On October 18, 2023, the Seventh Circuit Court of Appeals decided Tousis v. Billiot[i], in which the court examined whether an officer was entitled to qualified immunity for using deadly force on a fleeing motorist.
In Tousis, agents from the Drug Enforcement Administration (DEA) were investigating Gus Tousis for drug trafficking. Agents obtained a warrant and placed a GPS tracking device on his vehicle with which they could track his location and speed. On June 2, 2018, agents conducted surveillance as Tousis went to a drug supplier’s house to purchase cocaine. The remaining relevant facts of Tousis are as follows:
On the day in question, DEA Task Force Officer Robert Boehnke surveilled Turner’s home and observed Tousis arriving in a gray or silver SUV. Boehnke saw Tousis enter Turner’s garage carrying a bag, and then exit the garage carrying the same bag. Boehnke noted a change in the appearance of the bag and believed that a drug transaction had taken place. He informed his fellow officers about what he saw. Special Agent Keith Billiot, the defendant here, was a supervisory special agent involved in the investigation that day. He understood that Tousis was suspected of dealing cocaine and heroin, and that he had a record of drug-related arrests as well as arrests for other offenses. Agent Billiot followed the reports from Officer Boehnke and other DEA agents that day.
DEA agents enlisted the aid of the DuPage County Sheriff’s Department to conduct a traffic stop of Tousis’s SUV after it left Turner’s home. When a sheriff’s deputy attempted the stop near I-88 and Yackley Avenue, Tousis fled at high speeds, with the tracking device showing that the car accelerated from 64.6 miles per hour to 115.2 miles per hour on I-88 during the chase. Because of the danger to the officers and the public posed by Tousis’s reckless flight, the officers ended their pursuit. Tousis was last observed by those officers weaving in and out of traffic at dangerous speeds. The tracking device continued to show Tousis’s location and speed, and the officers, including Agent Billiot, followed his progress. After the officers ended the visible pursuit on I-88, Tousis reduced his speed at certain points. The officers hoped to follow Tousis to his home or to some place where it would be safe to apprehend him. Billiot learned from his fellow officers that Tousis was heading eastbound on Interstate 290 at a high rate of speed. Agent Billiot was driving an unmarked car that was equipped with a siren and emergency lights. He proceeded to Interstate 290 and spotted Tousis but did not activate his lights or siren. Billiot followed Tousis off the highway at Central Avenue in Chicago, where Tousis proceeded southbound. At this point, Tousis was driving at normal speeds, but he was taking evasive actions that indicated to Billiot that Tousis suspected he was being followed.
Billiot continued to follow Tousis until they were both headed northbound on Central Avenue. At that point in the road, Central Avenue has two lanes in each direction with a median separating them. Tousis was in the left-hand lane and Billiot in the right-hand lane when Billiot observed that Tousis was approaching a red light and would be stopped behind two cars at the light. Billiot decided that this was a good place to make a second attempt at a traffic stop because Tousis would be blocked in by traffic and would be unable to flee. Billiot activated his emergency lights and siren and pulled in front of Tousis’s car at a northwest angle. The position of Billiot’s car in relation to Tousis’s car placed the driver’s door of Billiot’s car directly in front of Tousis’s car at a distance of approximately ten to twenty-five feet. Officer Boehnke was approaching from behind and was over a hundred yards away from the scene of the confrontation at the moment that Billiot pulled in front of Tousis. After stopping his car, Billiot grabbed his carbine rifle, exited his car wearing a wellmarked DEA law enforcement vest and ran towards Tousis’s stationary car, shouting commands at him to turn off the car and exit the vehicle. Closing the distance between the cars as he ran, Billiot raised his rifle and pointed it at Tousis, but Tousis ignored Billiot’s orders. Instead, Tousis moved the car forward, maneuvering to the right where the lane was now open. There was nothing between Agent Billiot and Tousis’s car. As soon as Tousis’s car pulled forward, Billiot fired a single shot at Tousis with his rifle. Backpedaling from the moving car, Billiot fell onto the median, injuring his back. The bullet struck the steering wheel “off-center to the left from the top of the steering wheel,” and a fragment hit Tousis in the neck. R. 62-2, at 21, ¶ 56. When comparing the location of the bullet hole in the windshield with the location of the bullet strike on the steering wheel, the positioning indicates that, at the moment that Billiot fired his weapon, “Tousis was turning his wheel to the right, maneuvering his vehicle away from Billiot, and Billiot was angled to the driver[‘s] side of the front end of Tousis’s vehicle.” Id.
