot at
arrestee fleeing in stolen police car after the vehicle passed him, he violated
the arrestee's constitutional rights. The arrestee had been taken into custody
for the nonviolent offense of making harassing phone calls, and no longer posed
an immediate threat to the deputy after driving past him. Smith v. Cupp, No.
04-5783, 2005 U.S. App. Lexis 26268 (6th Cir.). [2006 LR Jan]
Officers were properly held liable for shooting
man in the leg while he fled from the scene of an arson at a garage, when jury
rejected their claim of self-defense. Federal appeals court overturns jury
awards against city, mayor, and police commissioner, however, finding no
evidence of inadequate training or discipline. Compensatory damages of $4
million to shot man, however, found excessive by $1 million, and awards of
$500,000 to each of his parents also found excessive by $400,000 each. Punitive
damage awards of $15,000 against each of two officers upheld. Whitfield v.
Melendez-Rivera, No. 04-1217, 2005 U.S. App. Lexis 26549 (1st Cir.). [2006 LR
Jan]
Police officer acted reasonably in shooting a man
who had barricaded himself in his bedroom armed with a number of guns after
officers came to his house in response to a domestic disturbance call, and who
threatened to shoot officers if they attempted to remove him from the home.
Just prior to the officer shooting him, the suspect had raised a window and
announced that he now had a "clean shot." Phillips v. James, No.
03-4272, 422 F.3d 1075 (10th Cir. 2005). [2005 LR Dec]
Officers who shot at car containing suspect
attempting to flee from service of felony drug arrest warrant were not liable
for subsequent death of one of his passengers and serious injuries to another
when his car later crashed into a wall. The cause of the death and injuries was
the suspect's decision to flee, not the officers' use of deadly force. Shooting
at the suspect was reasonable when an officer believed that the suspect was trying
to run him over. Troupe v. Sarasota County, Fla., #04-10550, 419 F.3d 1160
(11th Cir. 2005). [2005 LR Dec]
Motorist's plea of guilty to speeding showed that
officers had probable cause for his arrest, and the officers did not use
excessive force by merely drawing their weapons when the vehicle was stopped at
3:30 a.m. in a secluded and unlit area. Cunningham v. Sisk, No. 03-6640, 136
Fed. Appx. 771 (6th Cir. 2005). [N/R]
Family of man shot and killed by police officer
could not pursue a federal civil rights claim for deprivation of their right to
familial association in the absence of any evidence that the officers intended
to interfere with their relationship with the decedent, and his estate was the
only party authorized to pursue a claim under New Mexico's state wrongful death
statute. Murphy v. Bitsoih, No. CIV. 02-1185, 320 F. Supp. 2d 1174 (D.N.M.
2004). [N/R]
State of Maine was not liable for the death of a
mentally ill man shot and killed by police as he was attempting to stab an officer
with a knife in his residence. The state's alleged inadequate provision of
mental health services, if proven, did not have a disparate impact on the
decedent, in violation of the American with Disabilities Act (ADA) provisions
prohibiting discrimination on the basis of disabilities by public entities, 42
U.S.C. Sec. 12132, as he was not denied any public service available to able
members of the public. Buchanan v. Maine, No. CIV.04-26, 366 F. Supp. 2d 169
(D. Me. 2005). [N/R]
Federal appeals court, overturning 20-year-old
precedent, rules that parents of an adult son shot and killed by a police
officer could not recover damages in federal civil rights lawsuit for the loss
of the companionship of their son. Russ v. Watts, No. 04-3628, 414 F.3d 783
(7th Cir. 2005). [2005 LR Nov]
Officer acted properly, while investigating a prowler
call, in stopping the only car observed in the area, which had tinted windows
obstructing his view inside, and he and another officer acted properly in
attempting to conduct a pat-down search of a passenger outside the vehicle who
was known to be a convicted narcotics felon. Appeals court fails to reach
issues of whether officers acted lawfully, however, in shooting passenger, and
in hitting him and using a dog against him after the shooting, in light of
disputes as to whether he was actually armed with a gun and continued to pose a
threat after he was shot. Holeman v. City of New London, No. 04-5031, 2005 U.S.
App. Lexis 21213 (2nd Cir.). [2005 LR Nov]
Factual issues concerning whether or not a man
was holding a toy gun or otherwise threatening an officer before the officer
shot and killed him barred granting summary judgment on the basis of qualified
immunity to the officer in the surviving family's federal civil rights lawsuit.
Finks v. City of North Las Vegas, No 04-15806, 135 Fed. Appx. 976 (9th Cir.
2005). [N/R]
Officer's shooting and killing of man's pet dog
was not an unreasonable seizure under the Fourth Amendment. The officer could
have, under the circumstances, reasonably believed that the dog posed an
imminent threat to his safety, based on its weight of 55 to 60 lbs, its speed
in traveling 15 feet in five seconds, and the fact that it would have reached
him in five seconds had he not shot it. While the dog owner did yell that the
dog would not hurt the officer, the officer did not have to wait until the dog
was within biting range before taking action to protect himself. Dziekan v.
Gaynor, No. 3:03CV1486, 376 F. Supp. 2d 267 (D. Conn. 2005). [N/R]
Sheriff who shot and killed a man while
responding to a dispatch call about an armed and possibly suicidal person acted
in an objectively reasonable manner when the man had grabbed and raised his
rifle and struggled with the sheriff for possession of the rifle as the sheriff
sought to disarm him. Under the circumstances, the sheriff could reasonably
believe that his own life was in danger. Burnette v. Gee, No. 04-5551, 137 Fed.
Appx. 806 (6th Cir. 2005). [N/R]
When officers shot at motorist's car leaving the
scene after the occupants ignored orders to exit their vehicle, and hit the
car, but not any of its occupants, resulting in the motorist leaving unimpeded,
the occupants were not "seized" within the meaning of the Fourth
Amendment, so an occupant's excessive force claim had to be analyzed under the
Fourteenth Amendment's "shocks the conscience" due process legal
standard rather than the Fourth Amendment's reasonableness standard. In this
case, the plaintiff did not appeal the trial court's conclusion that the
officers' conduct did not "shock the conscience," but unsuccessfully
argued that it was excessive and unreasonable because the Fourth Amendment
applied. Ferrante v. Peters, No. 04-3459, 135 Fed. Appx. 846 (6th Cir. 2005).
[N/R]
New York intermediate appellate court upholds
jury's award of $1,375,799.06 for lost earnings and pain and suffering to the
estate of a man shot and killed by officers when he peered out from where he
was standing, after hearing the officers' shots ring out. The court found that
there was evidence that the officers were aware that a "bystander"
was on the street at "this wee hour of the morning," and that the man
who had flagged them down had pointed out the decedent. Cusanelli v. New York
City Transit Authority, 799 N.Y.S. 2d 36 (A.D. 1st Dept. 2005). [N/R]
Mother of 30-year-old man shot and killed by
police officer following traffic stop had no constitutionally protected due
process right to the companionship of her son which could be the basis for a federal
civil rights claim on her own behalf. Robertson v. Hecksel, No. 04-12367, 2005
U.S. App. Lexis 17201 (11th Cir.). [2005 LR Oct]
Officers acted objectively reasonably in shooting
and killing a man they were in the process of arresting for a drug offense when
he used his car as a weapon, knocking one officer backwards, and there was a
threat that he would then run over the fallen officer. Gaxiola v. City of
Richmond Police Department, No. 03-16871, 131 Fed. Appx. 508 (9th Cir. 2005).
[N/R]
Officers had exigent circumstances to enter a
house without waiting for the occupant, a suspected methamphetamine drug
dealer, to answer, based on various evidence giving them reason to believe that
he was likely to be armed. Officers also did not act unreasonably in returning
the suspect's gunshots, and suspect could not assert a claim for excessive use
of force when he was not struck by the officers' bullets. Cabell v. Rousseau,
No. 04-1258, 130 Fed. Appx. 803 (7th Cir. 2005). [N/R]
Officer was entitled to qualified immunity for
shooting and killing a suspect in a drug transaction investigation who was
slowly moving a vehicle towards him, which threatened to crush him into another
car. Robinson v. Arrugueta, No. 04-10856, 2005 U.S. App. Lexis 13456 (11th
Cir.). [2005 LR Sep]
Undercover federal drug agent acted reasonably in
fearing for her life and shooting a suspect participating in an attempted armed
robbery during a drug transaction. U.S. government not liable under Federal
Tort Claims Act for agent's actions which caused suspect to be paralyzed from
the waist down. Morales v. US, No. 03-1743, 2005 U.S. App. Lexis 10082 (6th
Cir.). [2005 LR Sep]
Erroneous admission of expert witness testimony
which commented on the credibility of police officers involved in shooting
required a new trial in case where jury returned a verdict against a suspect
shot and paralyzed from the waist down. Nimely v. City of New York, No.
04-3240, 2005 U.S. App. Lexis 12712 (2d Cir.). [2005 LR Aug]
Police officers were entitled to qualified
immunity for mistakenly shooting a witness to a shooting who was crawling
towards other officers with a gun in hand. Under the circumstances, a
reasonable officer could have believed that the witness was the shooter and that
they had probable cause to arrest him and use deadly force against him. Flynn
v. Mills, No. 1:03-CV-00515, 361 F. Supp. 2d 866 (S.D. Ind. 2005). [N/R]
Deputies who shot a sword-carrying schizophrenic
man, rendering him paraplegic, after he appeared to be ignoring their orders to
drop the weapon and attempted to enter a house were entitled to qualified
immunity. They did not know that he could not hear their orders, or that he was
attempting to enter his own home. Blanford v. Sacramento County, No. 03-17146,
406 F.3d 1110 (9th Cir. 2005). [2005 LR Jul]
Police officer who shot unarmed burglar allegedly
obeying his order to exit a cabinet in which he had been hiding was not
entitled to qualified immunity if the facts were as the plaintiff claimed--that
he had not attempted to reach his hand into his pocket. Sample v. Bailey, No.
04-4174, 2005 U.S. App. Lexis 8328 (6th Cir.). [2005 LR Jul]
Federal appeals court lacked jurisdiction to
review a denial of qualified immunity when the defendant police officer made
assertions on appeal which challenged the trial court's factual findings in a
lawsuit concerning his shooting of an arrestee, and whether the shooting was
accidental or intentional. Henry v. Purnell, No. 04-1810, 119 Fed. Appx. 441
(4th Cir. 2005). [N/R]
Factual issues concerning whether off-duty
officer shot bar patron, and whether in doing so, he was acting under color of
law and within the scope of his employment barred summary judgment for city in
patron's federal civil rights lawsuit over the incident. Coles v. City of
Chicago, No. 02C9246, 351 F. Supp. 2d 740 (N.D. Ill. 2005). [N/R]
Officers acted reasonably in using deadly force
against a suspect who allegedly pointed a weapon at them through the doorway of
his apartment. Estate of Sowards v. City of Trenton, No. 03-2036, 125 Fed.
Appx. 31 (6th Cir. 2005). [N/R]
Police chief and SWAT team leader were entitled
to qualified immunity on claims for supervisory liability in case where SWAT
officer entering residence shot and killed a man inside the home within two
seconds, and the plaintiffs claimed that the decedent was unarmed. Nothing
showed that they made a deliberate choice to inadequately train or supervise
the officer, which caused the alleged deprivation of the decedent's rights.
Estate of Davis v. City of North Richland Hills, No. 04-10036, 2005 U.S. App.
Lexis 5893 (5th Cir.) [2005 LR Jun]
City could be liable for on-duty officer's
mistaken shooting and killing of an off-duty officer also responding to a
disturbance at a restaurant while out of uniform. Federal appeals court finds
sufficient evidence to send to a jury the question of whether the city was
deliberately indifferent to the risk of "friendly fire" incidents by
failing to provide adequate training on identification of off-duty officers, in
light of the risks of its "always armed/always on-duty" policy. Young
v. City of Providence, 404 F.3d 4 (1st Cir. 2005). [2005 LR Jun]
Police officers and sheriff's deputy were not
entitled to qualified immunity for allegedly seizing "truckloads" of
personal property while executing search warrant at residence for the sole
purpose of supporting sentencing enhancement in a pending case by proving that
the Hells Angels Motorcycle Club was a gang, or for shooting two dogs at the
residence. San Jose Charter of the Hells Angels Motorcycle Club v. City of San
Jose, No. 02-16329, 402 F.3d 962 (9th Cir. 2005). [2005 LR Jun]
U.S. Border Patrol agent who shot and killed
arrestee acted reasonably after the arrestee escaped by kicking the window out
of her patrol car and escaped, subsequently biting her hand, pulling her hair,
hitting her on the head, and attempting to take her gun away from her. Under
these circumstances, and because the arrestee weighed approximately 60 pounds
more than the agent, she reasonably feared that the arrestee might kill her or
seriously injure her, justifying the use of deadly force. Mason v. United
States, No. 03-55560, 120 Fed. Appx. 40 (9th Cir. 2005). [N/R]
City was not liable for officer's shooting of a
man in his home through a kitchen door window when he thought the man was
threatening his wife with a gun. Plaintiffs failed to show a municipal policy
of condoning the excessive use of force, and an expert's opinion that the city
must have had such a policy simply because of the number of excessive force
lawsuits filed was inadequate to create a genuine factual issue in the absence
of any qualitative analysis of these past cases and their similarity to the
current one. Thomas v. Chattanooga, #03-6308, 2005 U.S. App. Lexis 2024 (6th
Cir.). [2005 LR Apr]
Officer acted in an objectively reasonable manner
in shooting a 15-year-old burglary suspect who advanced on her with a knife.
Suspect's guilty plea to a criminal charge of threatening the officer with the
knife precluded her from disputing that fact in her subsequent civil rights
lawsuit. Jiron v. City of Lakewood, No. 02-1421, 392 F.3d 410 (10th Cir. 2004).
[2005 LR Mar]
Police officer acted reasonably in shooting and
killing a motorist following a traffic stop because the motorist picked up a
gun after it fell to the sidewalk and after the officers ordered him not to
pick up the gun. Bloxson v. Borough of Wilkinsburg, No. 04-1108, 110 Fed. Appx.
279 (3rd Cir. 2004). [N/R]
Burglar who was shot by police officer when he
reached to grab the top of a cabinet in which he was hiding in order to pull
himself out established, for purposes of a qualified immunity analysis, that
the officer used excessive force in violation of the Fourth Amendment if the
facts were as he alleged, since he then would have posed no threat to the
officer, so that the use of deadly force was not objectively reasonable. Sample
v. Bailey, No. 5:04CV344, 337 F. Supp. 2d 1012 (N.D. Ohio 2004). [N/R]
Police officer who shot and killed victim who was
grappling with his assailant and had wrestled the gun away from the suspect was
not entitled to qualified immunity. If, as was alleged, victim was not pointing
the weapon at the officer, the use of deadly force, which would necessarily
endanger both men, was objectively unreasonable. Craighead v. Lee, No. 04-1377,
2005 U.S. App. Lexis 301(8th Cir. 2005). [2005 LR Feb]
Police officers properly shot at motorist whose
vehicle lurched towards them, but their continued shots after the vehicle
passed them was unreasonable because the threat to their safety had ended. The
officers were still, however, entitled to qualified immunity because the issue
of continued use of deadly force under such circumstances had not been clearly
decided at the time of the incident. Waterman v. Batton, No. 04-1096, 2005 U.S.
App. Lexis 10 (4th Cir. 2005). [2005 LR Feb]
Qualified immunity for off-duty officer working
as a crossing guard who shot and killed motorist did not, by itself, bar a
claim against a police chief for alleged inadequate training, but plaintiffs
failed to produce sufficient evidence to prove that the training provided was,
in fact, inadequate. Roberts v. Shreveport, No. 03-30824, 2005 U.S. App. Lexis
589 (5th Cir. 2005). [2005 LR Feb]
Officer who shot fleeing felon motorist in the
back was entitled to qualified immunity, U.S. Supreme Court holds, when prior
caselaw did not clearly establish that her conduct violated his Fourth
Amendment rights. Brosseau v. Haugen, No. 03-1261, 2004 U.S. Lexis 8275. [2005
LR Jan]
Officers acted in an objectively reasonable
manner in shooting and killing a man encountered in the woods armed with two
knives who repeatedly refused to drop them in response to the officers' orders,
and whose actions indicated that he was prepared to use the knives against
them. Huggins v. Weider, No. 03-2333, 105 Fed. Appx. 503 (4th Cir. 2004). [N/R]
Jury verdict in favor of police officer and city
upheld in case where officer shot and killed a man who approached him with a
knife in hand when he responded to a report of a dispute. Where the jury
returned a general verdict in favor of the defendants, and was not polled by
special interrogatories, the appeals court could not determine the basis on
which the jury found for the defendants and had to presume that the jury
"found every issue in favor of the defendants." The plaintiff
therefore failed to provide a record on which reversible error could be found.
