On November 13, 2013, the Fourth Circuit Court of Appeals decided Ayala v. Wolfe [i] which serves as an excellent review of constitutional law regarding the police use of deadly force.  The facts of Ayala, taken directly from the case, are as follows:

In July 2010, at 1:45 a.m., Wolfe, an officer with the Lexington, North Carolina Police Department, responded to a report that three armed men had robbed a restaurant. The report indicated that the men fled on foot. Wolfe canvassed the area near the restaurant and saw Ayala walking just a few blocks away. Wolfe stopped his patrol car and instructed Ayala to put his hands on the hood of the patrol car. After Ayala complied with the order, Wolfe frisked him. Upon feeling a gun in Ayala’s waistband, Wolfe backed away from Ayala, moved behind his patrol car, and drew his service weapon. Without saying a word to the officer, Ayala moved his right hand from the patrol car to his waistband and removed the gun.

In response, Wolfe shot Ayala several times. The first bullet hit Ayala’s right hand and knocked the gun to the ground. Wolfe nevertheless continued to shoot Ayala in the torso until he fell. Ayala lost consciousness after hitting the ground and does not remember any shots after he fell. But despite being unconscious, Ayala “believe[s]” that Wolfe shot him in his back while he lay on the ground and that that bullet paralyzed him from the waist down.

The scene of the shooting was, in Ayala’s words, “very dark[.]” Wolfe declared that the “very bright” flash from his gun after he shot “further hindered” his ability to see. Wolfe did not know that Ayala dropped his gun after the first shot, but stated that he immediately stopped shooting once Ayala fell to the ground. Ayala testified that he had no idea what Wolfe could (or could not) see after the first shot, that he did not know whether his gun made a sound when it fell to the ground, and that he did not tell Wolfe—or otherwise indicate to Wolfe—that he no longer held the gun. Two witnesses declared that they heard a series of gunshots in the middle of the night, a pause of four or five seconds, and then an additional gunshot. In Ayala’s words, the time between Wolfe’s shots was “really fast.” [ii] [internal citations omitted]

In 2011, Ayala filed a lawsuit against Officer Wolfe and the Lexington Police Department and alleged violations of his Fourth Amendment rights as well as state law claims.  The district court granted summary judgment for the officer holding that the Ayala failed to present sufficient evidence to prove that Wolfe used excessive force when he shot him.  Ayala filed a timely appeal to the Fourth Circuit Court of Appeals.  This article will focus only on the Fourth Amendmentclaims.

Particularly, Ayala argued that the officer used excessive force when he shot him on three occasions; first, when he made the initial decision to shoot him, second, when he continued to shoot him after he dropped his gun, and third, when he shot him after he fell to the ground.

The Fourth Circuit first noted that a police officer’s use of force against another is governed under the Fourth Amendment’s objective reasonableness standard.  This means that the use of force must be judged based on the perspective of a reasonable officer on the scene and not using 20/20 hindsight. [iii]  The court then stated:

The intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985). Therefore, a police officer may use deadly force only when he has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others[.]” Id. at 11. When a suspect confronts an officer with a weapon, we have deemed the officer’s use of deadly force reasonable. See Elliott v. Leavitt, 99 F.3d 640, 642-43 (4th Cir. 1996) (holding that police officers’ actions were objectively reasonable when they shot a man who pointed a handgun at them after they had arrested him). As we have stated, “[n]o citizen can fairly expect to draw a gun on police without risking tragic consequences.” Id. at 644.

The court then looked at Ayala’s first argument in this case, particularly that it was excessive force for the officer to initially shoot him when he removed his hand from the car and reached for the gun.  Ayala argued that he never threatened the officer with the gun or pointed it at him before the officer began to shoot him.  However, the court held that under the facts of this case, specifically, that the officer ordered Ayala to keep his hands on the on the hood of the car and instead, Ayala removed his hands and reached for the weapon in his waistband, that:

a reasonable officer would have had probable cause to fear serious physical harm justifying the use of deadly force under the circumstances of this case…On these facts, Wolfe acted objectively reasonably in concluding that Ayala posed a threat of serious physical harm warranting the use of deadly force at the time of the first shot. [iv]

Ayala’s second argument was that, since he dropped his gun after Wolfe’s first shot, it was excessive force for him to continue to shoot at him.  Ayala cited the Fourth Circuit case of Waterman v. Batton [v], in which the court held that force that is justified at the beginning of an incident is not justified, even seconds later, if the justification for the initial force has been eliminated.  However, in Ayala’s case, the court noted that the above rule is not applicable because the reasonableness of the officer’s actions are determined based upon the information known by the officer at the moment the force is used. [vi]  In Ayala’s case, Wolfe testified that he could not see whether Ayala had dropped the gun due to the darkness and the muzzle flash from his weapon.  Ayala testified that it was very dark and he never informed the officer that he dropped the gun.  Further, the time between the shots was very fast.  As such, the court held that Ayala presented no evidence that a reasonable officer under these circumstances would have known that the original justification for the use of deadly force had been eliminated. [vii]

Lastly, Ayala argued that the officer used excessive force when he fired the last shot into his back as he lay on the ground.  However, the court noted that the experts testified that it could not be determined whether Ayala was lying down or standing when Wolfe fired the final shot.  Further, the court stated the fact that two witnesses heard a pause shortly before the final shot has little bearing on whether or not the officer reasonably believed Ayala to be a threat when that shot was fired.  Additionally, the officer testified that he did not shoot Ayala after he fell to the ground.  In light of these facts, the court held there was no evidence to support Ayala’s claim that the final shot was excessive force.

Therefore, the Fourth Circuit affirmed the grant of summary judgment for Officer Wolfe based on the Fourth Amendment claims.


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] No. 12-2157 (4th Cir. 2013)

[ii] Id. at 2-4

[iii] Id. at 5 (citing Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001))

[iv] Id. at 6

[v] 393 F.3d 471 (4th Cir. 2005)

[vi] Ayala at 7-8

[vii] Id. at 8-9

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