On September 5, 2014, the Eighth Circuit Court of Appeals decided the Aipperspach v. McInerney et al [i], in which they upheld as reasonable the shooting of a man with a BB gun and held that a news helicopter’s video of the incident did not provide the perspective of officers on the scene. The relevant facts of Aipperspach, taken directly from the case, are as follows:

This tragic incident began when William Hart called the Riverside Police Department on March 18, 2010, reporting that a friend, Al-Hakim, refused to leave Hart’s apartment. Detective Billy Aaron and Captain Michael Costanzo were dispatched to Hart’s apartment. Hart informed them that Al-Hakim had come to borrow money, had left the apartment, and was headed into a nearby wooded area. After speaking with Hart, Aaron and Costanzo were told by police dispatch that there might be an unspecified warrant for Al-Hakim’s arrest. They began looking for Al-Hakim in the woods behind Hart’s apartment.

Riverside Police Sergeant Dennis Jones heard the police radio call and joined the search. Jones found Al-Hakim sitting at the bottom of a ravine. Jones identified himself and asked Al-Hakim to come up and talk. Al-Hakim refused and produced what appeared to Jones to be a black handgun but was in fact a Daisy 008 air pistol capable of firing steel BBs or lead pellets. Sergeant Jones drew his weapon and yelled to Al-Hakim to drop the gun. Hearing that command, Detective Aaron went down the hill to stand next to Jones, and Captain Costanzo radioed for assistance.

Additional officers from Riverside and neighboring police departments responded to Costanzo’s call for officer assistance. In depositions, each officer who observed Al-Hakim in the ravine testified that he believed Al-Hakim was holding a semiautomatic handgun. The Daisy pistol’s packaging was on the ground near Al-Hakim, but the summary judgment record does not show that it was visible to the officers.

The responding officers positioned themselves along the ridge on the edge of the ravine above Al-Hakim. Sergeant Ballard, armed with a rifle, positioned himself near Sergeant Jones to provide cover for the officers interacting with Al-Hakim. Officer Westrich, armed with a shotgun, and Officer McLaughlan, carrying an assault rifle, moved around the ridge above Al-Hakim and positioned themselves to Sergeant Jones’s right, partially covered by trees.

An audio from the lapel microphone of Gladstone Officer Christopher Morales recorded twelve audible requests by Sergeant Jones and other officers that Al-Hakim drop his weapon in the three and a half minutes prior to the shooting. Al-Hakim did not comply. During most of the encounter, he kept the muzzle of the gun pointed at his own body or head, but at one point, Jones testified, Al-Hakim pointed the gun in Jones’s direction. Jones warned Al-Hakim that if he pointed the gun at the officers again, they would shoot. A minute or two later, Al-Hakim attempted to change position and slipped, falling backwards. The officers testified that as Al-Hakim regained his balance, he pulled the hand holding the gun away from his own chin and swung it up and around, pointing the gun in the direction of the officers on the ridge. One officer testified that Al-Hakim appeared intoxicated. Within seconds, defendants Ballard, Westrich, and McLaughlan and four other law enforcement officers fired their weapons at Al-Hakim. Ballard testified he perceived Al-Hakim as a threat. Westrich testified he feared for his life and the lives of the officers near him when Al-Hakim swung the gun around. McLaughlan testified he “felt endangered” by Al-Hakim’s sudden movement. The sound of the gunshots on Officer Morales’s lapel microphone lasted about four seconds.

A news helicopter circling overhead captured the incident on video. Consistent with the officers’ version of events, it depicts law enforcement personnel arrayed on the ridge in a half-circle above Al-Hakim, who is sitting at the bottom of a ravine holding a black gun in his left hand. The video shows Al-Hakim slipping and straightening back up. In the process, his left hand moves the gun away from his head, out in front of his body, and sweeps up toward the officers on the ridge. As Aipperspach describes that movement, “as if attempting to surrender.” Almost immediately, the video shows Al-Hakim fall as he is struck by multiple bullets. [ii]

Aipperspach, as the personal representative of the estate of Al-Hakim, filed suit against all the officers on scene and the department and argued that the shooting was excessive force under the Fourth Amendment.  The district court granted summary judgment for all officers and the department and held that the shooting was reasonable under the Fourth Amendment, finding the video was not relevant because the video could not answer the question of reasonableness of the officer’s action from their perspective on the ground.