Morales v. Moore, No. 24286, 855 A.2d 1041 (Conn. App. 2004). [N/R]
Estate of man shot and killed by police was
barred, by the doctrine of collateral estoppel, from relitigating the issue of
whether the force used by the officers was excessive. Federal court had
previously found that the officers acted in an objectively reasonable fashion
in shooting and killing the man, a motorist, who had rammed his vehicle into an
officer's vehicle and then continued to push the officer's vehicle backward.
This conclusion in the federal case barred the estate from pursuing state law
claims for assault and battery, negligence, and intentional infliction of
emotional distress, as liability for such claims would be inconsistent with the
resolution of the federal lawsuit. Vanvorous v. Burmeister, No. 248450, 687
N.W.2d 132 (Mich. App. 2004). [N/R]
Under Louisiana state law, there is no right to a
jury trial in any lawsuit for injury to person or property against the state, a
state agency, officer, or employee, or a political subdivision of the state or
its employees acting in the discharge of his officials duties or within the
course and scope of his employment. A jury trial was therefore not available on
claims by the parents of a son shot and killed by an off-duty police officer,
based on a determination that the officer acted in the course and scope of his
employment or in discharging his official duties. Robertson v. Hessler, No.
2003-C-1060, 881 So.2d 116 (La. App. 2004). [N/R]
Officer was entitled to qualified immunity for
shooting and killing a husband struggling on the floor with another officer
summoned to the home because of a domestic dispute. Parks v. Pomeroy, No.
03-2043 2004 U.S. App. Lexis 23262 (8th Cir.2004). [2004 LR Dec]
Officer did not use unreasonable force in
shooting and killing an unarmed motorist who had crashed his car into a police
vehicle and then continued to rev his engine, pushing it backwards and
attempting to force it into a ditch. Officer's action was reasonable under the
circumstances, and therefore did not violate the Fourth Amendment. Vanvorous v.
Burmeister, #02-1150, 96 Fed. Appx. 312 (6th Cir. 2004). [N/R]
Question of whether officers used excessive force
in shooting a man was for the jury to determine, and they could believe, on the
basis of the evidence, that the suspect, who had pointed a gun at the officers
was trying to escape and disbelieve the plaintiff's asserting that he was
handcuffed and in police custody at the time. Federal appeals court upholds
jury verdict for defendant officers. Palma v. Edwards, No 03-2019, 103 Fed.
App. 3 (7th Cir. 2004). [N/R]
Officer acted in an objectively reasonable manner
in shooting and killing an intoxicated belligerent suspect who ignored repeated
orders to drop his gun when he raised both his arms simultaneously while still
holding the gun. Estate of Martinez v. City of Federal Way, No. 03-35210, 105
Fed. Appx. 897 (9th Cir. 2004). [N/R]
Plaintiffs failed to show that an official city
policy or custom of deliberate indifference to the need for training of officers
on the use of deadly force caused the death of a motorist shot and killed by an
officer during a pursuit of his vehicle. Genuine issues of material fact as to
whether the officer acted negligently, however, barred summary judgment for the
city in a Texas state law claim. Lopez-Rodriguez v. City of Levelland, Texas,
No. 03-10843, 100 Fed. Appx. 272 (5th Cir. 2004). [N/R]
Officers who allegedly compelled warrantless
entry into a woman's home by threatening to arrest her and put her baby in
foster care were not entitled to qualified immunity. Warrantless entry was not
justified by the fact that a parolee, the subject of the search, had previously
lived there, when he was in jail at the time, and the search was based on
"stale" information. Additionally, no reasonable officer could have
believed that pointing a gun at the five week-old baby during a search of his
room was reasonable under the circumstances. Motley v. Parks, No. 02-56648 2004
U.S. App. Lexis 19581 (9th Cir.). [2004 LR Nov]
Officers who shot and killed a man who demanded
they kill him were not entitled to summary judgment on his estate's federal
civil rights claim for excessive force when there was a factual dispute over
whether he was armed with a knife at the time of the shooting, and whether he
posed an immediate threat to them. Murphy v. Bitsoih, 320 F.Supp.2d 1174
(D.N.M. 2004). [2004 LR Nov]
Police officer acted in an objectively reasonable
manner by using deadly force against the occupants of a truck that was being
driven towards him at a high rate of speed while he stood a few feet away.
Herman v. City of Shannon, No. 04-60027, 104 Fed. Appx. 398 (5th Cir. 2004).
[N/R]
Federal appeals court panel rules, by 2-1 vote,
that the failure of a police department to issue officers non-lethal weaponry,
such as OC and batons, did not provide a basis for liability for shooting an
unarmed man running towards an officer. Strong dissent asserts that a policy of
equipping officers only with guns was bound to result, sooner or later, in the
use of unjustified deadly force. Carswell v. Borough of Homestead, No. 03-2290,
2004 U.S. App. Lexis 17732 (3rd Cir. 2004). [2004 LR Oct]
Police officer did not use excessive force in
drawing and pointing his gun at occupants of a vehicle even though they were
not resisting in any way and had only committed a traffic violation, when they
had guns in the vehicle and were in a high-crime neighborhood at 1 a.m. in the
morning. Ready v. City of Mesa, #02-17102, 89 Fed. Appx. 44 (9th Cir. 2004). [N/R]
Police officer who shot and killed suicidal man
who attempted to stand in front of moving traffic on a highway, told him that
"I am Jesus Christ [...] I am going to die and so are you!" and then
attacked him, was entitled to qualified immunity from liability, as he acted in
reasonable self defense. Kesinger v. Conner, No. 03-13883, 2004 U.S. App. Lexis
18160 (11th Cir. 2004). [2004 LR Oct]
Jury verdict awarding damages on the basis of
officer's alleged unreasonable use of deadly force in shooting and killing a
woman armed with two knives inside her house with family members upheld.
Intermediate California appeals court, however, rules that city, while
vicariously liable for officer's actions, could not be held liable on theories
of inadequate training or supervision or other "direct negligence"
theories, in the absence of a clear statutory duty which was breached. Munoz v.
City of Union City, No. A095846, 2004 Cal. App. Lexis 1187 (Cal. 1st App.
Dist.). [2004 LR Sep]
Police officers' actions in shooting and killing
a deaf man armed with a rifle in a parking lot who intended to protest
discriminatory treatment of disabled people did not constitute disability
discrimination under the Americans with Disabilities Act (ADA). The shooting
occurred because the decedent's actions threatened others, not because of his
disability. Vincent v. Town of Scarborough, #02-239, 2003 U.S. Dist. Lexis
20910; confirmed, 2003 U.S. Dist. Lexis 22934 (D. Me. 2003). [2004 LR Sep]
Officer acted in an objectively reasonably manner
in shooting and killing a suspect who had fired a gun at an officer, refused to
lower his gun when ordered to do so, and then retreated into his home, where
the officer feared he would pose an even greater threat to officers on the scene
once he was out of sight. Elkins v. McKenzie, No. 2002-IA-00845-SCT, 865 So. 2d
1065 (Miss. 2003). [N/R]
Officers did not use excessive force in first
using pepper spray and then shooting a motorist who pulled a knife on them
after initially refusing to submit to a stop on suspicion of intoxicated
driving. Gaddis v. Redford Township, #02-1483, 364 F.3d 763 (6th Cir. 2004).
[2004 LR Aug]
Police officials were not entitled to qualified
immunity on supervisory liability claims based on their allowing a sergeant to
supervise a "high impact" unit which was involved in the shooting
death of a suspect. This was based on the sergeant's past disciplinary record,
which allegedly showed that he could not control his emotions and was not
"truthful and honest." There was a factual issue as to whether the
officers allegedly involved in misconduct in the suspect's death acted on the
sergeant's orders and whether the failure of higher-up supervisors to take
stronger measures to discipline the sergeant had an "affirmative
link" to the alleged violation of the decedent's rights. Court also holds,
as to the officers, that there was a genuine factual issue as to whether the
decedent had been carrying a gun and whether the officers planted a rifle next
to his body after he was shot. Officers were therefore not entitled to
qualified immunity on excessive force claim or judgment as a matter of law on
defamation claim arising from publication in newspaper of photo showing gun
next to body. Gonzalez Perez v. Gomez Aguila, 312 F. Supp. 2d 161 (D. Puerto
Rico 2004). [N/R]
Motorist shot by police officer after car chase,
who was awarded $250,000 on his excessive force claim, was also entitled to an
award of $95,836.65 for legal fees and $11,758.40 for costs, for a total of
$107,595.05. Court rules that time attorney spent investigating the pursuit
route and the scene of the shooting was compensable as part of attorneys' fee
award, that the cost of hotel expenses for an out-of-state lawyer were not
recoverable without an explanation for why it was necessary to hire an
out-of-state lawyer. Reduction in requested fees was required based on
plaintiff only prevailing against one of four defendants and on only two of
fourteen claims originally asserted. Parker v. Town of Swansea, 310 F. Supp. 2d
376 (D. Mass. 2004). [N/R]
City was not liable for alleged wrongful shooting
and killing of woman by off-duty police officer, despite alleged awareness of
officer's "violent behavior" towards the victim on prior occasions
and his alleged substance abuse. In addition to the officer not being on duty
at the time of the incident, the police department was not notified of the
situation occurring at the victim's residence, and was therefore not aware of
any need to intervene. Burkhart v. Knepper, 310 F. Supp. 2d 734 (W.D. Pa.
2004). [N/R]
Officer acted in an objectively reasonable manner
by shooting suspect during execution of search warrant on residence. Officer
had been told that resident was suspected of homicide, had a violent history,
and had previously shot a police officer, and that he was known to carry guns.
The officer, on entering the home, saw the suspect lift his right arm and
believed that an object he was carrying was a gun. The fact that the object
subsequently turned out to be a Bic cigarette lighter did not alter the result.
Trusdale v. Bell, No. 02-6398, 85 Fed. Appx. 691 (10th Cir. 2003). [N/R]
Officers' actions in approaching a
"distraught" woman armed with a handgun with their own weapons drawn
and issuing commands to her did not render them liable for her subsequent death
when she began pointing her weapon at one of them and she was shot and killed.
Court rejects the argument that their conduct unreasonably "provoked"
a confrontation which resulted in the death. Neuburger v. Thompson, 303 F.
Supp. 2d 521 (W.D. Pa. 2004). [N/R]
Police officers could reasonably have believed
that their safety was in danger even if the plaintiff's version of the incident
were believed--i.e., that he turned and faced an officer with his gun in his
hand down by his side. Officers were therefore entitled to qualified immunity
for their shooting plaintiff several times. Cunningham v. Hamilton, #03-1639,
84 Fed. Appx. 357 (4th Cir. 2004). [N/R]
Officers acted reasonably in shooting man who
allegedly failed to obey orders to put down an 8.5" knife which he had
when they responded to his sister's call that he was "going crazy"
and needed to "be committed somewhere." No evidence contradicted
officers' testimony that the man charged at an officer with the knife, as
sister's claim that her brother was trying to lay the knife on a picnic table
after withdrawing it from a sheath was "pure speculation," given that
she was not present at the time. Santana v. City of Hartford, 283 F. Supp. 2d
720 (D. Conn. 2003). [N/R]
Federal appeals court lacked jurisdiction to hear
appeal of denial of qualified immunity to officers who shot man with a history
of mental illness who they shot several times after responding to his 911 call.
Trial court found that there were genuine contested issues of material fact,
and appeals could not review that finding. Goffney v. Carr, #03-20072, 78 Fed.
Appx. 974 (5th Cir. 2003). [N/R]
Minor child of motorist mistakenly shot and
killed by police officers following pursuit, based on incorrect belief that he
was suspect wanted for stealing police pistol, could not intervene in a
wrongful death claim brought under Virginia state law by the personal
representative of the decedent's estate. Personal representative adequately
represented minor's interest as a beneficiary of the estate. A mere difference
of opinion concerning litigation tactics did not show that personal
representative's actions were "inadequate" as would justify a right
to intervene in the case for the minor beneficiary. Jones v. Prince George's
County, Maryland, #02-7104, 348 F.3d 1014 (D.C. Cir. 2003). [N/R]
Officers acted reasonably in using pepper spray
in an attempt to subdue an emotionally disturbed suicidal man who was armed
with an axe and had previously taken hostages, and in shooting and killing him
when he responded to the pepper spray by lifting the axe and running towards
them. Isom v. Town of Warren, No. 03-1765, 360 F.3d 7 (1st Cir. 2004). [2004
LR May]
Police officer was not entitled to qualified
immunity on claim that he shot a fleeing pedestrian in the back after the
pedestrian, who was armed, purportedly dropped his handgun. If facts were as
plaintiff asserted, officer could not reasonably have believed that he was
authorized to use deadly force without warning under the circumstances. Pablo
Hernandez v. City of Miami, 302 F. Supp. 2d 1373 (S.D. Fla. 2004). [N/R]
Estate of mentally ill man shot and killed by
police officers after use of bean bag pellets and pepper spray failed to subdue
him presented a genuine issue of fact as to whether officers had been
inadequately trained in dealing with mentally ill persons and in the use of
impact projectiles, and whether the alleged inadequate training caused his
death. Herrera v. Las Vegas Metropolitan Police Department, 298 F. Supp. 2d
1043 (D. Nev. 2004). [N/R]
Maryland jury awards $105 million in damages to
family of unarmed man shot and killed by Baltimore police officer. While
officer claimed the man was holding a gun and turning towards him, evidence in
the case led to the officer subsequently pleading guilty to murder charges. The
shooting allegedly occurred because the officer believed the man was having an
affair with his wife. Estate of Little v. Price, No. 24-c-02-000997 (Baltimore
City, Md., Cir. Ct.), reported in The National Law Journal, page 20 (February
9, 2004). [2004 LR Apr]
Federal appeals court upholds jury award of $1
million to arrestee who was shot in his bed by an officer, allegedly with his
hands up, while in possession of a shotgun in his lap. Mere possession of a
weapon, without any indication that a suspect is going to use it, is an
insufficient basis for the use of deadly force. Robinson v. Nolte, No.
02-55094, 77 Fed. Appx. 413 (9th Cir. 2003). [2004 LR Apr]
Police officers were not entitled to qualified
immunity in lawsuit brought by family of mentally ill man they shot and killed
while he was driving his vehicle towards a toll plaza. Plaintiffs claimed that
the officers shot him multiple times at close range and continued firing after
all officers were out of the way of his vehicle, intending to hurt or kill him.
Waterman v. Batton, 294 F. Supp. 2d 709 (D. Md. 2003). [2004 LR Apr]
County was not liable for police officer's
shooting of suspect who had taken hostages in his car, even if he had his hands
up when he was shot, when the suspect and his accomplice were known to be armed
and the suspect allegedly quickly opened the car door and lunged out so that
the officer could not see his right hand at the time he fired. County review
board reasonably decided that officer's shooting did not violate police
department's use of force rules. Kanae v. Hodson, 294 F. Supp. 2d 1179 (D.
Hawaii 2003). [N/R]
Officer was not entitled to qualified immunity on
claim that he shot a mentally ill man in the stomach as he pointed a butcher
knife towards himself with suicidal intentions, as deadly force is only
permissible when a suspect poses an imminent threat to an officer or to others.
