Police officer's gun (courtesy winnipeg.ctvnews.ca)
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Two recent federal appellate decisions are good reminders of how US judges may assess claims of excessive force where unarmed suspects are involved. Atty. Michael Brave, always a popular legal updater at ILEETA conferences and other venues, tells Force Science News that these cases “have many learning points” for trainers, police attorneys, and street officers alike . . .

Attempted gun grab, a violent scuffle, then flight unarmed

The first case began one night when a patrol officer in Tennessee stopped to offer assistance to two men tending to a flat tire alongside an interstate highway. When the men declined help, the officer decided to run their license plate and got feedback suggesting the car was stolen.

When the officer stepped out of his unit to investigate further, one of the men “leaned down inside” the stalled vehicle through the driver-side window as if, from the officer’s perspective, he “was reaching for a weapon.” When he rose from the car, he “did not appear to have a weapon in his hands,” according to the appellate decision, but matters escalated quickly nonetheless.

When the officer placed a hand on the suspect’s sleeve, the man swung two punches at the officer’s torso, then rabbited. He ignored commands to stop, but the officer tackled him to the ground.

During “several seconds of active struggle,” the two “exchanged punches” and the suspect “repeatedly grabbed at” the officer’s holstered sidearm without gaining control of it. The officer deployed his CEW into the suspect’s abdomen. When that proved ineffective, the officer unsuccessfully applied drive stuns to the suspect’s torso and neck and, in the process, “became tangled in the Taser wires [himself] and was shocked as a result.”

At one point, the suspect had the officer flat on his back and was straddling him, although he made no attempt to disarm him then.

When the attacker finally stood up and turned to flee, the officer drew his handgun and fired—three shots from the ground, three more after he scrambled to his feet. From first physical contact to final firing took 35 seconds. The suspect died from six GSWs, all to his back.

IMMUNITY DENIED. The suspect’s next of kin brought a Sect. 1983 legal action against the officer, alleging excessive force. The officer asked the federal district court to grant summary judgment in his favor on the ground of qualified immunity. The court refused, ruling that the case should go to a jury.

“[S]ome level of force [by the officer] was objectively reasonable under the circumstances,” the court said, but “the use of deadly force was not.” The officer “had no objective reason for believing that [his adversary] posed a serious threat while fleeing unarmed.” Thus, “a reasonable jury could conclude [the suspect] was not a threat to anyone when he turned and began to flee.”

The law is “clearly established that when an individual is obviously not armed and is attempting to flee at the time he was shot, the use of deadly force is typically unreasonable under the circumstances,” the court said.

The officer appealed to the 6th Circuit US Court of Appeals, which hears cases from KY, MI, OH, and TN.

APPELLATE ACTION. In a decision written by Judge John Marshall Rogers, a three-judge panel upheld the district court’s ruling.

In his appeal, the officer had argued that he had “probable cause to fear for his safety, even in the seconds after [the suspect] had turned to flee,” because the assailant had grabbed at his holstered sidearm “several times during their struggle.” The panel, however, was unpersuaded.

The reasonableness of the use of deadly force depends “primarily on objective assessment of the danger a suspect poses” at the “particular moment” lethal force is used, Rogers wrote. “Even if [the officer] had probable cause to fear for his safety during his struggle with [the suspect], it could well be that he lacked the same cause after the struggle had ended and [the suspect], still unarmed, had turned and begun to flee.”

This unpublished decision, Carden v. City of Knoxville (TN), can be accessed in full, free of charge, by clicking here.

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  1. Running away. Unarmed. If any citizen, regardless of title, were to fire under those conditions that citizen would be in a world of hurt.

    Having said that. Fighting a cop on the side of the road is just about as stupid a move as you can do. And some people are just too stupid to live.

    I had a WV state trooper pull over to the side of the interstate and assist me with a tire change. It went perfectly. Nobody died or even got hurt feelings.

  2. Yeah I don’t feel bad for the dead dude. Play stupid games win stupid prizes. What I don’t get though, is how this cop can be convicted while that one in Arizona who blasted that dude on his knees in the hotel got off scott free. The cop in this article was at least in a violent encounter. The hotel shooting was a straight execution.