After the shot was fired, Tousis’s car accelerated, veering to the right. The car struck a light pole, jumped a curb, and came to a stop. The car was moving fast enough that, when it hit the light pole, the front right wheel was torn off and the axle was broken. Officer Boehnke pulled up and saw that Tousis was slumped down and bleeding from the neck. Both Boehnke and Billiot tried to open the car, but the doors were locked and their efforts to break the windows with a hand strike, with a device called a “window break,” and with a baton were all unsuccessful. Eventually, Tousis was extracted from the car with the aid of an Illinois Department of Transportation worker who broke a window with a sledgehammer. Tousis was taken to a hospital where he was pronounced dead. Billiot was also taken to a hospital where he was treated for injuries to his back and released the same day. The police officers recovered approximately 300 grams of cocaine from Tousis’s car.[ii]
Tousis’s daughter filed suit on behalf of his estate and alleged that Agent Billiot violated the Fourth Amendment when he used deadly force against Tousis.
Agent Billiot filed a motion for summary judgment based on qualified immunity and the district court denied the motion. Agent Billiot appealed the denial of qualified immunity to the Seventh Circuit Court of Appeals.
On appeal, the plaintiff disputed the facts asserted by Agent Billiot, but the court of appeals noted that the facts of the case that were not in dispute were sufficient to resolve the appeal on this case. The relevant facts that were not in dispute are as follows:
[F]or the purposes of the qualified immunity analysis, the material undisputed facts demonstrate that Agent Billiot pulled in front of Tousis shortly after Tousis engaged in a reckless, high-speed flight from police officers after leaving a suspected drug house; that Billiot exited his car and ran toward Tousis, placing himself fewer than two car lengths from the front of Tousis’s car, shouting commands to turn off and exit the vehicle; that Tousis, turning his wheels to the right, began to move forward; and that Billiot then fired the fatal shot, fearing both for his own safety and for that of the public if Tousis resumed his reckless flight.[iii]
The court of appeals then examined the legal principles relevant to whether Agent Billiot is entitled to qualified immunity.
The court first stated
There are two inquiries in determining whether qualified immunity applies: whether the facts, taken in the light most favorable to the party asserting the injury show that [1] the officer’s conduct violated a constitutional right; and [2] whether the right at issue was “clearly established” at the time of the officer’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009); [iv]
The court of appeals then decided that they would skip the first prong of the qualified immunity analysis in this case and examine whether the law was clearly established. If the law was not clearly established, the deputy is entitled to qualified immunity, even if he violated the Fourth Amendment. The court explained the concept of “clearly established” law and stated
Clearly established” means that, at the time of the officer’s conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful. Gupta, 19 F.4th at 1000 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011)).[v]
The court of appeals also examined Supreme Court precedent related to deadly force and stated
The Supreme Court has held that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); see also Tolliver, 820 F.3d at 245 (same). The fact-specific nature of whether an officer used excessive force depends on the totality of the circumstances surrounding the encounter. Tolliver, 820 F.3d at 245; Scott v. Edinburg, 346 F.3d 752, 756 (7th Cir. 2003).
If a suspect threatens the officer with a weapon, that risk of serious physical harm has been established. … In assessing whether force was excessive, we must analyze the actions of the officer from the objective perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. … Moreover, the reasonableness calculus must allow for the fact that officers are often forced to make split-second decisions about what amount of force is necessary in circumstances that are tense, uncertain and rapidly evolving.
Tolliver, 820 F.3d at 245 (citations omitted).