Buchanan v. City of Milwaukee, 290 F. Supp. 2d 954 (E.D. Wis. 2003). [2004 LR
Mar]
Officers had a reasonable belief that a man posed
an imminent risk to their lives and the lives of commuters when he boarded a
train dressed in army fatigues with a mask over his nose while carrying a
wooden staff and military sword. Officers did not use excessive force in
spraying him with pepper spray and shooting him without killing him after he
refused to obey their orders to put the staff down and leave the train. Stevens
v. Metropolitan Transportation Authority Police Department, 293 F. Supp. 2d 415
(S.D.N.Y. 2003). [N/R]
Father of adult son, in the absence of evidence
that son was not emancipated, could not recover damages for violation of his
parental liberty interest in son's companionship in lawsuit against city and
police officers who allegedly shot and killed son. Federal appeals court,
overturning prior lower court decisions in the Third Circuit, holds that the
due process clause of the Fourteenth Amendment does not extent to a parent's
interest in the companionship of an independent adult child. McCurdy v. Dodd,
No. 02-2708, 352 F.3d 820 (3rd Cir. 2003). [N/R]
Plaintiff who was shot by police officer could
not withhold his medical records in a federal civil rights lawsuit against the
city and officer on the basis of doctor-patient privilege or medical records
privilege, nor could he assert the right of privacy based on a provision of the
California state constitution to prevent the disclosure of those records. The plaintiff,
who claimed that he was shot in the back because the officer was in poor
physical condition and was therefore unable to pursue him on foot, was also
entitled in the case to the disclosure of the officer's medical records,
including those in a workers' compensation file. Hutton v. City of Martinez,
219 F.R.D. 164 (N.D. Cal. 2003). [N/R]
Genuine factual issues as to whether mayor and
police commissioner adopted proper regulations regarding the use of firearms
and whether officers were properly trained on those regulations barred summary
judgment on lawsuit against them by arrestee who was shot twice while running
away from parking ramp while allegedly unarmed. Whitfield v. Municipality of
Fajardo, 279 F. Supp. 2d 115 (D. Puerto Rico 2003). [N/R]
Officer who shot a suspect as he attempted
to drive away in a vehicle did not act reasonably if there was no evidence that
he posed a threat of serious harm to others or was armed with a weapon. Haugen
v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003). [2004 LR Jan]
Officer was entitled to qualified immunity for
shooting and killing a suspect who turned around and drove his vehicle towards
officers at the conclusion of a high-speed pursuit. Officer could reasonably
believe that the motorist was posing a significant threat of physical injury or
death to himself and others. Hernandez v. Jarman, No. 02-3519, 340 F.3d 617
(8th Cir. 2003). [2004 LR Jan]
Officer could have reasonably believed that he
had probable cause to arrest a juvenile female for evading detection when she
drove away as he ran up behind her vehicle calling out "police,
stop," after seeing people begin to flee from the area around her vehicle
when he shined a spotlight on it. Officer was therefore entitled to qualified
immunity for making an arrest, but there were genuine issues of fact precluding
summary judgment as to whether or not he was justified in using deadly force in
firing at the tire of her vehicle after she allegedly pulled to the right,
nearly striking him, as he ran alongside the vehicle. Flores v. City of
Palacios, 270 F. Supp. 2d 865 (S.D. Tex. 2003). [N/R]
A genuine issue of material fact as to whether a
house occupant being arrested for disorderly conduct was or was not
"lunging" at a police officer when the officer shot and killed him
precluded summary judgment in favor of the officer in an excessive force
lawsuit brought by the decedent's estate. LA v. Hayducka, 269 F. Supp. 2d 566
(D.N.J. 2003). [N/R]
Highway patrol officer did not violate the rights
of an allegedly intoxicated motorist he shot and killed while fighting in the
motorist's vehicle as the suspect attempted to drive off. Officer could
reasonably have feared for his own life, as well as the life and safety of
others traveling on the highway, having failed to prevent the suspect from
driving and being in the motorist's vehicle struggling with him as it went down
the road. Anderson v. Cash, No. 02-6356, 70 Fed. Appx. 251 (6th. Cir. 2003).
[N/R]
Officers acted in an objectively
reasonable manner in shooting at persons who they believed, even if mistakenly,
were going to use deadly force against them. Carr v. Tatangelo, No. 01-14621,
338 F.3d 1259 (11th Cir. 2003). [2003 LR Nov]
Firing at a car with the intent to stop a
suspect, when the officer did not succeed in doing so, was not a
"seizure" for purposes of a Fourth Amendment claim for excessive use
of force. The officer did not physically impair the suspect's ability to leave
the scene, since he missed hitting him, so no constitutional violation was
shown. Adams v. City of Auburn Hills, No. 02-1379, 336 F.3d 515 (6th Cir.
2003). [N/R]
Officers did not use excessive force by using
non-lethal bean-bag gun and pepper spray to subdue a suspect who had assaulted
two neighbors and his wife, threatened the occupants of a next door apartment
with knives, and then barricaded himself in his apartment, threatening to
"kill" officers if they attempted to enter, and continued to resist
them after they did so. Disputed facts about whether the arrestee was then nude
or still holding his knife at the time did not change the outcome. Peoples v.
Kimmey, No. 02-1109, 67 Fed. Appx. 506 (10th Cir. 2003). [N/R]
Jury's verdict for defendant police officer in
case accusing him of excessive force in shooting fleeing suspect in the back
was inconsistent in finding that the officer used excessive force, but was
nevertheless entitled to qualified immunity. Appeals court finds that jury was
allowed to decide issue of qualified immunity without being given adequate
instructions on how to do so. Stephenson v. Doe, #00-93, 332 F.3d 68 (2nd Cir.
2003). [2003 LR Oct]
Police chief did not use excessive force in
personally shooting and killing a man "brandishing" an 18 to 20 inch
sword who raised it towards officers at the scene of a disturbance. Mace v.
City of Palestine, No. 02-40335, 333 F.3d 621 (5th Cir. 2003). [2003
LR Sep]
Officer was not required to give advance warning
of his use of pepper spray in his attempt to subdue a man, armed with a walking
stick, who was suspected of having already used it to inflict serious injury on
a woman in a laundromat who was observed bleeding profusely from her head at
the scene. Further, his use of deadly force was also justified when the suspect
appeared ready to attack him and refused orders to drop the stick. McCormick v.
City of Fort Lauderdale, No. 01-16567, 333 F.3d 1234 (11th Cir. 2003). [2003
LR Sep]
Federal appeals court holds that privately owned
pet dogs are personal "effects" protected under the Fourth Amendment
from unreasonable searches and seizures, but also finds that animal control
officers' actions in shooting and killing the plaintiffs' dogs were objectively
reasonable under circumstances where the dogs posed an actual or potential
threat to the officers or others. Altman v. City of High Point, North Carolina,
No. 02-1178, 330 F.3d 194 (4th Cir. 2003). [2003 LR Sep]
Officers were entitled to qualified immunity for
shooting a man who refused to drop his handgun after he was ordered to do so.
Officers were responding to reports of shots fired in a high-crime area and
could reasonably believe that the suspect presented a serious threat of
personal harm to them once he disobeyed orders to drop the weapon, regardless
of whether or not he was then pointing the weapon at the officers. Cunningham
v. Hamilton, 259 F. Supp. 2d 457 (E.D. Va. 2003). [N/R]
County and officer could be sued under Florida
law for injuries that bystander suffered when he slipped and fell when officer
startled him by pointed a gun at him and yelling a him to freeze while
conducting a prostitution "sting" operation. Officer's actions
created a "foreseeable zone of risk" to the bystander and county was
not immune from suit because his injuries were allegedly caused by the manner
in which the police implemented their operation. Brown v. Miami-Dade County,
No. 3D00-3540, 837 So. 2d 414 (Fla. App. 2001), order denying rehearing en banc
(2003). [N/R]
Georgia Supreme Court holds that, under state
law, a parent of an adult child murdered by his surviving spouse can pursue a
wrongful death claim against the alleged murderer or against "other
parties" that proximately caused the death, answering a question certified
to it by the U.S. Court of Appeals for the Eleventh Circuit in a case where the
murdered son's mother asserted state wrongful death claims against the wife, a
police chief, and the city. The claims against the city and police chief were
based on the fact that the alleged murderer was a police captain who had previously
attempted suicide. The police chief had ordered her to remove all weapons from
her home, but did not relieve her of her duties, and she used her service
revolver to shoot and kill her husband. Carringer v. Rodgers, No. SO2Q1483, 578
S.E.2d 841 (Ga. 2003). [N/R]
Sheriff and SWAT team members were not entitled
to qualified immunity for death of man shot and killed in his home after he
resisted being taken into custody for a psychiatric evaluation. If plaintiff's
factual allegations were true, and decedent was in the process of surrendering
when he was shot and killed, use of deadly force against him was clearly
excessive. Warrantless entry into the home when the man had "not
committed" any crimes and there was no immediate need to subdue him was
"reckless" and an excessive use of force. Federman v. County of Kern,
No. 01-16691, 2003 U.S. App. Lexis 7180 (9th Cir.). [2003 LR Jun]
Officers did not violate any clearly established
constitutional rights in 1987 when they made a "split second"
decision to shoot a suspect after she had thrown a knife at one of them in an
attempt to kill him, and made an assault on a second officer by throwing a
glass at him, as well as being near a source of additional potential weapons.
They were therefore entitled to qualified immunity. No prior case law from
either the U.S. Supreme Court or the Court of Appeals for the Eleventh Circuit
ruled that using deadly force under such circumstances was excessive.
Willingham v. Loughnan, No. 99-4005, 321 F.3d 1299 (11th Cir. 2003). [N/R]
A factual issue as to whether an officer was
inside or outside of his vehicle when a motorist began driving towards him
prevented summary judgment on the issue of whether the officer reasonably
feared for his own safety and life at the time he shot and killed the motorist.
Martin v. Dishong, #02-1173, 57 Fed. Appx. 153 (4th Cir. 2003). [N/R]
Whether or not the decedent was the bank robber
sought or not did not impact the issue of whether the officers were justified
in shooting him since he did threaten them with a gun. Plaintiff in excessive
force lawsuit against city and officers failed to show that the first shots
fired against the suspect incapacitated him, or that he did not point his
weapon at the officer after these shots, justifying the shots which killed him.
Muhammed v. City of Chicago, #01-4187, 316 F.3d 680 (7th Cir. 2002).
[2003 LR May]
Family of youth shot and killed inside his
parent's house when he brandished a rifle at an officer can pursue its claim
for wrongful death against township and officer under New Jersey state law
based on the possibility that the officer engaged in "willful
misconduct" in allegedly violating a standing order concerning
"establishing a perimeter" in hostage, barricade, or sniper
situations. Clarke v. Township of Mount Laurel, 815 A.2d 502 (N.J. Super. A.D.
2003). [2003 LR May]
Police officer acted objectively reasonable in
shooting and killing a 6 foot tall 180 lb 18 year-old armed with a knife who
had self-inflicted cuts on himself, refused to relinquish his knife, and began
to charge at the officer with it, so that the officer feared for his life. No
evidence of inadequate training was produced against municipality. Easley v.
Kirmsee, 235 F. Supp. 2d 945 (E.D.Wis. 2002). [2003 LR May]
Defendant police officer could not challenge, on
appeal of an initial denial of qualified immunity, the trial court's
determination that sufficient evidence existed from which a finder of fact
could conclude that the plaintiff arrestee was fleeing and no longer posed a
threat when the officer shot him. This was an attempt to challenge the
"genuineness" of the factual disputes in the case, rather than their
"materiality." A proper challenge on appeal would be one to their
"materiality," i.e., contending that no violation of a clearly
established federal right would be shown even if all of the plaintiff's factual
allegations were true. Reyes v. City of Richmond, Tex., #01-20398, 287 F.3d 347
(5th Cir. 2002) . [N/R]
Officers were properly granted summary judgment
in lawsuit brought by suicidal man armed with knives who threatened his wife
and officers and then was subdued by shooting him with "beanbag"
rounds. Officers use of force was objectively reasonable under the
circumstances, and appeals court expresses agreement with trial judge that
plaintiff should have "thanked" rather than sued the officers. Bell
v. Irwin, #02-2262, 321 F.3d 637, 2003 U.S. App. Lexis 3415 (7th Cir.). [2003
LR Apr]
No reasonable jury could find that a police
officer acted objectively unreasonably in shooting an armed suspect who fired
the first shot, steadily advanced on the officer, and refused to obey the
officer's orders. Firing officer reasonably believed that he was in jeopardy
and that a fellow officer was under attack. Plaintiff's admission, in his
criminal case, that he acted recklessly was "damning" in his civil
rights claim. No claim against municipality could be pursued under the
circumstances. Jaques v. Town of Londonderry, #02-1872, 54 Fed. Appx. 14 (1st
Cir. 2002). [2003 LR Apr]
Disputed issues of fact as to whether or not the
police officers reasonably believed that they saw a motorist point or fire a
gun at them following a traffic stop precluded summary judgment of the basis of
qualified immunity for the officers in a lawsuit over their shooting and
killing of the motorist. Lee v. Hanna, #01-55403, 32 Fed. Appx. 937 (9th Cir.
2002). [N/R]
Jury properly awarded damages to estate of man
shot and killed as he held his mother hostage with a knife and threatened to
kill her if his ex-girlfriend was not brought to him, D.C. high court rules,
but jury's $2.1 million compensatory damages award is reduced to $180,000, and
$3.999 million punitive damage award was improper since there was no evidence
to support a finding that the officers shot the decedent with an "evil
motive" or "actual malice." District of Columbia v. Jackson, No.
99-CV-756, 810 A.2d 388 (D.C. 2002). [2003 LR Mar]
No liability for police officer who entered home
in response to two dropped 911 calls made during an ongoing domestic violence
incident and subsequently shot and killed a man inside armed with a gun.
Appeals court finds that "substantial evidence" supported the jury's
finding that the officer had implied consent to enter the home when the
"terrified" young female who opened the door did not respond to his
questions, but stepped back and did not object when he entered. Pavao v. Pagay,
#01-15201, 307 F.3d 915 (9th Cir. 2002). [2003 LR Feb.]
Officers who were present but did not participate
in fellow officers' shooting of robbery suspects could not be held liable under
42 U.S.C. Sec. 1983 for the use of excessive force in the absence of any proof
that they had control over the police department's operations, or the actions
of the officers who did fire. Further, nothing showed that they set into motion
any action that resulted in the shooting or that they authorized, approved, or
acquiesced in the shooting. Their mere presence was not enough to pursue claims
against them. Figueroa v. Gates, 207 F. Supp. 2d 1085 (C.D. 2002).[N/R]
Dismissal of an arrestee's federal civil rights
lawsuit alleging excessive force in his shooting by an officer was not
appropriate for failure to prosecute, despite the inactivity of the case during
two years since the plaintiff's release from prison. Plaintiff had not failed
to comply with any court orders or to appear for any scheduled depositions and
the plaintiff was unable to leave New York to litigate his claim in
Pennsylvania due to the conditions of his parole. No prejudice would be
suffered by the defendants by proceeding with the case since statements were
taken on the day of the shooting and the depositions of both the plaintiff and
the defendant officer were already taken. Baxter v. Lancaster County, 214 F.
Supp. 2d 482 (E.D. Pa. 2002).[N/R]
Police chief's shooting and killing of an
intoxicated, disturbed man wielding a sword and verbally threatening bodily
harm to officers was objectively reasonable, despite arguments that he failed
to "exhaust" all other options available to "contain" the
individual and violated a department policy by using deadly force with the hope
of only wounding the suspect. Mace v. City of Palestine, Texas, 213 F. Supp. 2d
691 (E.D. Tex. 2002). [N/R]
State trooper was not entitled to qualified
immunity for his shooting of a Port Authority police officer in full uniform
who he stated he believed to be an armed murder suspect he had been pursuing.
Injured officer claimed that trooper unreasonably failed to look into vehicle
where sought suspect had just committed suicide and unreasonably shot him only
because, like the suspect, he was a "black man with a gun." Curley v.
Klem, #01-1093, 298 F.3d 271 (3rd Cir. 2002). [2002 LR Dec]
Officer did not use excessive force in shooting
arrestee four times in the chest when he was armed with a tire iron and posed
an immediate threat to another officer who was trapped under the vehicle which
the officer was attempting to drive off in. Harris v. Lair, #01-1968, 37 Fed.
Appx. 818 (7th Cir. 2002). [2002 LR Nov]
Deputy did not use excessive force in shooting a
suspect three times while arresting him when the suspect was accused of
stealing several firearms and pulled out a weapon and fired, or appeared to do
so. Turpin v. Mueller, #00-4585, 37 Fed. Appx. 151 (6th Cir. 2002). [2002 LR
Nov]
Police officer was not entitled to qualified
immunity on his use of deadly force against a mentally ill suspect when a
reasonable officer under the circumstances could not believe that the suspect
posed a threat of serious injury to the officer or others. Clem v. Corbeau,
#01-1799, 284 F.3d 543 (4th Cir. 2002). [2002 LR Oct]
Deputy who allegedly shot through window of house
at suspect who had a holstered gun after chasing him there despite the fact
that he did not fit the description of the suspect sought was not entitled to
qualified immunity in federal civil rights lawsuit filed over suspect's death.
George v. Pinellas County, No. 01-12159, 285 F.3d 1334 (11th Cir. 2002). [2002
LR Oct]
Officers were not entitled to summary judgment
when there were disputed issues of fact including discrepancies between their
stories as to what transpired after they chased a suspect into a field and then
shot and killed him, allegedly believing (mistakenly) that he was armed. Wilson
v. City of Des Moines, Iowa, #01-290681, 293 F.3d 447 (8th Cir. 2002).
[2002 LR Sep]
Police detective did not violate motorist's
rights by shooting and killing him after he attacked the detective and had
gained the upper hand in a physical fight in which he was attempting to obtain
possession of the detective's gun. Federal appeals court overturns trial
court's denial of summary judgment for detective, and rejects argument that
detective's supposed tactical errors in the confrontation made his use of force
unreasonable. Billington v. Smith, #00-36062, 292 F.3d 1177 (9th Cir. 2001).
[2002 LR Sep]
Off-duty police officer who pursued and then shot
and killed unarmed man who alleged stole a lawn mower from his garage was not
entitled to qualified immunity from federal civil rights claim. Estate of
Thurman v. City of Milwaukee, 197 F. Supp. 2d 1141 (E.D. Wis. 2002). [2002 LR
Aug]
Police officers did not engage in racial
discrimination or selective enforcement of laws in stopping African-American
motorist whose car was weaving in traffic and in shooting him when an
altercation occurred during which he stabbed one officer. There was no evidence
that any defendant had failed to enforce the law in a similar manner against
similarly situated people of other races. Gaddis v. Redford Township, 188 F.