    • This cop wasn’t ‘convicted’, or even charged.
      He was sued, and lost.

      Also in the sixth circus, also fleeing unarmed, this guy got shot to death, and immunity was upheld, even though the court concluded that the use of force was also unconstitutional in that case, the court concluded that government had made itself and its agents immune to the Constitution. (let that sink in, there is no Constitution if the government chooses to grant itself immunity from the Constitution)


      • It was not that the officer was “absolutely immune,” i.e., could not be sued, it was that the court concluded that the defense of qualified immunity had been established on the basis that there was no extant legal authority for the proposition that a police officer firing on someone attempting to flee in that particular circumstance was “objectively unreasonable.” (No, just like the dissent, I think the maority got it wrong; it should have been a jury question.)

    • Because people care more for government. If you are at all suspected of anything, and get killed unjustly, people will call you stupid and blame you for everything.

      Say if some kid stole a candy bar and ran when the police said stop. The the police shoot him dead because they felt scared. The people will say, “If you never stole that candy bar, and didn’t run from the cops, your dumb ass would still be alive. You got what you deserve. Good job, cops. It was a clean shoot.”

      Today’s standard is very low for government workers. These days it’s enough just to say you felt fear. So cops can jump in-front of a fleeing car and claim they felt scared. They can hang onto a car as it drives away so they can claim fear. They will put you in a choke hold that is killing you, if you try to survive the cops might shoot you dead, then say you were resisting with violence and that they feared you were a deadly threat because they lost grip of the deadly choke they were applying.

      I am no fan of criminals, that includes those with badges. The quality of police should be higher than it is currently and it shouldn’t be so easy for them to get away with crimes. Armed citizens should be able to get along with police rather than be harassed or killed by them. Low quality cops have become a barrier to survival.

      Government workers are supposed to lead by example, not by the barrel of a gun. Yet for some reason a lot of Americans think it’s fine that two standards exist — as if hypocrisy isn’t a negative thing. Some will say cops are murders yet want to ban guns from the people. Others will say guns are good yet support the iron fist of government. Under certain scenarios Americans’ morals will flip instantaneously in support of the opposite…

      • Beating the hell out of a tasered cop is not remotely the same as shooting a shoplifting kid.

        If I were on the jury neither the cop, or a everyday citizen shooting that POS would be convicted.

        • He was not “convicted.” He was found liable for damages in a civil action that the city that employed him (or its insurer) will pay. In a civil action, the burden of proof is not “beyond a reasonable doubt,” but instead, whether, by a preponderance of the evidence (i.e., more than 50% probable) the officer acted unreasonably and violated the plaintiff’s constitutional rights under the circumstances of the case. And yes, there is plenty of room for a reduction of damages due to the plaintiff’s comparative fault. But the facts here are pretty clear: the officer shot a man in the back when that man NO LONGER presented an immediate threat of serious personal injury or death. If you did so, you too would face a large potential of damages being awarded against you.

      • “These days it’s enough just to say you felt fear…”

        No it’s not. There have to be objectively reasonable facts towards that end- that is, a reasonable person in that position would have to have feared for his life based on articulatable circumstances (he had a knife, he was huge, etc).

        And when you say “these days” you’ve got it backwards. Police in decades past were legally able to use deadly force MUCH more liberally than now- although not for misdemeanors like shoplifting a candy bar.

  3. I get what the ruling suggests but where is the analysis and how this applies to use of force decisions? Courts can never recreate the quick, fluid, uncertainty of the moment. A shot a few seconds earlier during the struggle for a gun would seem justified, a second too late and the taxpayer is out millions and the officer is in jail, presumably. How long does a decision to shoot take to make and physically take to stop? Lesson learned by the police….don’t help stranded motorists.

    • Indeed. I’ve been saying for years Fear of litigation will eventually hem us all (even police, firefighters, and EMTs) into our own homes. Call it LawMageddon.

