©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On January 30, 2012, the Eleventh Circuit Court of Appeals decided Terrell v. Smith[i], which serves as an excellent review of the law regarding the Fourth Amendment and use of force when officers are shooting at moving vehicles.  Before stating the facts of the case, it is important to note, that when considering a motion for qualified immunity, the court is required to view the facts in the light most favorable to the non-moving party (here, the plaintiff’s version of events).  Therefore, the facts presented here are those stated by Mr. Fazio, a friend of the decedent, Aaron Zylstra, who was present during the incident.  The personal representative of Zylstra’s estate, Terrell, is the plaintiff in this case.   As such, the facts presented here may be in dispute and may not fully represent what actually happened during the incident.   Before stating the facts, it is important to note that Zylstra and Fazio had been drinking heavily together the night of the incident.  Zylstra had driven both to the location where the shooting occurred for the purpose of smoking crack cocaine.  That said, the facts, viewed most favorably to the plaintiff, are as follows:

Fazio recounted that the two police officers at the scene directed him and Zylstra to exit their vehicle and kneel down behind Zylstra’s car while holding their hands above their heads. Fazio said that he knelt immediately behind and slightly to the side of the vehicle. Each officer approached the car from a different side with his weapon drawn. One of the officers remained in front of Fazio, while the other walked towards the driver’s side of the vehicle. Although Fazio was compliant with the officers’ commands, Zylstra acted as if he were going to kneel down, but instead he turned and jumped back into the vehicle. Officer Smith ran after Zylstra and managed to place himself in the open doorway of Zylstra’s car, an area that the parties call “the V,” as Zylstra attempted to make a U-turn in Smith’s direction. Smith continued to run in the V alongside the vehicle as it moved forward, repeatedly warning Zylstra to stop the car. The vehicle’s door and frame struck Smith’s body as Zylstra attempted to turn the vehicle. Fazio testified that “the under part of the open part of the door was hitting [Smith], kind of pushing him back.” After multiple warnings, Smith fired two shots, killing Zylstra. [ii]

Zylstra’s estate filed suit and claimed that Smith’s use of deadly force constituted excessive force under the Fourth Amendment.  Officer Smith filed a motion for summary judgment on the basis of qualified immunity.  The district court denied the motion and Smith appealed to the Eleventh Circuit Court of Appeals.

At the outset, the Eleventh Circuit noted that a Fourth Amendment excessive force case such as this is governed by the “objective reasonableness standard” from Graham v. Connor.[iii] Under this standard, the court stated that there are several legal principles that must be considered when evaluating a use of force.  The principles noted are as follows:

  • When determining whether a use of force was reasonable, the court must look at the facts from the perspective of a reasonable officer on the scene, with the same knowledge of the officer on the scene;

  • The court must balance the risk of bodily harm to the suspect against the seriousness of the threat that the officer sought to eliminate;

  • The officer’s actions must not be viewed with “20/20 hindsight;”

  • Police officers are forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving, regarding the amount of force to use in a particular situation; and

  • The right to make an arrest or investigatory stop carries with it the right to use some degree of physical force to effect the stop or arrest. [iv]

The Eleventh Circuit also examined the Supreme Court’s rule regarding deadly force from Tennessee v. Garner.[v]  Summing up Garner, the Eleventh Circuit stated:

[A]n officer may use deadly force to stop a fleeing felony suspect when the officer:
(1) “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others” or “that he has committed a crime involving the infliction or threatened infliction of serious physical harm;” (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.[vi]

The court then sought to apply the facts of the case at hand to the legal principles and rules above.  Terrell claims that the officer used excessive force to seize Zystra because the only offense committed was a minor civil traffic infraction under Florida law.  The Eleventh Circuit noted that it was undisputed that Zystra drove his vehicle without headlights in violation of Florida law and as such, Officer Smith had a valid legal justification to effect a stop.  This is so even the actual violation was observed by another officer and not by Officer Smith.

Thus, since Officer Smith had a lawful reason to detain Zystra, the court had to next determine whether it was reasonable to use deadly force to do so.  In answering this question, the court observed that both the officer and Fazio, Zystra’s friend whose version of events was largely relied upon by the Eleventh Circuit, state that Officer Smith repeatedly ordered Zystra to stop when he was fleeing in his vehicle.  As such, the Eleventh Circuit observed that, by failing to stop, Zystra was committing a violation of a Florida statute that makes it a third degree felony to fail to stop his vehicle in accordance with the officer’s order.[vii]  Further, the court noted that the officer is under no duty to retreat or abandon his effort to effect an arrest simply because the felony suspect was not being compliant.[viii]

The court further noted that both Officer Smith and Fazio both testified that Zystra refused to stop his moving car, and actually struck the officer.  In light of this fact, the court noted that they have previously held similar uses of deadly force against drivers of vehicles to be constitutionally reasonable under the Fourth Amendment. [ix]  Further, the court noted that in addition to the threat to Officer Smith, there was also “an immediate and foreseeable risk” to the other officer present and Fazio, as they were also in close proximity.

The court then held that Officer Smith acted reasonably within the Fourth Amendment when he shot Zystra.  Specifically, the court stated:

Officer Smith was forced to make a split-second decision concerning whether the use of lethal force was necessary. Beyond himself, two other people were within a few feet of the moving vehicle as these rapidly unfolding and uncontrolled events transpired. “Even if in hindsight the facts show that [the officer] perhaps could have escaped unharmed,” Robinson, 415 F.3d at 1256, an objectively reasonable law enforcement officer could well have perceived that the moving vehicle was being used as a deadly weapon, especially after the driver had been repeatedly ordered to stop. In short, Smith was attempting to make an arrest that he had the legal right to make while standing in a position where he was legally entitled to be. Zylstra refused to heed Smith’s commands to stop the vehicle and turned the car “in a dangerous and aggressive manner which provided the officers with probable cause to believe that [Zylstra] . . . posed a threat of serious physical harm or death to the officers, or other passersby, especially in light of the speed with which the incident unfolded.” McCullough, 559 F.3d at 1208. The use of lethal force was objectively reasonable under the Fourth Amendment. [x]

Although the court was not required to do so, they also analyzed whether there was any “clearly established” law that would have put Officer Smith on notice that shooting Zystra would have been unreasonable under the Fourth Amendment.  Noting that this “clearly established law” must come from the U.S. Supreme Court, the Eleventh Circuit Court of Appeals or the Supreme Court of Florida, the court concluded that the law was not clearly established that Officer Smith acted unreasonably when he shot Zystra.

In conclusion, the Eleventh Circuit reversed the district court’s denial of qualified immunity for Officer Smith.  Specifically, they held (1) that the officer acted in an objectively reasonable manner under the Fourth Amendment when he shot Zystra and (2) even if the officer had not been reasonable under the Fourth Amendment, the law was not clearly established; therefore, the officer would still be entitled to 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.



[i] 2012 U.S. App. LEXIS 1689 (11th Cir. Decided January 30, 2012)

[ii] Id. at 5-6

[iii] Id. at 10 (citing Graham v. Connor, 490 U.S. 386 (1989))

[iv] Id.

[v] Id. at 12 (citing Tennessee v. Garner, 471 U.S. 1 (1985)

[vi] Id. at 11-12

[vii] Id. at 15 (citing Fla Stat. Ann. §316.1935(1))

[viii] Id.

[ix] Id. at 17 (citing Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005); Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002); Long v. Slaton, 508 F.3d 576 (11th Cir. 2007))

[x] Id. at 23-24

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