Supp. 2d 762 (E.D. Mich. 2002). [N/R]
Factual issues existed as to whether officers
reasonably believed that they saw a gun, a muzzle flash, or were otherwise
threated with deadly force by a motorist that they shot and killed after
stopping him for a traffic violation. Officers were therefore not entitled to
qualified immunity from liability. Lee v. Hanna, No. 01-55403, 32 Fed. Appx.
937 (9th Cir. 2002). [2002 LR Jul]
Off-duty police officer did not use excessive
force in shooting a man he observed attempting to enter various homes in his
neighborhood. Suspect was trying to escape from a house he did enter, and his
right hand was out of the officer's sight when he rotated his shoulder, giving
him reason to believe that he was in immediate threat of serious bodily harm.
Billingsley v. City of Omaha, #01-1487, 277 F.3d 990 (8th Cir. 2002). [2002 LR
Jul]
Family of man shot dead after he threw a knife at
officers and screamed "Suicide by cop!" receives $1.25 million
settlement in lawsuit against city in which plastic gun was allegedly
"planted" at the scene of the shooting to justify it. Runnels v. City
of Miami, U.S. Dist. Ct. No. 00-2930 (S.D. Fla. 2002). [2002 LR Jun]
State trooper acted intentionally in shooting a
motorist during a traffic stop, believing motorist was reaching for a gun.
Because North Carolina Tort Claims Act did not allow recovery against the state
for intentional injuries, the state Industrial Commission did not have
jurisdiction over the estate's claim concerning the shooting. Fennell v. North
Carolina Department of Crime Control and Public Safety, No. COA00-824, 551
S.E.2d 486 (N.C. App. 2001). [N/R]
Shooting and killing of suicidal individual armed
with a shotgun who had only pointed his weapon at himself would have been
unreasonable if he stopped advancing on officers at the time he was shot, but
trial court must still determine whether the law on that subject was clearly
established at the time of the incident in order to rule on officer's defense
of qualified immunity. Bennett v. Murphy, #00-2667, 274 F.3d 133 (3rd Cir.
2001). [2002 LR Apr]
Genuine issue of fact as to whether intoxicated
suicidal person armed with a knife was "lunging" at officers when
they shot and killed him or merely "leaning forward" barred summary
judgment for officers in wrongful death lawsuit. Prior v. Pruett, No.
COA00-415, 550 S.E.2d 166 (N.C. App. 2001). [2002 LR Apr]
Man who was shot by an officer, but not arrested
or detained, was not owed a duty by the officer to provide him with medical
care. Officers did not "shock the conscience" by firing at two men
after they heard what they thought was the sound of a bullet being chambered
into a gun and one of the officers believed that he saw a weapon being pointed.
Carr v. Tatangelo, 156 F. Supp. 2d 1369 (M.D. Ga. 2001). [2002 LR Mar]
Use of deadly force to apprehend a fleeing
arrestee after a bank robbery was reasonable even though a bank teller had
reported that the robber was unarmed. The officer heard shots being fired, and
did not know that it was other officers who had fired the shots. Dudley v.
Eden, #99-3738, 260 F.3d 722 (6th Cir. 2001). [2002 LR Mar]
Passenger in speeding car who was struck by a
bullet fired by an officer seeking to stop the vehicle was "seized"
for Fourth Amendment purposes even though officer did not intend to strike him,
but officer was entitled to qualified immunity based on arguable grounds to
believe that escaping vehicle posed a threat of serious harm to himself or
others. Vaughan v. Cox, No. 00-14380, 264 F.3d 1027 (11th Cir. 2001). [2002 LR
Feb]
Officers acted properly in shooting and killing a
man who answered his door holding what appeared to be a rifle. Sinclair v. City
of Des Moines, Iowa, No. 01-1050, 268 F.3d 594 (8th Cir. 2001). [2002 LR Feb]
Firing of "beanbag round" into the face
of emotionally disturbed man who had not threatened officers and was not armed
was an excessive use of force, federal appeals court rules. Officer was not
entitled to qualified immunity from liability. Deorle v. Rutherford, No.
99-17188, 263 F.3d 1106 (9th Cir. 2001). [2002 LR Jan]
Police officer who shot a woman seconds after she
had thrown a knife at another officer was entitled to qualified immunity for
incident which occurred in 1987. Appeals court rules that similar conduct today
might present a jury question as to whether the officer used excessive force.
Willingham v. Loughnan, 261 F.3d 1178 (11th Cir. 2001). [2002 LR Jan]
Police officer did not act unreasonably in
shooting fleeing suspect in the back when he believed that the suspect was
reaching for a weapon, based on his motions; no liability for shooting and
killing suspect who turned out to be unarmed. Thompson v. Hubbard, No. 00-2505,
257 F.3d 896 (8th Cir. 2001). [2002 LR Jan]
Genuine issues of material fact as to whether
officer reasonably could have believed that mentally ill suspect he shot posed
a risk of harm precluded summary judgment for officer. Facts disputed include
whether the officer actually and reasonably believed that the suspect was
armed. Clem v. County of Fairfax, No. CIV. A. 00-1684-A, 150 F. Supp. 2d 888
(E.D. Va. 2001). [N/R]
The mother of an emotionally disturbed man shot
eight times and killed by police officers while he "incoherently"
waved a pipe at them in a field where he had wandered after a car accident was
awarded $1.2 million in damages against the city by a jury that found that the
officers acted negligently. Decedent was found 30% at fault for his own death.
Lifton v. City of Vacaville, No. CIV S 98 1678 (U.S. Dist. Ct. E.D. Calif.),
July 10, 2001, reported in The National Law Journal, p. B3 (Aug. 20, 2001).
[N/R]
347:167 Officers were entitled to qualified
immunity for shooting and killing a suspect who emerged from his vehicle after
a chase brandishing his gun, which he had just fired once through the roof of
his truck, regardless of whether he was shot in the side while directly
pointing his weapon at the officers, or shot in the back as the plaintiff
claimed. Leong v. City of Detroit, 151 F. Supp. 2d 858 (E.D. Mich. 2001).
347:165 Officer was not entitled to qualified
immunity for shooting and killing suspect he claimed was biting his fingers and
swinging a flashlight at him at the time he shot; appeals court rules that
disputes between officer and witnesses as to the details of what happened
before suspect ran into field were material when officer was the sole witness
to shooting. Bazan v. Hidalgo County, #97-41463, 246 F.3d 481 (5th Cir. 2001).
346:150 Deputy's use of deadly force against
occupants of fleeing auto theft suspects was illegal seizure of passenger
struck and paralyzed, so county was not entitled to summary judgment in civil rights
lawsuit, but appeals court panel rules, by 2-1, that shooting deputy was
entitled to qualified immunity and could have reasonably believed that fleeing
suspects posed a threat of serious harm to other motorists. Vaughan v. Cox, No.
00-14380, 2001 U.S. App. LEXIS 19417 (11th Cir.).
346:151 Officers reasonably used deadly force in
response to suspect who had told them he had a gun, attempted to evade arrest,
and emerged from his house displaying a staple gun under a towel which they
reasonably could have believed was a firearm. Medina v. Cram, #00- 1153, 252
F.3d 1124 (10th Cir. 2001).
345:135 Officers were justified in shooting and
killing an intoxicated man asleep in his bed after he broke into his own house
through a rear window; decedent had not responded to their shouts and then
pointed a rifle at them from underneath the covers; officers were present to
investigate a possible burglary. Cox v. County of Prince William, No. 00-2159,
249 F.3d 395 (4th Cir. 2001).
345:136 UPDATE: Oregon reaches $5 million
settlement in case where jury awarded $8 million, including $4.5 million in
punitive damages, against state trooper who allegedly attacked female motorist
after stopping her for speeding and then shot her in the shoulder after she
attempted to drive away. Conroy v. Henry, No. 99-3074- AA, U.S. Dist. Ct. (D.
Ore.), The National Law Journal, p. B3 (July 23, 2001).
345:136 California jury awards $1.9 million for
officer's shooting and killing of woman intoxicated on methaphetamines who had
yelled through her screen door at him that she had a gun. Munoz v. City of
Union City, No. H204672-7, (Alameda Co., Calif. Superior Court, May 17, 2001),
The National Law Journal, p. B4 (July 30, 2001).
344:124 Deputy who shot a hostage during a shootout
with store armed robbers did not violate hostage's Fourth Amendment or
Fourteenth Amendment rights. Lee v. Williams, 138 F. Supp. 2d 748 (E.D. Va.
2001).
344:121 $3.5 million settlement in shooting death
of man who grabbed an unloaded rifle when members of a SWAT team entered his
home while executing a search warrant. Heard v. Board of County Commissioners
of Miami County, No. 00-2173-JWL, U.S. Dist. Ct. (D. Kan.), reported in The
National Law Journal, p. A6 (May 14, 2001), and in 44 ATLA Law Rptr. No. 5, p.
170 (June 2001).
344:118 Jury award in shooting by off-duty
officer reduced from $29 million to $3.095 million; city's "bad-
faith" failure to make payments under structured settlement results in
court order accelerating payment of entire amount. Summerville v. City of New
York, 723 N.Y.S.2d 208 (A.D. 2001).
343:102 Chicago reaches $18 million settlement
with family of unarmed woman shot and killed by officer at the conclusion of a
31 block pursuit of the vehicle in which she was riding. Haggerty v. Daniels,
No. 99-L-006486, Circuit Ct. of Cook County, IL., reported in Chicago Tribune,
p. 1 (May 8, 2001).
342:86 Trial judge erroneously failed to instruct
jury on the constitutional rules for the use of deadly force in lawsuit brought
by burglar shot by police officer; error was harmless, however, since a jury
instruction on a state law claim, on which the jury also found no liability,
included the proper legal standard. Monroe v. City of Phoenix, #99- 16974, 248
F.3d 851 (9th Cir. 2001).
344:123 Shooting and killing by sheriff's deputy
of Ohio man's pet lioness, allegedly after the escaped animal was tranquilized
and returning to the barn from which it had roamed, stated a claim for
unreasonable seizure of property, on which the sheriff was not entitled to
qualified immunity. Newsome v. Erwin, 137 F. Supp. 2d 934 (S.D. Ohio 2000).
341:73 City liable for $400,000 to motorist shot
by off-duty Colorado officer; department adopted a policy requiring officers to
always be on duty and always be armed, but provided no training on how to
handle police response when off-duty, and without police vehicle, uniform, or
radio. Brown v. Gray, No. 99-1134, 227 F.3d 1278 (10th Cir. 2000).
341:70 Jury had to determine whether officer who
broke passenger window in pursued vehicle once it stopped had reason to believe
that passenger, who may have been only reacting to breaking of window, was
reaching for a weapon, justifying officer's shooting and killing of passenger;
no qualified immunity granted. Ribbey v. Cox, No. 99-4022, 222 F.3d 1040 (8th
Cir. 2000).
340:57 New Jersey reaches $12.9 million
settlement with four occupants of a vehicle who claimed they were stopped on
the highway by state troopers because of "racial profiling," three of
whom were shot by troopers when the vehicle began to back up while the troopers
approached on foot. Brown v. New Jersey, U.S. Dist. Ct., Trenton, N.J.,
settlement reported in The New York Times, p. A12 (Feb. 3, 2001).
[N/R] Officers were entitled to qualified
immunity when they continued to shoot at suspect who responded to earlier shots
by turning and pointing his weapon at one of them. Boyd v. Baeppler, #99-3234,
215 F.3d 594 (6th Cir. 2000.
340:58 Federal appeals court panel, by 2-1, rules
that merely pointing a gun at the head of an unarmed arrestee, if he did not
pose a threat, could constitute a violation of the Fourth Amendment even if
unaccompanied by other force, and that officers were not entitled to qualified
immunity, since this was "clearly established"; full federal appeals
court grants rehearing to review issue. Robinson v. Solano County, No.
99-15225, 218 F.3d 1030 (9th Cir.
2000), rehearing en banc granted, 229 F.3d 931
(9th Cir. 2000).
339:44 Passenger in car shot by officer who fired
on it as he jumped onto the hood of his car to avoid being hit was entitled to
$10,000 in damages as well as $10,000 in attorneys' fees and court costs;
factual dispute over the behavior of the vehicle as it approached the officer,
and qualified immunity defense, was for the jury to decide. Fisher v. City of
Memphis, Nos. 98-6550, 98-5902, 234 F.3d 312 (6th Cir. 2000).
338:22 Oregon jury awards $8 million, including
$4.5 million in punitive damages, against state trooper who allegedly attacked
female motorist after stopping her for speeding and then shot her in the
shoulder after she attempted to drive away. Conroy v. Henry, No. 99-3074- AA,
U.S. Dist. Ct. (D. Ore. Feb. 2, 2001), reported in The National Law Journal, p.
A12 (Feb. 19, 2001)
338:22 Denver Colorado reaches $1.2 million
settlement in lawsuit brought by 12 year-old shot and rendered quadriplegic by
police officer while burglarizing a house. Hollis v. City and County of Denver,
No. 99N-1545, U.S. Dist. Ct. (D. Colo., Jan. 29, 2001), reported in The New
York Times, National Edition, p. A12 (Jan. 31, 2001).
338:19 Officer acted reasonably in shooting and
killing a man who, having stated that he would kill officers if he was not
killed himself, charged at the officer with a metal object held in a
threatening position. Campbell v. City of Leavenworth, No. 83,833, 13 P.3d 917
(Kan. App. 2000).
337:6 Los Angeles reaches $975,000 settlement
with relatives of 55-year-old mentally ill homeless woman who was shot and killed
by an officer as she allegedly lunged towards him with a 12-inch screwdriver.
Mitchell v. Los Angeles, U.S. Dist. Ct. Los Angeles, settlement, reported in
Los Angeles Times, Metro Section, p. 1 (Dec. 16, 2000).
337:4 Officer's shooting and killing of mentally
disturbed man who came towards him armed with two machetes did not constitute
disability discrimination; if disturbed individual was "denied access to
medical services," it was because of his violent, threatening behavior,
not because he was mentally disabled. Thompson v. Williamson County, Tenn., No.
99-5458, 219 F.3d 555 (6th Cir. 2000).
329:70 Miami reaches $2.5 million settlement in
death of 72-year-old man in his bedroom during SWAT team raid on his apartment
in which 122 shots were fired; officers asserted that decedent fired two shots
at them after they properly knocked and announced they were executing search
warrant; plaintiffs asserted that gun and drugs were "planted" by
officers to "coverup" misconduct, and that officers did not properly
announce their identity as police. Brown v. City of Miami, U.S. Dist. Ct.
Miami, Fla., reported in The National Law Journal, p. A10 (March 27, 2000).
331:101 There was a factual issue as to whether
three plainclothes officers had reasonable suspicion to conduct an
investigatory stop of the occupants of a car when they thought the occupants
acted "nervous"; officers were entitled to qualified immunity,
however, on excessive force claims based on their firing back after shots were
fired at them. Jackson v. Sauls, #98-8980, 206 F.3d 1156 (11th Cir. 2000).
332:117 It was disabled mentally disturbed man's
own behavior in attempting to assault others with a knife at a convenience
store, rather than a police officer's reaction in shooting him which resulted
in his injuries; police officer's use of deadly force under the circumstances
was not disability discrimination. Hainze v. Richards, No. 99-50222, 207 F.3d
795 (5th Cir. 2000).
332:119 Police officer acted reasonably in
shooting and killing man, armed with a knife, who had threatened suicide and
had already injured himself; officer reasonably could have believed that man,
who refused several orders to drop the knife, was coming towards officers and
might injure or kill one of them. Wood v. City of Lakeland, FL, #98-3171, 203
F.3d 1288 (11th Cir. 2000).
332:122 Federal appeals court overturns $4
million award to family of woman allegedly murdered in her home by deputy who
had earlier harassed her; county could not be liable for hiring the deputy as
his record did not show him to have ever wrongfully shot anyone before.
Aguillard v. McGowen, #97-20039, 207 F.3d 226 (5th Cir. 2000).
333:136 UPDATE: After new trial is granted on
$41.02 million jury award, second New York jury awards $92 million to
17-year-old male rendered paraplegic by police bullet; off-duty officer fired
at plaintiff after plaintiff had shot at another man who had hit him; officer
asserted that plaintiff was pointing weapon at him when he fired. Rodriguez v.
City of New York, No. 17422/96 (Sup. Ct., Kings Co., New York), May 18, 2000,
reported in The National Law Journal, p. A16 (June 26, 2000).
333:131 City could not be held liable for alleged
failure to adequately train officers in the use of deadly force when there was
no showing that officers did anything wrong in firing at men who had fired at
them and then attempted to run away; plaintiffs could not relitigate the issue
of whether they had fired at the officers after they were convicted of assault
on a police officer, which resolved the same factual question. Jones v. City of
St. Louis, No. 4:98 CV 2158 DDN, 92 F.Supp.2d 949 (E.D. Mo. 2000).