      • Utter nonsense. Fireman are generally immune for acts taken in fighting a fire. Firemen RARELY get sued. And EMTS are liable for malpractice if they breach the standard of care applicable to EMTs (like dropping people, administering the wrong drug or dosage as authorized by a physician, moving an accident victim without stabilizing any fractures or neck injuries, etc.). EMTs are insured by the ambulance company or hospital that employs them, so they do not have to worry about such things unless they do something really illegal, like raping an unconscious patient.

        Only police officers have special rules, primarily because their acts carry the (literally) force of law, and under appropriate circumstances, they can deprive citizens of their constitutional rights (i.e., by arresting them, searching pursuant to a warrant, yada yada). In other words, the scope of their conduct is circumscribed by the U.S. and state constitutions and the protections that they guarantee. It is a very different scenario.

        • To add to what you said, Mark, in my home state of Texas, emergency medical service providers can’t be sued for negligence, period. The standard here is gross negligence.

          In short, I agree with you.

    • No one said anything about him going to jail. Moreover, civil liability and criminal liability are never decided in the same case at the same time. Civil cases and criminal cases have incompatible burdens of proof, the former requiring proof “by a preponderance of the evidence” (more likely than not) while the latter requires proof beyond a reasonable doubt. Any questions, just think about the O.J. murder case: not guilty of murder (no proof beyond a reasonable doubt), but liable for millions to the Goldman estate because it was more probable than not that OJ killed the guy. The decisions are both correct and not mutually exclusive.

    • If you want the analysis, read the case. The essential question is this: was it objectively reasonable for the officer to use deadly force on someone whom he knew had no weapons and who was trying to flee? Just think of the typical self defense scenario, which applies equally to officers as it does to “civilians”: did the officer have an objectively reasonable fear of immediate serious injury or death from a perpetrator who was running away? To ask the question is to answer it; an unarmed man who has his back to you and is trying to run away presents no such threat, hence deadly force was not authorized.

      • In most states LEOs have the authority to use deadly force on a subject whom they believe has or will commit a felony. Is attacking a LEO a felony? If so, then the shooting could be justified and immunity should be granted. We non LEO citizens do not have this authority. But the concept is that if a subject has already committed one felony then he is a threat to society and should be stopped.

        • LEOs do not have legal authority to shoot someone just because they are committing a felony (although in past times shooting a fleeing felon was legal. Not anymore, see Tennessee vs Garner) The legal standard today for an LEO’s use of deadly force is a reasonable belief that the subject poses an imminent threat of death or serious bodily injury to the officer or another person (see Graham vs Connor).

    • Yes, they are tough decisions, and the courts- at least the Supreme Court (maybe not the 9th) has actually given a fair amount of latitude for police in determining an appropriate (reasonable) amount of force to use. They specifically use the word ‘reasonable’ instead of ‘necessary’ to this end, despite many supposed ‘experts’ confusing the two.

      But at the same time, there has to be some oversight. This ruling doesn’t indicate that the officer lacked probable cause, per se, but instead denies his motion to dismiss based on qualified immunity. So now he will have to defend his actions affirmatively. And based on the circumstances- six rounds to the back of an unarmed suspect- I can’t say that’s all that strange.

      I suspect his defense- and it’s not without merit in my mind- will be that the suspect’s attempts to grab his gun flipped a switch that he had to defend himself with deadly force. When the suspect turned there may not have been enough time to evaluate and change actions… by then he might have already fired the 6 shots based as a reaction to something that happened very shortly before.

      But that’s something he’ll have to raise as a defense now.

  4. What was the proximity of the assailant to the cop when the cop fired from the ground? Was it a few feet? or a few dozen? If he was within five feet, how is the officer supposed to know that he was fleeing and not just getting a little maneuvering room so he could kick the officer in the head or something?

    I’d have a hard time being willing to bet my life on the fact that a guy who was trying to beat the heck out of me and steal my gun isn’t an immediate threat to me if he’s still a step or two away while I’m still on the ground.