An automobile may be used as a deadly weapon. Tolliver, 820 F.3d at 245; Scott, 347 F.3d at 757.[vi]
The court of appeals then set out to examine the facts of Tousis’s case in light of the legal principles above. The court stated
[T]he most important fact for the legal analysis of the claim of qualified immunity is whether Tousis’s car was in forward motion in the vanishingly small space between that car and Agent Billiot at the moment Billiot fired the rifle.[vii]
The evidence showed that, as Agent Billiot fired at Tousis, Tousis was steering to the right, away from Agent Billiot, while his vehicle was in motion, in what appears to be an attempt to escape. The plaintiff acknowledged that, “as soon as Tousis’s vehicle pulled forward, Billiot fired his weapon.”[viii]
The court of appeals also examined Tolliver v. City of Chicago,[ix] which is very similar to the facts of Tousis’s case. In Tolliver, the plaintiff was involved in an altercation with police as they tried to arrest him for possession of cocaine. Officers were on foot, closer than two car lengths from his vehicle, when he started driving forward in “the general direction of the officers.”[x] The plaintiff alleged that Tolliver was only going 3 mph at the time but the court noted that the officers were very close and had to make a split-second decision. The officers fired shots at Tolliver injuring him. The Seventh Circuit concluded
[Q]ualified immunity applied to the officers’ actions because “[r]easonable officers in their circumstances would have perceived the car as a deadly weapon that created a threat of serious physical harm.” Tolliver, 820 F.3d at 246.[xi]
The court of appeals, noted the facts were very similar to Tousis’s case and stated
As in Tolliver, Billiot was immediately in front of Tousis’s car, much less than two car lengths away, when the vehicle began to move forward. That the wheels were turned to the right does not change the calculus. First, in a very small space, even a car maneuvering to the right poses a serious danger to a person standing in front of it. Cars making turns do not proceed horizontally; they follow an arc, and the undisputed evidence establishes that Billiot was standing very close to the front end of Tousis’s car when it began to move forward and to the right. Indeed, Aleia repeatedly faults Billiot for placing himself in the zone of danger. Response Brief at 11; R. 62, at 13, ¶ 44. Second, Billiot had no way of knowing whether Tousis would change direction or accelerate. As in Tolliver, a reasonable officer in these circumstances would be in fear of being hit by the moving vehicle.[xii]
The plaintiff argued that Tousis was not attempting to hit the officer but rather trying to “evade Agent Billoit.” However, the court of appeals stated that the agent would have “no way of knowing Tousis’s intentions and was forced to act …on what he knew at the time.”[xiii] Particularly, Agent Billiot knew that Tousis had already fled from officers at dangerously high-speed, weaved in and out of traffic, and endangered the lives of other motorists and police as he fled. Based upon the dangerousness of Tousis’s original flight from police, the court of appeals also examined the Supreme Court’s holding in Plumhoff v. Rickard.[xiv] In Plumhoff, the plaintiff, Rickard, fled police in vehicle traveling over 100 mph, passed over two-dozen other motorists, in a five-minute pursuit, as he fled posing a “grave public safety risk.” Rickard collided with a police vehicle, and his car came “temporarily to a near standstill.” However, approximately three seconds later, Rickard resumed maneuvering his car. Rickard’s wheels were spinning as he pushed the accelerator, and then he put the car in reverse, to further attempt to escape. The officers began shooting at Rickard to stop him from escaping and further endangering the public and other officers. The Supreme Court stated
Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.[xv]
The court of appeals noted that
In those circumstances, the [Supreme] Court concluded that the police acted reasonably in using deadly force to end that risk. 572 U.S. at 777[xvi]
The court of appeals then applied the principles of Tolliver and Plumhoff to Tousis’s case and held that
A reasonable officer could have concluded both that Tousis was intent on resuming his flight and that he would again pose a serious danger to public safety. In light of Tolliver and Plumhoff, Billiot’s actions thus did not violate clearly established law; in fact, established law holds to the contrary that the officer’s actions were objectively reasonable in substantially similar situations.[xvii]
The plaintiff argued that the Estate of Starks v. Enyart[xviii] supports her contention that the law was clearly established that it was not reasonable to use deadly force in Tousis’s case. However, the court of appeals distinguished Stark from Tousis’s case because, in Stark, the plaintiff alleged that the officer that fired the shots stepped in front of Stark’s moving vehicle. However, in Tousis’s case, Agent Billiot exited his car and stood “before a stationary vehicle that was originally blocked by traffic.”[xix] As such, the agent did not “create the danger,” but rather, Tousis created the danger when “he began to move forward toward the” agent.[xx] Therefore, Stark does not clearly establish the law in this case and Agent Billiot is entitled to qualified immunity.
Thus, the court of appeals reversed the district court and remanded the case with instructions to grant Agent Billiot qualified immunity.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-2211 (7th Cir. Decided October 18, 2023)
[ii] Id. at 2-7
[iii] Id. at 11-12
[iv] Id. at 13 (emphasis added)
[v] Id. at 14 (emphasis added)
[vi] Id. at 14-15 (emphasis added)
[vii] Id. at 7-8
[viii] Id. at 8
[ix] 820 F.3d 237 (7th Cir. 2016)
[x] Tousis at 16
[xi] Id.
[xii] Id. at 16-17 (emphasis added)
[xiii] Id. at 17
[xiv] 572 U.S. 765 (2014)
[xv] Id. at 776-77
[xvi] Tousis at 19
[xvii] Id. at 19-20 (emphasis added)
[xviii] 5 F.3d 230 (7th Cir. 1993)
[xix] Tousis at 24
[xx] Id.