334:153 Officers were not liable for excessive
force or wrongful death when they shot and killed an intoxicated man who had
previously assaulted his wife; decedent had threatened to "kill"
people and was pointing a gun at one of the officers at the time he was shot.
Lee, Estate of, v. Spokane, No. 18347-5-III, 2 P.3d 979 (Wash. App. 2000).
334:154 Officers were not liable for shooting and
killing naked mentally disabled man armed with a knife who they believed was
about to attack another person; jury instruction that they should not consider
the possible risk to members of the public from the officers' use of deadly
force in reaching their verdict was not improper. Howerton v. Fletcher, No.
98-2795, 213 F.3d 171 (4th Cir. 2000).
335:163 Plaintiffs who were awarded $250,000 in
compensatory damages for an officer's shooting and killing of a motorist were
also properly awarded $297,645 in attorneys' fees and $13,642.40 in costs;
trial court did not abuse its discretion by awarding attorneys fees to
plaintiffs who retained several attorneys to work on the case. Laudano v. City
of New Haven, #18498, 755 A.2d 907 (Conn. App. 2000).
[N/R] Police officer could be held liable for
negligence and battery for shooting co-worker while on duty. Mayberry v. Dukes,
742 A.d 448 (D.C. 1999).
330:83 Deputy properly used deadly force against
man advancing on him with a piece of concrete in his hand; sheriff's failure to
train deputies in the use of deadly force against "crazy" people was
no basis for liability when general policy on use of deadly force was correct
and no showing of a prior problem in this area was shown; basis for exclusion
of expert witness was erroneous, but jury did not need expert help to conclude
that deputy acted reasonably. Pena v. Leombruni, No. 99-1435, 200 F.3d 1031
(7th Cir. 1999).
330:89 Officer was not liable for shooting eleven
rounds and killing a 69-year-old man who fired a single shot at deputies after
he was awakened at night by three deputies executing arrest warrant on him for
misdemeanor property charge; jury should not have been told that the reasons
for issuing the warrant were irrelevant, but the remainder of the instructions
properly informed them that they could take the totality of the circumstances
into account. Deering v. Reich, No. 98-2560, 183 F.3d 645 (7th Cir. 1999).
325:8 Officers acted reasonably in shooting to
try to stop motorist who had already used his vehicle to injure one officer and
had almost hit a second. Parris v. Town of Alexander City, 45 F.Supp. 2d 1295
(M.D. Ala. 1999).
325:8 New York jury awards $41.02 million to
17-year-old male rendered paraplegic by police bullet; off-duty officer fired
at plaintiff after plaintiff had shot at another man who had hit him; officer
asserted that plaintiff was pointing weapon at him when he fired. Rodriguez v.
City of New York, #17422/96 (Sup. Ct., Kings Co., New York), Sept. 30, 1999,
reported in The National Law Journal p. A11, November 22, 1999.
327:39 Officer was legally justified in shooting
and killing a man advancing towards two officers with a knife held to his own
throat who had previously stabbing his brother; the fact that he posed a threat
to the officers rendered irrelevant any evidence of possible alternate
strategies officers might have used prior to that point, or evidence concerning
the officer's past disciplinary records or city use of force policy. Yellowback
v. City of Sioux Falls, #20719, 600 N.W.2d 554 (S.D. 1999).
328:57 Trial court improperly granted summary
judgment to off-duty police officer/security guard who shot and killed fleeing
shoplifting suspect; there was a genuine issue of material fact as to whether
suspect's car was menacing the officer at the time she fired. Abraham v. Raso,
#98-5405, 183 F.3d 279 (3rd Cir. 1999).
328:57 Officer was not entitled to qualified
immunity for shooting suspect in the neck when there was a factual dispute as
to whether the shot was fired accidentally or intentionally. Anthony v.
Vaccaro, 43 F.Supp.2d 843 (N.D. Ohio 1999).
329:67 Finding, in juvenile delinquency
proceeding, that 15-year-old recklessly endangered the life of an officer precluded
him from relitigating this fact in a federal civil rights lawsuit against the
officer for shooting him. Green v. Montgomery, 43 F.Supp. 2d 239 (E.D.N.Y.
1999).
323:170 Police officer acted properly in shooting
and killing armed man who fired at him first; the fact that the officer was
mistakenly at the wrong address and therefore was confronting a store owner and
his armed brother, rather than burglars, did not alter the result; second
officer's single kick, aimed at subduing store keeper, was objectively
reasonable. Saman v. Robbins, #96-55672, 97-56683, 97-56684, 97-5524 and
97-55789, 173 F.3d 1150 (9th Cir. 1999).
323:164 Family of paranoid schizophrenic man shot
and killed by police officer as he smashed car windows could not assert claim
that police action was disability discrimination in violation of the Americans
With Disabilities Act. Gohier v. Enright, #98-1149, 186 F.3d 1216 (10th Cir.
1999).
{N/R} Unarmed couple, shot outside their home
during a confrontation with police officers, awarded $408,000 by a federal jury
in California. Skallerud v. City of Pinole, 1999 (10) Calif. Bar Journal Trials
Digest (N.D. Cal. 1999).
322:155 Off-duty officer working as security in
convenience store acted reasonably in shooting and killing two armed robbers
who had taken him and three other store employees hostage; the fact that the
robbers did not shoot first did not alter result. Chandie v. Whelan, 21 F.Supp.
2d 170 (E.D. N.Y. 1998).
321:137 Update: $1 million settlement in lawsuit
over man's shooting in the back by police officer; Supreme Court was to review
whether officer was entitled to qualified immunity, but further proceedings
canceled by agreement of parties. Snyder v. Trepagnier, #98-507, 119 S.Ct. 1493
(1999); settlement results reported in American Bar Association Journal, p. 44
(June 1999). Snyder v. Trepagnier, #96-30935, 142 F.3d 791, 1998 U.S. App.
Lexis 10693, rehearing en banc denied, 149 F.3d 1181 (5th Cir. 1998).
{N/R} Allegation that officer shot armed robbery
suspect after he was stopped and had raised his hands created a factual issue
as to whether the shooting was reasonable. Hemphill v. Schott, #9f6-2793, 141
F.3d 412 (2nd Cir. 1998).
321:138 Police officer acted objectively
reasonably in shooting and killing suspect who was holding a shotgun when
officer kicked in door to apartment; suspect had ignored repeated requests that
he drop the weapon and officer believed that he acted to prevent suspect from
shooting him or another officer. Natal v. City of New Bedford, 37 F.Supp.2d 74
(D. Mass. 1999).
321:138 City could not be liable for alleged
failure to adequately train, supervise, and discipline an officer who shot an
arrestee when officer's actions in shooting arrestee, who had come towards him
brandishing a screwdriver, were objectively reasonable; municipal liability
must be based on policy causing a violation of plaintiff's rights. Henderson v.
Munic. of Cool Valley, 17 F.Supp. 2d 1044 (E.D. Mo. 1998).
319:106 Officer was entitled to qualified
immunity for shooting at suspect detainee who ducked behind truck door when
another suspect present pulled a gun on a second officer; officer was not
required to wait until a potential threat became an actual threat; fact that
detainee he shot was actually unarmed did not alter result. Medeiros v. Town of
Dracut, 21 F.Supp. 2d 82 (D. Mass. 1998).
319:102 Police officer who allegedly fired twice
at fleeing vehicle with two minor children in it while motorist fled to evade
speeding ticket was entitled to qualified immunity from claims on behalf of
children; no constitutional due process right against "purely
emotional" harm from excessive force was "clearly established"
in 1990. Petta v. Rivera, #95-40157, 133 F.3d 330 (5th Cir. 1998).
318:94 Jury awards $255,000 in damages to owners
of pet dog shot and killed by officers in the yard of owner's home; officers
claimed that dog jumped at them, while plaintiffs argued that dog merely stared
at officers, was arthritic, and was unable to leap in the air. Fuller v. City
of Richmond, U.S. Dist. Ct. N.D. Cal (Dec. 30, 1998), reported in the San
Francisco Chronicle, p. A15 (Dec. 31, 1998).
318:89 Officers acted reasonably in shooting and
killing man who had just shot and killed a police dog sent to apprehend him.
Mettler v. Whitledge, #98-1279 & 98-1280, 165 F.3d 1197 (8th Cir. 1999).
318:88 Jury awards $12.6 million for death of man
shot with submachine gun in his home by officer who was engaged in executing
search warrant; residents of home allegedly did not know those who entered
their home were police. Gallardo v. Reinnecius, U.S. Dist. Ct., Civ. F 97- 6111
(E.D. Cal., March 12, 1999), reported in The Natl. Law Jour., p. B13 (April 5,
1999).
317:74 Police officers who shot and killed
suicidal man were improperly granted qualified immunity when factual issues
concerning whether man had threatened to get a gun or was coming at the
officers holding knives were unresolved. Sova v. City of Mt. Pleasant,
#96-2480, 142 F.3d 898 (6th Cir. 1998).
317:73 Jury awards $1.9 million in medical
expenses to man shot in the back by police officer, but nothing for pain and
suffering; jury finds city liable, officer violated plaintiff's rights, but
officer entitled to qualified immunity; Appeals court overturns finding of
municipal liability, leaving plaintiff with nothing, and U.S. Supreme Court
grants review. Snyder v. Trepagnier, #96-30935, 142 F.3d 791, 1998 U.S. App.
Lexis 10693, rehearing en banc denied, 149 F.3d 1181 (5th Cir. 1998), cert.
granted, #98-507, 119 S.Ct. 863 (1999).
316:56 Officer acted reasonably in shooting and
killing a man armed with a knife who ignored commands to drop it and advanced
towards him. Sigman v. Town of Chapel Hill, #97-1652, 161 F.3d 782 (4th Cir.
1998).
316:55 Wife and mother of man shot and killed by
officers at the scene of domestic disturbance had no standing to pursue Fourth
Amendment claim on his behalf when they failed to bring suit as representatives
of his estate or his "successors in interest" under California law;
plaintiffs were also properly barred from pursuing their direct claim for
interference with their family relationships when they presented no evidence on
such claim at trial. Byrd v. Guess, #96-55532, 137 F.3d 1126 (9th Cir. 1998).
315:42 Widow of SWAT officer shot and killed by
fellow officer during raid could sue shooting officer and city for violation of
federal civil rights; federal appeals court rejects argument that case was
about a "safe workplace"; shooting officer not entitled to qualified
immunity. Jensen v. City of Oxnard, #97-55936, 145 F.3d 1078, 1998 U.S. App.
Lexis 10589 (9th Cir.); cert. den. 1998 U.S. Lexis 7596.
315:41 Deputy used objectively reasonable force
in shooting mentally ill suspect with drug problem who actively resisted being
taken into custody by reaching for deputy's gun, hitting and kicking deputy,
knocking deputy down, and attempting to jump on deputy once he had forced him
into a closet. Nelson v. County of Wright, #98-2026, 162 F.3d 986 (8th Cir. 1998).
314:27 Off-duty intoxicated deputy's action of
shooting and killing man in barroom brawl was unforeseeable; county could not
be held liable for failure to warn deputies against carrying firearms while
intoxicated; county's policy prohibiting deputies from being "drunk and
disorderly" in public was sufficient. Huffman v. County of Los Angeles,
#97-55175, 97-55230, 97-55341, 147 F.3d 1054 (9th Cir. 1998).
313:9 Officers not liable for accidental shooting
of hostage while attempting to shoot hostage-taker; shooting of hostage was not
a Fourth Amendment "seizure," since it was not intended; officers'
attempt to rescue hostages was beyond "acceptable"--it was admirable,
and could not be called "shocking to the conscience" as required for
due process claim. Medeiros v. O'Connell, #97-7355, 150 F.3d 164 (2nd Cir.
1998).
301:3 Village was not liable for inadequate
training of officers in dealing with abnormally acting individuals when there
was no evidence of knowledge of a need for further training in this area;
officer who shot and killed disturbed individual who asked police to kill him
found to have used excessive force and jury awards $165,000 in damages.
Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997).
301:3 Police official could face supervisory
liability for shootings by officer with a long history of past disciplinary
complaints concerning use of his firearm, including incident in which he
captured a police station at gunpoint and took other officers hostage;
liability could be based on failure to identify officer, once he returned to
duty, as in need of remedial training. Diaz v. Martinez, 112 F.3d 1 (1st Cir.
1997).
301:10 Officers' use of deadly force against
fleeing suspect was objectively reasonable even if he was not presently armed
and his later capture was "inevitable," given his commission of a
violent burglary in which he shot victims, his attempt to escape, and the
possibility that he would take hostages in the area if not immediately
apprehended. Forrett v. Richardson, 112 F.3d 416 (9th Cir. 1997).
302:21 Deputy's shooting and killing of mentally
disturbed man was not disability discrimination in absence of showing that
decedent was a "qualified individual with a disability" or that he
was somehow "denied public services" because of such a disability.
Thompson v. Williamson County, 965 F.Supp. 1026 (M.D. Tenn. 1997).
302:22 Officer entitled to qualified immunity for
shooting fleeing man armed with sawed-off shotgun; officer need not wait until
armed individual "has drawn a bead" on someone before using deadly
force. Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997).
303:39 Officer's use of force was objectively
reasonable when he shot and killed disturbed man armed with a knife and pot of
hot grease when he believed the grease was about to be thrown at him; officer's
request, after incident, to attend training course on alternatives to use of
firearms did not show policy of inadequate training. Huong v. City of Port
Arthur, 961 F.Supp. 1003 (E.D. Tex. 1997).
303:40 California jury awards $2,002,000 against
city and two officers who shot passenger who exited from pursued van; passenger
was unarmed and was not charged with any offense. Betton v. Duran, No.
CV956189, U.S. Dist. Ct. (C.D.Cal.). Los Angeles, Cal., Cal Law Trials Digest
#33 TD 4 (Aug. 28, 1997).
303:43 Sergeant directing entry, with warrant,
into home of narcotics suspect with violent record, could reasonably conclude
that forced entry immediately after announcement of police presence was needed
to avoid armed response; federal appeals court overturns $92,500 jury award to
home occupants, one of whom was shot, against sergeant, who was entitled to
qualified immunity. Thompson v. Mahre, 110 F.3d 716 (9th Cir. 1997).
304:55 Half-million dollar settlement in shooting
death of man who approached officers as they attempted to handcuff another
individual after entering yard of house to question four men concerning
reported carjacking attempt; suit claimed entry was unlawful and force used was
excessive. Garcia v. City of Stockton, U.S. Dist. Ct., E.D. Cal., No.
CIV-S-95-756, Jan. 27, 1997, reported in 40 ATLA Law Rptr. No. 10, pg. 381
(December 1997).
304:55 Alabama Supreme Court upholds jury award
of $2 million to motorist shot in the back by state trooper who followed him
into his home after stopping him for speeding; award of damages was not
unreasonable despite being twice what plaintiff requested; references by
plaintiff's attorney to Rodney King case did not require a new trial. Breland v.
Ford, 693 So.2d 393 (Ala. 1997).
305:71 State troopers' use of deadly force to
shoot and kill man at farmhouse was objectively reasonable when he had
previously responded to requests that he drop his weapons by shooting and
injuring a trooper. Tauke v. Stine, 120 F.3d 1363 (8th Cir. 1997).
305:75 Federal Marshals were not entitled to
absolute witness immunity on claim that they fabricated story of what happened
in initial Ruby Ridge shootout; court finds that agents acted as
"complaining witnesses" and could be liable for malicious
prosecution; court also disapproves of "Special Rules of Engagement"
under which agents were to shoot to kill any armed male in the vicinity of a
farmhouse, without warning or showing of immediate danger. Harris v. Roderick,
126 F.3d 1189 (9th Cir. 1997), cert. denied, Smith v. Harris, 118 S.Ct. 1051
(1998).
306:88 Officer did not act objectively
unreasonably by failing to give a warning before shooting a man who had knocked
him to the ground. Colston v. Barnhart, 130 F.3d 96 (5th Cir. 1997).
307:103 Off-duty officer acted reasonably in
shooting at armed robber in restaurant, based on his assessment of peril to
customers if he did not act; lack of notation in personnel file indicating
retraining in firearms could not be basis for inadequate training claim against
department when officer testified that he had been retrained annually and sheet
in file appeared to be incomplete. Brown v. Diversified Hospitality Group,
Inc., 694 So.2d 520 (La. App. 1997).
309:135 Estate of doctor shot and killed by
officers awarded $16.26 million against police and $1.2 million against
hospital; doctor fled undercover officers, thinking they were carjackers.
Kymissi v. Rozzi, 93 Civ. 8609, U.S. Dist. Ct. S.D. N.Y., June 3, 1998,
reported in The Natl. Law Jour., p. A13 (July 6, 1998).