Aipperspach appealed the district court’s ruling to the Eighth Circuit Court of Appeals. On appeal, the plaintiff’s primary argument was that the district court erred in disregarding the news helicopter’s video footage because it was “compelling evidence” that Al-Hakim was surrendering to officers when he was shot.

At the outset, court several important principals regarding evaluating an officers use of force against a suspect.  The court stated:

The reasonableness of a use of force turns on whether the officer’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his subjective intent or motivation.” Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). “The use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others.” Id. citing Tennessee v. Garner, 471 U.S. 1, 11 (1985).  We are hesitant to second-guess the “split-second judgments” of officers working in “tense, uncertain, and rapidly evolving situation[s].” Id. at 967, quoting Graham, 490 U.S. at 396-97. “It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard.” Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012) (quotation omitted). [iii] [emphasis added]

The court then applied the principals above to the case at hand.  The court noted that the responding officers were confronted with a suspect who appeared to be armed with a handgun, refused at least 12 commands to drop the gun, pointed the gun once at Sergeant Jones, and then waved it at officers in a manner they perceived as a threat of serious bodily injury.  The court held that these circumstances were sufficient to provide the officers an objectively reasonable belief that Al-Hakim posed a threat of serious physical harm to the officers.

The court then noted several cases that have reached similar conclusions.  The court stated:

We have held in prior cases that officers confronted with similar situations acted in an objectively reasonable manner when they employed deadly force. In Loch, the police officer reasonably believed the suspect had a gun, even though in fact the suspect had discarded his weapon before walking toward the officer. 689 F.3d at 966-67. In Morgan, the officer fatally shot a suspect armed only with a knife who disregarded repeated requests to drop his weapon and took a step in the officer’s direction. 686 F.3d at 497-98. In Sinclair v. City of Des Moines, we noted that “no constitutional or statutory right exists that would prohibit a police officer from using deadly force when faced with an apparently loaded weapon.” 268 F.3d 594, 596 (8th Cir. 2001). In Thompson v. Hubbard, we affirmed the grant of summary judgment in favor of an officer who shot and killed an unarmed fleeing suspect, based on the officer’s credible testimony that the suspect “looked over his shoulder . . . and moved his arms as though reaching for a weapon.” 257 F.3d 896, 898-900 (8th Cir. 2001). See also Penley v. Eslinger, 605 F.3d 843, 851-54 (11th Cir. 2010). [iv]

The court further considered with it was proper for the trial court to hold that the news helicopter video did not offer a perspective relevant to determine the reasonableness of the of the officer’s actions on the ground.

The Eighth Circuit noted that when a video blatantly contradicts the testimony of one party it should be considered during the summary judgment and qualified immunity decision.  However, in this case, the Eighth Circuit, after reviewing the video, stated that “the video confirmed the officers’ description of the sequence of events.” [v] Further, the court stated:

We agree with the general proposition that a video of the incident can create a genuine issue of material fact that precludes the grant of summary judgment in an excessive force case, just as a video established undisputed facts warranting summary judgment in Scott [v Harris]We nonetheless reject Aipperspach’s contention because the video in this case does not cast doubt on the factual sequence of events; at most, it supports an inference that Al-Hakim may have intended to surrender, despite refusing repeated prior demands to drop the gun, or that he may have waved the gun above his head to regain his balance, rather than to threaten the police officers. Those possible inferences are not germane to the issue of Fourth Amendment objective reasonableness. As the district court recognized, “the inquiry here is not into [Mr. Al-Hakim’s] state of mind or intentions, but whether, from an objective viewpoint and taking all factors into consideration, [each defendant officer] reasonably feared for his life” or the lives of his fellow officers. Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995). The video taken from high above the scene shed no material light on that question. [vi] [emphasis added]

The Eighth Circuit then held that officers did not violate the Fourth Amendment when they shot Al-Hakim and they affirmed the grant of summary judgment to all defendants.


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. 13-2942 (8th Cir. Decided September 5, 2014)

[ii] Id. at 2-4

[iii] Id. at 4-5

[iv] Id. at 6

[v] Id. at 7

[vi] Id. at 7-8

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