    • I think it had a lot to do with the fact that he was facing away from the officer (which is why he was shot in the back).

    • It used to be that, after commiting a felony, you risked being shot (legally) for fleeing if you did so after being told to halt. Then it became a case of “if the cops have to catch you, they’re bringing an ass-whoppin with them.” Now it’s basically a free spin of the wheel unless you find a cop who screws up. Many states don’t even have good charges for running on foot, and even if they do it just gets pled down anyway.

      I wish we had a magical statistical database that could tell us how this effects the decision of criminals to flee apprehension, if at all.

      • The three strikes rule created a more dangerous situation. Instead of catching their final case criminals would go out blasting and driving the wheels off their vehicle. Police would not give up the chase regardless of the innocent lives that could or would be harmed/lost.

  5. “When the attacker finally stood up and turned to flee, the officer drew his handgun and fired—three shots from the ground, three more after he scrambled to his feet. From first physical contact to final firing took 35 seconds. The suspect died from six GSWs, all to his back…”

    First of all, that’s some fancy shooting from the ground after fighting- 100%!. NYPD should have this guy train at their academy! Train them in shooting, though, not law.

    Because, uh, it’s pretty clear you can’t do that since Tennessee v. Garner. It’s the law of the land, and it says that a felon gets to escape and go commit more crimes if he can outrun you (which, by not carrying 15-20lb of gear, he often can). I may not agree with all the aspects of that decision but this case is pretty clearly not within its bounds.

    • Doesn’t Tennessee v. Garner allow for the use of deadly force against an fleeing person wanted for a violent felony, if that person posed an imminent threat to the public?

      • I think the cop got his ego bruised when, shocker, his help wasn’t wanted nor needed, then decided to get even by phishing for a crime. Running plates because someone doesn’t want your help, to me, is a blatantly unreasonable search. He should have walked away. But hey, he found a crime, just not the one he wanted, thats karma for ya!

        The next best thing would be to call for backup if the vehicle is in fact reported stolen. Its absolutely stupid to try and handle it without someone backing you up.

        I can’t blame the guy for running, these days an interaction with a cop may result in ending up dead in the ditch with a planted crack bag and a gun.

        Jumpy cop escalates the situation that he created, grabs suspect, it goes to fists, other person is trying to get away from his attacker, aka not a threat. Once it goes to the ground and he starts reaching for the cops gun, survival instinct or not, hes now an active threat and and I can reasonably see deadly force being justified, even though the cop instigated the conflict. After being stunned, the suspect still tries to get away and this tells me adrenaline is racing and hes very much in fight/flight/freeze mode.

        Once hes running away again, the active threat window is closed and the cop puts three in his back, gets up, and shoots him in the back three more times for a good old dead check.

        If I were on the jury, I would throw the book and every other book I could get my hands on at him. At most, murder, in the least, manslaughter without justification.

        • Whenever a cop has an encounter they run plates. If something happens, dispatch knows what the last contact was.

          Backup – yeah, of course, but neither of us know how far away that was.

          You can’t blame the guy for running? The cop escalated the situation with a felon who was driving a stolen car? The felon throwing blows at the cop.

          Wow, just wow…..

        • Yes, Bob. Some folk here just can’t get over their last speeding ticket. It’s a kindergarten mentality. But these days we don’t let boys grow up and be men. So its no surprise.

  6. I agree that 6 shots in the back while fleeing MAY not have been the best decision by the officer. HOWEVER, that’s easy to see sitting in the comfort of my own home behind a computer. It is not so easy to see after fighting and tasing a guy. Imagine, for a moment, what it must have felt like. How absurdly scared the officer must have been. Men are not machines and cannot be judged on the basis of infallibility. We cannot expect perfection, we can only expect one’s best judgment, given the circumstances, and THAT PERSON’S perspective. In my mind that officer should not have been liable for any legal or civil damages. He did the best he could in the situation he found himself while his brain (probably) screamed, “I’m gonna die! I’m gonna die!” Rule # 1 is “I go home tonight.”

    And fuck that other guy. Don’t fuck with the police.


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