310:151 Jury properly found plaintiff 60% at
fault for his own injuries when he was shot fleeing from police after allegedly
engaging in criminal conduct; jury could properly find that he "assumed
the risk" of injury; city liable for $60,000 out of $150,000 in damages
found by jury. Fernandez v. City of New York, 669 N.Y.S.2d 20 (A.D. 1998).
311:167 Officer did not use excessive force when
his shotgun discharged, injuring hand of man who was actively resisting
officer's execution of search warrant by trying to grab shotgun and attempting
to strike officer with a steam iron; shooting under these circumstances would
be justified even if intentional. Garcia v. Grisanti, 998 F.Supp. 270 (W.D.N.Y.
1998).
{N/R} Genuine issues of fact precluded summary
judgment; question was whether officer acted reasonably prior to shootout with
armed suspect who threatened suicide. Allen v. Muskogee, Okl., 119 F.3d 837
(10th Cir. 1997).
{N/R} Man shot by police officers entitled to
jury trial on assertion that special police unit engaged in conspiracy to
"execute" persons who had just engaged in robberies in city.
Cunningham v. Gates, 989 F.Supp. 1256 (C.D. Cal. 1997); In a related case by
the same plaintiff, the court also ruled that city attorneys and City Council
members could face trial on a claim that they allegedly ratified and encouraged
the officers' alleged misconduct. Cunningham v. Gates, 989 F.Supp. 1262 (C.D.
Cal. 1997).
Although the officer may have "created a
situation in which the use of deadly force became necessary" because of
violations of police procedure and "failing to disengage," his
"actions leading up to the shooting are irrelevant to the objective reasonableness
of his conduct at the moment he decided to employ deadly force."
Reasonableness "depends only upon the officer's knowledge of circumstances
immediately prior to and at the moment that he made the split-second decision
to employ deadly force." Salim v. Proulx, #95-7899, 93 F.3d 86, 1996 U.S.
App. Lexis 21758 (2nd Cir. 1996). [N/R]
289:8 Plaintiff presented sufficient evidence to
allow jury to decide whether or not officer's shooting of her husband was
unreasonable, despite lack of testimony describing the moment of the shooting;
officer admitted that husband did not have a weapon and had not hit him Gardner
v. Buerger, 82 F.3d 248 (8th Cir. 1996).
289:9 Federal appeals court reinstates jury's
$259,358 against officer for shooting and killing driver of car making escape
from alleged purse snatching; jury necessarily found that officer could not
have reasonably believed himself in danger from slow moving vehicle, and
accordingly officer was not entitled to qualified immunity Acosta v. City and
County of San Francisco, 83 F.3d 1143 (9th Cir. 1996).
290:19 Complaint which alleged that officer shot
man carrying a machete on the street without further warning after telling him
to "freeze" adequately stated claim against District of Columbia for
inadequately training and supervising of officers on the use of deadly force;
federal appeals court rules that even a single incident of such use of force
was adequate to support a complaint of inadequate training and supervision.
Atchinson v. D.C., 73 F.3d 418 (D.C.Cir. 1996).
291:35 Sheriff was not liable for alleged
inadequate training and supervision on use of deadly force; while there had
been prior lawsuits alleging excessive use of force or wrongful use of deadly
force by sheriff's personnel, there had been no single case in which courts
ruled that department personnel had violated a clearly established right in
this area, so sheriff was entitled to qualified immunity Singleton v.
McDougall, 932 F.Supp. 1386 (M.D. Fla 1996).
291:41 Officers were entitled to qualified
immunity for shooting man in his home after he had fired pistol in the air
outside the house, fired more shots inside the house, and then fired shots into
the ceiling in bedroom where his girlfriend and two small children were
present; officers reasonably believed their actions were needed to prevent the
imminent loss of life Isquierdo v. Frederick, 922 F.Supp. 1072 (M.D.N.C. 1996).
291:41 Officer could reasonably conclude that his
decision to fire at vehicle of fleeing suspect was reasonable when a fellow
officer had been dragged 25-30 feet with his hand stuck inside the vehicle's
driver's side window and had just been thrown free Pittman v. Nelms, 87 F.3d
116 (4th Cir. 1996).
292:56 Federal agent who was present at the scene
of a shooting by another federal agent could not be held vicariously liable for
other agent's action Pellegrino v. United States, 73 F.3d 934 (9th Cir. 1996).
292:56 Jury awards $1266 million to man shot by
officer and rendered paraplegic after he had used handgun to try to fend off
mugger; officers who arrived on scene only knew that there was a man with a gun
and did not realize that he was a crime victim; mugger flagged down one police
vehicle after he was shot at Veriguete v. City of New York, Sup Ct, Brooklyn, N.Y.,
reported in The Natl. Law Jour. p. A9, December 9, 1996.
292:57 Update: Jury returns $100,000 award in
lawsuit over shooting death in which U.S. Supreme Court adopted
therapist-patient privilege; jury finds that force used was not reasonable, but
rejects state law wrongful death claim Jaffee v. Redmond, U.S. Dist. Ct., N.D.
Ill., reported in Chicago Tribune, p. 6 (Dec 7, 1996).
293:67 Estate of man shot by officers entering
trailer without announcing themselves during execution of search warrant
receives $950,000 settlement in suit that claimed that county failed to
properly train officers in the use of their weapons. Bryant v. County of Dodge,
U.S. Dist. Ct., E.D. Wis, No 95-C-0526, Apr 25, 1996, reported in 39 ATLA
L.Rptr. No 7, p. 273 (Sept 1996).
294:83 City's action of indemnifying police
officers against punitive damages award in lawsuit brought over shooting death
of fast-food restaurant robber did not constitute a policy of "encouraging
and ratifying" the excessive use of force; individual city council members
who voted for payment of punitive damages award were also entitled to qualified
immunity for their action. Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996).
294:90 Teenager who held birthday party in vacant
house receives $150,000 settlement from city on lawsuit arising from officer
shooting him in the house after neighbor reported intruders in the building
Crenshaw v. City of Oakland, U.S. Dist. Ct., N.D. Cal, No C95 1207 WHO, May 29,
1996, reported in 39 ATLA L. Rep.No 9, p. 353 (Nov 1996).
295:104 Officers acted reasonably in shooting and
killing handcuffed arrestee sitting in front seat of police vehicle when he
pointed a gun at them; federal appeals court overturns trial court's denial of
qualified immunity to officers Elliott v. Leavitt, 99 F.3d 640 (4th Cir. 1996).
296:119 Federal court rules that mother of man
shot and killed by officers could assert federal civil rights claim for loss of
companionship of adult child she was not dependent on, and that proper legal
standard for liability is "deliberate indifference or reckless
disregard." Smoot v. City of Placentia, 950 F.Supp. 282 (C.D. Cal. 1997).
297:136 Officers acted reasonably in shooting at
hunters who fired first at them; hunters' claim that they were firing at doves
rather than officers was not relevant; officers entitled to qualified immunity
since they reasonably could conclude that hunters posed a serious threat to
them. Wicker v. City of Galveston, 944 F.Supp. 553 (S.D.Tex. 1996).
298:148 City liable for $14 million to family of
suicidal individual shot and killed by officer responding to his suicide
threat, based on city's failure to have a training policy on suicide threat
intervention; officer also liable for alleged excessive use of force when
decedent stepped from his apartment holding a shotgun but may not have posed an
immediate threat to officer. Wallace v. Estate of Davies, 676 N.E.2d 422 (Ind
App. 1997).
298:153 Injury to school van passenger resulting
from officers shooting into it during gun battle with suspect who
"commandeered" van did not violate passenger's Fourth Amendment or
Fourteenth Amendment due process rights; passenger was not intentionally
"seized" by officers for Fourth Amendment purposes and officers were
entitled to qualified immunity on due process claim. Medeiros v. O'Connell, 955
F.Supp. 21 (D.Conn 1997).
299:168 Officer was entitled to qualified
immunity for shooting at man found inside residence entered pursuant to search
warrant who pointed weapon at him. Robinett v. Carlisle, 928 S.W.2d 623 (Tex.
App. 1996).
299:168 Officer acted reasonably in shooting and
killing suspect armed with a knife who was on the ground, once suspect started
to swing hand holding knife up towards officer. Reynolds v. County of San
Diego, 84 F.3d 1162 (9th Cir. 1996).
299:169 Sheriff's deputies acted reasonably in
shooting and killing man intoxicated on PCP and armed with a knife who slowly
advanced towards them and announced his intention of killing them if they did not
shoot him. Martinez v. Co. of Los Angeles, 47 Cal.App.4th 334, 54 Cal.Rptr.2d
772 (1996).
{N/R} Plaintiff arrestee shot by officer was
entitled to jury trial on claim that police caused a confrontation by failure
to identify themselves as they entered residence. Sledd v. Lindsay, 107 F.3d
282 (7th Cir. 1996).
279:38 Expert witness testimony on "hedonic
damages" (the enjoyment value of human life) was barred by the trial court
in lawsuit over police shooting of individual. Ayers v. Robinson, 887 F.Supp.
1049 (N.D.Ill. 1995).
284:115 Officer was entitled to qualified
immunity for shooting armed suspect who held out a hand containing a gun in
response to officer's demand that he show his hand; officer reasonably feared
for his life, regardless of exactly what direction displayed weapon was
pointed; officers had no clearly established duty to provide medical aid to
shot suspect prior to arrival of EMTs. Wilson v. Meeks, 52 F.3d 1547 (10th Cir.
1995).
283:100 Plain clothes officers were entitled to
qualified immunity because there was no "clearly established"
requirement that they announce their identity and purpose while executing
search warrant on business premises; officer reasonably believed that suspect
was reaching for a weapon when he shot and paralyzed him; municipalities could
not be held liable in the absence of evidence of a municipal policy, custom, or
usage St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995).
{N/R} Officer was entitled to qualified immunity
for use of deadly force; court rules that:
{1} Officers are not compelled to adopt
alternative approaches to avoid creating a situation where deadly force must be
used;
{2} Officers do not have to first attempt to use
nondeadly alternatives when the use of deadly force has become necessary;
{3} Police departments and other law enforcement
agencies are not required to provide officers with equipment which might be a
substitute for the use of deadly force, such as dogs, tasers, capture nets, CS
gas, rubber bullets, sticky foam, or beanbag projectiles;
{4} Officers have no obligation to simply
"walk away" from a situation where the use of deadly force is
justified; and
{5} Officers have no obligation to keep
themselves a particular distance or to maintain a barrier between the suspect
and themselves. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994), cert denied,
115 S.Ct. 81 (1994). [Cross-reference: Defenses: Qualified Immunity]
277:3 U.S. Supreme Court to determine whether
federal courts should recognize a therapist-patient privilege barring evidence
of confidential communications during therapy; issue arises in case where jury
awarded $545,000 in police shooting case where jury was told it could presume
withheld therapy records would be unfavorable to officer Jaffee v. Redmond, 51
F.3d 1346 (7th Cir. 1995), cert granted, 116 S.Ct. 334 (1995).
277:7 In civil rights case over police shooting,
trial judge's statement to jurors that "the races have a tendency to stick
together" implied that black plaintiff and his witnesses told a consistent
version of the incident out of "racial solidarity" rather than based
on their promise to tell the truth; federal appeals court orders new trial Rush
v. Smith, 56 F.3d 918 (8th Cir. 1995).
277:8 U.S. reaches $31 million settlement with
white separatist's family over shooting deaths of 14-year-old son and wife
during "Ruby Ridge" siege of mountain cabin Weaver v. US, U.S. Dist.
Ct. Idaho, reported in The New York Times National Edition, p. 1 (Aug 16, 1995).
277:9 Officer's act of drawing and pointing a gun
at an unarmed felony suspect, without any indication that he intended or
attempted to fire, did not violate suspect's rights Edwards v. Giles, 51 F.3d
155 (8th Cir. 1995). [Cross-references: Assault and Battery: Physical;
Defenses: Qualified (Good-Faith). Immunity]
279:42 Homeless man's status as "emotionally
disturbed" person was relevant to issue of whether officers acted
objectively reasonably in shooting him without warning after he displayed a
knife and ran away from them Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995).
[Cross- reference: Defenses: Qualified (Good-Faith). Immunity]
281:73 Deputy's shooting and killing of
intoxicated motorist who advanced on him with knife in attack position was a
reasonable use of force, federal appeals court rules Romero v. Board of County
Commissioners, 60 F.3d 702 (10th Cir. 1995).
282:120 $22 million settlement in case where
police officer allegedly shot man helping store clerk who had been shot during
a robbery McLeod v. City of Philadelphia, U.S. Dist. Ct., No 94-7495, Oct 6,
1995, 39 ATLA L.Rptr. p. 56 (March 1996).
284:119 Jury awards $4,911,668 to man shot and
rendered paraplegic by officer pursuing him as he fled from stopped vehicle because
of outstanding warrants and illegal possession of firearm; plaintiff claimed he
had abandoned weapon before officer shot him; $35 million settlement agreement
reached Watson v. City of Los Angeles, No BC085132, LA Superior Central Ct,
California, Dec 29, 1995, LA Daily Journal (Verd. & Stl.), Vol 109, No 77,
p. 5 (April 19, 1996).
286:147 U.S. Supreme Court adopts
therapist-patient privilege protecting disclosures during therapy sessions from
compelled disclosure in court; affirms ordering of new trial in which jury
awarded $545,000 in police shooting case where jury was told it could presume
withheld therapy records would be unfavorable to officer. Jaffee v. Allen, 116
S.Ct. 1923 (1996).
285:137 City and mental health agency was not
liable for officer's shooting of paranoid schizophrenic as he exited his
bedroom, allegedly advancing on officer with hatchet raised; defendants
adequately explained reasons for striking two black jurors, and trial judge
correctly excluded evidence which was not relevant to the case at hand McKeel
v. City of Pine Bluff, 73 F.3d 207 (8th Cir, 1996). [Cross-references:
Procedural: Evidence; Procedural: Jury Selection]
285:138 City liable for $102 million to
restaurant patron shot in the back by off-duty police officer acting as
security for canceled Halloween party scheduled there Melendez v. City of Los
Angeles, No BC038583, LA Superior Central Ct, March 20, 1996, reported in LA
Daily Jour. Verd. & Set., Vol 109, #82, p. 2, April 26, 1996
[Cross-reference: Off-Duty/Color of Law]
286:152 City liable for $2.926 million for
officer's shooting of man he mistakenly believed to be "with" two
armed robbers escaping from successful bank robbery Summerville v. City of New
York, No 39604/91 (Sup Ct Kings Co, NY), May 13, 1996, reported in The Natl.
Law Jour., p. A17 (June 17, 1996).
265:10 Police officer did not act unreasonably in
shooting an unarmed handcuffed arrestee running towards him to flee from
another arrestee who had obtained a weapon; officer could have reasonably
believed that the person running towards him was the arrestee who a deputy
sheriff's yell warned him had obtained a weapon McLenagan v. Karnes, 27 F.3d
1002 (4th Cir. 1994).
265:11 Officers who entered restaurant and shot
armed man holding waitresses hostage when he pointed unloaded rifle at them
were entitled to qualified immunity; they did not know weapon was not loaded
and no reasonable officer would think that their actions violated civil rights
of hostage-taker Malignaggi v. Co. of Gloucester, 855 F.Supp. 74 (D.N.J. 1994).
266:26 Officer was not entitled to qualified
immunity in woman's federal civil rights lawsuit alleging that he wrongfully
entered her house and shot her in the leg while she slept in her bed Defrancis
v. Bush, 859 F.Supp. 1022 (E.D. Tex. 1994).
267:42 Officer was justified in using deadly
force against man who advanced on him waving bat and threatening to kill the
officer when officer attempted to serve arrest warrant on him; officers had
probable cause to obtain arrest warrant for man based on wife's statements that
he hit her James v. City of Chester, 852 F.Supp. 1288 (D.S.C. 1994).
267:42 Firing shots at fleeing helicopter in
which escaped inmate held helicopter owner hostage did not constitute a "seizure"
despite fact that one shot hit helicopter, when it did not result in helicopter
stopping or landing; helicopter owner had no claim for Fourth Amendment
violation Bella v. Chamberlain, 24 F.3d 1251 (10th Cir. 1994).
267:43 Deadly force may be used when necessary to
prevent escape of pre-trial detainee, even when he is unarmed and is not
thought to be dangerous to an officer or other person; Federal appeals court
rejects argument that Tennessee v. Garner rule applies to escaping prisoners;
U.S. Supreme Court declines review of case. Brothers v. Klevenhagen, 28 F.3d
452 (5th Cir. 1994), cert. denied, No 94-795, 115 S.Ct. 639 (1994).
268:55 Appeals court overturns $600,000 award to
carjacking hostage wounded by officer when he shot at one of her captors who
was pointing a gun at the officer; officer's use of deadly force under these
circumstances was reasonable Stroik v. Ponseti, 35 F.3d 155 (5th Cir. 1994).
