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.
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.
Sure thing. Let me know when SCOTUS either denies cert or rules on it.
Being armed is the first step to be free. I’m old enough to have seen ‘whites only’ signs in the south.
The second step to being free is to drop kick folk like hillary, bernie and kapo bloomberg to the curb.
should it be assumed that they either have an (illegal?) cross state list of permits, or illegally (?) pull people over based on in state lists of who has a gun at home? it would be very interesting to have discovery on trigger for stops like these
If I didn’t already have the XD-S 9mm, I’d buy the 9mm XD-S mod 2 version when it comes out. Heck, still might depending on the width. It seems the new frame is slightly wider than the Gen 1 frame.
You should really look into the history of Haiti it’s The only successful slave reblion thet led to a nation. yes they used guns! Yes they had militias! They did fight the oppressive French gov, and won!!……And then got screwed over a few times by larger powers, corrupt politicians, exe….
Good point/good article
Since low information voters (and by that I mean Liberals) rely more on audio-visual input (TV) than reading “silly facts” from books, it would be great if someone were to make a PBS style version of this book… complete with resonant voiced (James Earl Jones would be great!) black actors to voice the quotes as the original documents panned by on-screen.
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.
Nice guns. I’ve owned one. I read the article like it was something new Kimber produced but the Stainless Raptor has been around for awhile. I’m a Kimber fan and carry a couple. My favorite carry is a Kimber Solo CDP. It eats only 124 or 147 grain. 115 grain and it pukes faster than my kid eating broccoli.
Was the gun you tested factory new? I’ve had some get finicky just out of the case but after a few rounds and adequate lubrication they season well.
Didn’t know they were opening an Alabama facility. Thank God they’re expanding beyond Yonkers. I don’t know why any company remains up in anti gunville. Props to them.
“Trained”….
Right. The average cop trains with on the order of a hundred shots a year, whereas everyone I know who carries concealed trains with that every month. More, the cops train on fixed targets in indoor ranges, while most of the citizen carriers I know practice on moving targets as well as targets obstructed by some obstacle so they have to move and shoot. For that matter, I used to shoot with a group where people would do things to try to distract the shooter, anything from firecrackers set off behind to spitballs shot to the face — while I suspect the biggest distraction a cop doing training will have is an itch from ear covering.
Nice appendectomy scar there. Was that intentional or have you sworn off AIWB carry now?
What is Mondo Marketing?
“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.
Ok, all this hype about the Hi-Point (995TS), we just had to go out and get a couple to find out what they’re all about. We usually like Ruger, Smith, HK, etc, snob rifles, but had to try to beat up some HP’s. Generally, HP pistols are crap, but we have surprisingly developed a different opinion of the 995TS/9mm.
We bought two off-the-shelf standard no frills models, and added only a $50 foregrip with a bipod. We picked up 20 Redball 20 round magazines, and 10,000 rounds of standard, medium quality 9mm Luger ammo from MagTech.
First off, we completely disasembled them (which was considerably more tedious than most other carbines), inspected, and reassembled. Amazingly out-of-the-box, they were very clean. All of the components were intact, smooth, and appeared well made (no dings, burrs, rough or sharp edges, and no “blims” or discolorations of any of the parts).
We have an indoor range, so our max distance is only 75 yards. Initially, 5-shot groupings were at about 3 inchs. After 1000 rounds in each gun, that consistantly became less than 2 inch groupings. Reducing the range to 50 yards, we could almost put all 5 shots in the same hole. No question, these guns are accurate. Better ammo, you could probably do even better.
Stress & Durability: We spent 3 days burning thru 5000 rounds in each gun. We had one stovepipe in one gun, and two FTF’s in the other (we’re thinking, probably due to the ammo itself), out of the entire 10,000 rounds. Yes, they ran a bit hot, they got a little dirty, but these HP’s just wouldn’t fail!
For brevity, we’ll just say the post-test disassembly and inspection showed no damage, and very little wear. The HP 995TS is accurate, durable, and dependable, and we only paid $269 for each one, but I think I heard Hi-Point is going to be knocking $20-$30 off dealer cost for 2018.
Your audiologist can make you custom fitted passive ear plugs that have swappable 30db and 15db reduction inserts for the same price as the test unit. Your insurance may even pay part or all. They can come with a tether. They are great for concerts as they do not alter the music as foam can do.
It means: Do what I say you prehistoric neanderthalic caveman, redneck, bible thumping, deplorable, subhuman loser! So I can “feel” safe and I can control the lesser beings while not contemplating how I would defend myself if necessary. Or some such drivel. Feel free to add on! ????
The bills being considered have carve-outs for police. They also include retired officers, so he can keep all his toys. He’ll be able to carry greater than 10 round magazines in his firearms. I’ll be able to keep mine, but only at home. My only exclusion is if I’m camping, fishing, etc. I’ve been carrying 15 rd. magazines for close to 30 yrs. and the state that I love no longer trusts me. It’s bullshit!
Mr Hurst may have been a ‘cop’ at one time–but most ‘cops’ I have met–DON’T KNOW SHIT ABOUT GUNS!
then add this to his resume–he is now a ‘politician’ and that means his brain died years ago and even faster in LIB hell Seattle…
when a person says this about a AR15 — high-powered military assault weapons—Then you darn well know they are very “Common’ and have NO SENSE!
An AR 15 is not “high powered’ nor a “military assault weapon’ —and never was!
I have not been shopping for a bump-fire stock because I assume that they cost $400+ now. If I found one at a local store for $100, I would buy it.
I have no interest in a binary trigger.