268:56 Officer did not "seize" man for
purposes of Fourth Amendment when he merely pointed a gun at him; allegation
that pet dog was shot and killed without justification, however, did state a
Fourth Amendment claim for unreasonable seizure of property. Fuller v. Vines,
36 F.3d 65 (9th Cir. 1994).
268:56 Officers' use of deadly force was not
unreasonable when suspect they shot and killed shot at them first Menuel v.
City of Atlanta, 25 F.3d 990 (11th Cir. 1994).
270:83 City and police chief were not liable for
off-duty officer's using a machine gun to shoot and kill resident of home which
he entered after his friend expressed suspicion that residence was a "drug
house"; no evidence showed that any inadequate training or supervision
caused the shooting. Inhabitants of City of Lewiston, 42 F.3d 691 (1st Cir.
1994).
270:90 Officers, faced with a report of a man
inside a building who had fired shots, did not need to select the "least
intrusive alternative" in responding; no liability for shooting death of
suspect who stood in doorway of residence and pointed gun at officers after
they knocked on door Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994).
270:91 Deputy did not violate man's civil rights
by shooting him in the back of the head when he ignored her command to stop;
deputy reasonably believed that man was armed and was fleeing from the scene of
a robbery where he beat a store employee, and the fact that he was actually not
armed and had not robbed the store did not alter the result. Moreno v. County
of Ventura, 36 Cal.Rptr.2d 750 (Cal App. 1994).
273:139 Burglar who hogtied three residents of
home and shot one of them in the head is awarded $4 in compensatory and
$104,732 in punitive damages in federal civil rights suit over officers'
shooting him in the back as he fled Forrett v. Richardson, 91-6822-ABC(SHX),
(April 6, 1995, USDist. Ct. CD Cal), reported in Natl. Law Jour., p. A11 (May
1, 1995).
275:170 $1 million settlement in case where
officer shot and killed armed business owner, thinking he was a burglar;
business owners had previously requested police to put premises under special
scrutiny following burglary, but had also informed department that owners had
handgun permits and often slept there Barroso v. City of Coral Gables, No
94-0457 CIV-UNGARO, U.S. Dist. Ct., SD Fla, Nov 14, 1994, reported in 38 ATLA Law
Rptr. No 6, p. 224 (August 1995).
275:170 Update: Louisiana Supreme Court overturns
$4 million jury award against city for officers' shooting of mentally disabled
man holding a realistic looking toy gun. Mathieu v. Imperial Toy Corp., 646
So.2d 318 (La 1994).
275:171 Police department liable for $594,480 to
surviving family of man shot and killed by off-duty officer angry that he was
having an affair with officer's wife; suit claimed that department knew that
officer had previously, while off-duty, beaten his own wife, but failed to take
preventative measures to stem officer's "violent propensities" Thomas
v. Los Angeles Police Department, No BC086856, LA Superior Court Glendale, May
18, 1995, reported in Los Ang. Daily Jour. (Verd. & Stl.), page 4, June 16,
1995
County liable for $1625 million to Cuban
immigrant injured in gun battle with plainclothes officers who surrounded his
home; plaintiff believed man he saw pointing a rifle at his home was
"pro-Castro" person carrying out prior communicated threats. Vasquez
v. Metropolitan Dade Co U.S. Dist. Ct. SD Fla, 84-2865- Civ, July 7, 1994,
reported in the Natl. Law Jour. p. A15 (Aug 1, 1994).
Jury awards $3,645,000 in damages to family of
motorist shot and killed by officer who stopped him for a traffic offense;
plaintiffs argued that motorist's hands were in plain view, while officer
argued that motorist had been reaching under his seat and that he feared
motorist was reaching for a weapon Bodan v. DeMartino, No BC025408, LA Superior
Central Court, LA Calif, May 23, 1994, reported in Los Ang. Daily Jour. (Verd.
& Stl.), p. 6, June 10, 1994
Deputy did not violate the Fourth Amendment in
using deadly force against homeowner who turned toward him while holding a gun
in his hand; deputy could reasonably believe that his life was in danger and
did not know that homeowner was not the prowler that he had been summoned to
apprehend. Linder v. Richmond Co., Ga, 844 F.Supp. 764 (S.D.Ga 1994).
New York cab driver who had driven robbers from a
robbery receives $15 million settlement from city in suit over officer's
shooting of him as he came out of his vehicle with his hands up Camille v. City
of New York, 92-4947, Fed Dist. Ct., S.D.N.Y. June 1, 1994, reported in The
Natl. Law Jour., p. A13 (July 11, 1994).
Federal appeals court rules that city of Memphis
is liable for officer's shooting of fleeing felony suspect in Tennessee v.
Garner case Garner v. Memphis Police Dept., 8 F.3d 358 (6th Cir. 1993).
Appeals court upholds $406 million award against
city for officers' shooting of mentally disabled man holding a realistic
looking toy gun Mathieu v. Imperial Toy Corp., 632 So.2d 375 (La. App. 1994).
City liable for $4,370,000 to surviving family of
man shot and killed by officer responding to domestic disturbance call who
thought a stick in man's hand as he came out of an apartment was a rifle
Camacho v. City of Cudahy, VC009187, La Superior Court, March 31, 1994,
reported in Los Ang. Daily Jour. p. 5 (April 8, 1994).
Officer who shot disturbed youth who allegedly
had put down knife and was not then threatening anyone was entitled to
qualified immunity from liability. McKinney v. DeKalb Co., Ga, 997 F.2d 1440
(11th Cir. 1993).
Estate of man shot and killed while running
toward officer carrying large board awarded $333 million in damages against
city Perez v. Harrison, 92-103-LH/DJFm /Fed Dist. Ct., NM, Dec 17, 1993,
reported in the Natl. Law Jour., p. 9 (Jan 10, 1994).
Officer was not liable for shooting and killing
mentally disturbed individual who chased him around parking lot threatening to
kill him; while suspect was actually unarmed, officer could have reasonably
believed he was reaching for a weapon when he reached in back of him, in light
of blood he observed on suspect's arms and other circumstances Wyche v. City of
Franklinton, 837 F.Supp. 137 (E.D.N.C. 1993).
City liable for $408 million to mentally disabled
man who suffered paraplegia after being shot by police officers who thought the
toy gun he was holding was a real weapon; award under appeal. Mathieu v. City
of New Orleans, La, Orleans Parish Civ. Dist. Ct., #88-10254, Division H, Dec
17, 1992, reported in 36 ATLA L. Rep.374 (Dec 1993).
Jury awards $545,000 to surviving family of man
shot and killed by police officer; officer asserted decedent was about to stab
a man with a knife, while decedent's four siblings testified that he did not
have a knife, but that officers placed one near his body after his death Allen
v. Redmond, U.S. Dist. Ct. N.D. Ill., reported in Chicago Tribune, p. 1 (Dec
23, 1993).
Off-duty officer did not use excessive force in
shooting at windshield of vehicle which had hit him; officer reasonably
believed the driver posed a serious threat of death or serious bodily harm to
him Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993).
Mother and estate of youth shot and killed by
officers seeking to stop him from driving away in car suspected to be stolen
awarded $2 million in damages, including $1 million in punitive damages Carmona-Rosado
v. Municipality of Catano, U.S. Dist. Ct., DPR, #89-1531, Jan 30, 1992, 35 ATLA
L. Rep.376 (Dec 1992).
NY's highest court upholds $43 million award to
convicted robber, who attacked elderly man in subway, for paralysis resulting
from shooting by transit police officer McCummings v. NYC Trans Auth, 81 NY 2d
923, 613 N.E.2d 559, 597 N.Y.S.2d 653 (1993).
Federal appeals court holds that officer's
shooting of fleeing suspect in the back was "objectively reasonable"
when he had reason to believe him to have committed a violent crime, to be
armed with a knife which he appeared to be pulling, and to be inebriated; issue
of whether suspect was actually unarmed at the time of the shooting was not
relevant to officer's entitlement to qualified immunity Krueger v. Fuhr, 991
F.2d 435 (8th Cir. 1993).
Improper admission of officer's statement that he
had not previously shot anyone in 16 years on the force did not require new
trial in case where jury held for defendant officer in shooting death of suspect
who pulled cigarette lighter from pocket and threw it at officer; officer
believed suspect might be pulling out a gun Gates v. Rivera, 993 F.2d 697 (9th
Cir. 1993).
Officer was entitled to qualified immunity for
shooting and killing a domestic violence suspect armed with a screwdriver;
officer reasonably believed that metal object in suspect's hand was a gun which
he was raising against the officer Vasquez v. Hernandez, 844 S.W.2d 802 (Tex.
App. 1992).
Officer not liable for shooting and killing
vehicle driver during traffic stop when he thought car passenger was attempting
to shoot at him; trial court's instructions to jury were wrong, but not
"plain error," and did not require reversal of jury verdict for
defendant officer. Turner v. White, 980 F.2d 1180 (8th Cir. 1992).
Arrestee shot by Alaska state troopers could not
sue for injuries under state law because of statute barring felons from
recovering damages occurring as a result of the felony Sun v. State, 830 P.2d
772 (Alaska 1992).
Police officers who shot and killed fleeing
driver of car involved in armed robbery were not entitled to qualified immunity
when a genuine issue of fact existed as to whether they should have realized
that he was not armed and whether they had probable cause to believe that he
posed a threat of serious bodily harm to themselves or others Washington v.
Newsom, 977 F.2d 991 (6th Cir. 1992).
Officer acted in reasonable self-defense in
firing a shot at truck which appeared likely to run him down; neither officer
or city was liable for death of truck's driver. Fraire v. City of Arlington,
957 F.2d 1268 (5th Cir. 1992).
Officers were entitled to qualified immunity for
shooting and killing armed man who they were told had previously fired shots
and was pointing a gun at them; fact that gun was unloaded did not alter
result, since officers had no way of knowing that. Scott v. Henrich, 978 F.2d
481 (9th Cir. 1992).
Deployment of SWAT team and shooting of mentally
ill woman to get her to submit to involuntary treatment was not an
"unreasonable seizure" in light of the fact that she had threatened
to shoot officers and swung a butcher knife at one officer Williams v. Richmond
County, Ga, 804 F.Supp. 1561 (S.D.Ga 1992).
Deputies and county were not liable for shooting
unarmed 15 year-old black male in the back as he fled from them after dropping
sawed-off shotgun; youth made a movement towards his waistband and deputies
reasonably, if mistakenly, believed he had a second gun. Sims v. County of Los
Angeles, No BC 015-704, L.A. Co. Super. Ct., Los Angeles, Calif (June 4, 1992).
Plaintiff who was convicted of criminal culpable
negligence in firing the first shots at undercover officers outside a house
through a closed door was not barred, by his conviction, from suing officers
and county for alleged use of excessive force in returning fire in the ensuing
shootout. Vasquez v. Metrop. Dade Co., 968 F.2d 1101 (11th Cir. 1992).
Mobile homeowner shot by officer in unmarked
vehicle awarded $500,000 for use of excessive force; homeowner fired birdshot
into air, believing officer to be a trespasser, but was unarmed when officer
shot and hit him; county to pay award against officer. Sammons v. McDonald,
U.S. Dist. Ct., #CV189-199, Mar 6, 1992, reported in 35 ATLA L. Rep. 289.
Officer was not entitled to dismissal of
excessive force claim before trial on qualified immunity grounds when
nine-yearold boy, who was not a suspect, claimed that officer put a gun to his
head and threatened to pull the trigger without any justifying reason during a
search of the boy's residence. McDonald v. Haskins, 966 F.2d 292 (7th Cir.
1992).
Officer's use of deadly force against a motorist
who had previously shot at him was reasonable; although motorist did not then have
his weapon in his hand, officer did not know that and reasonably still believed
himself to be in danger. Daniels v. Terrell, 783 F.Supp. 1211 (E.D. Mo 1992).
Police officers' shooting of paranoid
schizophrenic man twenty-two times presented a jury question on excessive use
of force; while decedent was armed with knives, he may not have posed a serious
threat of harm following a first or second round of shots; plaintiffs also
stated a claim against city for inadequate training on use of force on disturbed
persons. Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992).
Erroneous submission of both Fourth Amendment and
Fourteenth Amendment constitutional claims to jury required new trial on civil
rights claim arising out of police shooting; Fourth Amendment
"reasonableness" standard was the only permissible claim. Ward v.
City of San Jose, 948 F.2d 1097 (9th Cir. 1991).
Convicted robber who attacked elderly man in
subway awarded $43 million for paralysis resulting from shooting by transit
police officer
Summary judgment was improperly granted to
officer sued for shooting and killing suspect who attacked him with his own
club; whether officer's actions in firing four more shots after shooting
suspect six times were reasonable was a jury question. Hopkins v. Andaya, 958
F.2d 881 (9th Cir. 1992).
Jury awards $44,000 to relatives of three robbers
shot and killed by officers as they exited restaurant they had robbed Arango v.
Gates, U.S. Dist. Ct., reported in The New York Times, national Edition p. A11
(April 1, 1992).
Award of $1 million to compensate mother for loss
of her mentally ill son from police shooting was not supported by evidence;
mental anguish of mother was the only damage shown and mother had previously
been the object of son's violent behavior. Fields v. Dailey, 68 Ohio App.3d 33,
587 N.E.2d 400 (1990).
Summary judgment was improper in alleged
burglar's lawsuit against off-duty officer who shot him as he crouched by
officer's house armed only with a screwdriver Alexander v. Riccinto, 481 N.W.2d
6 (Mich App. 1991).
Use of deadly force to stop motorist fleeing at
speeds over 90 miles per hour was reasonable. Smith v. Freland, 954 F.2d 343
(6th Cir. 1992).
Officers were not entitled to qualified immunity for
shooting a man when there was conflicting evidence as to whether he pointed a
weapon at them; parents and children of deceased man could base their claims
against officers on due process clause rather than Fourth Amendment. Curnow v.
Ridgecrest Police, 952 F.2d 321 (9th Cir. 1991).
The Fourth Amendment gives a bystander no
constitutional protection against unintentional shooting by police officers
pursuing a fleeing suspect Rucker v. Harford Co., Md., 946 F.2d 278 (4th Cir.
1991).
Child, who was a fetus at the time officers shot
and killed his father, could bring a civil rights suit over his father's death
Crumpton v. Gates, 947 F.2d 1418 (9th Cir. 1991).
Court overturns $124 million award against deputy
in shooting death of suicidal woman; trial court failed to assess possible
objective reasonableness of deputy's action in firing when he believed that
woman may have been pointing her weapon at him; county's liability under state
law for negligent failure to train or supervise deputies on how to deal with
potential suicides upheld, however Quezada v. Co. of Bernalillo, 944 F.2d 710
(10th Cir. 1991).
Deputy sheriff's shooting and killing of suspect
was justified when he advanced on the deputy with a machete upraised and
ignored orders to drop the weapon Rhodes v. McDannel, 945 F.2d 117 (6th Cir.
1991).
State trooper who was justified in firing at
mentally impaired man was not liable for negligence of other officers involved
in incident based on theory of "acting in concert"; $224 million
judgment against trooper and state reversed State v. Will, 807 P.2d 467
(Alaska, 1991).
Sister and niece of man shot and killed by
officers could not bring civil rights suit to recover damages for the
"traumatizing effects" of witnessing his death. Borrero-Rentero v.
Rivera, 761 F.Supp. 5 (D.P.R. 1991).
Bureau of Indian Affairs officer properly shot
intoxicated man running at officers with rifle pointed at them; fact that rifle
was later found to be unloaded was irrelevant to officer's decision to use
deadly force at the time. Waybenais v. US, 769 F.Supp. 306 (D.Minn. 1991).
Officer's actions in entering a dark hallway in a
residence at night without identifying himself as an officer, shining a
flashlight, or wearing his police cap, were not objectively reasonable; officer
was not entitled to qualified immunity for use of deadly force in response to
occupants' reaction. Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991).
Narcotics officer participating in sting
operation was entitled to qualified immunity for shooting arrestee; past
incidents involving violence had taken place at location of the arrest and the
arrestee ignored the officer's order to raise his hands, turning towards
officer with an object in his hands. Slattery v. Rizzo, 939 F.2d 213 (4th Cir.
1991).
Armed security guard shot by homicide detectives
staking out convenience store was properly awarded$50,000 in negligence claim
against detectives and sheriff even though jury found security guard 50% at
fault in the incident Ansley v. Heinrich, 925 F.2d 1339 (11th Cir. 1991).
Officer reasonably shot and killed unarmed
robbery suspect in stopped vehicle who repeatedly reached down below officer's
sight line in defiance of orders to raise his hands. Reese v. Anderson, 926
F.2d 494 (5th Cir. 1991).
Officer's shooting of suspect in the jaw was
objectively reasonable despite her alleged failure to follow standard police
procedures for making a night time prostitution arrest; reasonableness is
measured by what the officer knew immediately prior to and at the moment she
fired the shot. Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991).
Officers did not use excessive force in quickly
restraining arrestee they mistakenly thought was armed escaped rapist/robber who
had threatened to shoot any officer who tried to return him to prison Dean v.
City of Worcester, 924 F.2d 364 (1st Cir. 1991).
Federal appeals court upholds jury verdict for
officer in shooting case; jury instructions requiring "knowing" use
of excessive force were not improper; testimony of "use of force
expert" was properly admitted Samples v. City of Atlanta, 916 F.2d 1548
(11th Cir. 1990).
Officers were justified in firing at armed jail
escapee who took police officer hostage and fired a shot as hostage tried to
escape Fitzgerald v. Patrick, 921 F.2d 758 (8th Cir. 1990).
Fourth Amendment's reasonableness standard,
rather than Eighth Amendment's "cruel and unusual punishment"
standard applied to shooting of escaping pretrial detainee by police officer.
Wright v. Whiddon, 747 F.Supp. 694 (M.D. Ga 1990).
Officer was entitled to official immunity for
injuries to suspect resulting from shot fired at guard dog attacking officer
during raid on alleged drug house. Murray v. Leyshock, 915 F.2d 1196 (8th Cir.
1990).
Estate of arrestee handcuffed and shot in the
head by paranoic schizophrenic police officer awarded $980,200 in damages and
$132,22850 in attorneys' fees against officer; municipality ordered to
indemnify officer, now deceased Graham v. Sauk Prairie Police Cmsn. 915 F.2d
1085 (7th Cir. 1990).
Armed robber who brandished shotgun at officer
awarded $60,000 in damages against two officers who fired eight shots at him.
Soba v. McGoey, 748 F.Supp. 227 (S.D.N.Y. 1990).
DEA agent who shot and killed self-identified
drug dealer who knocked him to the ground and chased him acted in self- defense
and was not liable for violation of dealer's civil rights. Smith v. Hill, 741
F.Supp. 647 (E.D. Mich 1990).
NJ Federal Court holds that Tennessee v. Garner
does not apply retroactively; officer entitled to qualified immunity for
shooting of fleeing felon Rodriguez v. City of Passaic, 730 F.Supp. 1314
(D.N.J. 1990).
Appeals court upholds jury's verdict in favor of
officers in suit over shooting at suspect; whether bullet in arrestee's hand
came from officer's gun was irrelevant. Scott v. James, 902 F.2d 672 (8th Cir.
1990).
Arrestee could not recover for fright and
"bad dreams" resulting from deputy placing revolver in his mouth and
threatening to blow his head off. Wisniewski v. Kennard, 901 F.2d 1276 (5th
Cir. 1990).
Shooting driver's truck tires and pointing gun at
driver's head did not constitute unconstitutional use of deadly force Johnson
v. Morris, 453 N.W.2d 31 (Minn, 1990).
Building owner mistakenly shot by officer
investigating burglary report had no claim against officer's partner, who used
no force at all. Spera v. Lee, 728 F.Supp. 366 (E.D. Pa 1990).
Evidence of offenses of sex crimes arrestee shot
during unsuccessful escape attempt could be admitted in his lawsuit against
officers; it was relevant to the reasonableness of their actions. Geitz v.
Lindsey, 893 F.2d 148 (7th Cir. 1990).
Ninth Circuit Court of Appeals holds that Graham
v. Connor standard for excessive force claims applies retroactively; orders new
trial on officer's shooting of man while responding to domestic disturbance
call Reed v. Hoy, 891 F.2d 1421 (9th Cir. 1989).
Officer entitled to qualified immunity for
shooting robbery suspect in the head; suspect had knife in his pocket and
presented risk to store clerk he had previously held at knife- point Newcomb v.
City of Troy, 719 F.Supp. 1408 (E.D. Mich 1989).
Whether officer was reasonable in using deadly
force against person creating a disturbance was a question of fact in light of
conflicting evidence Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989).
Federal appeals court upholds $51 million award
for shooting by officers that rendered plaintiff paraplegic Gutierrez-
Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989).
Police officer was immune from suit if he acted
in good faith in shooting fleeing unarmed burglar, but Michigan's fleeing felon
statute held retroactively unconstitutional Washington v. Starke, 433 N.W.2d
834 (Mich. App. 1988).
Civil rights plaintiff had burden of overcoming
officer's argument that he fired in self-defense Miller v. Taylor, 877 F.2d 469
(6th Cir. 1989).
Police officer entitled to summary judgment on
excessive force complaint when plaintiff did not submit any evidence Hinojosa
v. City of Terrell, 864 F.2d 401 (5th Cir. 1989).
Deputy was justified in shooting drunken man who
took his night stick and was advancing on him with night stick upraised. Est.
of Belew v. Ruppert, 694 F.Supp. 1214 (D.Md 1988).
Mother of arrestee allegedly shot in head could
recover for loss of son's companionship in federal suit even if state did not
allow such recovery. Hutson v. Bell, 702 F.Supp. 212 (N.D.Ill. 1988).
Officer on medical roll was not acting under
color of law when he shot and killed individual, despite failure of city to
confiscate weapon or ammunition Gibson v. City of Chicago, 701 F.Supp.
(N.D.Ill. 1988).
Officer's shooting of man who threatened him with
knife was objectively reasonable; city's failure to reprimand or discipline
officer did not demonstrate unconstitutional policy Est. of Jackson v. City of
Rochester, 705 F.Supp. 779 (W.D.N.Y. 1989).
Parents could bring civil rights suit for loss of
relationship with adult son allegedly killed by police Agresta v. Sambor, 687
F.Supp. 162 (E.D. Pa 1988).
Arrestee awarded $400,000 for alleged negligent
shooting; exclusion of evidence of arrestee's prior felony conviction for
assault against officer was "harmless error." Clark v. Buhring, 761
P.2d 266 (Colo. App. 1988).
Officers who killed decedent during a shoot-out
started by the decedent are entitled to qualified immunity. Standridge v. City
of Seaside, 545 F.Supp. 1195 (N.D.Cal 1982).
Plaintiff sues federal officials for shooting him
during drug arrest. Tefft v. Seward, 689 F.2d 637 (6th Cir. 1982).
Officer ordered to pay $140,223 to armed man he
chased into motel room and shot. Smith v. Heath, 691 F.2d 220 (6th Cir. 1982).
{N/R} NYPD pays $300,000 in compensatory and
$125,000 in punitive damages after an off-duty officer shot his wife five
times, then himself, using an approved off-duty weapon. There was evidence his
superiors ignored the officer's psychological problems. Bonsignore v. City of
N.Y., 521 F.Supp. 394 (S.D.N.Y. 1981), aff'd 683 F.2d 635 (2d Cir. 1982).
City liable for killing unarmed suspect and then
planting "throw down" gun on him Webster v. City of Houston, 689 F.2d
1220 (5th Cir. 1982).
FBI not negligent for gunshot injuries to
plaintiff who was attempting to rob a bank. Amato v. United States, 549 F.Supp.
863 (D.N.J. 1982).
Plaintiff in process of "hijacking"
school bus suffered no constitutional rights violations when shot by officer.
Todd v. White Lake Twp, 554 F.Supp. 272 (E.D. Mich 1983).
Marshal shot and killed unwilling evictee in
self-defense. Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983).
No liability for shooting of 16-year-old fleeing
robbery suspect. Simmons v. City of Chicago, 455 N.W.2d 232 (Ill.App. 1983).
Officer could be liable for shooting and killing
plaintiff's son; no liability to police chief or city absent negligent training
or policy allegation. White v. Talboys, 573 F.Supp. 49 (D. Colo. 1983).
Possible liability for shooting fleeing
misdemeanant Cross v. City of Gary, 456 N.E.2d 614 (Fla. App. 1983).
Case reversed and city not liable for officer's
shooting and killing his relatives with service revolver. Morgan v. Dist. of
Columbia, 468 A.2d 1306 (DC App. 1983).
City and police chief could be liable for
negligent training and supervision of officer who shot man leaving scene of
traffic stop; plaintiff's erratic driving serves as probable cause to take
blood and urine sample Hopper v. Payes, 573 F.Supp. 1368 (D. Ida. 1983).
City liable for police permitting officer's
shooting unarmed 15-year-old. Taylor v. Collins, 574 F.Supp. 1554 (E.D. Mich
1983).
Case to continue for determination of whether
officer's shooting of rape suspect in van was reasonable Taylor v. Mayone, 574
F.Supp. 609 (S.D.N.Y. 1983).
State not responsible for correctional guard's
off-duty incidents to prevent crime. Frazier by Western v. State, 474 N.Y.S.2d
7 (App. 1984).
Police officer shot three times by man in rage
over not having use of his telephone Ball v. State of Ga, 733 F.2d 1557 (11th
Cir. 1984).
No liability since decedent drew pistol during
arrest attempt. Singer v. Wadman, 745 F.2d 606 (10th Cir. 1984).
Wrongful shooting death to proceed in federal
court; plaintiff not forced to state jurisdiction under Parratt. Bullard v.
Valentine, 592 F.Supp. 774 (E.D. Tenn 1984).
OK to shoot at rape suspect fleeing past
roadblock Taylor v. Mayone, 599, F.Supp. 148 (S.D.N.Y. 1984).
Drawing gun to approach motorist during
"spot check" not grounds to recover for outrage; court recently ruled
matching description on warrant not grounds to arrest. Guffey v. State, 690
P.2d 1163 (Wash. 1984).
Bystander partially at fault when shot by police
during arrest attempt. City of San Antonio v. Higle, 685 S.W.2d 682 (Tex.App.
1985).
Plaintiff given opportunity to prove supervisor's
failure to inform officers on deadly force regulations grounds for liability
for shooting fleeing felon Moore v. City of Columbia, 326 S.E.2d 157 (SC App.
1985).
Shooting fleeing teenagers as they fled from
robbery scene not grounds for liability Crawford v. Edmonson, 764 F.2d 479 (7th
Cir. 1985).
Summary judgment in state court because of
immunity does not preclude federal action. Ligas v. Allen, 765 F.2d 53 (3rd
Cir. 1985).
Police chief's failure to make changes, reprimand
or fire officers sufficient to infer policy for section 1983 municipal
liability; dissenting judge says liability should not be based on a "lack
of remorse" after an incident Grandstaff v. City of Borger, 767 F.2d 161
(5th Cir. 1985). Deputy wins countersuit after widow sued for wrongful death
Baltezore v. Concordia Parish Sheriff's Dept., 767 F.2d 202 (5th Cir. 1985).
State court verdict, unlike summary judgment,
bars federal action. Devan v. City of Des Moines, 767 F.2d 423 (8th Cir. 1985).
No liability for shooting that occurred after
officer found couple having intercourse in park. Rhiner v. City of Clive, 373
N.W.2d 466 (Iowa 1985).
Deadly force policy in Alabama results in
$100,000 liability for officer's shooting. Pruit v. City of Montgomery, Ala,
771 F.2d 1475 (11th Cir. 1985).
11th Circuit finds Section 1983 liability for
intentional shooting. Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.
1985).
Court reverses $250,000 judgment by finding
shooting was reasonable; parents have no constitutional right to sue. Ealey v.
City of Detroit, 375 N.W.2d 435 (Mich.App. 1985).
Court finds no wrongdoing in shooting fleeing
felon already placed under custody. Garcia v. Wyckoff, 615 F.Supp. 217 (DC Colo
1985).
Court finds no conspiracy in shooting of
decedent, who allegedly would not sell drugs for deputies; no liability for
deputies' shooting decedent's dogs Pfeil v. Rogers, 757 F.2d 850 (7th Cir.
1985).
Officer liable for shooting after improperly
handling arrest Young v. City of Killeen, Tex, 775 F.2d 1349 (5th Cir. 1985).
Police shot resident in mistaken belief he was a
burglar; prejudgment interest awarded. Aubin v. Fudala, 782 F2d 280 (1st Cir.
1983). Aubin v. Fudala, 782 F.2d 287 (1st Cir. 1986).
Not necessary to join arresting officers in suit
against municipality Ellison v. Town of Brookside, 481 So.2d 89O (Ala 1985).
City not liable for officer's being shot by
fellow officer McKenna v. City of Memphis, 785 F.2d 560 (6th Cir. 1986).
Off-duty officer riding with son alerted to
robbery in which he used firearms. Hill v. Jenkins, 620 F.Supp. 272 (N.D.Ill.
1985).
Defense counsel's statement that police would
have to personally pay judgment admissible; shooting review board report also
admissible Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986).
Over $1 million awarded for police officer on
routine patrol negligently shooting drug agents. Mazzilli v. Doud, 485 So.2d
477 (Fla.App. 1986).
Decision to shoot was ministerial, not
discretionary; no immunity. Watson v. Quarles, 381 N.W.2d 811 (Mich.App. 1985).
City proves training policy adequate to avoid
liability; suit to continue against police, even though decedent was armed when
they fired their weapons York v. City of San Pablo, 626 F.Supp. 34 (N.D.Cal.
1985).
Recommendations of officer's dismissal
inadmissible Hargress v. City of Montgomery, 479 So.2d 1137 (Ala 1985).
Plaintiff's closing argument that government will
pay damages in a Sec. 1983 action prejudicial to police; new trial ordered.
Griffin v. Hilke, 804 F.2d 1052 (8th Cir. 1986).
Garner given retroactive application by the sixth
circuit. Carter v. City of Chattanooga, TN, 803 F.2d 217 (6th Cir. 1986).
Children have no Fourth Amendment claim in
father's shooting; estate does. Smith v. City of Fontana, 807 F.2d 796 (9th
Cir. 1987).
Court rules officer need not see a gun before
shooting fleeing bank robber; observing employees with hands held over their
heads supports shooting under Garner rules. Ford v. Childers, 650 F.Supp. 110
(C.D.Ill. 1986).
Police officer's intentional tort is within the
scope of employment if it was foreseeable; city could be liable for negligent
retention of officer with violent tendencies. Hill by Hill v. Mitchell, 653
F.Supp. 1194 (E.D. Mich. 1986).
Police firing their weapons at gunman without
identifying themselves was justified. Trejo v. Wattles, 654 F.Supp. 1143 (D.
Colo. 1987).
Over $200,000 awarded for deputies' shooting and
killing store owner, mistaking him for burglar Lundgren v. McDaniel, 804 F.2d
600 (11th Cir. 1987).
Use of deadly force against non dangerous fleeing
felon results in $472,000 judgment Guider v. Smith, 403 N.W.2d 505 (Mich.App.
1987).
Tenth circuit U.S. Court of Appeals finds officer
acted reasonably in shooting female juvenile who appeared to be armed while
fleeing from robbery of Pizza Hut. Ryder v. City of Topeka, 814 F.2d 1412 (10th
Cir. 1987).
Civil rights suit ordered to continue against
police over shooting; city dismissed from suit after police lieutenant
testified that training was adequate. Anderson v. City of Pocatello, 731 P.2d
171 (Idaho 1986).
Undercover police officer accused of firing his
weapon without justification during drug transaction Fundiller v. City of
Cooper City, 777 F.2d 1436 (11th Cir. 1985).
Depression over police incident states claim for
suicide Parker v. Superior Court, 223 Cal.Rptr. 292 (App. 1985).
No liability for suicide of arrestee two years
after being shot and paralyzed by officer. District of Columbia v. Peters, 527
A.2d. 1269 (DC App. 1987).
Children of man shot by police can bring civil
rights lawsuit for loss of companionship, children's action can raise fourth
amendment, but not first or eighth amendment claims. Smith v. City of Fontana,
818 F.2d 1411 (9th Cir. 1987).
U.S. Court of Appeals for 7th Circuit upholds $16
million civil rights verdict for fatal shooting of unarmed teenager; allows
damages for the "hedonic" value of life and loss of parental
association. Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987).
Officer who shot youth in head liable for
$150,000; youth's mother and siblings could not bring suit on their own behalf,
however Guzman Rosa v. de Alba, 671 F.Supp. 882 (D. Puerto Rico, 1987).
Pointing loaded pistol at arrestee was not
constitutionally excessive force. Hinojosa v. City of Terrell, Tex., 834 F.2d
1223 (5th Cir. 1988).
Store owner shot by state trooper under
misconception that hostage situation was taking place within store; allowed to
proceed with suit against trooper. Thompson v. Spikes, 663 F.Supp. 627 (S.D.Ga
1987).
Town not liable for officer's shooting of
arrestee while executing warrant for failure to pay traffic fine Stokes v.
Bullins, 844 F.2d 269 (5th Cir. 1988).
Second circuit court of appeals holds that
supreme court decision on deadly force applies retroactively; reasonable use of
deadly force measured by individual officer's knowledge Davis v. Little, 851
F.2d 605 (2nd Cir. 1988).
Sixth circuit holds that supreme court decision
on deadly force should not be applied retroactively to Tennessee fleeing felon
statute Carter v. City of Chattanooga, Tenn, 850 F.2d 1119 (6th Cir. 1988).
Use of deadly force against hospital patient
brandishing knife did not violate Fourth Amendment O'Neal v. DeKalb County,
Ga., 85O F.2d 653 (11th Cir. 1988).